Unaccepted Proposals to Solve the Aguna Problem- Part IV
by Rabbi Howard Jachter

  As we have mentioned in the last two weeks, there have been interesting proposals made to solve the Aguna problem which have been rejected by the Orthodox rabbinate. There have been other very innovative suggestions, such as proposals made by Rav Yosef Eliyahu Henkin (Peirushei Ibra pp. 115-117) and Israeli Chief Rabbi Rav Benzion Uzziel (Teshuvot Mishpetei Uzziel, E.H. 1:27) which have simply not been accepted. What is crucial to note is that these proposals were not implemented in practice, because the rabbinic consensus rejected these proposals. Radical changes to Gittin procedures require a rabbinic consensus because of the potential for a communal split if part the community rejects the proposal.

  Similarly, Rabbi Emanuel Rackman has for decades proposed an all encompassing solution to the Aguna problem which has been rejected by virtually the entire Orthodox rabbinate. Rav Yosef Dov Soloveitchik took special effort to publicly reject the validity of Rabbi Rackman's proposal in the strongest terms possible (in a speech made to the Rabbinical Council of America which is partially quoted in the Journal of Halacha and Contemporary Society 9:140-141).

  Rabbi Rackman continued to float his idea for many years but did not act upon it. Very recently, however, Rabbi Rackman along with Rabbi Moshe Morgenstern established a court which acts on Rabbi Rackman's proposals which been previously rejected by the rabbinic world. Indeed, every major Orthodox rabbinic organization from the Beth Din of America (the Beit Din of the Orthodox Union and the Rabbinical Council of America), the Israeli Chief Rabbinate, Agudas Yisrael, and Badatz has rejected the actions of the Rackman-Morgenstern court.

   The tragic consequences of the actions of this court are enormous. Recent newspaper articles report that this court claims to have told more than two hundred women that Jewish law permits them to remarry without a Get. Virtually the entire Orthodox rabbinate will regard any children that these women will give birth to as "Mamzeirim."

   In the coming essays we will briefly explain why the Orthodox rabbinate rejects the actions of the Rackman-Morgenstern court. A lengthier rebuttal of Rabbi Rackman's argument will appear in the forthcoming issue of Tradition and in an essay authored by Rav J. David Bleich.

   Rabbi Rackman bases his approach on a number of responsa written by Rav Moshe Feinstein regarding "Kiddushei Ta'ut" (marriages that lack halachic validity because the marriage was entered into on a fraudulent basis). We will summarize the basic approach of Rav Feinstein, seek to demonstrate how Rav Moshe was extraordinarily lenient and applied the halacha to its very limits, and see how an attempt by Rabbi Rackman to further extend this ruling is baseless. We will begin discussing Rav Moshe's Kiddushei Ta'ut responsa.

Talmudic Background to Rav Feinstein's Responsa

   The Gemara does not explicitly address the validity of a marriage in which a wife discovers unrevealed defects in her husband which were in existence prior to the wedding. Rather, it discusses the Halachic validity of a marriage in which the man discovers unknown defects in the woman he married that existed prior to the marriage.

   The Mishna (Ketubot 72b) discusses a case where a marriage was entered without any explicit conditions articulated by either the man or the woman. After the wedding the man discovered preexisting "defects" ("Mumin") in the woman. The Mishna teaches that in such a case a Get is required to terminate the marriage but the husband is not required to pay the Ketuba. The Gemara explains that only when the defect is one that most people would find intolerable is the man not required to pay the Ketuba.

   Tosafot (ad. locum s.v. Al) explains that the Get in this case is required merely because of doubt (Tosafot is unsure whether this Get is required biblically or rabbinically). The Halacha does not say that the marriage is invalid on the grounds that it was entered on a fraudulent basis, "Kiddushei Taut." Rather, since it is possible the man would have entered the marriage despite the woman's defects, one cannot conclude with certainty that the marriage is invalid because of "Kiddushei Taut." Thus, a Get is required in order to be safe and to avoid any concern of Mamzeirut regarding children produced by the woman in a future relationship. The husband, however, is not required to make the Ketuba payment because monetary payment cannot be extracted if his obligation is in doubt. This is an application of the celebrated Halachic principle of "Hamotzi Mei'chaveiro Alav Ha'raayah" (the burden of proof rests upon the individual who demands the money).

Tosafot - The Ailoneet Case

   Tosafot (ad. loc. s.v. Al; Yevamot 2b s.v. Oh, and Gittin 46b s.v. Hamotzi) points out a seeming contradiction between the Mishna in Ketubot 72b and the Mishna in Yevamot 2b. In Yevamot 2b the Mishna seems to indicate that if a major defect was discovered after the wedding no Get is required. Presumably, this is due to the fact that the marriage was entered on a fraudulent basis and thus considered invalid. The specific case the Mishna is speaking of is when the woman is discovered to be an "Ailoneet" (a woman devoid of feminine characteristics - see Encyclopedia Talmudit for further details).

   Tosafot distinguishes between the two cases. If a decision is reached that a particular woman is undoubtedly an "Ailoneet," the marriage is considered invalid and no Get is required. If the defect is less severe than an unambiguous "Ailoneet" defect, the marriage may nevertheless be valid and a Get is required. In an Ailoneet case, the Rosh (Ketubot 7:10) explains that since the primary reason for marriage is to produce children, since no children can be produced by an Ailoneet, this marriage is viewed as a "Kiddushei Taut" and no Get no is required.

   A weakness in Tosafot's argument is that there is no explicit textual proof in the Talmud for their conclusion. Accordingly, many Rishonim rule that even in the Ailoneet case a Get is rabbinically required for fear that perhaps he would have married her, despite her status as an Ailoneet (Nimukei Yosef, Yevamot 1a in the pages of the Rif s.v. Oh Nimtzeu, quoting Rabbeinu Tam, Maggid Mishna Hilchot Ishut 4:10, and Rambam according to the Lechem Mishna ad. loc.) The Mishna which appears on Ketubot 100b states that an Ailoneet is not entitled to a Ketuba, from which Rabbeinu Tam infers that she does, on the other hand, require a Get. Indeed, the Mishna in Gittin 46b specifically addresses the case of one who gives his wife a Get because she is an Ailoneet! Tosafot responds that the woman spoken about in this particular Mishna is merely a "Safek Ailoneet" - her status as an Ailoneet is in doubt. Tosafot, however, cites no Talmudic texts to support this contention.

Shulchan Aruch and Commentaries

   The Beit Shmuel (E.H. 39:15) cites Tosafot's opinion that if the wife was discovered to have been undoubtedly be an Ailoneet no Get is required. However, he cites Rabbeinu Tam's view (E.H. 44:7) that a Get is nevertheless required rabbinically even if it was discovered beyond a shadow of a doubt that the woman is an Ailoneet. The Aruch Hashulchan (E.H. 44:5) rules in accordance with Rabbeinu Tam that a Get is required (for an incisive explanation of Rabbeinu Tam's opinion see Chazon Ish E.H. 79:16). The Chelkat M'Chokeik (39:9) and the Beit Shmuel (39:16) both note a vitally important point regarding "Kiddushei Taut." They write that only if the man or woman complained immediately about the problem can a claim of "Kiddushei Ta'ut" be made. If, however, they failed to complain about the problem immediately, the absence of complaint is deemed as acceptance of the defect. Even if the person complained later about the defect, the marriage is undoubtedly valid. The Aruch Hashulchan (E.H. 39:13) also notes that if they remained together as husband and wife for "much time" the marriage is certainly valid despite the defect since remaining together indicates that the husband considered the "Mum" to be insignificant.

Conclusion

   We have reviewed the various opinions regarding the halacha concerning a man who finds a preexisting defect in the woman he married. Poskim debate whether the marriage can be invalidated even if she has an enormous defect such as being an Ailoneet. What emerges is that all opinions agree that there are precious few circumstances in which a marriage can be invalidated if the man finds a severe defect in the woman he married.

   Finally, to illustrate that Halacha rarely declares a marriage invalid because of a defect the husband found in his wife, we will cite a responsum of the Teshuvot Noda B'Yehuda (2:E.H:50) cited by Pitchei Teshuva (E.H. 39:5). The case is where a Kohen married a woman who represented herself as a widow, but was later discovered to be a divorcee. The Noda B'Yehuda rules that the marriage may possibly be valid and the woman requires a Get to permit her to remarry, despite the fact that it is fairly obvious that the Kohen would never have married her, had he known she was a divorcee.

   Next week, God willing and Bli Neder, we will discuss the debate among the Acharonim regarding a situation where a woman finds a severe defect in her husband which predated the wedding. We will discuss Rav Moshe's extraordinary leniency in this matter and Rabbi Rackman's rejected attempt to greatly expand upon Rav Moshe's extraordinary leniency.