Volume 20 Number 05
                       Produced: Thu Jun 15  1:58:39 1995

Subjects Discussed In This Issue: 

Betrothal of Minors - rejection of counter-arguments
         [Mottel Gutnick]
Betrothal of Minors: Takana proposal
         [Chana Luntz]


From: Mottel Gutnick <MOTTEL@...>
Date: Wed, 14 Jun 1995 19:08:57 GMT+1000
Subject: Betrothal of Minors - rejection of counter-arguments

Betrothal of Minors - rejection of counter-arguments

Zishe Waxman (31 May, v19#83) believes that the power of the Beth-Din to
annul a marriage is dependent on the husband's intent, or assumed intent,
in making the marriage subject to Rabbinic law ("k'dat Moshe v'yisrael"),
and would not operate in cases where it is clear that there was no such
intent. Others since then (Akiva Miller, 6 June, v19#91, and Zvi Weiss, 8
June, v19#99) agree. I shall prove, later, that this is fallacious. First,
however, I should like to dispose of two other counter-arguments advanced
by Zvi Weiss on 8 June in v19#91:

He writes (under the subject heading "Betrothal of Minor Brides"):

 > It is not clear how easily the enactment of Rabban HaGamliel Hazaken
 > can be extended because:
 > 1. It may require a "convocation" of "semukhim" (i.e., rabbis with the
 >    "real" ordination -- which no longer exists in our time).
 > 2. As pointed out earlier, if the father does NOT use the "formula"
 >    K-dat Moshe V'yisrael -- there may be no "hook" for the Sages to
 >    use.
 > 3. It is not clear that all the Poskim would accept such an approach
 >    -- Since the time of Rabeinu Tam, there appears to have been a
 >    "thread" in halachic thought which mandates that we do NOT attempt
 >    to dissolve marriages -- no matter what the situation and no matter
 >    how horrible.

(I have omitted the fourth point which seems to be a citation in support
of objection 3.)

Re objection 1 (that a Takana requires "real semukhim"):

This clearly runs counter to the dictum (I can't quote the source, but I'm
sure it will be eminently familiar) that our halachic authorities are the
contemporary authorities of each generation and we must rely upon them for
halachic guidance. ("Ein lecha ela shofet shebeyamecha" and other, similar
dictums.) (See Devarim 17, Rosh Hashana 24b, and Rambam: Hilchot Mamrim
II:1, quoted below.) This is not to say that a later authority is
inherently superior to an earlier one (indeed the contrary is assumed
throughout Rabbinic literature), it means, rather, that we are *NOT* at
liberty to argue that the Rabbis of our generation do not speak with the
same halachic authority that Rabbis of previous generations had vis-a-vis
their own generation, and that their rulings are, therefore, of lesser
account than the rulings of the Rabbis of previous generations.

Not to accept this dictum, and to argue that, for example, our Rabbis
have lost the authority to impose Takanot where they regard it necessary
"mishum tikkun ha'olam" (for ethical or socio-economic considerations),
is to argue that Halacha has become, in our hands, a lame duck.

This is quite distinct, incidentally, from the problem of obtaining
widespread concensus on a proposed Takana. Admittedly, it would be a
tall order to bring on board the far right wing in this matter --
precisely the communities for which this Takana is needed most, it would
seem -- but, if it could be done, it is preposterous to argue that the
Rabbis would not have the required authority, halachically, to do so.

In fact, as I mentioned in my previous post (8 June, v19#96), precisely
such a Takana was adopted in Israel in 1950. It may not (in fact it
almost certainly does not) apply outside Israel, and it may not have
been enacted with universal concensus in Israel, but nobody, as far as I
know, would argue that their Takana has no standing because the Rabbis
themselves lacked the halachic authority to enact it.

(The quotation below from the Tashbaz in response to objection 4 is also
relevant to this point.)

As mentioned above, I shall deal with objection 2 last.

Re objection 3 (that we no longer attempt to dissolve marriages):

In the "Piskei Din Shel Battei HaDin HaRabbanyim BeYisrael" (Law Reports
of the Israeli Batei Din) v 7, p 352 ff (case nr: appeal 5733/217,
5734/61) The following appears amongst the "maskanot" (conclusions)

Note that in these reports the "maskanot" appear immediately following
the case outline and prior to the body of the Psak-Din (decision) which,
firstly, describes the details of the case and then sets out the
halachic arguments and citation of sources supporting the decision. The
report then concludes with the ruling of the Beth-Din (which also
includes the dissenting, minority opinion, if there is one.) The
"maskanot" therefore, are distinct from the ruling in the case. They
represent, in outline form, the main conclusions drawn from the halachic
arguments in the body of the Psak-Din, and which form the principles
that guided the Dayyanim in their ruling.

I shall quote the relevant maskana (no. 2) in the original, then translate

    Yesh koach biyedei Beit-Din lehafkiya nissuin mikol sug shehu veaf
    levakashat tzad echad, im yir'eh lo hadavar ketzudak lefi hamemtzaim
    shehayu lefanav, hen al-yedei kefiyah le'get, vehen al-yedei kol
    derech acheret.

    A Beth-Din has the power to dissolve any type of marriage, even upon
    the application of [only] one of the parties thereto, if it sees fit
    to do so having regard to the circumstances laid before it, whether
    by means of compelling [the husband to give] a get, or by any other

It is true that that particular case is one where the marriage was a
civil marriage, but the argument in the body of the Psak-Din is expanded
to cover all types of marriages (see below). Furthermore, it only
strengthens the applicability of the argument to our case because it is
doubtful whether one could argue actual intent, or assumed intent, on
the part of the husband in a civil marriage that the marriage should be
subject to Rabbinic law, yet, despite this supposed "flaw", the Rabbis
in this case argued unequivocally that the Beth-Din has the power to
order the dissolution of the Marriage. It should be noted that, in
general, Halacha recognises civil marriages as legally binding because
"chazaka ein adam osei beilato beilat zenut". (This is a reasoning which
serves to validate such a marriage halachically by assuming that the
consumation of the marriage constitutes a Biblically valid means of
effecting a marriage.)

In the body of the decision they have this to say:

    Furthermore, the Beth-Din always has full authority to force a
    dissolution of all marriages ("lachuf al pirukan"), of whatever
    category they may be, upon application of either party, if it sees fit
    do so having regard to the circumstances laid before it, by compelling
    [the husband to give] a Get, in certain categories of marriage, or, in
    certain categories of marriage, by granting a decree of annulment
    ("psak-din shel hafka'ah") in cases where chazal said "the rabbis
    dissolve the marriage", or by invalidation ("bittul"), as in cases of
    which it was said [by chazal] "he acted improperly ..." which also fall
    under the law of annulment or dissolution. [In] all [such matters the
    Beth-Din decides] according to its view [of the matter at hand.]

Now to turn to the argument raised in objection 2 and mentioned by others
that Rabbinic power to annul a marriage applies only where the formula
"k'dat Moshe veYisrael" was uttered or where such intent can be assumed.
(That is, the intent to make the marriage subject to Rabbinic law and,
hence, the sanction of the Rabbis.)

As we have already seen from the above Psak-Din, this argument is
clearly rejected by practicing Dayyanim in Israel. It only remains to
explain why.  The argument may sound like a specious one, however it is
clear from other examples in the Talmud that the Talmud does not rely
solely on the above rationalisation for asserting that the Rabbis have
this power of annulment.

In the discussion of Rabban Gamliel I's Takana and the ruling of Rabban
Gamliel II that the Rabbis uphold a Get cancelled in defiance of the
Takana even though it is invalid by Biblical law, the Gemara advances
the reasoning "Kol hamekadesh adaita derabbanan mekadesh" merely to
counter the claim that a proof may be adduced from this that the Rabbis
have the power to overturn Biblical law. (They may well have such a
power, as we shall soon see, but it cannot be conclusively proved from
the ruling of Gamliel II since there is an alternative justification for
annulment in that case.)

The Talmud does however cite two other cases in which the very act of
marriage itself (unlike the case where Gamliel's Takana is flouted) is
conducted "improperly" (i.e. in an unethical manner) although legally,
from the point of view of Biblical law. This is the story that took
place in Narash where a man snatched a bride to be from under the very
chupa and married her. Although she subsequently agreed to the marriage
with her kidnapper, the Rabbis declare the marriage void and the Gemara
defends their right to do so, despite the fact that it was valid
Biblically, on the grounds that "since he acted improperly, they [may]
also act improperly towards him and annul his marriage."

Tosafot, noting the different reasoning applied here, make the point
that one cannot really say that there is an understanding with such a
marriage, that the husband intended it to be subject to Rabbinic
sanction. Hence the "tit for tat" justification of the Rabbi's
"improper" action in going against the rule of Torah law in this
case. They point out that this shows that in both of the cases where the
Gemara advances this justification, it shows that the Rabbis have the
power to overturn Biblical law. (Baba Batra 48b, Tosafot commencing
"Tenach ...").

The Jerusalem Talmud does not go through the same hoops trying to
justify Rabbinic power to overturn Biblical law. In Gittin 4:2, they use
this dictum (and not the possible alternative justification advanced by
the Babylonian Talmud) to justify Gamliel II's upholding of a Get that
is cancelled in defiance of Gamlile I's Takana, even though, by Biblical
law the Get is "like a worthless piece of broken pottery."

They prove this from a Mishna which states that by Biblical law a man
may amalgamate raw and processed produce (i.e. grapes with wine, or
olives with oil) for the purposes of assessing Truma (priestly tithes)
due upon the produce as a whole, and pay the Truma due on the
amalgamated produce from either the raw produce alone or the processed
produce alone (e.g. with just grapes or just olives). Beit Hillel
however say that this is robbing the priests (of their fair share of oil
and wine in the above example) and one should not do so. Moreover, if a
person does so in defiance of the ethical advice of Beit Hillel, the
Truma is not Truma. (i.e. the halacha is according to Beit Hillel which
means that, by virtue of a Rabbinic decree, food which, by Biblical law,
is sacred and for consumption by kohanim only, loses its sacred status
and may be eaten by a non-kohein.)

All of the above is discussed in great detail (along with other
examples) in Rabbi Eliezer Berkovits's book (which I mentioned in my
last posting) "Not In heaven; The Nature and Function of Halakha".

In response, also, to Tzvi Weiss's objection number 4 (which is really
an extension of number 3) I should like to say that where there is a
Rabbinic will there is a halachic way (I did not coin this, but I forget
who I first heard it from). In other words, it is all very well to cite
cases where Rabbis hesitated to apply a particular principle, however,
this does not invalidate the principle, and Rabbis are entitled to rely
upon it where they see a necessity for it. (This is the reason for the
preservation of minority opinions in Talmud and Halacha.)

In support of this argument, Rabbi Berkovitz quotes the Rambam
(Maimonides) and Tashbaz (Teshuvot (responsa) of R. Shimshon b. Zaddok):

Rambam: Hilchot Mamrim II:1

    If a Beth-Din interpreted [the law] according to the rules [of Torah
    interpretation] as it saw fit, and another Beth-Din arose after them
    and saw fit to adopt a different argument abolishing that of the
    previous one, it may abolish that argument and rule as it sees fit.
    For it is written "... to the Judge that will be in those days",
    [i.e.] you are only under the jurisdiction of the contemporary
    Beth-Din of your own generation.

Tashbaz part 2:8

    I know that one finds in the works of great latter-day authorities,
    o.b.m., that in such an event one does not compell the husband at all
    [to give a Get], nevertheless, neither are we as "mere reed cutters
    along a pond", and in matters that depend on common sense "the judge
    must rule according to his own perception [of the case]".
    (The quotations are Talmudic sayings)

I once overheard a conversation between my Grandfather, Rabbi Abrahamson
and my father, Rabbi Sholem Gutnick.

My father has been (for some 15 years or so) Av of the Melbourne
Beth-Din and, for about 40 years, has served as Rabbi of Caulfield Shule
(one of the largest mainstream Orthodox congregations in Melbourne.) His
step-father, Rabbi Abrahamson, served for many years as a Rabbi in both
London and Sydney and, at the time of his death, had been for many years
Av of the Sydney Beth-Din. He was also a Posek in his own right and was
consulted by both lay people and other Rabbis not only on matters of
Yoreh Deah (ritual law) but in matters of Dayyanut (family and civil
law). He took this role very seriously, producing many written Teshuvot,
and perceived his responsibilities towards Halacha not just in terms of
being its custodian or curator (as a "mere reedcutter along a pond") but
as its steward, and was guided, in its application, by the spirit of its
ethical imperatives.  He tried very hard to alleviate those cases of
Aguna in which he was able to exert some influence.

In the conversation at which I was present (but not a party to) my
father asked him what he would do if called upon to rule in a particular
case involving Mamzerim. (It was shortly after the famous Goren case,
which was how the discussion came up, but they may have been discussing
a different case.) He answered that he would have no hesitation in
implementing a ruling (in the case in question) based on the declaration
of Tosafot that one could be metaher mamzerim using the loophole (which
I described in my previous post) opened up by the ruling of Gamliel II
and the Gemara's defense of that ruling. This was not an actual
Psak-Din, since the case in question never came before my grandfather,
and I do not cite the conversation as though it were an Halachic
precedent, just as an example of how a Posek who took his
responsibilities seriously enough to be unafraid of going out on a limb
when he felt there was a moral imperative to do so (and he demonstrated
this sort of courage in many instances), should operate to uphold the
dignity of Torah.


From: Chana Luntz <luntz@...>
Date: Sun, 11 Jun 1995 13:58:58 +1000 (EST)
Subject: Betrothal of Minors: Takana proposal

In mail-jewish Vol. 19 #96 Digest Mottel Gutnick 
<MOTTEL@...>  writes

>          A proposal for a Halachic solution to child Agunot:

> There is a well established general principle in Halacha, first laid
> down in the Talmud, that, where the situation warranted it, the Rabbis
> arrogated to themselves the power to "uproot" even a Biblical law, where
> there was a moral or social imperative to do so. 

[much deleted, to save bandwidth}

> In our case however, where the "tikun ha'olam" (social) imperative is
> every bit as great, and perhaps more so, than the one which motivated
> Rabban Gamliel Hazaken, there are good grounds for arguing that the
> Rabbis have every right to assert the necessary authority over child
> marriages by virtue of the authority granted them over marriage in
> general by the Talmudic defence of Rabban Gamliel II's ruling.
> If this reasoning is not, in itself, compelling enough, it may be
> necessary to find precedents in which later Rabbis (after the Tosafot)
> have asserted such authority in practice, before the Rabbis of today
> will be able to muster the courage to follow suit. I have some
> information which, whilst not an actual precedent, is, nevertheless, an
> indication that the above argument has some merit, but I would rather
> leave that until some other time, after this suggestion has, hopefully,
> been more fully aired and commented on.
> What do you think, Chana?

Hello Mottel, well since you asked:

I thought of this also. In fact it seemed to me that the case in Yevamos 
110a is more analogous than the case that you cited (I think you will 
find the source is Gitten 33a). As I recall, there are four cases where 
this power to uproot a marriage is used a) in the case you cited where 
the man tries to retract the get after he has given it to a shaliach; b) 
when a schiv mera gives a get and then gets well (see Gitten 73a), c) 
when a man says the get is a get if I don't come back for 30 days, and he 
gets stopped on the other side of the river and can't make it back (see 
Ketubos 2b-3a), and the fourth case in Yevamos, which is the only one 
where we are not dealing with a get that 'went wrong' if you like, 
rather this being a case of where the women were forcably snatched, and 
the rejoinder of Rav Ashi being that since they (the snatchers) did not 
act appropriately, then we do not act appropriately with them, and we 
uproot the kiddushin (I even wondered if in some way we could try and fit 
our case specifically into this one, but I don't think we can).

But, I have to say that for all the existence of these powers there are 
two problems involved. The first is to use this, let's face it very 
radical power, you probably do need a Sanhedrin, after all, as you 
pointed out, it was Rabban Gamliel who did it. I would be interested in 
hearing about your cases that indicate that such a power has been used 
more recently, I think this is something we would need before it could be 

The second problem, as Eliyahu Teitz (and others) have pointed out, is 
that our community is so fragmented. I, quite frankly, don't see anybody 
with the power or authority to institute any level takana, certainly in 
America. The groups are just too diverse, - you would need somebody who 
is recognised across the board, and there really is nobody. As has been 
pointed out, we are unlikely even to get a community wide cherem, which 
is *much* easier. If we can't even do that, I just don't see a takana 
taking effect - maybe if Rav Moshe was still alive, perhaps, but there is 
nobody of his stature around, and for a takana you really do need 
somebody acknowledged as the gadol hador.

On the other hand, we may be missing something here. We have spent a fair 
bit of time lamenting how fragmented our community is, but that is not 
strictly speaking fully true. We are in bits and pieces, but in 
relatively tight bits and pieces. After all, most of us fit into a 
community in which there is some posek/gadol over us. That must be true 
for the men involved here as well. It must be possible to find out where 
they daven and where they learnt and who they look to. If they are 
chassidim, the ultimate authority is easy, but even if they are from the 
yeshivishe world, there are only a limited number of poskim and 
authorities in that community. And if *that* person were to institute a 
cherem, where are these men, and the shalom bayis organisation to go? Or 
even not a cherem, if the relevant Roshei yeshivos or gedolim were to 
declare a fast day on all their alumnui and communities to mourn the 
terrible chillel Hashem that has been caused by their community, and they 
speak out about this evil, I think that might go very far towards 
solving the problem.

And it ought not be that difficult to find this out. Who are/were the 
Roshei Yeshivos at the place where Israel Goldstein et al learnt? Who are 
the poskim for the place where they daven? Who, if anybody do these 
authorities look to? Given the area Flatbush/Boro Park, names do
spring to mind, but obviously one should not jump to conclusions.

But ultimately shouldn't it be made clear to the relevant authority that 
since he is ultimately responsible for the cancer in our midst, it is up to 
him to come up with a solution, or at least be seen to be doing his very 
best. After all, I imagine that we are *not* talking about a talmid (or 
even a talmid of a talmid) of Rabbi Bleich, so although it is very good
that he is willing to impose a community wide cherem, if it is not in his 
community that the problem is, it is of little help that he does have the 
courage to exercise true leadership.

And if true leadership is not being exercised in this community, then 
aren't we at least entitled to know what institutions our tzedaka dollar 
should not be going to support, and whose pronouncements we should view 
with a great deal of scepticism.

So I too want to know who these men are - but not just who they are - 
what institutions nourished them and produced them, and who bears the 
responsibility for that teaching and leadership, and what that leadership 
is doing to solve the problem.

> Mottel Gutnick, Melbourne, Australia.



BTW just a small point, but (Mottel knows this but for the rest of 
the list) Heather is my English name. I do not think it fair to expect 
general Australian society to constantly have to fall over what to them 
is a very difficult name. Hence Heather is my professonal name, my name 
on my bankbook and cheque account, and hence on my email account. However 
it is not the name i am known by among Jews, and the use of it on this 
list makes me want to look over my shoulder and wonder who you are 
talking about. I like Chana, it seems a nice middle path between Heather 
and Chana Gittel (I am named after a great-grandmother). So please, it 
would be nice to be addressed correctly.


[This is a somewhat common issue/problem. If you begin your message with
the line:

From: Chana Luntz <luntz@...>

then I will change the actual From: line in the header area, so that
Chana will apear when the message goes out, rather than Heather. The
same is true for anyone where the From: line that comes with your
message is not what you would like to see. I'll change the header on
this one for you, anyhow. Mod.]


End of Volume 20 Issue 5