Q&A: Your View
Your View
Question
Does this relate to the marriage betrothal that you performed? Is he talking about Lipschitz? Is there anything to what he says from the halakhic perspective?
These are the words of that particular rabbi:
To make a thousand distinctions, if you’ll allow me one more example of differences in method in halakhic analysis—not when the disputant is Conservative, but when he is a professor from the Hebrew University. We submitted a seminar paper on his thesis, and I’m currently preparing a Zoom lecture and presentation, so I went back over the material. The professor argued that because there are five places in the Talmud where the Sages retroactively annulled a marriage because of moral/social problems (and the formalistic mechanism that makes this possible is discussed there at length), therefore one can innovate from this that in the case of women refused a bill of divorce we can also apply the principle. I admit that before I studied the topic in depth for several months, it also seemed to me superficially that there was substance to his argument. But I’ll share with you a few clear proofs that pull the ground out from under his thesis: 1) Out of the five cases in the Talmud, two were not ruled as Jewish law. According to his approach, they should have been ruled that way by force of the other three that were ruled, since they showed that the Sages potentially have such power. 2) There is an explicit Mishnah in tractate Gittin that if a woman remarried in error based on mistaken testimony, and her husband later appeared, she must leave both husbands and her children from the second are mamzerim. Meaning: even in severe agunah situations it is impossible to annul a marriage. 3) There is a medieval authority cited in the name of Maharik, ruled by the Rema as Jewish law, that it is forbidden to annul marriages except in cases that appear in the Talmud, and not to invent additional cases out of our own minds. Among Maharik’s proofs is that even someone who violated the ban of Rabbenu Gershom, Light of the Exile, or even betrothed a woman in a prohibited union carrying a negative commandment (like a priest and a divorcée), she still requires a bill of divorce from him. And we do not say that the marriage never took effect because the rabbis annulled it. Here too, someone who studies the topic superficially will be sure that the honored professor is right, and that only the “conservative” rabbis are afraid of change and therefore categorically reject his position. Only after deep study of the topic does one understand that there is no beginning at all to his thesis. The same is true, in my humble opinion, regarding the Conservative arguments. Superficially it looks similar; when you go deeply into it, you understand the differences. If I’m mistaken, I’d be happy to be corrected.
Answer
Hello G.,
This has nothing to do with me. He is dealing with annulment (“whoever betroths does so subject to the rabbis”), whereas I did invalidation from the outset (lack of validity ab initio because of an implicit condition).
The Lipschitz being discussed is apparently my friend, Professor Brachyahu Lipschitz, who is a genius and very well versed in this topic.
What the writer says is completely unfounded (good thing you didn’t mention him by name). These are sheer nonsense, and his proofs do not contain even a shred of proof.
A. I ask myself: if it is impossible to annul a marriage, then how did the Talmud annul marriages? You have to remember that there was no Sanhedrin there, and they had no formal ordination. So what is the difference between them and us?
B. The view of many halakhic decisors (in my opinion, most of them) is that even today, if there is the greatest religious court of the generation, it can annul a marriage. That is my view, and as far as I know Brachyahu also did not disagree with that. But according to those views, how would one explain the writer’s position? After all, we are talking about an annulment that does not appear in the Talmud.
C. As far as I know, Brachyahu proposes that the state confiscate the money, not that the marriage be made dependent on its will. That is a different mechanism, and there is no principled problem with it. It is much smoother than what the Sages did, because they did not have governmental autonomy as we do, and a king certainly can confiscate money (even retroactively, as Brachyahu Lipschitz sharpened).
D. As for his proofs:
1. The cases that appear in the Talmud are general rules. Whenever someone cancels an agent for marriage betrothal without his knowledge, the marriage is void. We are talking about annulment in a particular case under particular circumstances, not adding a Jewish law ruling to the Shulchan Arukh. Therefore the disputes in the Talmud regarding the cases that were not ruled as Jewish law are also in no way relevant to our issue. There the dispute was whether it is proper to annul in such cases or not, and there is no dispute at all about the very authority to annul. What connection does that have to our issue?!
2. As for the fact that they did not annul the marriage of a woman whose husband reappeared—well, it is explicit in the Talmud that her permission to remarry is because she checks carefully before marrying. If they were to annul the marriage every time the husband showed up, that presumption that she checks carefully before marrying would collapse. This is nonsense.
3. Indeed, there are views among the halakhic decisors that one does not annul marriages except in cases explicitly stated in the Talmud. Those views are puzzling for the reasons I explained above (how, then, did the sages of the Talmud annul?). But, as I said, they are also irrelevant to us, because Brachyahu is talking about rendering the money ownerless.
Beyond that, when there is a religious court recognized as the greatest of the generation, it can annul. In the case of the ban of Rabbenu Gershom, they did not annul for two reasons: A. Who says there was a great religious court that could annul? And of course there was no kingdom that could render the money ownerless. 2. They did not think that in such situations one should annul. Why annul? Let them give a bill of divorce, and that’s it. See a survey here: https://www.cwj.org.il/sites/default/files/%D7%94%D7%A4%D7%A7%D7%A2%D7%AA%20%D7%A7%D7%99%D7%93%D7%95%D7%A9%D7%99%D7%9F%20-%20%D7%A8%D7%99%D7%A1%D7%A7%D7%99%D7%9F.pdf
To conclude, if this is what he calls an in-depth analysis of the topic, I wouldn’t want to see what he calls superficial study.