survey of recent halakhic periodical . …traditionarchive.org/news/originals/volume 14/no. 2/survey...

J. David Bleich

SURVEY OF RECENT HALAKHIC

PERIODICAL . LITERATURE

WOMEN IN A Minyan?

The deliberations and publica-tions of The Rabbinical Assembly

do not in the ordinary course of

events properly come within thepurview of. a column devoted toHalakhah. Much is to be said infavor of simply ignoring pro-nouncements with regard to Jew-ish law issued by those who haveplaced themselves outside the paleof normative Judaism. Yet fromtime to time a particular action iserroneously presented as beingpredicated upon authoritative pre-cedents and hence as being withinthe parameters of Halakhah.Since the unwary and unknowl-edgeable may very easily be con-fused and mislead by such misrep-

resentations it becomes necessary

to take note of the issues involved.

In a recent pronouncement theCommittee on Jewish Law andStandards of The Rabbinical As-sembly declared that men andwomen may be counted equallyfor a minyan (quorum for publicprayer). The concept of a minyanas consisting of ten male adults isderived by the Gemara, Megilah23b, from the verse "How longshall I bear with this evil congre-

gation . . .1" (Numbers 14:27).

The term "congregation" is hereapplied to the ten spies who re-turned from scouting the HolyLand with an unfavorable report.

Since the appellation "congrega-

tion" is applied by Scripture only

to a group of ten individuals the

Gemara declares that a quorumfor all matters requiring a "congre-

gation" consists of ten persons.

Since the "congregation" referredto by Scripture consisted of ten

adult males it follows that the min.yan must be composed of adultmales. The list of sources which

specificly declare that only malesare eligible for inclusion in a min-yan is formidable.

In a paper submitted. to theCommittee on Jewish Law andStandards advocating the inclusionof women in a minyan, Philip Sigalasserts that "before we can declarewomen qualified to count in aquorum we must be certain thatpublic worship is an absolute re-quirement, that Jewish public wor-ship requires a specific minimumquorum and that women areobli-gated equally with men to attendpublic worship services." Sigal thenmarshalls sources showing thatwomen and men share equal obli-gations with regard to prayer. (See

Arukh ha-Shulchan, Orach Chaim106:5-7.) The sources cited would

have provided ample support for apronouncement by The RabbinicalAssembly declaring that women areobligated to pray thrice daily. Thisconclusion is not drawn. Instead

Sigal concludes that public prayer

is mandatory for women. David

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TRADITION: A Journal of Orthodox Thought

Feldman, in a paper submitted to

the Committee on Jewish Law inopposition to the resolution cor-rectly points out that an obligation

with regard to public prayer on thepart of women does not followfrom an obligation to engage inprivate prayer. Indeed, while there

is no lack of halakhic authorities

who maintain that women are ob.ligated to recite the amidah thricedaily, no halakhic authority main-tains that women are obligated topray with a minyan. It is patentlyinconsistent and, based on thesources, contradictory to declare

that women are obligated to praywith a minyan, but to absolve them

of the obligation to pray threetimes each day.

The sole precedent cited in sup-port of this innovation is a state-ment attributed to Rabbenu Sim-

chah quoted, but not accepted, by

M ordekhai, Berakhot 48a. As point-ed out by Dr. Feldman this sourceis incorrectly cited. Even if hisviews were not rejected by all otherauthorities the opinion of RabbenuSimchah could not be invoked insupport of the position that womenmay be counted equally with men.Rabbenu Simchah's ruling is muchmore limited in nature and its ap-plication to the question at handis a distortion of his view.

There is a well-known contro-versy with regard to whether aminyan consists of ten individualsupon whom public prayer is obli-gatory, or whether it may beformed by nine adults togetherwih one minor. According to thecommentary of Rosh on Berakhot48a it would appear that the au-

thorities who permit inclusion of

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a minor maintain that in actualityit is the Divine Presence which isincluded as the tenth member ofthe minyan. (See, however, Ba' alha-Ma'or, Berakhot 48a.) Attentionmay be drawn to the Biblical narra-tive concerning Abraham's supplica-tion on behalf of Sodom and Gom-orrah. Abraham at first prayed thatthose cities be spared if fifty right-eous inhabitants be found. Rashi

explains that in actuality five citieswere marked for destruction andAbraham prayed that the cities bespared if ten righteous persons-a minyan-could be found in each.Subsequently Abraham prayed thatthe cities be spared even in theevent that only forty-five righteous

persons could be found. Rashi

(Genesis 18: 28) comments thatAbraham recognized that a minyanmust be found for each city butbeseeched of the Almighty that Heinclude Himself in that number.

This would explain why those au-thorities who sanc.tion inclusion ofa minor as the tenth person requirethat he hold a written scroll ofone of the books of the Pentateuch

in his hand. In reality it is theDivine Presence which is symbol-ized by the scroll of the Lawwhich is included. The presence ofa minor is required by virtue ofrabbinic decree which regards himas being already a quasi-memberof the minyan because the minorwil one day share the religiousobligations of the rest of the min-yan.

Rabbenu Simchah maintains thatnot only a minor but even a Wom-

an may be co-opted as the tenthperson. According to RabbenuSimchah a minya.n must consist of

Survey of Recent Halakhic Periodical Literature

nine persons obligated to publicworship while the tenth individualmay be a participant who does notshare an equal obligation. Bothminors and women are included inthis category. Citation of RabbenuSimchah does not justify the con-clusion that women may be count-ed equally with men since 1) hisview is rejected by Mordekhai (SeeBe ','!r ha-Golah, Orach Chaim55: 4 J; 2) most latter-day authori-ties, including P'ri Megadim, Chay-yei Adam and Arukh ha-Shulchanmaintain that even a minor may notbe included in a minyan; 3) hesanctions only the inclusion of a

single woman. On the basis of theabove sources one can no morecontend that a minyan ma,y be com-

prised of ten women than that itmay be comprised of ten minors.

In his paper submitted to theCOmmittee on Jewish Law and ina carefully worded and well-re-searched article which appeared

earlier in the Summer, 1972 issueof Conservative Judaism, DavidFeldman endeavors to explain whywomen are ineligible for inclusionas part of a minyan. He assertsthat the non-inclusion of womenin a minyan is not a form of dis-crimination against the female sex

but simply a concomitant of dif-fering obligations. He explains thatthe rationale underlying this pro-vision is that only those possessed

of an obligation can be numberedin the quorum necessary for thedischarge of such obligation. An

identical explanation of why wom-en cannot be counted in a minyanfor communal prayer is offered byMarf!aliyot ha-Yam. Sanhedrin 74b,no. 27. This consideration would

explain the fact that an onen whois exempt from prayer is not eli-gible to be counted in a minyan.

Dr. Feldman further argues thatin instances in which a minyan isrequired but in which women shareequal obligations with men, Halak-hah indeed provides that they maybe counted equally with men forpurposes of the necessary quorum.

Rabbenu Nissim, for example, rulesthat women who are obligated tohear the reading of the Megilahmay be counted as part of the min-yan for this purpose. Some authori-ties maintain that the same is truewith regard to the mitzvah of sanc-

tification of the Divine name (kid-dush ha-Shem). The verse, "And Iwil be sancified among the childrenof Israel" (Leviticus 22:32) is alsounderstood as meaning that martyr-dom is not commanded other thanin the presence of at least ten Jews.

Rabbi Y osef Engel, Gilyonei ha-Shas, Sanh'!drin 74b and MargaUyotha-Yam, loco cit., rule that sincethe obligation with regard to sanc-

tification of the Divine name isequally incumbent upon both menand women, women are to becounted as part of the quorum forthis purpose.

Despite the cogency of this ra-tionale it serves as a satisfacory

explanation only of those authori-ties cited in its support. Dr. Feld-man himself notes that MinchatChinukh, no. 296, maintains thatwomen cannot be counted amongthe ten persons constituting a quor-

um for sanctification of the Divinename, despite the fact that womenare unquestionably included in thisfundamental obligation. More sig-nificant in terms of definitive Ha.

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lakhah is the fact that Rema, DrachChaim 690:18, clearly rejects theview of Rabbenu N issim. Remadoes state that "there is room toquestion" whether or not womenmay be counted among the ten.However, Rema's "question" isquoted in the name of HagahotAsheri, M egilah, ch. 1, who ex-

plains that this expression of doubtis based on entirely different con-siderations. Hagahot Asheri ex-presses doubt as to whether a min-yan in the usual sense of the term

is required for the reading of the

MegiUah in which case women areto be excl uded or whether the re-quirement of a quorum is not forpurposes of constituting a "congre-gation" but in order to publicize

the miracle of Purim. If the latteris indeed the case the requirement

is not at all for the presence of a

minyan as a "congregation" but forpublicizing the miracle which co-incidentally also necessitates the

presence of ten individuals. Womenare excluded from constitution ofthe quorum which is needed to forma "congregation." But, in the case

of the reading of the M egilah, ifthe requirement is simply that ofpublicizing the miracle it follows

that this effect is achieved equally

whether in the presence of womenor of men.

For these authorities all that canbe said is that women are ineligiblefor inclusion in a minyan simply

because in terms of derivation ofthe concept the term "congrega-tion" applies only to adult males.

As such it is not a form of dis-crimination but simply another in-stance of Halakhah's recognition ofthe distinctive roles and obligations

116

of men and women within Judaism.Serious questions have been

raised with regard to the role andfunction of women in modern so-ciety, and, accordingly, in religiouslife as well. An appropriate re-

sponse to the issues which have

been presented may be found withinthe halakhic framework which pro-vides great breadth for the individ-ual self-expression of each man andwoman. The teachings and practicesof Judaism should certainly not bemaligned as being discriminatoryin nature. Very much to the pointis David Feldman's concluding ob-servation that quite apart from thefact that "no halakhic basis for

counting women is offered" this in-novation would make a "chukhau-telula of traditional forms by ap-pearing to concede to the feministcharge of oppressive discrimination

or inequality. The minyan is notto be indicted for oppressiveness.

It is a technical construct true to itsown categories."

It is the pretense of seeking ha-lakhic authenticity and the distor-tion of sources in order to arrive atpreconceived conclusions which isparticularly offensive. The motiva-tion for the action of The Rabbin-ical Assembly is readly apparent.

It is a reaction to an enhancedawareness of the role of women inmodern society and to the under-standable clamor for their inclusionin all phases of religious life. As

such, the action with regard to min-yan is in keeping with the basic

philosophy of the Conservativemovement. A forthright formula-tion of the considerations which

prompted the innovation is con-tained in a statement by the Chair-


man of the Committee on JewishLaw in which, inter alia, he states:"The approach to Jewish law inConservative Judaism has always

been to change existing normswhere they do not further ethicaland spiritual values. When an ex-isting norm reflects a world-view

or social situation which no loftgerexists, then the halakhah is modi-fied. "

These sentiments belie a lack ofrecognition of the fact that Ha-

lakhah possesses an enduring valid-ity which, while applicable tochanging circumstances, is not sub-ject to change by lobbying or by theexertion of pressure in any guise or

form. Nor may independently heldconvictions, however sincere, beallowed to influence our interpreta-tion of Halakhah. Normative Ju-

daism teaches that Halakhah is notderived from any temporal "world-

view" or "social situation" but ex-presses the transcendental world-

view of the Divine Lawgiver.

Erev Pesach WHICH OCCURS ONShabbat

The vagaries of the lunar calen-dar are such that ere v Pesach coin-cides with Shabbaf infrequently butwith a peculiar pattern. There are

intervals of as long as twenty yearsduring which erev Pesach does notoccur on a Shabbat which are fol-lowed by the occurrence of erevPesach on Shabbat two or, moreusually, three times within a rela-tively short span of time followedby a rather long interval in whicherev Pesach fails to coincide withShabbat. Thus, although the last oc-currence of .grev Pesach on a Shab-

bat was in 1954, erev Pesach wil

coincide with Shabbat this year( 1974) and again in 1977 and1981.The occurrence of erev Pesach

on Shabbat gives rise to variouscomplications with regard to theeating of chametz and its disposal,the proper method with regard tofulfillng the mitzvah of the Sab-bath repasts, etc.

Housewives, quite naturally,would prefer not to have chametz

in their kitchens and dining roomsso close to the Yom Tov. The needfor having available both chametzand Passover foods and utensilsmakes an already trying period evenmore diffcult. In addition to mak.ing household chores more com-plex, simultaneous preparation of

both chametz and Passover meals

leads to concern over possible inter-mingling of utensils and food.

Shulkhan Arukh, Orach ChaIm,444:4-6 states clearly that chametzmay be eaten on erev Pesach whichoccurs on Shabbat provided that itis consumed during the period inwhich chametz may yet be eaten,i.e., before four hours of the dayhave elapsed. The "hour" for thispurpose is not 60 minutes but isone-twelfth of the daylight hours.

In order to determine the precise

time for the eating of chametz, thelength of the day between sunrise

and sunset or, according to some

authorities, between the appearanceof the "morning star" and the em-

ergence of stars at night must beascertained. This period is divided

by twelve in order to determine the

len¡;th of a single "hour" and thenmultiplied by four in order to de-

termine how long after sunrise

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chametz may be eaten. Chametzwhich remains after the meal iscompleted cannot be burned onShabbat. Small amounts of chami:!tzwhich are left over may be given

as a gift to a non-Jew whomay do with it as he wishes (al-though it is forbidden specific1y toinstruct the non-Jew to remove thechametz from the premises) or maybe covered with a pot or otherutensil and nullfied by means ofthe formula for bittul and burnedafter the Holy Day. Mishneh Beru-rah, 444:21, also permits disposal

of left-over cliametz in the bath-

room.However, because of the diffcul-

ties attendant upon preparing forPassover under these circumstancesit has been suggested that whenerev Pesach occurs on Shabbat eith-er ordinary matzah or egg-matzah

be used for the Friday evening and

Shabhat morning meals. This wouldeliminate the problem of the dis-posal of left.over chametz andwould also preclude the possibilityof inadvertent mixture of foods andutensils. While as of this writingnothing bearing upon these mattershas appeared in current halakhicliterature, several items which ap-peared in the literature twenty andtwenty-four years ago are germaneand merit review because of theirtopical relevance.

1. Matzah on Erev Pesach

The question of whether or notit is permissible to eat ordinary

Passover matzah on this Shabbatis discussed by the late Rabbi Mo-she Rosen in an article which ap-peared in the Nisan 5714 issue of

118

Ha-Pard,!,ç and was subsequently

reprinted in a somewhat differentform in his collected responsa,Nezer ha-Kodesh, no. 52.

Rabbi Rosen rules against theuse of matzah. He asserts thatscrupulous avoidance of chametzon the day preceding Passover is

tantamount to adding an additionalday to that festival and constitutes

a violation of the injunction "Youshall not add to the word which Icommand you" (Deuteronomy4: 2). It would appear that the op-posite conclusion might be deducedfrom Rosh Hashanah 28b and Eru-vin 96a which indicate that sittingin a sukkah following the conclu-

sion of the festival does not consti-

tute a violation of this prohibition

unless the individual has explicitintention (kavanah) of fulfillngthe commandment of dwellng inthe sukkah. Rabbi Rosen, however.

argues that we may not concludethat. lack of such intention with re-gard to eating matzah is suffcientto obviate the transgression of

"Thou shalt not add." It is forbid-den to sit in the sukkah after theholiday only if there is specific

intent to fulfill a commandmentbecause there is nothing in thatact itself which indicates that itis being done for the purpose of amitzvah; the eating of matzah atboth Sabbath meals coupled withscrupulous avoidance of chametz,

argues Rabbi Rosen, is in itself anindication that one is observing thatday as one of the days of Passover.

Emoloying a similar rationale, anearly authority, Mordekhai, rulesthat although one must eat in thesukkah on Shemini A tzeret one maynot sleep in the sukkah on that day.


Mordekhai maintains that whilepartaking of food in a booth-like

structure is not out of the ordinaryit is unusual for a person to sleepin a sukkah other than on sukkot.

By sleeping in a sukkah the indi-vidual "appears to be adding" to

the biblical requirement.An opposing point of view is ex-

pressed by Rabbi Moses Feinstein~¡grot Mosheh, Orach Chaim, no.155. Taking sharp issue with thisconclusion, he points out that Ba'alhe-Ma'or in his commentary to Pe-sachim 49a and Maggid Mishneh,Hilkhot Chametz u-Matzah 3:3,both rule that in the situation in

question it is permissible to eat

regular matzah before noon. RabbiFeinstein concludes that the trans-gression "Thou shalt not add" is notapplicable unless there is specificintention of fulfillng the mitzvah

of eating matzah.

Nevertheless, Rabbi Feinstein, inpractice, rules against the eating ofordinary matzah for other reasons.The Gemara indicates that it is for-bidden to partake of matzah on er-ev Pesach, likening the person whodoes so "to one who cohabits withhis betrothed in the home of hisfather-in-law." In order to assurethat the matzah eaten on the eve ofPassover be eaten with relish, theSages enacted a prohibition againsteating matzah on erev Pesach. Thispleasure would be considerably di-minished had the taste of matzah

been sampled earlier in the day.Some authorities, as earlier noted,are of the opinion that this prohi.bition is effective only from noononward. Rabbi Feinstein, however,demonstrates that in terms of de-

finitive halakhah, the prohibition

against eating matzah on erev Pe-sach goes into effect at daybreak

rather than at noon. He also citesand affrms the view of Magen Av-arham 471: 6 who maintains thatmatzah is forbidden not only on theday before P.'!sach but the entirepreceding evening as well. Hence,

in the opinion of Rabbi Feinstein,ordinary matzah should be usedneither for the Shabbat morning

meal nor for the meal on Fridayevening.

II. Egg Matzah on Erev Pesach

Rabbi Feinstein does, however,

permit the use of egg matzah onFriday evening and early in the dayon the Sabbath morning. Citing BetY osel, Orach Chaim 444, RabbiFeinstein indicates that the use of

egg matzah is the optimum methodof avoiding all diffculties. Even

though egg matzah is usuallydeemed to be in the category ofcake rather than bread, when it isused for the Shabbat meals onemust wash, pronounce the blessingfor bread and recite the grace aftermeals. Egg matzah, declares RabbiFeinstein, acquires the status of

bread by virtue of being used inplace of bread for the SabbathmeaL. Rabbi Feinstein cautions thatwhen egg matzah is used for themorning meal this repast must becompleted early in the day before

the time in which chametz may beconsumed has elapsed. He pointsout that such procedure is neces-

sary because Rema, Orach Cliaim462: 4, records that use of egg matz-ah is to be restrictè,d to the sickand the elderly who are incapable

of chewing ordinary platzah. All

119


others are not permitted to partake

of egg matzah during Pesach or onerev Pesach after the fourth hour

(Rema, Orach Chaim 444: 1). Therequirement that egg matzah beeaten early in the day necessitates

that the Shabbat services be held

at an early hour in order to afford

suffcient time for the Sabbath mealto be completed before the timehas elapsed in which cham.!!tz maybe eaten. Not cited by Rabbi Fein-stein is the divergent opinion of

Arukh lie-Shulchan 444:5 who of-fers a different interpretation of

Rema 444: 1 and permits the useof egg matzah later in the day aswelL.

In opposition to this view, RabbiRosen objects to any use of eggmatzah on erev Pesaclz. Halakhahstipulates that only such matzahwhich may be used for the fulfill-ment of the mitzvah of eating matz-ah on Passover eve may not beeaten on erev Pesach; those who

permit the eating of egg matzahon erev Pesach do so because they

maintain that egg matzah cannot

be used for the fulfillment of themitzvah on Passover eve. Rabbi Ro-sen cites the opinions recorded inthe Palestinian Talmud, Pesachim2:4, which maintain that matzah

kneaded with liquids other thanwater may also be utilzed on Pass-over eve. Furthermore, Rambam,Hi/khot Chametz u~Matzah 6:5,rules that only matzah kneadedwith wine, oil or milk may not beused on Passover eve. Matzahkneaded with eggs or fruit juice,may, in Rambam's opinion, be usedfor fulfillment of the mitzvah ofeating matzah on the first night ofPassover. Rabbi Rosen, therefore,

120

rules that in accordance with theseopinions it would be forbidden toeat egg matzah on erev Pesach.

III. M uk tzah

Another interesting point withregard to the laws of .!!rev Pesach

which occurs on Shabbat was raisedby the late Rabbi Jacob Meskin inan article which appeared in theNisan 5710 issue of Ha-Pardes.Food which may not be eaten onShabbat is deemed muktzah andmay not be carried or moved fromplace tò place on the Sabbath. Thus,after the fourth hour on erev Pe-sach which occurs on Shabbat,chametz is to be considered muk-

tzah. The chametz must be còv-ered by a utensil or other covering

and may not be moved. Pri Mega-dim, Eshel Avraham 444: 1 declaresthat since matzah may not be eatenon .!!rev Pesach the matzah must bedeemed to be muktzahon Shabbatand may not be moved. RabbiMeskin cites this authority and inaccordance with this decision rulesthat Passover matzah should not betouched on Shabbat which coincideswith erev Pesach.

SALE OF Chametz BY TOURISTS

The seven-hour time differencebetween the Eastern seaboard and

Israel (which is reduced to sixhours if Daylight Saving Time isin effect) poses a problem with re-gard to the sale of chametz by theconstantly increasing number ofAmerican Jews who seek to spendthe Passover holiday in the Holy

Land. Due to the time differenceboth the commencement of the fes-

Survey of Recent Halakhžc Periodžcal Literature

tival and the prohibition with re-gard to the retention of proprietaryinterest in chametz on the day pre-ceding the festival occur manyhours earlier than in the tourists'cities of origin.

A tourist finding himself in Is-rael, but whose possessions are inthe United States, is confronted bya halakhic problem with regard to

the disposal of his chametz. Is theprohibition with regard to the own-ership of chametz a prohibition en-tirely contingent upon the locale inwhich the proprietor finds himself,Le., the individual is forbidden toown chametz regardless of wheresuch chametz may be during theperiod of time which he observes

as Pesach, or is the prohibitionpredicated upon the location of thechametz, banning the possession ofchametz (regardless of where itsowner may find himself) through-out the. period of time during whichPesach is observed in the locale inwhich the chametz is found? Forthe tourist finding himself, .in Israel,it is Pesach a full seven Ïiours be-

fore it becomes Pesach in Americawhere his chametz is stored. If heis forbidden to own any chametzregardless of its location, during theperiod that he observes as Pesach

then it is incumbent upon him todispose of his chametz in Americaa full seven hours prior to the timeat which Jews in America areobligated to dispose of their cham-elz. A detailed analysis of this topicis to be found in Rabbi MosesSternbuch's Mo'adim u-Zemanim,III, no. 269, sec. 4. Various opin.

ions with regard to this question

are quoted by She'arim Le-Metzu-yanim b'!-H alakhah 113: 1. Rabbin-

ic authorities usually advise that

care must be taken on bothcounts: no chametz should beowned by a Jew during the periodwhich he observes as Pesach (re-gardless of where the cham.'!tz maybe found) and no chametz should

be owned by a Jew during the peri-od observed as Pesach in the localein which the chametz is stored.

In the normal course of events

a rabbi is authorized by his congre-gants to serve as an agent for thesale of chametz to a non-Jew. Therabbi then customarily disposes of

the chametz on the day preceding

Pesach shortly before the hour atwhich ownership is forbidden.Chametz cannot be sold after thehour in which ownership is for-bidden has passed. Thus the saleof chamelz conducted by his localrabbi in the usual manner does notfulfil the needs of the tourist whospends Pesach in IsraeL. In orderto resolve the problem the localrabbi may draw up a special bilof sale on behalf of his congregantsin Israel and execute the transferof their chametz at least seven

hours prior to the specified time ofsale in this counry.

Alternatively, the tourist maychoose to avail himself of the serv-ices of an Israeli rabbi for the saleof chametz. Since the specified timeof sale in Israel is at the earlier

hour this course obviates the needfor a special bill of sale. However,the latter solution poses a problemwith regard to the repurchase of

chametz at the conclusion of thefestivaL. If it is the case that theprohibition is contingent upon thelocation of the chametz rather than.upon the place in which the owner

121


finds himself, then the tourist is notpermitted to regain title to hischametz until after Pesach hasdrawn to a close in America~ sev~n

hours after the conclusion of thefestival in IsraeL. Furthermore, sincein Israel the final day of the holidayis not observed, conclusion of P.~-

sach occurs more than a day earlierthan in America. Customarily the

rabbi repurchases the chametz im-mediately following the conclusion

of the holiday. Mayan Americantourist avail himself of the services

of an Israeli rabbi who wil repur-chase the chametz at a time priorto the hour at which the touristis permitted to regain possession ofthe chametz which is located inAmerica?

Rabbi Ephraim Y olles discussesthis question in the Shevat-Adar

5733 issue of Ha-Ma'or and con-cludes that this practice is permis-

sible. In the first place, Rabbi Yollesdeclares~ one may assume that theIsraeli rabbi stipulates that repos-

session of the chametz of his Am-erican clients should not becomeeffective until after the conclusionof the festival in America. More-over, citing Taz, Orach Chaim448:6, Rabbi Yolles argues thatsuch a stipulation, even if not ex-pressly made, is a self-understood

condition of the transaction. Sec-

ondly, the forms usually employedfor the appointment of a rabbi as

an agent for the sale of chametz

do not expressly authorize him torepurchase the chametz. In the ab-

sence of such authorization repur-chase by the rabbi is not valid onbehalf of his client unless it is inthe latter's interest and meets withhis approval. Since in the case at

122

hand such repurchase is clearly notin the interest of the American tour-ist, the repurchase is not valid onhis behalf. Thus, Rabbi Y olles con-cludes, there is no halakhic objec-

tion to the sale of a tourist's cham-f!tz by an Israeli rabbi.

IMPRISONMENT OR DEATH FORCONVICTED TERRORISTS

Despite the carnage and loss oflife which it has suffered as a resultof terrorist actívity~ the State of

Israel has refrained from imposingthe death penalty upon convicted

terrorists. In yet another in an in-triguing series of articles dealing

with halakhic ramifications of poli-cies adopted by the Israeli govern-ment, Rabbi Judah Gershuni, Orha-Mizrach, Tevet 5733, seeks toclarify whether this policy is com-patible with Halakhah or whetherit is a violation of Jewish law.

It is obligatory upon the Bet Dinto sit in judgment upon Jews ac-

cused of infractions of the law andto impose the death penalty upon

those convicted of a capital crime

(Rambam, SeIer ha-Mitzvot, Aseh,no. 227; SeIer ha-Chinukh, 47-50.)In our day this obligation cannot

be fulfilled in the absence of a San-hedrin. The point which is obscureis whether or not a similar obliga-tion exists with regard to the pun-ishment of non-Jews as well. If suchan obligation does in fact exist, itmay be fulfilled in our day as wellsince a Sanhedrin is not required

for the sentencing of a non-Jew.

Rambam, Hi/khat Melakhim9: 14, numbers the imposition of thedeath penalty for violation of theprovisions of the Noachidic Code


among the seven commandments in-cumbent upon the "sons of Noah."In explaining the Biblical narrative

concerning the carnage of the in-habitants of the city of Shechem,

Rambam declares that the peopleof Shechem incurred the deathpenalty as a result of their culpa-

bilty in not meting out punishmentto Shechem for his transgression ofthe Noachidic Code. Nevertheless,points out Rabbi Gershuni, Ram-barn's discussion is limited to the

obligation of non-Jews with regardto the punishment of their fellowmen, but does not indicate that aJew is under obligation to bringa non-Jew to justice. (AlthoughTosafot, Avodah Zarah 64b, indi-cates that once a death penalty hasbeen pronounced, all persons, in-cluding Jews, are under an obliga-tion to carry out the sentence.)

Rabbi Gershuni cites another rul.ing of Rambam which indicatesthat a Jew is obligated to impose

the death penalty upon a non-Jew-ish transgressor. Rambam, Hi/khotM ilah 1: 6, declares that a gentile

slave who refuses to accept theseven Noachidic Commandments isto be put to death. Rabbi GershunIpoints out that according to this

ruling the slave is in effect being

executed for transgressing these lawsand concludes that, according toRambam, Jewish courts are indeedobligated to impose the death pen-alty upon non-Jewish transgressors.

Ravad disagrees with Rambamregarding the above case, and statesthat the slave is to' be sold to anon-Jew, but not to be executed.

Rabbi Joseph Rosen in his com-mentary on the Rambam, TzafnatPa'aneach, explains Ravads posi-

tion in the following manner: withthe lapse of the Sanhedrin and theabrogation of capital punishment

among Jews, Jews can no longerimpose capital punishment uponnon-Jews even though the latter re-main obligated to do so in admin-istering their own system of law.Moreover, Ramban, in his com-mentary on Genesis 34: 13 disa-grees with Rambam and states thatthere is no statutory obligation re-quiring non-Jews to impose pun-ishment upon transgressors. Impo-sition of capital punishment, he

maintains, is discretionary under theNoachidic codes. The injunction,"Thou shall not stand in fear of aman," does forbid a member of theB'!t Din to refuse to sit in judg-ment; however this admonition ap-plies only to instances when the de-fendant is a Jew. Since in Ramban'sopinion a non-Jew, if he so desires,may decline to sit in judgment itfollows that, according to this view,Jewish courts have the same pre-rogative.

Whether or not Israeli courts areunder an obligation to impose thedeath penalty for transgressions

which are capital crimes under theNoachidic Code is thus a subjectof dispute among the authorities.According to both Ramban and Ra-vad, the Israeli courts are under noobligation to èo so and hence areat liberty to impose a prison sent-ence upon terrorists in lieu of capi.tal punishment. Rabbi Gershuniconcludes that the current Israelipractice is in consonance with ha-lakhic norms.

DUAL BAR MITZVAHS

Large synagogues at times find

123


that among their worshippers thereare two or more familes celebrat-ing the Bar Mitzvah of their re-spective sons on the same Shabbat.Since it has now become de rigeurfor the Bar Mitzvah to chant the

haftarah, a problem arises with re-gard to the accommodation of twoyoung men with the reading of asingle Prophetic portion. The vari-ous feasible solutions to this prob-lem are examined by Rabbi S. De-blitsky in the Nisan-Iyar 5733 issueof Ha-Ne'eman.

The matter cannot be resolvedsimply by allowing both candidatesto read the appropriate haftorah in

succession. Since the congregation

has already discharged its obligationupon listening to the first readingof the haftarah, the subsequent

reading is purely ceremonial and

fulfills no liturgical requirement.

Accordingly, it is forbidden for thesecond Bar Mitzvah to recite onceagain the blessings which accom-pany the reading of the haftorah.

It has been suggested that ten

members of the congregation beapprised of the situation and be

requested consciously to disavow

the fulfillment of their obligation

during the first reading of the haf-torah (kavanah she-to tatzet). Thesecond Bar Mitzvah would then beenabled to recite the haftarah andthe occompanying blessings on theirbehalf. Rabbi Deblitsky rejects thissolution for two reasons:

1. This procedure causes thepronouncement of an "unnecessaryblessing" (brachah she-einah tzri-chah). Pronouncement of the Di-vine Name is viewed by Judaismwith utmost gravity; it is a princi-ple of Halakhah that blessings are

124

not to be multiplied unless specificly

mandated. Since there is no impedi-ment preventing those present fromhaving proper intent to discharge

their obligation during the course

of the first reading they are not

permitted, argues Rabbi Deblitsky.consciously to disavow such fulfill-ment in order to create the need

for additional blessings. Although

this latter point may well be dis-puted, Rabbi Deblitsky further ar-gues that the same considerationalso precludes having ten individu-als leave the synagogue during thefirst reading of the haftarah.

2. Rabbi Deblitsky points outthat many authorities are of theopinion that the reading of boththe Torah and the haftarah is acongregational rather than an in-

dividual obligation .If the obliga-

tion is a congregational one, all

those present during such readings

automatically fulfill the obligationregardless of their intent or atten-

tiveness. Since the obligation is notpersonal in nature its fulfillmentcannot be disavowed by an indi-viduaL

It should be noted that this sen-sitive issue has previously been dis-cussed at length by two eminent

halakhic authorities who reachsomewhat different conclusions.Advancing different considerations,Rabbi Eliezer Waldenberg, TzitzEli'ezer, VI, no. 36, also rules

against reading of the Torah by twoBar Mitzvah lads in succession. Inthe event that the reading of the

Torah has been completed and late-comers appear in the synagogue itis forbidden to read the Torah asecond time on their behalf (SeeMagen Avraham 69:9 and Mishneh

Survey pi Recent Halakhic Periodical Literature

Buurah 69: 18). The rationale un-derlying this ruling is that the ob.

server may not realize why the Tor-ah scroll is being opened anew andmay think that the reading is beingrepeated in a new scroll because.an error or flaw was found in thefirst Torah scroll rendering it htl-lakhic1y unfit. Unfounded aspèr-sions upon the fitness (kashrut)of a scroll are deemed an indignityto the Torah. Reading the haltorah

twice would also involve readingthe Torah portion for malti, twice.It would thus appear that the por-tion was being reread in a second

scroll because the first was foundto be unfit thereby causing an in-

dignity to the Torah scroll. Nev-ertheless, Rabbi Waldenberg assertsthat this provision applie~ only to

individual latecomers, but if ten

men have not heard the reading ofthe Torah, the reading may be re-peated on their behalf since tenpersons constitute a congregation.

Rabbi Waldenberg strongly ad-vises either that one of the BarMitzvah boys be accorded an alter-nate Torah honor or that the entirereading of the Torah be conducted

in two separate places, therebyeliminating all diffculties. Only

when such arrangements wil causeil-wil and antagonism is RabbiWaldenberg wiling to sanctionother modes of accommodation. Insuch circumstances he advises thatten members of the congregation

consciously disavow fulfillment oftheir obligation during the readingof the first Bar Mitzvah. He fur-ther rules that even under these

circumstances it is preferable for

the second Bar Mitzah to repeatonly the halto,ah and not to repeat

the Torah reading for maftir. Whenit is not feasible to have ten per-

sons disavow fulfillment of their"obligation he permits the secondBar Mitzvah to repeat the haftorah,provided that the second Bar Mitz-

vah himself has not heard the firstreading or has consciously dis-avowed fulfilment of the obliga-tion with regard to the reading of

the haftorah 'during the reading of

the first Bar Mitzvah.Rabbi Waldenberg also notes that

any congregantmay lawfully in-voke his halakhic prerogative and

protest that repeated reading consti-

tutes an unwarranted encroachmentupon his time. Halakhah greatlyrespects the value of time and pro-

vides that the congregation may notbe unduly burdened (tirchah de.tzibura) by encroachment upon itstime and patience.

Rabbi Moses Feinstein, ¡grotMosheh, Orach Chaim, I, no. 102,insists upon the requirement ofhaving ten individuals leave thesynagogue during the first readingof the mafti, and haltorah and hav-ing them re-enter before the secondBar Mitzvah commences the read-ing of malti,. Rabbi Feinstein

points out that the Torah reading

of maltir by the person about to

recite the haftorah is not an integ-

ral part of the Reading of the Tor-

ah but was ordained as an "honor

to the Torah" since it would beunseemly for the maltir to ignore

the Torah scroll by reading only aProphetic selection. This considera.tion, opines Rabbi Feinstein, does

not warrant the reopening of analready closed Torah scroll. There-fore, he concludes, the Torah scrollshould not be reopened for the read-

125


ing of maftir even if ten persons

have not yet discharged their obli-gation with regard to the reading

of the haftorah. In order to obviate

the indignity to the Torah whichwould result from opening and un.rollng the scroll a second time,

and, at the same time, accord the

second Bar Mitzvah the opportunityof reading maftir, Rabbi Feinstein

advises that the scroll not be liftedand closed subsequent to the firstreading but that it simply be cov-

ered and allowed to remain on the

reading table. Rabbi Waldenberg,

on the other hand, cites severalsou'rces which indicate that for a

variety of reasons the scroll must

be lifted, rolled and closed beforethe reading of the haftorah is be-

gun.

BAT MITZVAH CELEBRATIONS

The Bar Mitzvah of a Jewish boyis traditionally marked by festivi-ties. The occasion of the Bat Mitz-vah of a girl, on the other hand, isvirtually ignored by most segmentsof Orthodox Judaism. Only follow-ing the popularization of Bat Mitz-

vah ceremonies by the Conserva-

tive movement have some modernOrthodox congregations in ourcountry instituted similar rituals.Actually, the institution of sometype of ceremony to mark this oc-casion can be traced to the mid-

19th century. It is reported that noless an authority than the renownedRabbi Jacob Ettlinger sanctionedthe institution of such observancesin Germany in order to combat theinroads of the early Reform move-ment and himself delivered address-es on such occasions. (See Ha-

126

Ma'ayan, Tevet 5732, p. 29 and p.61, note 258. Cf., Rabbi Yechiel

Ya'akov Weinberg, Ha-Pardes, Ni-san 5723.)

Rabbi Moses Feinstein, ¡grot Mo~sheh, Orach Chaim, I, 104, in dis-couraging Bat Mitzvah practicesdeclares that there is no source forsuch celebrations and that a festivemeal marking this occasion cannotbe viewed as a seudat mitzvah (a

ritual repast). Discussing a related

question Rabbi Feinstein also main-tains that use of the synagoguesanctuary for a Bat Mitzvah cere-

mony is forbidden by Jewish law.The sanctuary may be used onlyfor sacred purposes. Since Bat Mitz-

vah rituals have no liturgical basis,use of the synagogue sanctuary for

such purposes, concludes RabbiFeinstein, is a violation of the sane.tity of the synagogue. Taharat YomTov, IX, 40, rules against Bat Mitz-

vah celebrations on the grounds

that they are a Reform innovation.Writing in the Tevet 5733 issue

of H a-M dayan, Rabbi ChanochZundel Grossberg argues that a fes-tive meal for members of the fam-ily on the occasion of a Bat Mitz-vah does constitute a seudat mitz~vah. In the case of a boy such arepast is occasioned by the lad'snewly assumed obligations with re-gard to the observance of mitzvot.

The identical consideration, arguesRabbi Grossberg, should call fora similar observance to mark the

Bat Mitzvah of a girl "even thoughwe have not heard that in previousgenerations a banquet was madefor a girl as for a boy." Rabbi

Grossberg, however, advises thatfor reasons of modesty sueh a cele-bration should be limited to mero-


bers of the family. There is at least.one source which serves as a prece-dent for this view. In No'am VII(5724) Rabbi Isaac Nissim, formerchief rabbi of Israel, quotes an un-published responsa collection,Chaim ve-Chesed, authored by aSephardic scholar, Rabbi A. Musa-piah, which records that a banquet

on such occasions constitutes aseudat mitzvah. At the same time

Rabbi Nissim quotes a divergentview. Ben Ish Chai (Re-eh no. 17),writes, "Even though (a festivemeal J is not customary on her be-half, (a girl) should nevertheless

rejoice on that day."

Mamzerut 11*Rabbinic authorities have always

sought ways and means of allevi-ating the plight of unfortunate in-

dividuals stigmatized by mamzerutin order to permit such individuals

to marry within "the communityof God." Their efforts consisted ofexamining the loopholes whichwould have the effect of removingthe onus of bastardy. Perhaps the

most famous of these proposedremedies is a tentative suggestion

advanced by Rabbi Shalom Morde-

cai Schwadron in his T eshuvot M a-harsham, I, no. 9.

The Mishnah, Gittin 32a, statesthat in former times a husbandcould appoint a proxy to deliver abil of divorce to his wife and yet

retain the prerogative of annuling

the proxy and thereby invalidatingthe divorce. Originally the husbandwas not required to inform theproxy of his change of heart. Thispractice was later banned by Rab-

ban Gamaliel the Elder in order topromote "the better ordering ofsociety" (tikkun ha-olam). In de-

fining the concept of tikkun ha-

olam, R. Yochanan maintained thatthe measure was designed to pre-vent the proliferation of mamzerim.A messenger, unaware of the factthat his authority to deliver the

biU of divorce had been nullfied,might in good faith present thebil of divorce to the woman inquestion. The woman, equally un-aware that the proxy had beenannulled and her divorce nullifedwould feel free to remarry. Undersuch circumstances any issue of asubsequent union would be mom-zerim in the eyes of Jewish law.R. Y ochanan states that it was toprevent such unfortunate occur-rences that Rabban Gamaliel for-bade annulment of the proxy otherthan in the presence of the messen-

ger.In the event that the husband

transgresses the injunction of Rab-ban Gamaliel and annuls the proxyother than in the presence of the

messenger, R. Simeon b. Gamaliel

ordained that the act of annulmentitself be null and void so that thebil of divorce may retain its valid-ity. In discussing Rabban Gamal-iel's decree the Gemara raises anobvious objection. It is axiomatic

that a bil of divorce which is in-

valid according to Biblical law can-not be validated by rabbinic de-

cree. In response to this objectionthe Gemara enunciates the well-known dictum: "Everyone who be-troths (a wife J does so in accord-

ance with the intention of the

.See TRA.DITION, XII, no. 3-4 (Winter-Spring. 1972), pp. 125-128.

127

TRDITION: A Journal of Orthodox Thought

Sages, and they annulled his be-trothal." The import of this state-ment is that while the Sages have

no power to validate a bil of di-vorce which is not valid under bib-lical law they do have the powerto annul the marriage itself retro-actively. Since they do not acqui-

esce to the marriage under such

circumstances the stipulated condi-tion has not been fulfilled and themarriage itself is null and void. Thestatus of the woman in these cir-cumstances is not that of a divor-

cee but that of a single woman whohad been consorting with a malewithout benefit of a nuptial cere-

mony. Accordingly, as a result ofRabban Gamaliel's decree, annul-ment of a proxy other than in thepresence of the messenger and sub.

sequent delivery of the get to the

wife become the occasion for theretroactive annulment of the mar-riage.

Tosafot points out that RabbanGamaliel's decree could be utilied

in furthering certain ends which

Rabban Gamaliel would certainlynot have sought to promote. By in-voking this decree acts of adulterycould be legitimized with the co-operation of the husband and boththe adulterer and the adultressmight be enabled to escape punish-ment. This could be effected byhaving the husband draw up a bil

of divorce, appoint a proxy to de-

liver it to his wife and subsequentlyannul the proxy other than in thepresence of his messenger. The re-

sultant effect would be annulmentof the marriage ab initio whichwould then mean that subsequentintercourse with another male wasin the nature of fornication rather

128

than adultery. Ri, cited by Tosafot,

maintains that this procedure is

perfectly legaL.

Maharsham, quoting Tosafot,points out that a mamzer could alsobe legitimized retroactively in pre-cisely the same manner. If the hus-band is yet living and willng to co-operate he could simply appoint a

proxy to deliver a bil of divorce tohis wife and then proceed to annulthe proxy other than is the presenceof the messenger. Since the marriageis annulled retroactively the liaisonbetween his wife and another mandoes not constitute adultery andhence the issue of that union arenot mamzerim.

The innovative suggestion of Ma-harsham has been the subject ofseveral recent articles of note. Theproposal was brought to the atten.tion of readers of TRADITIONby Rabbi Dr. Louis Rabinowitz,Spring 1971, pp. 5.15. Moriah

(Elul 5730-Tishri 5731) featuredan article by Rabbi Shlomo Zal-

man Auerbach, eminent Israeli ha-lakhic authority, containing alengthy and exhaustive analysis ofMaharsham's position. In Panim elPanim of Shevat 2 and I Adar 13,5733 the Israeli sèholar and juristProfessor M. Silberg discusses prac-tical proposals to eliminate inci.dences of mamzerut. Professor Sil.berg's views are challenged by Rab-bi Judah Dick (Panim el Panim, IAdar 13, 5733), a New York at.torney and Talmudic scholar whohas espoused the cause of the agun-ah both in legal proceedings before

civil courts and . in a determined

effort to find halakhic redress forher unfortunate plight.

Maharsham's language, "Had


you consulted me before the bil ofdivorce was executed by the firsthusband I would have made a sug-gestion le-halakhah vo-lo le-ma'Q-

seh (according to theoretical ha-lakhah but not for practical appli-cation)" clearly indicates that Ma-harsham viewed his innovative pro-posal as relegated to the realm of

theory and not for actual imple-

mentation. Maharsham's use of thesubjunctive phrase "had you con-sulted me" demonstrates that hisanswer even at that time would nothave been intended for practicalapplication. Rabbi Auerbach pre-sents numerous reasons, manyhighly technical, in explaining whypractical implementation of thisproposal is precluded. The mostsalient of these considerations are

the following:1. The major argument against

implementation of Maharsham'sproposal is that Ramban, Shita M e-

kubetzet and Me'iri, in their com-mentaries on Ketubot 3a state,clearly that any children born ofan adultrous relationship prior tothe retroactive annulment of themarriage are mamzerim by virtueof rabbinic decree. According tothese authorities the rabbinic decreeproviding for annulment of themarriage was accompanied by a de.cree declaring such issue to be le-gitimate precisely because the Sagesdid not want the decree regarding

retroactive annulment of the mar-riage to serve as a tool in the handsof evildoers. This opinion is fol-lowed by many latter-day authori-ties. (See Ketab Sofer, Even ha-Ezer, no. 51; Oneg Yom Tov, no.169; and R. Shlomo Kluger,H a-Elef Lekha Shlomo, Even ha-Ezer,

no. 34. Pitchei T eshuvah, Even ha-Ezer 144: 1 also cites Berit Avra.ham, Even ha-Ezer, no. 49, sec. 5.See also Rashba, Ketubot 3a andIsaac Elchanan Spektor, Ein Yitz-chak, I, Orach Chaim, no. 28, sec.23.) Oneg Yom Tov states explicit-ly that "It is for this reason that

this solution is not mentioned byany authority."

2. Retroactive annulment of the

marriage renders all preceding actsof coitus acts of fornication. An

individual is not permitted retro-

actively to transform his actions

into transgressions and certainlyshould not be advised to do so andabetted in such a course of action

by a B-it Din.3. It is not certain that when

the husband is counseled by a BetDin to annul the proxy the mar-riage itself is in fact annulled retro-actively. The phraseology employedby the Gemara in explaining whysuch annulment was legislated is"He acted with impropriety. . . ."When acting upon the advice of aB.-it Din the husband can hardly besaid to have acted with improprietyand hence there are no grounds forannullng the marriage.

4. A number of early authori-ties, including Ramban, Re'ah andRashba, maintain that in point offact the original marriage is neverannulled. According to this inter-pretation, the husband, cognizant ofthe statutory provision for such

annulment, recognizes that annul-ment of the proxy is of no availand hence never actually intendsto annul the proxy. P'nei Yeho-shu'a, Ketubot 3a, offers a differentinterpretation in agreement withthe basic premise that in actuality

129


no annulment takes place.Both Dr. Rabinowitz and Pro-

fessor Silberg assert that the lateChief Rabbi Herzog did in fact in-voke Maharsham's proposal inpractice. Rabbi Herzog does indeeddiscuss Maharsham's responsum inhis Heikhal Yitzchak, II, nos. 17-19. However, Rabbi Herzog's rul-ing in the specific case brought tohis attention was based on differentgrounds. As is is often the case inhalakhic responsa, considerations

which are themselves insuffcient towarrant the conclusion advancedare adduced as a usnit" or secon-

dary line of reasoning in order to

strengthen the ultimate decision.

Rabbi Auerbach reports thatdayyaiiim in Israel have on numer-ous occasions refrained from fol-lowing Maharsham's suggestionprecisely because the latter statedexplicitly that his words were notintended for practical implementa-

tion.A!'art from halakhic objections

which have been advanced, the pro-posal as formulated by Maharshamsuffers from one practical draw-back, viz., it requires the active

cooperation of the original husband.Needless to say the cooperation of

an estranged husband is often dif-ficult to obtain. Professor Silberg

suggests that this defect can be

remedied by requiring that at thetime of marriage every groom des-ignate specified rabbinic offcials ashis proxies for the writing and de-

livery of a bil of divorce to his

wife and also grant the individualsnamed the power to appoint otherpersons as proxies to act in theirstead. The groom would at the sametime grant his designated proxies

130

concomitant power to annul anyfurther proxies they may subse-

quently appoint. Confronted with asituation involving mamzerut, theserabbinic offcials, acting on behalfof the husband, would proceed to

appoint a proxy and annul thatproxy other than in his presence

thereby dissolving the marriage abinitio and retroactively removing

the stigma of bastardy.

Professor Silberg's proposal pre-sents exactly the same problem asa similar suggestion with regard tothe resolution of the agunah prob-lem which has been advanced atvarious times in the past. In order

to solve the problem of a recalci-trant husband who refuses to issuea religious divorce it has been sug-gested that every groom appoint aproxy to execute a bil of divorce

on behalf of his wife in the event

that at some future date the Bet

Din should rule that the wife isentitled to a religious divorce underJewish law. Both Rambam andShulchan Arukh state that if hus-band and wife are secluded to.gether after appointment of a proxyand before the bil of divorce is de-

livered the divorce is invalidated.

The act of seclusion gives reason tosuspect that the husband may haveannulled the previously executed

proxy. (See TRADITION, XI(Summer, 1970), 98, and RabbiMeshullam Roth, Kol Mevaser, II,no. 14.J

Rabbi Dick raises a novel andintriguing objection with regard toProfessor Silberg's proposaL. He

argues that were Maharsham's sug-gestion to become standard proced-ure in all cases of adultery, a Pan.dora's box of halakhic problems


would be opened. In order to es-tablish that a husband has died andthat his wife be permitted to reo

marry the halakhic canons usually

applicable require the testimony oftwo reliable witnesses. In a desireto alleviate the problems of agunotin so far as possible, in cases in

which the husband is missing andpresumed dead, the Sages modifiedthe rules regarding the admission

of evidence and permitted accept-ance of the testimony of a single

witness as well as of certain formsof circumstantial evidence. At the

same time they decreed that shouldthe husband prove to be alive thewoman in question would be for-ever forbidden to both the first hus-band and the second. The purpose

of this decree was to assure that awoman confronted by a situationin which she would not be able tolive with either of her spouseswould herself investigate the matterthoroughly and would not marryunless every shadow of a doubtwith regard to the decease of her

first husband were removed. Theresultant assumption Hishah daikau-minsiva-it is presumed that awoman wil investigate prior tomarriage" is suffcient to counter-balance the presumption (chaza-kah) that she is a married woman.This meticulousness on the part of

the woman coupled with the testi-mony of her witness is accepted asthe equivalent of the testimony of

two witnesses in establishing her eli-gibilty to remarry. However,arguesRabbi Dick, if every woman were to

know that a sexual laison may be le-gitimized by subsequent retroactive

annulment of her original marriagethere would no longer be any rea-son for her to be particularly me-

ticulous in her investigation into

the circumstances of her husbandsdisappearance since she would suf-fer no adverse consequences were

her first husband subsequentlyfound to be alive. This would thennegate the presumption that a wom-an's own declaration may be reliedupon with regard to her eligibiltyto remarry. This, in turn, would

lead to reinstitution of a require-

ment for the testimony of two re-liable witnesses attesting to the

death of the husband before re-marriage would be permitted. Thus,virtually all leniencies which wereincorporated into the structure ofthe Halakhah in order to alleviatethe plight of the agunah would beeliminated.

Although Professor Silberg, in hisresponse to Rabbi Dick, does not

refute this basic objection, this par-

ticular problem could presumablybe overcome if, as Professor Sil-berg recommends, every bride-groom were to appoint rabbinic of.ficials as his proxies for the draw.ing up of a bil of divorce. If theirpower were to be broadened suf-ficient�y they could, in an instanceof igun, simply draw up such a di.vorce and thereby circumvent the

need for two witnesses to attest tothe death of the husband. However,as has been previously indicated,this aspect of Professor Silberg'sproposal is not halakhic1y accept-

able on the basis of other consid-

. erations.

131

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