In this chapter, I intend to present in a concise manner some conclusions that I reached in a halakhic study based, in a comprehensive manner, on the relevant Talmudic sources and the classical commentators and codifiers.
1. SELF-OBLIGATION BY WOMEN
By “self-obligation” I refer to the practice whereby women impose upon themselves the responsibility of fulfilling certain commandments which biblical law does not require them to fulfill, i.e., mitzvoth aseh sheha-zeman geramah (time-dependent mitzvot). This subject would seem to be of little interest today, since it has become customary for women to fulfill such mitzvot. For example, the blowing of the shofar on Rosh Hashanah and the commandment of the lulav and etrog (together with the other two plants) on the festival of Sukkot are widely practiced by women. It may then be taken for granted that women do have the right to accept for themselves the practice of mitzvot from which the Torah freed them. All the relevant questions are discussed in the Babylonian as well as the Jerusalem Talmud and the recognized commentaries and codes.
Once the decision of the Babylonian Talmud1Arakhin 96a. was followed in the matter of self-imposed mitzvot, there were some important questions that had to be clarified: are women permitted to say the berakhah (blessing) before performing the mitzvah? Since they are not obligated by Torah law, isn’t their berakhah unnecessary and their pronunciation of God’s name in vain? Secondly, how can they say the prescribed word tzivanu, “and commanded us,” when in fact they have not been commanded? And finally, according to the biblical law one may not add to the mitzvot of the Torah, but if women voluntarily practice mitzvot, are they not introducing an addition to the Torah?
The last question did not trouble the commentators very much, for it could easily be resolved. One is adding to the mitzvot of the Torah only if the added practice is genuinely new. If one were to add a fifth plant to the four festival plants of lulav, that would be a transgression of the law of lo tosifu, “thou shalt not add not take away anything” from the commandments of the Torah. But to practice a mitzvah of the Torah even though one is not ordered to is not to change the form of the realization of the mitzvah by adding anything new and alien to the Torah. Rabbi Joseph Karo, in his commentary on the Tur, rejects the idea that women performing mitzvot not commanded them could be a question of adding to the Torah, saying: “That is not right at all.”2Orah Hayyim 589. Unfortunately, he does not give his reasons. Instead he concludes his comment with the words: “However, I do not have to elaborate on this.”
As for the question of the validity of the phrase tzivanu, there is, for instance, the answer of the Ran (Rabbenu Nissim), based on the generally acknowledged principle that “the one who is commanded and does is greater than the one who is not commanded and yet does.” The reference to “one who is not commanded and yet does” indicates that although this practice does not have the same value as doing because one is commanded, yet it also has a value. Similarly, the berakhah on the lighting of the Hanukah candles includes the term ve-tzivanu, even though nowhere in the Torah are we commanded to perform that mitzvah. The Ran concludes his explanation: “Since men were commanded even mitzvot from which they were originally free and women’s action is also appreciated, women too may well say: ‘And has commanded us.’”
There remains the first problem that we indicated: since women are not commanded about the time-bound mitzvot (mitzvot aseh sheha-zeman geramah), are they not pronouncing the Name of God in vain when they say a blessing that is not required? Here we reach a disagreement between the giants of halakhic teaching. According to Rabbenu Tam, the Name of God pronounced in a berakhah is not in vain and therefore it may be used.3Berakhot 21a. Accordingly, women who obligate themselves may say the accepted formula of the blessing and do the mitzvah. However, Rashi and the Rambam (Maimonides) disagree with this opinion and rule that while women may practice the mitzvot in question, they are not permitted to say the berakhah over them. This disagreement between the halakhic authorities need not trouble us either. The majority of the halakhic teachers accept the opinion of Rabbenu Tam. Here is the final decision as given by the Rema in the Shulhan Arukh: “The custom is that women do say the berakhah over the time-related commandments [i.e., mitzvot aseh she-ha-zeman geramah].”4Orah Hayyim 589: 6, 17:2.
After all that clarification, we are confronted with an utterly unexpected surprise. The Rema, having stated that women do say the berakhah over mitzvot aseh she-ha-zeman geramah, in the section of the Shulhan Arukh on the laws of tefillin, writes: “If women wish to impose [the putting on of tefillin] upon themselves, one does not permit it.”5Ibid. 38:3. What are the reasons and the source for this statement? It seems to contradict everything that is said on the subject in the Talmud. According to the Babylonian Talmud, women are not obligated to put on the phylacteries, but if they wish to, they may do so. According to the Jerusalem Talmud, the sages did not allow the daughter of King Saul to put on tefillin, the reason being that since she was not obligated, she must not perform the mitzvah on her own. In the Jerusalem Talmud, as in the Babylonian Talmud, the commandment of tefillin is the example for all other mitzvot whose fulfillment depends on the sequence of time, but in the Babylonian Talmud, women may take on a self-imposed obligation, whereas in the Jerusalemite one, they are not allowed to do so.
According to both teachings, however, since tefillin is time-bound (e.g., no tefillin on Shabbat), whatever applies to tefillin in the case of women is the law for all other commandments that are, like tefillin, dependent on time-sequence. One cannot help wondering how the commandment of the tefillin can be an exception. Since tefillin is the prototype for all time-bound commandments, and whatever applies to it applies to all, how can it be maintained that woman are free from mitzvot aseh she-ha-zeman geramah yet may obligate themselves, but not regarding the mitzvah of tefillin? Actually, nowhere in the Talmud itself is there any basis for such an exception. The opinion of the Rema is based on a passage in the Mekhilta maintaining that Michal, the daughter of King Saul, was not allowed to put on tefillin. Tosafot now explains the reason of the Pesikta: tefillin requires a “clean body” and women are not careful with bodily hygiene. The Pesikta would be equal in authority to the Talmud. But we have to realize that the reason for the Pesikta’s decision is not found in its text. The explanation was added by the Tosafot, and was accepted by some, until finally it was included in the Shulhan Arukh by the Rema.
Obviously, the lack of bodily cleanliness attributed to women cannot be in reference to the monthly period. If so, women would indeed be an exception, but the reason would have nothing to do with mitzvot determined by time. The whole structure of separating such commandments into a group by themselves would not be justified. How then is the opinion regarding the lack of bodily hygiene to be understood? The Magen Avraham, in his commentary, apparently seeks to resolve this problem, though he does not make explicit mention of it.6Ibid. Explaining the words of the Rema, he quotes the statement of the Tosafot that we have quoted above. However, he adds: “But if women were obligated by biblical law to fulfill the tefillin commandment, they would be more careful about their bodily cleanliness.” The Magen Avraham wishes to say that the original Talmudic conclusion that women are free from the commandment of donning tefillin has nothing to do with the question of how well they care for their bodies. For if they were commanded to do the mitzvah, they would be competent in matters of hygiene demanded by the mitzvah of the phylacteries.
Thus, the only reason for freeing women from this commandment could be the quality of the dependence of the obligation of fulfillment on the sequence of time. If so, we conclude that commandments in this category are not obligatory on women. In Talmudic sources the question of bodily hygiene does not enter into consideration. On the contrary, according to the Babylonian Talmud, which has been accepted as the valid law, the daughter of King Saul did practice the mitzvah of tefillin, and so too may all women. The opinion that nevertheless women should not be allowed to put on tefillin because of their hygienic carelessness with their bodies is a later post-Talmudic development. The authors who accepted this idea obviously were doing so on the basis of their own experience: such were the women they knew, the women of their time. Let us state unequivocally that nowadays such an evaluation of female behavior would be utterly unjustified and a serious insult to womankind. In matters of bodily hygiene, women are at least as reliable as men. We may completely disregard the opinion of the Rema in this matter and follow such authorities as Rashi, Rabbenu Tam, Rambam, and Rashba, who make no distinction between the commandment of tefillin and the other mitzvot aseh she-ha-zeman geramah. The Hagahot Maimoniyot (i.e., the commentary on the work of Maimonides) quotes the Sar M’kuzi that women may make the berakhah on lulav and tefillin and all similar mitzvot.7On Maimonides, Hilkhot Tzizit 3:40, end. Women today may well be guided by these authorities.
2. WOMEN’S PRAYER SERVICES
The effort by some Orthodox women to have their own prayer services has aroused serious discussion and even disagreement. One might wonder why this matter should have become such a heated issue. The status of women has fundamentally changed in comparison to previous generations. Their general education is not below that of men. They take an active part in the affairs of the community, in the educational system, in synagogue activities, in maintaining organizations whose work is essential for the life of the Jewish people. If women of today, out of their desire to have a more active share in the religious practices of Judaism, wish to organize prayer services for themselves similar to the tefillah be-tzibbur (communal services) of men, why should that not be welcomed!? Women have the same obligation to pray as men. While only men, and not women, are commanded to study the Torah and therefore are obligated to read the Torah, this does not mean that women are not permitted to read it. The Talmud states clearly that women may be included among the seven people called to the Torah (on Shabbat), although it adds: “Yet women should not read the Torah during services because of the dignity of the community.” Be this as it may, obviously it has no significance for women reading the Torah in a prayer assembly of women. As for the saying of the berakhah before and after the reading, as is customary in synagogues, the question has been discussed by the halakhic authorities, for instance Tosafot and others. Their ruling may be summed up unequivocally that women no less than men may recite the well-known blessings over the Torah. One of the arguments advanced in support of this ruling is that the Torah blessings do not include the words asher kideshanu be-mitzvotav ve-tzivanu, “who has sanctified us by His commandments and commanded us.” And women, indeed, were not commanded to study the Torah. Much more simply, it is added that the blessing over the Torah is included in the daily prayers that women recite every day. Rather significant is the further explanation of the Bakh, who says: “Since women are obligated to study the mitzvot which are addressed to them, therefore they may well say the berakhah over the Torah every day, etc.”8Tosafot on Eruvin 96a, Rosh ha-Shanah 33a; Bah on Tur, Yoreh De’ah 246; also Orah Hayyim 47.
Since women are obligated to pray and may also read the Torah, why should they not be permitted to have their own public prayer service, if that grants them deeper religious satisfaction, and a more meaningful sense of having the commandment of prayer than by being present in the synagogue during the community services, in which they have no share at all?
Of course, one might perhaps argue that communal prayer (tefillah be-tzibbur) is much more important and is much more a fulfillment of the mitzvah to pray than is prayer in a woman’s service. The women’s service, no matter how many participate in it, remains tefillat yahid, the private prayer of individuals. Thus the Torah reading at a women’s service is not the fulfillment of the mitzvah in its completeness, as is that in a synagogue. Indeed, why not say that women should remain with their prayers in the synagogue, just as they fulfill other commandments that they are not obligated to practice – commandments like shofar and lulav – in the manner they are done by men? The difference is obvious. When women do the mitzvot that are ha-zeman geramah, dependent on the time-sequence, they are in fact fulfilling a commandment. However, by their presence at the communal service they do not reach the category of eino metzuveh ve-aseh, i.e., those who are not commanded and yet they do. Their prayers in a synagogue do not change in essence and do not become part of the tefillat tzibbur. Indeed, women are outside the community, and even in the synagogue their prayer remains tefillat yahid, the prayer of an individual. There is indeed a great deal of difference between communal and individual prayer, but only for men. Only for them is tefillah be-tzibbur of greater importance than tefillat yahid. For women, however, tefillah be-tzibbur is an impossibility. For that very reason, their individual prayer is no less significant and meaningful that the communal prayer of men. One can even say that the prayer experience in a women’s service may be much more meaningful to the participants than being present at communal services from which they feel completely excluded. Nothing could be more wrong than to assert that by holding their own services women separate themselves from the community. On the contrary, their own services in common bring them nearer to the experience of Jewish unity as intended by the Torah.
A more serious aspect of the issue with which we are dealing is the allegation that women’s services represent the introduction of a new minhag (custom) into the prayer order of the Jewish people. The question is of a twofold nature. First of all, is this new custom contrary to what has been followed in the Jewish communities? Secondly, do we have the right to establish new minhagim (customs) that were unknown in the generations before us? The responsa to the first question is relatively easy, on the basis of the generally accepted halakhic principle that lo ra’iynu eino rayah, i.e., not having seen a certain halakhic practice is no proof that what was not done should not be done now either. It is clear that the fact that women in previous generations did not organize “communal” services for themselves is no proof that such services must not be introduced at all. May we say that whatever has not yet been done in matters of the fulfillment of mitzvot must never be done?
Yet there does seem to be proof that in the case of minhagim (customary behavior) lo ra’inu, that a minhag was not known, its very nonexistence, raya, is proof that nonobservance is the correct custom and must not be changed. We shall discuss here only one example that is in itself revealing for all the other cases of this kind. According to the first mishnah in Tractate Hullin, ha-kol shohatin, i.e., all may perform the act of slaughtering animals as required by the law of the Torah. The Talmud explains that the word ha-kol, “all,” includes women. Women, too, may perform this command. Nonetheless, there is an authority, the Agur, who asserts: “I have never seen women do slaughtering of animals; therefore, we do not allow them to do it. The minhag annuls the halakhah. The customs of our fathers are Torah.”9His comment on the Rif, Berakhot 20b. This seems to suggest that in the case of customs, their very nonpractice is proof enough not to change the generally accepted behavior. This would mean that since women’s prayer services were not customary in former times, the institution of such services today violates the old established custom of not having such services. The very fact that such services did not exist would be sufficient proof not to introduce them now.
Such an argument would miss completely the essential quality – the halakhic background – of the statement we have quoted above, based on the example of the slaughtering of animals by women. According to the Mishnah, women have the right to do shehitah (slaughtering). Nevertheless, the Hilkhot Eretz Yisrael taught that women should not do it. Their weaker constitution might cause them to faint in the act. However, Tosafot maintains that this is the personal view of the Hilkhot Eretz Yisrael and need not be followed. Tosafot concludes that, as taught in the Mishnah, women may well practice shehitah. Most of the other halakhic authorities agree with this ruling. It is with reference to this decision that the Agur says: “Even though that is the opinion of the authorities, the custom in all Israel is that women do not do shehitah. I myself have never seen anything to the contrary. Therefore, one should not allow them to perform shehitah. For the minhag annuls the halakhah. The custom of our fathers is Torah.” In this case, there were two rulings: that of Tosafot, “for it” and that of Hilkhot Eretz Yisrael, “against it.” In this instance the acceptance of the ruling not to allow women to slaughter animals was not just “not-doing,” but an “active” rejection of the ruling of Tosafot and the other authorities. It was saying: “No! We are not following your opinion.” This, indeed, is the norm. In all the other cases which are quoted to show that lo ra’iynu is ra’aya (proof), there are always two opinions, one for the practice, the other against it. In all these cases the nonpractice is a rejection of an opposing ruling. Where, however, there is no opposing ruling the nonpractice of an activity does not establish it as a minhag that must not be changed. In such cases the principle remains valid that lo ra’iynu eino rayah, that the nonpractice is itself no proof that a minhag exists that must not be changed. In former times women generally did not go to the synagogue. Shall we therefore say that women should not change the custom and should not go to synagogue services? In the time of the Magen Avraham women did not listen to the reading of the Torah. During the Torah reading, writes the Magen Avraham, women would leave the synagogue.10Orah Hayyim 282:6. Shall we now argue that because it was not customary for women to attend the Torah reading, it is now not permitted for them to violate the minhag and listen to the Torah reading? The same applies to women’s services. Their nonexistence was not due to any rejection of an existing demand for such services. The situation was entirely different from what it is today. We never saw such services before because women did not have the kind of education and participation in the life of the community that they have today. No one called for such services because no one felt the need for them. The nonpractice of women’s services was not a minhag, and to introduce them in our times is not violating an established custom. With this we have also answered our second question, as to whether we are permitted to create new minhagim that were not known to previous generations. There is no doubt that new customs that were not known before, and were instituted because of the social and educational changes that have taken place, are not contrary to the minhagim of previous generations. It may be helpful to recall Rashi’s significant explanation of the well-known Talmudic saying: “Elu ve-elu divrei Elokim Hayyim,” meaning that when two Talmudic scholars disagree, the teachings of both are the words of the living God, even though the Halakhah is decided only according to one of them. Explains Rashi: “At times one reason applies, at other times the other reason may be valid. Reasons may change as conditions change even to a small extent.”11Rashi on Ketubot 57a, s.v. ha’k’mashma lan. If that is the rule even in regard to small changes in conditions, and even in matters of biblical command, how much more is one to be guided by it in matters which have their origin in later rabbinical rules, as, for instance, prayer and prayer services?
One may well illustrate the point with the help of two responsa in the work of my teacher, Gaon Rabbi Yehiel Yaakov Weinberg, of blessed memory. In one of the responsa in the third volume of his Seridei Esh, he discusses the question of whether it is permissible, in order to eliminate the pain caused by circumcision, to administer some form of anesthetic to a child, a convert, or any Jew who was not circumcised as a child. In another responsa he discusses the question of the Bat Mitzvah celebration for girls when they reach the age that obligates them to keep the mitzvot, as one celebrates the Bar Mitzvah of boys at the age of thirteen.
In both responsa the problem is the same; i.e., is one permitted to introduce new minhagim that were not practiced before? In the first question he reaches the conclusion that no anesthetics may be given to eliminate the pain of circumcision. He argues that the possibility of administering a drug to enable a person to endure the circumcision painlessly existed even in Talmudic times. Yet it was not done. The problem then was not different from what it is today. Therefore, it should not be done today either. He concludes with the words: “Minhag Yisrael Torah hi,” “The custom of Israel is Torah; one must not offend it.”
As to the second question, he fully supports the introduction of the Bat Mitzvah celebration. He writes: “That it was not done in previous generations is indeed no argument. The generations before us did not have to occupy themselves with the upbringing of daughters as we do today.” After further elaborating this point, Rabbi Weinberg concludes: “The rules of honest logic and the pedagogic principle almost compel us to celebrate for our daughters too, their reaching the age that obligates them to observe the commandments of the Torah. The discrimination between sons and daughters as regards their maturity is a serious insult to the sense of human dignity of the growing daughter, etc.”
The difference between the two cases is clear. In the first case, there has been no change whatever in the conditions of the times. The problem has always existed. The possibility of eliminating the pain by means of some drug or, later on, some injection, has always been available. Yet the rabbis did not make use of it. This means that they were against it. Their ruling established the minhag for further generations as well. Minhag Yisrael Torah hi – a minhag of this kind is Torah. As for the Bat Mitzvah, the fact that it was not practiced in former times did not establish a minhag. There was no such celebration because there was no need for it, nor would there have been any understanding of it. That was no minhag, but an unplanned and unintended absence, a complete vacuum. Today, however, conditions have changed. The Bat Mitzvah celebration does not abolish anything; it does not antagonize any minhag. It has a meaningful function in the context of Torah observance.
All this also applies to the introduction of women’s prayer services in our time. Their absence in the past does not mean that this should remain so for all time to come. It was in conformity with the prevailing conditions. The new practice does not offend what there was, for what there was is no more.
Nor is there any reason why women should not rejoice with the Torah scroll on Simhat Torah, especially now that women study the Torah more than ever before. Apart from the small group of mitzvot aseh she-ha-zeman geramah (commandments dependent on the time sequence), they are obligated to observe all the commandments of the Torah (exclusive of Torah study). Why should they not rejoice over the One “who gave us a Torah of Truth and planted eternal life in our midst”? “Us” means the Jewish people, and “in our midst” is in the midst of all Israel.
There remains just one more point that requires elucidation, the principle that “every sacred service requires a minyan,” a quorum of ten male participants. First, we must bear in mind that this is not a biblical command. Noting that the reciting of the Shema is undoubtedly a davar she-bi-kedushah (sacred prayer), Rabbenu Jonah tells us that there is nothing in our prayers more sacred than the words expressing our acceptance of the yoke of God’s rule, yet the Shema does not require a quorum of ten and may well be recited individually. Therefore, the phrase “every sacred service” cannot be taken literally.
The meaning of the principle can only be that every prayer that was originally instituted as requiring ten people must be so observed. Since the recitation of the Shema was never so established, it may be recited in private even though it is holier than the other prayers that have the character of kedushah (i.e., holiness). One may, however, ask: if the requirement of the quorum of ten was originally instituted by the rabbis, how are we to understand the Talmudic explanation that the rule is derived from a verse in the Torah, “And I shall be sanctified in the midst of the children of Israel,” interpreting “in the midst” as in the midst of a minimum of ten?
Undoubtedly the derivation from the Bible is not to be taken literally. First of all, the various daily services are not a biblical command but a rabbinical takkanah (arrangement). Secondly, the biblical words “And I shall be sanctified in the midst of the children of Israel” require Kiddush Hashem (the sanctification of the divine name by sacrificing oneself even if one’s life is threatened, rather than deny God in public). Now, this command has nothing to do with prayer services, nor does it discriminate between men and women. In the given situation, all Jews are obligated to Kiddush Hashem (sanctification of the divine name). This verse in the Bible, stating that one needs a public quorum of at least ten in order to recite some of the more sacred parts of the prayer service, like the kedushah and Barhu, is used as what is known as an asmakhta, a borrowed biblical verse on which a rabbinical institution “leans” for support. But then, of course, one may ask whence the basis for the determination that only men may form a minyan. The original meaning of the biblical support does not distinguish between male and female children of Israel. The fact is that nowhere in the Talmud where the quorum of ten is mentioned is it stated that the ten must all be men. The exclusion of women from the communal service can only be another rabbinical arrangement added to the first rabbinical takkanah of public prayer with ten members. What might have been the reason for this additional requirement, for which the biblical verse cannot be used even as an asmakhta, a borrowed support? Quite clearly, it could not have been that women lack the purity needed. As we saw, the Shema is a more sacred prayer than any of the parts of the daily prayer for which a minyan of ten males is required, yet it is prayed even in private by men and women alike. The reason for the exclusion of women from the tefillah be-tzibbur (communal prayer) can only be that the rabbis would not allow men and women to pray together. If that is so, one might give serious consideration to the halakhic possibility of a female minyan, i.e., of allowing the recitation of Kedushah and Barhu at women’s prayers services in the presence of a minimum of ten women.
3. BIRKAT HA-MAZON
The Mishnah states explicitly that women are obligated to say grace after meals. Since Birkat ha-Mazon is not dependent on the time of day, it is not a mitzvah aseh she-ha-zeman geramah. This point is so obvious that the Talmud has to explain why it is necessary to state it in a mishnah. Yet the Talmudic explanation includes a discussion of whether women’s obligation to say grace is a rabbinical one or is based on the biblical command: “And you shall eat and be satisfied and bless the Eternal One, your God.”12Berakhot 20b. Upon the difference between the two kinds of commandments depends the right of a woman to fulfill the mitzvah on behalf of others who are present and listen to her recitation.
According to the law, one may fulfill a commandment for the sake of others only if one is under the same obligation as are those for whom one is to act. If the woman’s duty to say Birkat ha-Mazon is only rabbinical and she has no such obligation under Torah law, she cannot say grace for a man, since his obligation is biblical. At first, the Talmud attempts to bring a proof that a woman’s obligation is biblical (mi-deoraita), arguing from a baraita stating that a son may say grace for his father, and a woman, for her husband. If the woman’s duty were only rabbinical, how could she act validly for her husband? This proof, however, is pushed aside with the argument that the son is probably a minor. But how can a minor son perform a mitzvah on behalf of his father? Presumably he can say grace for his father in this instance only because the father has eaten less than the measure of food that requires the saying of grace according to the Torah. Not having eaten the requisite amount, the father is only under a rabbinical obligation, just like his minor son. From this, it becomes evident that even if a woman’s duty is only of rabbinical origin, she may say grace for her husband in an eventuality where his obligation is also only rabbinical.13Ibid.
According to Tosafot and the Rosh, the question of whether a woman’s obligation to say grace is biblical or rabbinical has not been finally decided.14Ibid. Maimonides also holds that the question remains in doubt. However, there are also other opinions. The Tur quotes the Rabad to the effect that women’s duty to say grace after meals is biblical. Relying on the plain meaning of the baraita that a woman may say Birkat ha-Mazon for her husband, he disregards the possibility that it might apply when the husband did not eat the amount of food that would have obligated him as a biblical command. The Ran agrees with this interpretation.15Ran on ibid. and on Sukkah 38a; Tur and Bet Yosef, Orah Hayyim 186.
The main reason for those who maintain that the woman’s obligation is biblical is quoted by the Bet Yosef in the name of the Rashba. The disagreement in the Talmud is between Ravina, who believes that the woman’s obligation is only rabbinical, and Rava, who insists that it is biblical. But Rava was Ravina’s teacher, so his authority supersedes that of Ravina. Therefore, we follow Rava’s teaching that women have to say grace as a biblical command. There are other halakhic authorities who take the same view, among them, for instance, the Or Zarua.16Or Zarua on Rosh, Megillah 4a.
It is surprising that the halakhah in the Shulhan Arukh has been decided according to those who maintain that the question is still open and remains in doubt. The law of Birkat ha-Mazon for women also appears in the Jerusalem Talmud.17Yerushalmi, Berakhot 3:3. However, there is no question at all as to the character of the obligation in the Jerusalem Talmud. According to the Yerushalmi, there can be no doubt that the woman’s mitzvah is a biblical one. Now it is true that in cases of disagreement between the Yerusahalmi and the Bavli, we follow the opinion of the Bavli. However, this rule is only valid when the issue is resolved in the Bavli. When, however, a question remains undecided in the Bavli, as in our case, and a decision is given in the Yerushalmi, we usually follow the Yerushalmi. Accordingly, in the subject that we are discussing, the law should be as it appears in the Yerushalmi, i.e., that a woman’s obligation to say grace is biblical.
Let us now see why Ravina believes that the woman’s obligation in this matter is only rabbinical. Rashi and Tosafot disagree in their analyses of his argument. According to Rashi, Ravina assumes that the commandment cannot be based on the Torah, for the Torah says: “You shall eat and be satisfied and bless the Eternal One, your God, for the good land that He gave you.”18Deuteronomy 8:10. But we know that the land was divided only between the male members of the tribes of the children of Israel. Women had no share in it. How can they bless God for land that was not given to them? But is it really true that the land of Israel was given only to the males and not to the females?
Let us look at the context in which the blessing for the “good land occurs. For instance: “And remember all the way that the Eternal One, your God, has led you these forty years in the wilderness.” Is it possible that these words are addressed only to the male members of the people? Or let us consider the verse: “Keep the commandments of the Eternal One, your God, to walk in His ways and to fear Him. For the Eternal One, your God, brings you into the good land, etc.” Is it possible that only the men are required to keep God’s commandments, or that women are not included in the passage regarding God’s bringing them to the land of promise?
Immediately after these verses follow the words: “And you shall eat and be satisfied and bless the Eternal One, your God, for the good land that He gave you.” And the Bible continues: “Beware, lest you forget the Eternal One, your God.” Undoubtedly all these verses are directed to the entire people of Israel. God led all the people of Israel; so too the responsibility for the keeping of the Torah rested on all. Even though the land was shared out only to the men for agricultural purpose (so as to avoid the possibility of too much land accumulating in the possession of a few tribes through intertribal marriages), the land in its entirety was God’s gift to all the children of Israel. The land of Israel served all the Jewish people. Thus women have to thank God for the “good land” with no less sincerity than men.
Tosafot offers a different explanation of Ravina’s position. The grace after meals includes words of thanks “for the covenant that You have sealed in our flesh and for your Torah that You have taught us”. According to Tosafot, neither of these phrases applies to women. The “covenant sealed in our flesh” is the circumcision. But this excludes women. So too does the recalling of the “Torah that You have taught us”, since women are not commanded to study the Torah. While it is true that the sign of the covenant is visible only on the male body, we must wonder once again whether it is possible that God concluded His covenant only with the men and not with the whole people of Israel, including women no less than men. It is true that women are not commanded to study Torah, but are they not still part of the Jewish people to whom the Torah was given? They are Jews because of the Torah!
From the interpretations of Rashi and Tosafot, we learn that Ravina’s problem arose on the basis of the social status of women in his day; as if the essential part of the people were its male members, and women were a kind of auxiliary, needed to maintain the people. This would be in agreement with the Talmudic saying that “women are a people by themselves”, as if they were outside the main body of the children of Israel. As we saw above, the problem posed by Ravina was not finally resolved, and according to the Shulhan Arukh, women’s obligation remains in doubt. However, it would seem to us that today we have every right to follow those halakhic authorities (see above) according to whom the duty of women to say grace after the meal is as biblical as that of men. The social status of women has changed fundamentally. There is no doubt today that women are part of the Jewish people no less than men. The covenant was concluded with the Jewish people, and the land and the Torah were given to all of the Jewish people.
Women Saying Zimun
According to a baraita in Tractate Berakhot, women bentsh mezuman (i.e., three woman who eat together introduce their Birkat ha-Mazon with the special formula that is used also by men).19Berakhot 45b. Tosafot comments: “This was never practiced.” The phrase in the baraita suggests that women are obligated to do so. Tosafot justifies the absence of the practice by saying that the statement that women bentsh mezuman may also be understood as meaning that women need do so only if they wish. It is, however, rather difficult to uphold this interpretation, for another Talmudic passage says that all are obligated to zimun (if at least three persons have eaten together), and the Talmud interprets “all” as including women, quoting as proof the baraita mentioned above to the effect that women say grace in the form of zimun.
If this is intended to prove the law that all are obligated to practice zimun, then Tosafot’s interpretation that women may do so if they wish cannot hold. Nevertheless, Tosafot insists that zimun is not an obligation for women. Notwithstanding the phrase hakol hayyavim (“all are obligated”), Tosafot still insists that the meaning is that zimun is available for women but is not a duty. Other opinions insist that the words “all are obligated” are to be taken literally, meaning “it is a duty to do so.”. This opinion is supported by the Rambam (Maimonides), who writes: “Women … are obligated to say Birkat ha-Mazon,” and further on in the same passage: “All are obligated to zimun as they are obligated to say the blessing after their meal.”20Hilkhot Berakhot 5:6.
It is worth noting that according to those who maintain that zimun is a duty, the matter is not dependent on the question, discussed earlier, of whether the woman’s grace obligation is rabbinical or biblical. As we saw, according to Maimonides, the problem raised by Ravina was never resolved and, as Maimonides states, the question remains open. It may very well be that Ravina is right and a woman’s obligation is only rabbinical. Nevertheless, according to the Rambam, women are also responsible for zimun, since they are obligated, whether biblically or rabbinically, to say Birkat ha-Mazon. It would seem, then, that Tosafot and Rashi force themselves to give the phrase “all are obligated” the unconvincing meaning “all may” in order to justify the absence of the practice of zimun in their time.
Inclusion of Women in Zimun with Men
The baraita discussed in the preceding section concludes with the words “but not together with slaves because of moral looseness [in such a joint company].” This seems to indicate that women may well do Zimun together with male Jews, for it is unlikely that such an association will lead to the looseness feared when in the company of slaves. Indeed, the Rosh writes in one of his responsa: “Women fulfill their duty by the Zimun of men, since they are sitting together for the meal. If women say Zimun by themselves, how much more do they fulfill their duty through the Zimun of men?”21Hagahot Oshri, Berakhot, chap. 7:4. Of course, the Rosh holds that women have the duty to do Zimun for themselves, and therefore it is understandable that in his view they may do Zimun together with men if they eat together with them.
It is somewhat surprising that the Shulhan Arukh, which rules that women may do Zimun but are not obligated to, should nevertheless rule “that women eating together with men are obligated and fulfill their duty through our Zimun.” This agrees with the opinion of another halakhic authority, who writes: “Even though Zimun is not obligatory for women, yet together with men it is a duty.”22Orah Hayyim 199:7. The various sources indicate that women are to be included with three men for Zimun. There is a great surprise in the decision of Rabbi Judah ha-Kohen, who taught that women should be included in a Zimun of men.23Tur, Orah Hayyim 199. He seems to indicate that there is no need for three women, even one woman may be included. All the authorities speak of inclusion with three men, whose responsibility to say Zimun is independent of the number of women to be joined with them. The question now before us is: what may we infer for the women of our time from the various opinions we have mentioned?
There is no doubt that women today may pray in Zimun; according to others they are even obligated to do so.
As for their inclusion in the Zimun with men, we have learned that if they have their meals together they are obligated to Zimun (whether the Zimun among themselves is a duty or a choice of their own). The question remains: can women be counted among the required three persons together with one or two men? We meet with a number of reasons against this. Some say that it should not be done because of fear of peritzut, i.e., sexual looseness of behavior. We have quoted this phrase from the passage in the Talmud stating that women should not say Zimun together with slaves (who are obligated to observe all the mitzvot that women have to observe) because it may lead to peritzut. The very fact that peritzut is mentioned in connection with slaves indicates that it need not be feared in a Zimun with Jews. Nevertheless, there are those who insist that women are not to be included in the quorum of three Jews for Zimun because such an association may lead to peritzut.
Most remarkable is the argument of Rabbenu Nissim (Ran). He maintains that women are obligated to read the Megillah. He is also of the opinion that they may read it in public and even be included in a minyan of ten. Why then can they not be included in Zimun to make up the required number of three? And now comes the Ran’s surprising answer:
Zimun has a special version that is not used otherwise. If you now include a woman in order to justify Zimun, her presence becomes noticeable and there is reason to anticipate peritzut. However, if three men are taking part in the meal, Zimun is required because of them; in which case women may join in Zimun because their participation is not significant. But in the case of Megillah, there is no change whatever in the blessings and the reading because of the inclusion of women. No attention of men is then directed at them. There is no reason to fear peritzut.24Ran on Megillah 19b.
Even more surprising is Rashi’s view. According to Rabbenu Jonah, Rashi explains the statement of the Mishnah that one should not do Zimun with women (note, as indicated earlier, that it is said only about joining together with slaves, but nevertheless is applied to men in general) by saying: “Women should not be included in Zimun [with men, because of peritzut], not even with their husbands, because to be in company with women is not nice.”25This passage is not found in the text of Rashi included with the Talmud. See Beit Yosef, Orah Hayyim 199. This, obviously, has nothing to do with the reason of possible peritzut, which would be utterly meaningless together with one’s husband.
Most revealing is a passage in Tosafot.26Sukkah 38a, s.v., b’emet amru. Assuming that women’s obligation to say grace after meals is biblical, why should they not be able to perform the mitzvah even for men? The generally accepted principle is that anyone who is obligated to do a mitzvah can perform it for another person who is equally obligated. Explains Tosafot: “A man who does it for another man is different; he is more important [than a woman], or else, because for many, the matter would appear as degrading.” Tosafot’s words clarify the true reason for the opinions quoted above. Undoubtedly, the reasons given are not based on the Talmudic sources. They originate in the social status of the women of those days. The woman here is still in what we have called her nonpersonal status, lacking the recognition of her personal humanity and dignity. The resulting time-conditioned opinions are forced upon the original Talmudic texts. Undoubtedly, the halakhic authorities who utilized these ideas to oppose the participation of women in Birkat haMazon together with men were right in their own time. But nowadays, it would be absurd to say that the awareness of their presence because of the Zimun formula might lead to peritzut or that they must not be included in Zimun together with men because the association with them is improper or because men are in higher esteem than women. None of this need concern us.
Only one difficulty still requires our attention. Following the statement that the wife may say Birkat ha-Mazon for her husband, it is said that “condemnation is due the man whose wife says the blessing on his behalf.” Does this mean that the wife of an ignorant Jew who cannot say grace is not permitted to help him? Or that people who are dining together with family and friends and wish to honor the hostess or another woman in their company are not allowed to do so? The condemnation due a husband whose wife says the blessing for him refers to a specific situation. Explains Rashi, he deserves condemnation either because he did not learn or because if he did learn, he “insults his God by appointing a representative [to say grace for him].” The first reason applies where the wife always performs the mitzvah for her husband. Then, indeed, the husband deserves severe criticism for not wanting to learn how to say the berakhah. As for Rashi’s second reason, today we would have to say that not allowing the wife to say the blessing after the meal because as a woman she is unworthy of doing so would not be an insult to the Creator, but to the woman whom He created.
Summing up our discussion:
1. Women have every right, and maybe even the duty, to join together among themselves for Zimun.
2. We ought to follow the ruling of the Rosh that women fulfill their duty for Zimun when they take their meals together with men. As the Rosh formulates it, since they do say Zimun among themselves, there is all the more reason for them to fulfill it through the Zimun of men.
3. There is every justification for the opinion of Rabbi Judah haKophen, who ruled that even only one woman was to be included in Zimun and counted to make up the required number of three.
4. We might also accept the opinion of the Rabad, the Ran, and the Rashba that women’s obligation to say Birkat ha-Mazon is biblical, especially since this is also the teaching of the Jerusalem Talmud. Since this is so, women may well act on behalf of others, female or male.
4. SAYING KIDDUSH AND READING THE MEGILLAH
Strangely enough, as we shall see, the subjects of saying Kiddush and reading the Megillah are closely related in the halakhic discussion. The Talmud clearly states that even though Kiddush is a mitzvah aseh sheha-zeman geramah, i.e., a commandment dependent on time sequence, women are biblically obligated to say Kiddush. Explains Rava: Of the Shabbat the Torah says, “Remember it” and also “Keep it.” The two are related to each other. Thus we conclude that he who is obligated to do the one must also do the other. But “to remember” refers to the recitation of the Kiddush. We conclude therefore that he who is obligated to keep the Shabbat is also obligated to say Kiddush. Since women have to observe the Shabbat no less than men, they have to remember the Shabbat day just as men do. This is the law that is generally accepted on the basis of Rava’s explanation.27Berakhot 20b. So states, for instance, the Tur: “Men and women are equally to say the Kiddush of the day.”28Orah Hayyim 271. No one disagrees with this.
If followed up, the law has rather important halakhic consequences for the form in which Kiddush may be practiced. The Bet Yosef, commenting on the ruling of the Tur, quotes the Kol Bo as follows: “Since women have the same biblical obligation to say Kiddush as men, therefore they may fulfill this obligation also for men [i.e., recite Kiddush on behalf of men].” There is little doubt that the same conclusion follows from Rashi’s explanation in the case of reading the Megillah. In the Talmud it is ruled: “All are obligated regarding the reading of the Megillah. All are religiously qualified [kesharim] to read the [Megillah].”29Arakhin 3a. When it is asked who is included in the word “all,” the answer is that “all” includes women. Explains Rashi: Women are themselves obligated; and women are also qualified to read it for men, i.e., men fulfill their obligation when women read on their behalf. Quite clearly, Rashi intends to explain the connection between the two sentences “All are obligated” and “All are qualified,” meaning: Since women have the obligation, they also have the right to do so on behalf of men. This is in keeping with the general principle according to which a person who has the duty to fulfill a mitzvah has the authority to enact it on behalf of another person who is under the same obligation. It is obvious that the same rule applies to the mitzvah of Kiddush. Since the commandment of Kiddush for women is of the same biblical force as that for men, women have the right to say Kiddush on behalf of men. And indeed it is so stated in the Shulhan Arukh: “Women may perform the Kiddush on behalf of men because they are obligated to do it just as men.”30Orah Hayyim 271:2.
All this seems to be quite simple and clear, in keeping with generally valid halakhic principles. Yet, to our surprise, the Bah disagrees with the Shulhan Arukh’s ruling. Commenting on the Tur,31Ibid. he maintains that the decision of the Shulhan Arukh in the case of Kiddush contradicts its ruling on the reading of the Megillah. In section 689, says the Bah, the Shulhan Arukh maintains that “some say” that women may not read the Megillah on behalf of men, based on the words of the Behag, who disagrees with Rashi’s view that women may read the Megillah for men. It is astounding, says the Bah, that the Shulhan Arukh should follow Rashi’s ruling in the case of Kiddush, but accept the opinion of Behag, who disagrees with Rashi, in regard to the Megillah. The Bah concludes that one may not treat Kiddush and Megillah differently, supporting his decision by adding that the Rashal ruled as he does. It would seem, then, that the Behag’s ruling is the basis for the opinion, stated in the Shulhan Arukh, that yesh omrim (“some say”) that women may not read the Megillah for men. But what is the source of the Behag’s opinion?
Tosafot explains that the proof for the Behag’s decision is a Tosefta where it is said clearly that “women, slaves, and minor children are free from the reading of the Megillah.”32Arakhin, 3a, s.v., l’atuyi nashim. However, the Behag adds to these words: “Even though they are free from reading it, they are obligated to hear it.” This, of course, contradicts the plain meaning of what we have quoted from the Mishnah and Gemara in Tractate Arakhin, that all are obligated to read the Megillah and all are (religiously) qualified to read it. As we learned, the word “all” included women.
According to the generally valid halakhic principle, if a Tosefta is in disagreement with a Talmudic ruling, the Talmudic source prevails. Tosafot, wishing to defend the opinion of the Behag, makes a tortuous effort to reconcile the Behag’s teaching with that of the Talmud. It explains that “the word ‘all’ includes women” means that “one should not think that women cannot read the Megillah even for women. For that reason it is first said: ‘All are obligated to hear the reading of the Megillah, and thus women may read it to women [who are obligated to hear it] like themselves.’” All this is, of course, extremely forced. The same words have different meanings for men and for women. For men they say: “All are obligated to read the Megillah; therefore, they may fulfill the mitzvah for each other.” But for women the meaning is: “All women are obligated to hear the Megillah read; consequently, women may read it for women.” In itself this is difficult to accept. But it is even more difficult to agree with the second part of the explanation: since women are obligated to listen to the Megillah, they have the right to read it to women. This is a logical non sequitur. It does not follow from the fact that women should hear the Megillah that therefore they may read it to other women.
If we now return to the starting point of our discussion, we must note that there is no contradiction between the rulings of the Shulhan Arukh in regard to Kiddush and Megillah. In the case of Kiddush, the halakhic authorities agree that women are obligated to say it and, therefore, may also say it on behalf of men. However, in the laws of Megillah the Bahag holds that women are not obligated to read it and therefore cannot do so for men. Consequently, the Bah’s equation between Kiddush and Megillah is not valid. His Humrah, i.e., his suggested “strictness” about Kiddush, is without foundation. Here is the concluding comment of the Taz, the son-in-law of the Bah, on the subject:
There is no contradiction in the words of the Shulhan Arukh. The law of Kiddush is unlike the law of reading the Megillah. For in the case of the Megillah there are opinions that women should say the blessing not over the reading of the Megillah but over the hearing of the Megillah being read… therefore, surely it is not proper that l’khathila [i.e., ruling ab initio], women should read it for men. However, here [i.e., in the case of Kiddush] all agree that there is no difference between men and women. Thus, it is proper that women may perform the Kiddush also for the sake of men. The Rashal and my father-in-law, of blessed memory, ruled that here, too [i.e., the law of Kiddush], women may not say it for men, just as in the case of Megillah. But this is not convincing at all.33Orah Hayyim 271:2.
It would seem to us that there is additional proof for the words of the Taz. The Shulhan Arukh brings the ruling of the yesh omrim, i.e., that “some say” that women have no right to read the Megillah for men, which seems to be in accordance with the Behag’s decision, but it is evident that he does not fully accept the Behag’s opinion. According to the Behag, as we noted, women are not obligated to read the Megillah themselves but only to hear its reading. This being so, it is obvious that they cannot do the reading for men. But the Shulhan Arukh states clearly that women’s obligation is to read and not just to listen to the reading. That is why the Shulhan Arukh brings the opinion of the Behag as yesh omrim, “some say,” which means that the opinion is not fully binding. If you disagree with the Behag and have found that women are obligated to read the Megillah, then you rule that they may also do so on behalf of men. Why then does the Shulhan Arukh quote the view of the Behag at all? At this point the Taz’s comment is clarified. He is saying that since in the case of the Megillah there is an opinion that women may not act on behalf of men, we are mahmir (strict) about the matter and do not allow women to fulfill this commandment for men. But this is not the rule on all occasions. The Taz adds the word l’khathila as a generally valid practice; however, if be-diavad, i.e., if it happened – perhaps mistakenly, or for some other reason present in a given situation – that a woman did read the Megillah for a man, his duty was fulfilled by her reading on his behalf. Unquestionably the Taz’s ruling is correct: Kiddush is not to be compared to the reading of the Megillah. Thus, the original principle in the case of saying Kiddush remains binding: since women are obligated to say Kiddush just as men, they may perform this duty on behalf of men.
Let us now clarify the woman’s obligation regarding the reading of the Megillah. We noted above the opinion of Rashi, who, basing himself on the discussion of the subject in Tractate Arakhin, stated that since women are obligated to read the Megillah, they may also do it for men. This is also the view of Maimonides, who holds as follows: “All are obligated to read it, men and women, etc.”34Yad ha-Hazaka, Megillah 1:1. Then he continues: “Whether one reads it himself or hears it from the reader, he has fulfilled his duty; but only if he hears it from one who himself is obligated to read it. Therefore, if the reader was a minor or a mentally disturbed person, he who hears it from him has not done his duty.” Since Maimonides states that women are obligated to read the Megillah but does not mention women when, soon afterwards, he lists those who are not fit for the task of acting on behalf of others, it proves that women may read the Megillah for men. This is also how the Magid Mishneh, commenting on Maimonides’ words, interprets his meaning. Rabbenu Nissim (Ran) is of the opinion that women have the right to read the Megillah for men and may even be included with men in the minyan required for public reading. “For how could it be that women may read it for men but should not be included with them in the minyan? Undoubtedly, they may be included.”35Megillah 2, conclusion. The Rosh quotes the opinion of Rashi as well as that of the Behag: the Bet Yosef explains that the Rosh is leaning towards the view of the Behag and is mahmir in the matter.36Tur, Orah Hayyim 689. The Mordekhai quotes the Rabyah, who follows the ruling of the Behag.37Megillah 1.
We saw that the Shulhan Arukh quotes the opinion of the Behag as yesh omrim, “some say.” The very fact that he rules that women are obligated to read the Megillah and not, like the Behag, that their duty is only to listen to its reading, proves that his acceptance of the Behag’s view is only partial. His own view is that women may fulfill the duty of reading on behalf of men. He quotes the Behag as yesh omrim as a concession le-humra (to a stricter view), which does not require adherence in all situations (as we have explained above). However, for the sake of pure Halakhah, let us review the original sources on this subject once again. Undoubtedly, the Tosefta on which the Behag relies for his view contradicts the Talmudic teaching. All the efforts to eliminate the contradiction are unconvincing. The explanation that the statement in the Talmud, that women are qualified to read the Megillah means qualified to read it for women, is forced. What is worse is the fact that this alone is not enough. What about the statement that all are obligated to read the Megillah, including women? The answer has been to correct the text and read it as saying: “All are obligated to hear the Megillah.” These explanations cannot be accepted. Why indeed should women not be obligated to read the Megillah just as men?
This is how the ruling about women’s obligation in this matter is formulated by Rabbi Joshua ben Levi: “Women are obligated to read the Megillah, for they too were in that miracle.”38Megillah 4a. Explains the Rashbam: “Indeed it was so. The main part of the Purim miracle was due to the woman Esther.” Of course, the words “for they too” do not say that women had the greatest share in the miracle. Therefore Tosafot explains Rabbi Joshua ben Levi’s statement as meaning: “Women were in danger of being killed together with men.”39Ibid; see Tosafot, s.v., she-af hen hayu be-oto ha-nes. And they were saved by the same miracle. Surely, this ought to be enough to obligate women to read the Megillah just as men. This is what Rabbi Joshua ben Levi is saying.
True, the Mordekhai (as above; see also Bet Yosef as above) believes that the view that women are obligated only to hear the reading is supported by the passage in the Yerushalmi, where Bar Kapara says: “One has to read it [i.e., the Megillah ] before women and children.”40Megillah 2:5. With all due respect to the Mordekhai, the passage only indicates that the educational level of women was like that of children. They were unable to read the Megillah by themselves; therefore it was necessary to read it for them. The proof for this is found immediately after the words of Bar Kapara, where we are told the Rabbi Joshua ben Levi would assemble his children and the members of his household and read the Megillah to them. We know that Rabbi Joshua ben Levi holds that women are obligated to read the Megillah themselves just as men. Why, then, did he read for them? Quite clearly, with the women as with his children, he was attempting, for educational purpose, to introduce them to the reading of the Megillah.
There is another attempt to disqualify women from reading the Megillah for men by the Magen Avraham. On the opinion quoted in the Shulhan Arukh as “some say” (see above), the Magen Avraham comments: “One may not compare the reading of the Megillah to the lighting of the Hanukkah candles, which women perform also on behalf of men. The reading of the Megillah is different. It is like the reading of the Torah, which should not be done by women because of the dignity of the assembled congregation. And since women should not do it in public, neither should they do it for individual men. For we should not make a distinction.”41Ibid. Of all this there is not even a hint in the Talmudic sources. There is little doubt that time-conditioned attitudes and opinions regarding women were forced upon the clear teachings of the Talmud and upon the original meaning of authentic Halakhah. It was all justified at that time. It was the time-conditioned truth. However, in our day it is essential that we return to the original Talmudic sources without forced explanations, and rely, in matters of halakhic practice, on Rashi, the Rambam, and the Ran.
Only one more point remains that still may require clarification. The Divrei Hamudot remarks that even though women may recite the Kiddush for men, a husband whose wife does it for him will be in the category of which the Talmud says: “May a curse descend on the man whose wife says the blessing on his behalf.”42Berakhot 20b, note 35. This is indeed surprising. The Talmud quotes that baraita in order to prove that women may do mitzvot which are obligatory for them for all who are under the same obligation. How is it possible, then, to say that a curse will descend upon all who permit a mitzvah to be done by a woman on their behalf? Is it inconceivable that an am ha-aretz (ignorant Jew) may occasionally be in need of some help in saying the Kiddush or the Birkat ha-Mazon? It would seem that a man is exposed to such severe criticism only in the case of his wife saying the berakhah for him. But it applies if it is done as a continuous practice; i.e., the husband not only does not know how to say the berakhah but does not intend to learn it.
As we saw, Rashi offers two reasons to explain the baraita’s statement that such practice is rejected: first, the husband has not learned; and second, if he has learned, he insults his Creator by appointing representatives “like those.” Quite clearly we have every right to reject Rashi’s second reason. Nowadays the very words are an insult to a creation of the Creator, the wife. As for his first reason, it is, of course, as valid today as it was in Talmudic times. The task of the wife is certainly not to replace her husband in the saying of the required blessings because he refuses to learn them. This would be objectionable as a permanent practice. But there is no reason whatsoever why in our days husband and wife may not alternate from Shabbat to Shabbat in the saying of the Kiddush. It would be our expression of respect for the wife and mother.
5. TALMUDIC AND HALAKHIC EFFORTS TO IMPROVE THE WIFE’S STATUS IN RELATIONSHIP TO HER HUSBAND
Undoubtedly the laws of marriage and divorce grant the husband a degree of power that often has severe consequences for the wife. Our sages (Hazal) were aware of this and attempted, with great courage and sincere concern, to introduce solutions to many of the problems it caused. We intend to present some of them here. They are all halakhic innovations.
In the case of giving a get to one’s wife, the Torah commands: “He [the husband] shall write her a divorce document and give it into her hands.”43Deuteronomy 24:1. Of course, it is hardly possible for every husband to write the get himself. The writing of a get requires a special technique of which most husbands are incapable. Therefore our teachers interpreted the word ve-katab, “and he shall write,” as meaning that the husband has to pay the fee of the sofer (professional scribe). The law is stated clearly in a mishnah.44Bava Batra 167a. Nevertheless, after some time, the custom changed. Instead of the husband, it was the wife who usually paid the fee. The Talmud explains that the rabbis gave this duty to the wife so that her divorce would not be unduly delayed.45Ibid. 168a. Apparently husbands who did not wish to pay a sofer to write a get would simply leave home without divorcing their wives. Having no get, the wife would become an agunah, a woman who had no husband but was still legally married, and thus was unable to marry another man. In order to avoid such injustices, the rabbis ruled that the wife should pay for the writing of the get.
The decision was obviously not easy for the rabbis. It went against the law of the Torah. There is even a Talmudic opinion stating that this deviation from the biblical rule might be sufficient to invalidate all divorces, since the Torah ordered “and he shall write” and here it is she who is writing it for him. Rava, however, found a reason that justified the deviation. In monetary matters, we work with the principle hefker bet din hefker, i.e., expropriation by the duly established rabbinical court (of former times) is valid. Thus, it is possible that the rabbis conveyed to the husband ownership of the money the wife spent on the writing of the get. In essence, however, this was a change of a biblical law in order to protect the wife. Since, however, protecting another human being against an act of injustice is also a Torah obligation, one might say that in this case the rabbis changed a biblical rule with the force of another biblical rule that they applied for the sake of the wife against a husband who was not willing to fulfill his obligation as commanded by the Torah.
Rather different is the practical leniency for the sake of the wife when the witnesses to the writing of the get are illiterate. In general, the rule was that only witnesses who were able to read and write were allowed to testify on any document. Yet, in the case of divorce documents, Rabbi Simeon ben Gamliel ruled that “with witnesses who cannot read, one reads for them and they sign. And with witnesses who are unable to sign, one scratches the shape of the letters of their names on the paper, which they can fill in afterwards with ink.”46Gittin 19b.
It would seem that this latter law, where the witnesses just fill in ink in the places prepared for them, goes much further than the one when the text of the get is read to the witnesses who can, at least, sign with their own handwriting. These arrangements, which are in fact contrary to important laws of adequate testimony, were instituted, says Rabbi Elazar, so that the daughters of Israel would not become agunot. The reason was that the husband might want to leave urgently for another land or a distant place. If no other witnesses were immediately available, he might depart without divorcing his wife. She would then be an agunah, “anchored” to a man who in fact no longer lived with her as a husband.
These are only a few examples of this category. We shall now consider the cases where the rabbis limited or even removed the power the husband received by the act of kiddushin, the legal espousal of his wife. As is well known, the husband has to give the get to his wife only of his own free will. But our sages saw that, at times, there were marriages where it was, indeed, impossible to leave the wife under the control of her husband. The Mishnah lists a number of cases that prevent a woman from continuing married life with her husband: if the husband suffers from a certain illness (shehin) that does not allow him to lead a normal life with his wife, or if his work attaches a bad odor to his body, or if he has a bad odor caused by certain bodily ailments related to the nose or the mouth (all this was the case in mishnaic times).47Ketubot 77a. In such cases, the husband was compelled until he was willing to say rotzeh ani, “Yes, I am ready to divorce my wife of my free will.” Here is not the place to enter into a detailed discussion of such cases. Suffice it to note that even though, according to the Torah, a get may not be given against the husband’s will, the wife in the situations related above could not be expected to continue her marriage, and in consequence our sages found ways to force the husband to give a get of his own free will.48E.g., Maimonides justifies this apparently self-contradictory procedure in Laws of Divorce 2:5 and 2:20. There are, of course, other explanations.
The principle of kofin oto ad she-yomar rotzeh ani, “one compels him until he says that he is willing to give the get,” was used on many occasions, not only in the cases listed in the Mishnah. The Amoraim applied it often to their understanding of the need in the cases before them. For instance, a woman once came before Rav Nahman, demanding a get from her husband.49Yevamot 65b. Her reason was that her husband was incapable of begetting children. Rav Nahman initially replied, You are not commanded!” meaning, “As a woman, you are not obligated to produce offspring [the obligation, according to the Torah, is only on men, not on women]. Therefore your demand for a get is not valid.” But the woman could not be so easily dismissed. She said to Rav Nahman: “Does this woman not need a cane for her hand and a spade for her burial?” She was, in fact, saying to Rav Nahman, “Even though I was not commanded to give birth to children, will I not be in need, in my old age, of sons and daughters on whom to lean, and when I die, to bury me?” The ruling of Rav Nahman was spontaneous: “When like this, we certainly compel,” meaning, “In a case like this we certainly compel the husband until he is ready to give the get freely.” Such a decision requires from the dayan (rabbinical judge) a great deal of courage to accept the responsibility and to rule according to the principle that “the dayan must consider only what his eyes see.”
Another category of halakhot shows the extent to which our sages were willing to go in halakhic innovation in order to protect the vital well-being of the wife against the power that the form of kiddushin provides for the husband. In certain cases they were even willing to annul the validity of the kiddushin and thus dissolve the marriage retroactively, freeing the wife from the need for a divorce. The origin of such a ruling is found in Tractate Gittin.50Gittin 33a. According to the din (law), one could divorce one’s wife by sending her a get through a shaliah (representative). At the same time, the husband could withdraw the authorization that he gave his shaliah or simply annul the get. Regrettably, he could do this even without the knowledge of his representative or of the wife. This could lead to very serious consequences for the wife. The husband could go to any Beth Din (rabbinical court) and declare that he was annulling the get or cancelling his representative. Neither the shaliah nor the wife had to be informed of the cancellation. The wife would still receive the get. Considering herself divorced, she might then remarry. Her second marriage would be invalid. She would be obliged to leave her second husband, but, having lived with another man, she was not permitted to return to her first husband.
In order to protect the wife, Rabban Gamliel the Elder introduced a takkanah (improvement on the law) by forbidding the husband to cancel his representative or the get without informing the representative or the wife, whichever the case might require. But now the Gemara discusses the question: what happens if a husband disregards the takkanah of Rabban Gamliel and withdraws his representative or the get before a Beth Din in another place? Says Rabbi Simeon ben Gamliel: “He can neither relent, nor can he add anything to the conditions attached to the get. Otherwise, what authority is left to the Beth Din?” against which the argument is raised: How is that possible: according to the Torah this get is invalid [i.e., it was cancelled by the husband before it reached the wife], and because otherwise what authority is left to the Beth Din, we allow a married woman to anyone [who is willing to marry her]?” The question is answered: “One espouses a wife according to rabbinical determination, and the rabbis removed the validity of the kiddushin.” The kiddushin is enacted with the words: “I am espousing you in accordance with the law of Moses and Israel.” But our sages established the rule that we must not annul a get without the knowledge of the wife. The husband who nevertheless does so violates an obligation than he took upon himself as binding for the act of marriage. Thus, the kiddushin becomes invalid retroactively.
It is important to note that the retroactive annulment of the marriage was used not only when the husband violated a known and established rabbinical rule but even spontaneously, according to the need of the situation. The Talmud relates an incident that occurred in a place called Narash.51Yevamot 90b. A man married a minor. Such marriages could be dissolved by the girl when she reached the halakhically legal majority at the age of twelve. Very often another act of kiddushin would be arranged that would be fully binding. In this case, the girl having reached the required age, the husband brought her under a huppah (marriage canopy) with the intention of marrying her in accordance with the law valid between grown-ups. However, another man anticipated this, took her away, and gave her kiddushin. According to the law of the Torah the marriage to the minor had no biblical validity, whereas the kiddushin of the second man was fully valid. Yet the rabbis took the wife away from the second man and returned her to the man who was her husband in her minority. This was done without requiring a get from the second man. The rabbis invalidated the girl’s marriage to him. The explanation given is: “He acted improperly, so we too treat him improperly and invalidate his kiddushin.” Once again the same method of rabbinical enforcement was used.
There was, however, a great difference between the two cases. In the example that we have discussed earlier, there existed a takkanah of Rabban Gamliel the Elder. To observe the arrangement made by Rabban Gamliel was one of the conditions included in the act of kiddushin. To violate it was a violation of one of the major responsibilities that the husband-to-be took upon himself. Thus the marriage became retroactively invalid. The case of Narash was rather different. There was no rabbinical takkanah attached to the marriage act as a condition that was violated. But something much more important is included in “the laws of Moses and Israel,”, namely, proper moral behavior. If the husband violates it, he violates a vital condition of the marriage that he undertook to keep.
With equal courage, Rava proceeded to validate a get and permit the woman to remarry, even though the get was invalid according to the original law of the Torah. Let us consider the case in detail. According to the halakhic principle of oness rahmana patrei, if a person undertook an obligation with the proviso that it was dependent on a condition he had to fulfill, and circumstances beyond his control made it impossible for him to fulfill the condition, he was adjudged to have met the terms of his obligation. For instance, assume that a husband, on the eve of his departure on a long journey, hands his wife a get that will take effect only if he does not return within a certain time. In accordance with this principle, he is considered to have fulfilled his obligation if he set out on the return trip but was prevented from arriving before the deadline because of a flood on the road or some other circumstance beyond his control. Since he is then considered as having returned in time, the get loses its validity, and the marriage remains in full force.
Now, Rava came along and, on the strength of his own reasoning, declared: Ein ones be-gittin; i.e., in cases of divorce we must not pay attention to the effects of intervening superior forces or circumstances.52Ketubot 2b. In other words, if the husband does not return at the appointed time, no matter what the cause might have been, he has in fact not returned and the get becomes valid, as was stipulated. What was the basis for Rava’s surprising ruling against a well-established halakhic principle?
The explanation given is that Rava acted out of consideration of the effects the original law would have on two kinds of women: those who are chaste, and those whose sexual values are unreliable. If the husband does not return, the chaste wife will always assume that he was prevented from returning by something that was beyond his control. Therefore, she will always believe that the get is invalid and that she is a married woman. The sexually loose woman will always maintain the opposite, that her husband never intended to return and thus her divorce is valid. In the first case, the wife becomes an agunah even if the husband does not intend to return, but if the get was valid, she would be free to remarry. In the second case, the wife will always consider herself divorced and free to marry whomever she pleases, even though the husband may want to return but is prevented from doing so by circumstances beyond his control, and in this eventuality the get is invalid and the wife remains a married woman.
Because of these considerations, Rava decided to invalidate the otherwise ruling principle that overwhelming circumstances release a person from the consequences of non-fulfillment of the condition he agreed to. Thus, a husband who gives his wife a get that will only take effect if he does not return at a certain time should know that if he does not return, regardless of the reason, the get becomes valid, and he and his wife are divorced. In light of this, it is natural to ask how a get that is invalid according to Torah law can be declared valid by the rabbis, so that a marriage is dissolved. Once again the answer is the one found in the tractate of Kiddushin: everyone who marries a woman does it by the formula “according to the law of Moses and Israel.” Since Rava’s ruling has been incorporated into the law of Moses and Israel, the rabbis had the right to render a marriage invalid by annulling it retroactively.
One of the most surprising rabbinical decisions was the ruling concerning testimony about the death of a husband. Let us assume that a husband went on a long journey and only one witness testified that he is dead. The witness’s testimony is accepted even if it is based on what he heard from another person, even when the witness is a woman reporting what she heard from another woman or from a male or female slave. On this basis, the wife is considered a widow and permitted to remarry.
This rabbinical ruling is a deviation from the law of the Torah in all its phases. According to the Torah, two male witnesses are required in order to establish a fact in a Beth Din by testimony. In addition, women are not accepted as witnesses; and testimony based on hearsay is not accepted. How could our sages depart from these laws of the Torah? The answer is as follows: if the woman should remarry and the husband then returned, the wife would still have been married to him when she married her second husband, and thus would have committed adultery. Since the law would demand that she leave her second husband, but not permit her to return to the first one, she would be extremely careful about relying on testimony that is not normally admitted. However, the problem is not fully solved, for the question remains: why did the rabbis initially allow her to remarry on the strength of such questionable testimony? If they had insisted on two valid witnesses, there would not have been any need to rely in the end on the wife’s conscientiousness when remarrying. The final answer is: “In order to protect the woman from becoming an agunah, they were lenient in this case.”53Yevamot 122a. They realized that it might be impossible to find two qualified witnesses who actually saw the husband die or dead, and in that case the wife would be bound for life to an absent husband. Our sages acted in order to protect the wife. (Some of the authorities, among them Tosafot and Maimonides, endeavor to explain the halakhic validity of the deviation from an otherwise generally effective biblical law.)
An important subject that is rather close to the conditions of married life in our own times is the one halakhically known as the case of the moredet (rebellious woman). A rebellious woman is a wife who declares that she is unable to submit to her husband sexually. He is strongly displeasing to her. The husband of a moredet is compelled to divorce her, but halakhic authorities disagree as to whether this rule is found in the Talmud, or was a later introduction of the yeshivot and the sages of the Gaonic period in Babylon.
Maimonides, for instance, maintains that the rule is of Talmudic origin. Here is his formulation: “A wife who refuses to submit to her husband in the sexual act is called moredet. We ask her for the reason of her refusal. If her answer is that he has become displeasing to her, we compel the husband to divorce her there and then; she is not like a prisoner of her husband to be forced to submit to one whom she hates.”54Ishut 14:8. Alfasi, who holds that the rule to compel the husband to divorce does not have its origin in the Talmud, adds: “However, today, in the rabbinical courts in the yeshivot, this is how they rule in the case of the moredet: when she comes and says, ‘I do not want this man, let him give me a get,’ let him give her a get immediately, etc.”55Rif, Ketubot 63a-b.
There are sources confirming that Rav Hai Gaon and Rabbenu Gershom introduced in the Babylonian yeshivot the practice of compelling the husband to give a get in a case of this kind. Other authorities, like the Rashbbam, the Rosh, and Rabbenu Tam, disagree with this approach, excusing their departure from the practice of the Gaonim on the grounds that the latter had instituted their takkanah only for their own generation. The same criticism was directed against the opinion of the Alfasi (Rif) quoted earlier. Nachmanides (Ramban) defended the Rif against such criticism in rather strong language. This is how he formulates it:
What is asserted… that the institution of the yeshivot [in Babylon] was intended only for the passing hour [hora’at sha’ah], our great teacher [i.e., the Alfasi] had a better knowledge of the takkanot of the Gaonim than any of us. His words prove that the Gaonim gave their decision in this matter for the generations to come, etc… it was the practice till the time of the Rif. For five hundred years this arrangement was not moved… as it was known by them in their responsa. You find this expressly in the early responsa of Rabbi Simeon Kayyara and in all the works of the rishonim [the early recognized authorities], as well as in those of the aharonim [the later authorities], and they were familiar with how these takkanot were intended, etc.
One learns from the various sources that one must not judge the case of the moredet on the basis of a general, all-comprehensive principle. The deciding authority is obligated to investigate every case as unique of its kind. He must make the effort to understand the “mind of the woman.” As one of the authorities expresses it: “Even an ishah kesherah [religiously reliable woman] cannot submit to a man who is hated by her.” We may add that especially for an ishah kesherah it is hardly possible to live with a husband after the intimate bond of the marriage has broken down and mutual understanding has ceased.
For many generations after the conclusion of the Talmud, because of their deep understanding of the serious problems of the wife’s wellbeing, rabbis often used the ruling of “We compel him [to give the get] until he himself agrees to do it.” In case of need, they even went so far as to annul the legality of the marriage retroactively. In the Shulhan Arukh, the Rema writes that it is a sin for a husband to beat his wife, and then quotes the opinion that if he was warned once or twice and did not listen, one compels him to divorce her.56Even ha-Ezer 154, 3.
The teaching of the Tashbaz in his responsa deserves special attention.57Responsa, II. Part. chap. 3. He was asked about a husband whose treatment of his wife caused her to suffer. The Tashbaz continues: “And all know that he is a very hard man. She cannot endure him because of the many quarrels; he also starves her, so that she actually hates life itself.” His answer was: “He should let her go and pay her the value of the ketubah, for we practice the principle that a ‘woman was created for life and not for suffering’ [based on the biblical explanation of the name Eve: ‘For she was the mother of all living’].”58Ketubot 61a, citing Genesis 3:20. The Tashbaz further strengthens his argument by adding: “A person cannot live together with a snake in one basket… quarreling in the house is more difficult to endure than a home without food.” Finally, he concludes that in the case before him “one compels the husband until he agrees [to divorce her].”
The Tashbaz does not ignore the fact that some of the later halakhic authorities (aharonim) do not agree that the husband can be forced to give a get. He adds: “But neither are we to be disregarded. And in a matter that depends on logical consideration, the dayan [rabbinical judge] has nothing but what his own eyes see.” Undoubtedly, this is the right approach for the halakhic decision, especially in our own days.
Some rabbis objected to the idea of retroactively annulling marriage because of the seriousness of the possible violations of the laws regarding married women. Nevertheless, in every generation from the time of the Babylonian Gaonim almost until our own day, many communities established communal marital regulations the violation of which would lead to retroactive annulment of the marriage. In general this was done with the approval of recognized and highly respected halakhic authorities.59E.g., A.H. Freimann’s Seder Kiddushin ve-Nissu’in me-Aharei Hatimat ha-Talmud ad Zemanenu; also M. Elon’s Ha-Mishpat ha-Ivri 2:20.
If in past generations the problems were so serious that rabbinical sages and communities were compelled to renew the solution of retroactive annulment, how much more serious are the problems today, when there have been fundamental social, educational, and professional changes in the status of the woman! In my work, Tenai be-Nissu’in u-ve-Get, I have shown that there are halakhic possibilities to introduce conditions into the ketubah (marriage contract) whose violation would bring about the retroactive annulment of the marriage. (I regret to say that my work has not been given serious consideration, and instead all kinds of statements have been made maintaining that my teacher, Rabbi Y. Y. Weinberg, z.l., withdrew the moral support that he gave to the work. I have to declare that in all these statements and rumors there is not the slightest truth.)
It is difficult to understand how the rabbinical authorities of our day can so utterly disregard the humanitarian commitments and important principles of halakhic ethics that guided the halakhic practice of the Talmudic and post-Talmudic sages.
6. THE AGUNAH PROBLEM
The problem of the agunah, in the widest sense, has some very serious implications for the status of women in our days. There are numerous cases of unscrupulous husbands misusing their halakhically awarded control over the divorce process. Some men have demanded extortionate sums of money from the wife or her family before agreeing to a divorce. Others have withheld the get as a way of forcing a wife to accept an unfair property settlement. Still others, with vicious intent, simply refuse to give a get, and abandon their wives without divorcing them.
All this causes a great deal of suffering for wives, especially in Israel, where they may have to wait for years before a divorce is arranged, not necessarily in accordance with strict principles of justice. The problem has different facets, though no less serious, in the Diaspora. While demands for money in return for a get come there too, of course, a woman who refuses to submit to blackmail by her husband may instead turn to civil divorce as a solution to the problem. If she does so, and then wishes to marry someone else, she may find a rabbi who is willing to officiate without raising any questions regarding a religious divorce from her previous marriage. Or else, as often happens, she can remarry in a civil ceremony. In both cases, according to Jewish law, she would be an eshet ish, a married woman living with another man. Her children, mamzerim, would not be allowed to marry into the Jewish community.
Since Talmudic times, no generation has been without problems of this kind. It is our intention to summarize briefly some of those problems and show how rabbis, among them some of the greatest halakhic authorities, struggled to solve them.60The examples reported here are mainly taken from the excellent work of A. Freimann, cited in the preceding note. A comprehensive discussion of the halakhic issues involved will be found in my work. Tenai bi-Nissu’in u-ve-Get (Jerusalem: Mosad Harav Kook, 1966 ; 2nd ed. 2008). As we will see, they did so by utilizing the halakhic concept of tenai be-kiddushin (conditional marriage).
The practice of conditional marriage existed already in Talmudic times, as is shown by the following story told in the Talmud:61Bava Mezia 104a. In Alexandria, toward the end of the Second Temple period, people would give kiddushin to their wives (i.e., legally espouse a woman as wife by giving her an object of value for that purpose). But when the time of their entering into the huppah (marriage canopy) arrived, other men would come and take them away (by force) and marry them. The sages intended to declare the children mamzerim, since the mothers had been legally married before and the second marriage was invalid. Said Hillel the Elder, “Show me the ketubah [original marriage contract] of your mothers.” They brought it to him, and it was found written in it: “When you move to my house, you shall be my wife according to the laws of Moses and Israel.” Naturally, the sages no longer declared the offspring mamzerim, for the condition “when you move into my house” invalidated the act of the first kiddushin.
On the basis of contemporary practice, it may be difficult to understand the meaning of this story. Originally, the two phases of marriage, erusin and nissu’in, were separated from each other in time. Erusin, normally translated as “engagement,” was not an “engagement” in the sense in which the term is understood today. It was kiddushin, the actual legal espousal of a person as one’s wife by giving her the required object of value and saying, in the presence of two witnesses: “With this ring [or coin or any object of value] I wed you in accordance with the law of Moses and Israel.” Nissu’in, the ceremony under the huppah and the joining of the bride and bridegroom, followed sometime after erusin. As a rule, the bride was given twelve months to prepare herself for married life, which started with nissu’in. Since that act of “engagement” could take place at any time, in any place, and in the presence of any two witnesses, even without the knowledge of the family or any other public announcement, it often, apparently, was not taken very seriously by the two parties. Either or both might change their minds long before nisu’in; the bridegroom might marry another woman or the bride agree to marry another man, even allowing herself to be carried away by force. In the first case, she is deserted by her prospective husband; in the second, she is deserting him. But in both cases, the original act of erusin is valid, so she is an eshet ish, a legally married woman.
When she is deserted, she becomes an agunah and cannot marry another man without a get. In the other case, if she lives with another man, both are committing adultery and their children are mamzerim. In order to solve this problem, a condition (tenai) was introduced into the ketubah stating that the kiddushin of the erusin would take effect only if followed by the appropriate arrangement of the nissu’in. In other words, if nissu’in did not take place, the act of kiddushin became invalid. The woman would then be free, according to Halakhah, to marry another man.
However, the same problem continued to trouble other communities, especially in the East, in Africa, and later on in Italy and other places. Because of the time lapse between the erusin and the nissu’in and the private nature of erusin, there were a great many secret “engagements,” the seducing of inexperienced young girls to accept kiddushin from all kinds of questionable characters. This happened especially to daughters of well-to-do families. Often these “engagements” were dishonest, intended only for the purpose of exploiting the families.
In order to eliminate this evil, various communities instituted takkanot (communal regulations) ordering that nissu’in, the union of bride and bridegroom under the huppah, should follow immediately upon the kiddushin by erusin. In time it was found that this was not enough. Thus, further takkanot were introduced requiring that all marriages be supervised by the rabbi of the community, the mara de-atra, who would also officiate at the marriage ceremony. In some instances it was prescribed that all marriages had to take place in the presence of a number of communal trustees appointed for that purpose. Later on, the presence of at least ten people was necessary. (In a sense, this is the historical basis for our present practice of kiddushin and huppah taking place at the same time and in the presence of ten people.) When the prospective bridegroom did not obey these rules, he would be put into herem (religious excommunication) or a monetary punishment would be imposed. He might even be put in prison, or given a form of corporal punishment.
But what was to be done in cases where people disobeyed these rulings? The problem became extremely serious after the loss of communal autonomy, when Jewish communities and rabbinical courts were no longer able to enforce punishments. In modern times there were additional problems deriving from the introduction of secular laws governing marriage. In some countries marriages were not allowed before a certain age. Often, the marriage had to be recorded by the state registrar before the religious ceremony could take place. Such laws were binding on all citizens.62Cf. Freimann, op. cit., pp. 218–219, 314, etc.
If Jews married earlier than the prescribed age or did not register with the state authorities, their marriage was not recognized by the state. Thus, if the husband in a halakhically valid marriage wanted to dissolve the union, he could go to the civil court and declare that the marriage had taken place in violation of the law of the state. The marriage would be annulled, and he would be free to leave his wife and remarry in civil court. The wife, however, would become an agunah, completely dependent for her freedom on the whim of the husband who had deserted her. Of course, the wife might follow the same procedure and have the marriage dissolved in civil court. That would enable her to marry another man according to the law of the country, but under Jewish law she and her new husband would be committing adultery, with all the halakhic implications for themselves and their offspring. What was to be done if these things were happening in violation of the takkanot of the communities?
The problem, in essence, was the same one we have encountered already in connection with the takkanah of Rabban Gamliel the Elder, who ordered that once a husband sent a get to his wife through a shaliah (messenger) he could not cancel the authorization without the knowledge of the shaliah or his wife. Otherwise the wife might think that she was divorced when, in fact, the get had been annulled by her husband’s withdrawal of its halakhic validity.63Gittin 33a. Upon which the Talmud asks the question: what if, in spite of the takkanah of Rabban Gamliel, the husband does cancel his authorization without the messenger’s knowledge? According to the law of the Torah, he has the right to do that. Thus the get he sent is invalid, but neither the shaliah nor the wife knows it. Thinking she is a divorced woman, the wife might remarry, with all the tragic consequences of such a marriage. One of the answers given to the question – the one accepted as Halakhah – was: people who marry assume that the marriage is taking place in accordance with the rabbinical rules (as is implied by the phrase “in accordance with the laws of Moses and Israel”). If a husband violates any of those rules, the rabbis have the authority to annul the validity of his kiddushin. Thus, the wife becomes free, even though the get she received is a meaningless piece of paper.
Clearly, communities have the required halakhic authority to establish communal takkanot in matters of marriage. Once the acknowledged rabbinical court of a community or even a country actually introduces such regulations, it has the authority to annul kiddushin retroactively if the takkanot are violated.
This was the challenge to rabbis and communities through the ages as they struggled with the problem of the agunah: to establish adequate takkanot whose violation would bring about the retroactive annulment of a marriage. The precedents in the Talmud would seem to have provided a rather easy solution to the problem, but many outstanding Talmudic scholars refused to act on the principle of the rabbinical authority to annual kiddushin retroactively. They reasoned that contemporary rabbis were less qualified than the rabbis of Talmudic times. “We are not like the court of Rav Ami and Rav Ashi,” they would argue. So, too, ruled the Rema.64Shulhan Arukh, Even ha-Ezer 28, end. And yet, an impressive number of outstanding and commanding halakhic authorities ruled differently. The well-known Gaonim of the eighth, ninth, and tenth centuries, among them Rabbi Sherira Gaon, Rav Judah, and Rav Hai, taught unequivocally that the rabbis of every generation have the right to annul marriages that took place against their will. The sages of Worms and Speyer, in the days of the Ravan and Rambam, followed in their footsteps.65See Freimann, p. 100. The Mabit, one of the great authorities of the fifteenth century, declared that postGaonic rabbinical teachers, who since the days of the Gaonim opposed the annulment of kiddushin, were obviously unaware of their views, for the rulings of the Gaonim were not contained in any written work. The rabbis of later generations would have followed these rulings and practices if they had known about them.66Responsa, pt. II, par. 105.
It is worth noting that those who hesitated to allow appropriate conditions in the ketubah were mostly dealing with isolated cases. On the other hand, where problems occurred more frequently, rabbis were more inclined to use their authority to establish needed takkanot and to invalidate kiddushin that took place in disobedience to their takkanot. In order to eliminate all misunderstandings, it was required that the regulations should clearly state that any violation of the rules would bring about the annulment of the marriage.
Nearer to our times, the Hatam Sofer agreed to the invalidation of the kiddushin as long as the couple had not lived together as man and wife. He reasoned that a rabbinical court may act on the principle of hefker bet din hefker, i.e., property expropriated by the ruling of a rabbinical court becomes ownerless. Accordingly, if a bridegroom espouses a wife in violation of an established takkanah, he loses his ownership over the kesef (object of value) with which he espoused her. Since he has thus given nothing of his own to the intended bride, a legally valid kiddushin has not taken place.
If nissu’in by huppah did take place, however, and the couple had lived together as husband and wife, the marriage had a much stronger basis, for according to the halakhah a wife may be acquired not just by kesef but also by the act of cohabitation. The Hatam Sofer maintained that in Talmudic times the rabbis had the power, when the prescribed rules were violated, to invalidate even such a marriage, by declaring the cohabitation to be an act of harlotry (zenut). In post-Talmudic times the rabbis no longer had this authority.67Freimann, p. 314. Therefore, the annulment of the original kiddushin of kesef (i.e., espousal by means of an object of value) accomplishes nothing. The marriage would still be legal because of the other form of kiddushin effected by the couple’s living together as husband and wife.
It has rightly been pointed out that the Hatam Sofer’s argument does not apply to the conditions of life in our times. Kiddushin by cohabitation is a halakhically valid concept, but it is only effective if the following conditions are met: (1) the bridegroom declares before the act that his intention is to espouse the bride by it as his wife; (2) two witnesses testify that cohabitation for the purpose of kiddushin actually took place; (3) the witnesses are appointed by the bridegroom specifically to be aware of the couple’s seclusion for the intended purpose. All this would violate the sense of decency and ethical sensitivity in our generation. Undoubtedly, in our time people who marry rely completely on kiddushin by kesef as the halakhically legal basis of their marriage. Therefore, if any of the established takkanot (communal or rabbinical marriage regulations) is violated, the kiddushin may be annulled retroactively.68E.g., see my Tenai be-Nissu’in u-ve-Get, 2nd ed. p. 67.
The qualified applicability of conditional marriages argued by the Hatam Sofer and other outstanding Ashkenazi Talmudic authorities was disregarded, especially by some of the greatest Sefaradi scholars. At the beginning of the nineteenth century, the rabbi of Trieste sought to introduce takkanot, and to annul marriages when they were disobeyed. His decision was supported by reference to the Hida, an outstanding halakhic authority.69Freimann, pp. 316–319.
The rabbi of Trieste and the Hida both made use of the halakhic principle known as le-migdar milta, i.e., “to fence in against an evil.” This principle has its source in the Talmudic discussion of whether the sages have the authority la’akov davar min ha-Torah, “to uproot something from the Torah.” In case of need, it is declared, they may disregard any teaching of the Torah. According to one opinion, they only have the right to do so passively, by inaction; another view holds that they have the authority to do so even by active disregard. In the end the discussion concludes: le-migdar milta shani, “to fence in a matter is different,” i.e., when an evil violates Torah principles, there is no difference of opinion;70Yevamot 90b. in other words, when an evil violates a principle of the Torah, all agree that a law of the Torah may be uprooted in order to eliminate the evil. The rabbi of Trieste quoted the Rosh, one of the greatest halakhic authorities since the close of the Talmud, in support of his ruling. Because of the importance of the Rosh’s words for all generations, we shall quote them here:
Everyone who weds a wife does it [in such a manner] that the marriage takes place in agreement with their rulings [i.e., of the rabbis]. And in each generation people marry with the understanding that they are adhering to the rulings of their contemporary rabbis, who instituted them le-migdar milta [“to fence in the matter,” i.e., to eliminate some evil]. All marriages become legally effective only in accordance with their takkanot. Even if a person should wed by cohabitation, the act is rendered harlotry [and the marriage annulled]. How much more so when the espousal of the wife was done by kesef [i.e., by handing her some object of value], when the principle of hefker bet din applies [i.e., the rabbinical court negates the bridegroom’s ownership of the kesef given], and no kiddushin had taken place at all.71Rosh, Responsa, 35:1.
Most revealing was the attitude of the Rashba. In one of his responsa he deals with a case that happened in his city. After discussing the matter with “our teachers,” the Rashba says, he decided that it was right to annul the marriage. He even adds: “My teacher, the Ramban, agreed with me.” But he concludes: “Nevertheless it is still necessary to consider the matter.”72Responsa, 1206. Yet in another responsa, discussing the same subject, he writes that if it is a matter of “le-migdar milta [ fencing in against an evil], if the communities, or even a single community, wish to correct a situation, by all means let them protect their takkanot by also introducing the takkanot of retroactive annulment of the kiddushin.”73Ibid. 551.
Actually, the inclusion of appropriate conditions in a marriage contract seems to be halakhically a rather simple matter, as the following discussion shows. Torah law says that the surviving brother is to marry the widow of a husband who dies without leaving any offspring. If he refuses to do so, the halitzah ceremony is performed. Without it, the widow is not free to enter into a new marriage. Apparently this law caused serious problems through the ages, for in some cases the surviving brother was a mumar (apostate) and refused to participate in the halitzah ceremony, or could not be found, or lived so far away that the cost of the trip would have been excessive, or was mentally disturbed and incapable of functioning. Such cases caused much hardship for the widows affected, and sometimes led them to disregard the Torah law and marry someone else, even though doing so was a transgression. In order to eliminate these problems, Rabbi Israel of Bruenn (usually referred to as M’hari Brin) added a condition to the ketubah specifying that the marriage would be annulled retroactively if the husband died childless and his surviving brother refused to submit to the halitzah ceremony.74Even ha-Ezer 157:4.
The tenai introduced by Rabbi Israel of Bruenn is not to be confused with a tenai specifying that the law of levirate marriage to the surviving brother or the obligation of halitzah was to be disregarded altogether. The Talmud clearly states that such a condition would violate what is written in the Torah and thus would have no validity.75Yerushalmi, Bava Mezia 7:7. In the M’hari Brin’s ketubah, the husband does not reject the biblical institution of levirate marriage or anything connected with it. On the contrary, he fully accepts the law of the Torah, but in order to protect his wife against a great deal of suffering should a specific situation arise, he declares that the marriage does not take legal effect right from the beginning. This is a simple arrangement in complete conformity with the general rules governing conditional contracts. Understandably, it was suggested that the operative principle of the tenai of the M’hari Brin should be extended to include other kinds of conditions necessary to safeguard the desired character of marriages.76See Freimann, p. 386.
As for the halakhic validity of a tenai added to a marriage contract, Rabbi Kook, of blessed memory, wrote that the condition stands and is effective. However, rabbis should not arrange tena’im as a general practice, for this would erode the form of the mitzvah of marriage, the foundation of the sanctity of the Jewish family.77Ibid., p. 392; see also my Tenai be-Nissu’in u-ve-Get, 2nd ed., p. 77.
Such fears hardly seem warranted nowadays, when social conditions and widespread permissiveness are severely shaking the Jewish family. On the contrary. The exploitation of the power to give a get by unscrupulous husbands, which has become a daily occurrence, causes a great deal of disillusionment with the quality of justice implicit in the marriage laws.
Several other halakhic principles were also utilized to annul kiddushin retroactively, if the situation demanded it. A discussion in the Talmud indicates that the problem dealt with by the M’hari Brin also occupied the Talmudic sages. The question is raised: if the brother of the deceased husband is a mumar and refuses to submit to the halitzah ceremony, shouldn’t the marriage be dissolved retroactively and automatically, because it is quite obvious that the wife would never have agreed to the marriage if she had known that she would have to undergo such a trial? The question is answered with an idea that is already familiar from our previous discussion: a woman is willing to accept any husband because, as Resh Lakish said, “it is better to live in two than to live alone.”78Bava Kama 111a. We pointed out in the earlier discussion that Resh Lakish’s view had some meaning in a time when women were uneducated, could not earn a living, and had no social status. Completely dependent on marriage, they would, if need be, accept any husband. Quite clearly, the very idea would be insulting to the Jewish women of modern times.
Be that as it may, we learn an important principle from this Talmudic passage: adata de-hakhe lo kiddsha nafsha, i.e., there occasionally may arise a situation where one may be sure that the wife would never have accepted the kiddushin if she had been aware of the lot that would befall her. In such cases, there would be no need for conditions explicitly incorporated into the marriage contract. And indeed, about fifty years ago, a rabbi suggested “that in case a woman becomes an agunah the kiddushin should become invalid. The wife should not need a get even if she had lived together with her husband as is customary. One may adjudge it with certainty that it was not ‘for this’ that she agreed to the marriage, even if no condition had been made in advance. For there cannot be any greater calamity for a woman than to remain an agunah forever.”79Freimann, p. 393.
There were other Talmudic precedents to be considered in the effort to solve the agunah problem. We have already discussed the uvda deNarash, “the case of [the forced marriage of] Narash.”80Yevamot 110a. A minor girl had been given into marriage by her mother and brothers, as was the rabbinical rule when the father died. However, since a marriage to a minor was binding only rabbinically and had no biblical basis, the husband planned to remarry the girl when she reached the age of majority. At that time she was taken to the huppah, but before he could give her the kiddushin, another took her away by force and performed the kiddushin as required by the Torah. As a result, the young woman was now the legally married wife of the second man. But the rabbis said: “He acted improperly; we too shall treat him improperly.” They declared the second man’s kiddushin invalid and returned the woman to the first man.
The same principle of invalidating a kiddushin is used in the Talmud in another context. A man took a woman, hung her from a tree, and said to her: “Here is your kiddushin. If you accept it, I will let you go.”81Bava Batra 48b. Since the woman accepted the kesef kiddushin (the article of monetary value given her for the purpose of espousal), even though it was under duress, she was held to be legally married to the man. But again the rabbis declared: “He acted improperly; we too shall deal with him improperly.” They declared the kiddushin invalid. The woman was free, without a get, to go and marry whomever she pleased.82Freimann, p. 107, quotes the Radbaz, who refers to the principle of “improper action” by the husband in dealing with the possibility of retroactive annulment.
As we now see, the Talmud itself offers three different grounds for annulling a kiddushin: (1) the precedent of the takkanah of Rabban Gamliel the Elder, namely, that a get sent to one’s wife by the hand of a shaliah may not be cancelled without the knowledge of the messenger and the wife; (2) where the husband has a condition or causes a situation that would have made the wife reject the marriage if she had known about it beforehand; (3) where the husband acts shelo ke-hogen (improperly).
The differences are obvious. In the case of the takkanah of Rabban Gamliel, the husband had the biblical right to cancel the get even without the knowledge of his messenger or his wife. Because of the possible evil consequences of such action for the wife, who might think that she was divorced when in fact she was not, Rabban Gamliel eliminated the husband’s original right.
In the second case, no initial condition was stated explicitly, but it is understood that it was one of the terms of the wife’s agreement. In the third example, too, one acts on the basis of an implied condition of the Jewish marriage law, as if to say: this is not the way to wed a wife; it violates our principles of justice, etc. In the second example, the wife’s interest and purpose determine that the self-understood tenai was violated. In the third example, the marriage is annulled because the husband violated basic principles of Jewish ethics that he undertook to obey when he said to the bride, “I wed thee ke-dat Mosheh ve-Yisrael [according to the law of Moses and Israel].”
Of these three Talmudic precedents for retroactively invalidating a marriage, one might think it would be easiest to apply the takkanah of Rabban Gamliel the Elder. After all, Rabban Gamliel’s rule was explicitly stated in advance, whereas in the other two cases there were no known rules whose violation would bring about the annulment of the kiddushin. However, to adjudge the three examples in this manner would be a mistake. The takkanah of Rabban Gamliel was a rabbinical innovation to deny the husband a right granted him by the Torah. In the other two cases, the rabbis acted in order to safeguard certain ethical principles included in the formula ke-dat Mosheh ve-Yisrael, so far as they are essential for the Torah-ordained Jewish marriage. Once it was established that any of these principles had been violated, the kiddushin automatically became invalid. Of course, not everyone is qualified to decide whether a violation has occurred. In the examples before us, it was done by halakhic authority.
We have no intention of giving a halakhic ruling on how the agunah problem in our day should be solved. This is not the place for it.83Those who are interested may consult my work, Tenai be-Nissu’in u-ve-Get. It is, however, sad to contemplate the fact that, in spite of the continually deteriorating situation, nothing significant has been undertaken to solve the problem.84There are now rabbis who are attempting to meet the challenge by the arrangement of prenuptial agreements which may be enforced in the civil courts. Is this not a confession that a serious halakhic problem cannot be solved within the system of the Halakhah?! In order to do so, a rabbinical court would have to deliberate seriously on two questions:
1. What are the situations that may develop in a marriage regarding which one might rule that no normal woman would agree to such a marriage had she known what might befall her as a result?
2. What are the moral and ethical principles of the Torah that are automatically included in “the laws of Moses and Israel” as the basis of a Jewish marriage?
Neither of these determinations would have to be explicitly included in the ketubah.
One of the rabbis who agree to the retroactive annulment of kiddushin writes that one does it so that the people will know that the sages of the time are concerned about the well-being of the daughters of Israel and to build a fence against lawlessness.85Freimann, p. 332. Even though the words the rabbi was using are a quotation from the Talmud,86Ketubot 2a. still…
How far removed we are from care and concern for the well-being of the daughters of Israel! The rabbinical establishment does not seem to pay much attention to the suffering, and often the disillusionment with Judaism itself, caused by its fear to accept halakhic responsibility for the solution of the present-day agunah problem. Its members seem indifferent to the many violations of the teachings of the Torah, especially in the areas of ethics and morality, that are due to the unresolved status of the agunah problem! Ultimately, the situation involves a high measure of hillul Hashem for which the rabbinical establishment is responsible. This, surely, is not halakhic Judaism.