As the controversy surrounding the International Beit Din (“IBD”) continues to swirl, there is some confusion among the general public regarding the nature of the objections to the IBD. While Batei Din have disagreed from time immemorial, this particular disagreement is qualitatively different, not just a disagreement about conclusions but a disagreement about competence. Leading dayanim have declared the IBD incompetent to decide agunah cases, but their reasons are still unknown to the general public.
Rav Hershel Schachter published a letter encouraging his students and colleagues to not rely on IBD rulings, to which other dayanim across the country added their agreement.1 Specifically, Rav Schachter challenged a particular ruling relying on a well-known opinion of the Ritva. This is a reference to the IBD psak (ruling) on Case 105 (from here on: Psak 105), available in both English and Hebrew on the IBD website.2 The IBD website tells us that “This psak is representative of several decisions handed down by the International Beit Din.” Additionally, Rabbis Simcha Krauss and A. Yehuda Warburg of the IBD have written with regard to Psak 105 that “This psak din as well as other IBD decisions are available for public scrutiny on our website.”3 As such, it seems appropriate to subject Psak 105 to the examination which Rabbis Krauss and Warburg have invited. I strongly encourage any reader not to take my word, but to read the English and Hebrew versions of Psak 105 in conjunction with this review. This review will assume that the reader is generally familiar with the contents of Psak 105, including the background and final decision.
I Fundamental Issues
1 – Designation of Witnesses (Yichud Eidim): IBD’s Psak 105 relies heavily on the “position of Ritva in the name of his teacher Ra’ah which is cited authoritatively by Tzit (sic) Eliezer” to invalidate the kiddushin. The Psak similarly places heavy reliance on three responsa4 of Rav Tzion Boyaron, a dayan on the Beit Din ha-Gadol of Yerushalayim, who “has ruled on numerous occasions regarding the propriety of acts of kiddushin, in accordance with Ritva’s view.” Rav Boyaron’s three responsa themselves rely heavily on the aforementioned teshuva of Rav Waldenberg in Tzitz Eliezer (8:37).
However, there is a critical distinction between the cases in Tzitz Eliezer and Rav Boyaron’s responsa on the one hand, versus the case in Psak 105. Namely, in all of the cases upon which Psak 105 relies, there was yichud eidim of eidim psulim (at least one of the specifically designated witnesses was an invalid witness, which excludes the possibility of other valid witnesses). It is for this reason that all the psakim cited employ Ritva’s position as an additional consideration (senif), not as the main basis for leniency. (Tzitz Eliezer uses the phrase “al ha-amur yesh lizkor,” loosely translated as “additionally we ought to remember” in reference to Ritva’s position. It is certainly a mere senif, almost an afterthought, and not the main basis for his ruling.)
In contrast, we are told explicitly that in the case of Psak 105, there was no yichud eidim whatsoever. This invites the obvious question of whether Ritva’s position is sufficient to, in practice, invalidate potential witnesses under the chupah, in absence of yichud eidim psulim.5 It is not my purpose to present a detailed analysis or a resolution to this question. But that Psak 105 fails to raise this crucial distinction or address this issue at all is absolutely stunning.
2 – Other Witnesses: Psak 105 completely ignores the possibility that onlookers other than those standing under the chupah could serve as valid witnesses. In contrast, both Rav Waldenberg and Rav Boyaron deal with this issue at length (and their analyses rely heavily on the yichud eidim to exclude the possibility of other observers serving as witnesses). That Psak 105 does not entertain the possibility of other potential witnesses, particularly in light of the fact that there was no yichud eidim, is astonishing.
3 – The Five Other Reasons: Rabbis Krauss and Warburg have written elsewhere, “However, in careful reading of the entire psak, it becomes clear that the IBD decision also offered five other reasons (in addition to Ritva—YS) in support of its leniency, including the husband’s admission that he is not Jewish.”6 This appears to be a misguided attempt to employ the technique of compiling additional reasons for leniency, senifim and tzdadim lekula, a technique typically employed by poskim to bolster their positions. In order to understand the issue here, we ought to enumerate the five other reasons. From the “Decision” section, it appears that the five reasons are as follows. (1) We are not concerned with kiddushin performed in the presence of rabbinically invalid witnesses (referring to some of the relatives under the chupah). (2) Those related by marriage may be invalid witnesses on a biblical level. (3) Shulchan Aruch rules that kiddushin in the presence of one witness is invalid. (4) Rema rules that in the case of an agunah, kiddushin in the presence of one witness is invalid. (5) The husband claims that he is not Jewish.
Additional senifim for leniency, as typically used in teshuva literature, each stand independently as a reason to be lenient. In other words, even if previously stated reasons are incorrect, each senif adds an independent argument that is not predicated on the rejected reasons. The IBD’s five other reasons do not meet this criterion. For example, Reasons 3 and 4 which relate to kiddushin in the presence of one witness, assume the correctness of Reason 1 and/or Reason 2. In order for the situation to be considered one of “kiddushin in the presence of one witness,” we must necessarily assume that the relatives watching under the chupah are invalid as potential witnesses. By the same token, Reasons 1 and 2 are insufficient to invalidate the kiddushin on their own; they require us to assume Reasons 3 or 4 as well. The first four reasons are inter-related and so dependent on each other that by no means can they be considered four independent reasons upon which to base a lenient ruling. That Rabbis Krauss and Warburg could claim that there are five additional reasons for leniency is, at the very least, misleading, and at worst, betrays a lack of understanding of the halachic process typically employed in teshuva literature with respect to senifim.
4 – Even when viewed collectively, Reasons 1 through 4 do not constitute sufficient grounds to invalidate the kiddushin. Reasons 1 through 4 require the additional assumption that all potential witnesses in the audience were invalid (which is ignored entirely, see Number 2 above), as well as the assumption that the unidentified adult male Jew under the chupah was not a valid witness. The entire discussion of the validity of one witness revolves around the possibility that the officiating rabbi (mesader kiddushin) himself might be the lone witness. To assume that this case was one of kiddushin in the presence of one witness, and to invalidate the unidentified adult male, IBD must either assume the Ritva’s position (in which case, again, these are not additional reasons for leniency because they are themselves predicated on Ritva’s position), or IBD must assume that the mystery adult male under the chupah was not Torah observant. The former is the IBD’s position, as the “Discussion” section specifies Ritva’s position as the basis for invalidating the adult male. Thus, these additional reasons for leniency are not additional reasons at all, as they are themselves predicated on Ritva’s position. Simply put, this betrays a fundamental ignorance of how senifim are to function.
Our next installment will raise several more fundamental issues with Psak 105, as well as highlight the many technical errors contained therein, and note what these errors tell us about the IBD’s general attitude toward psak halacha and heter agunot.
Rabbi Yaacov Sasson is a musmach of RIETS.
1 http://www.torahweb.org/torah/docs/ibd-machaa.html.
2 http://www.internationalbeitdin.org/ibd-decisions
3 http://jewishlinknj.com/index.php?option=com_content&view=article&id=9424:response-to-rav-schachters-criticism-of-the-international-beit-din-on-torahweborg&catid=156:features&Itemid=585
4 Shaarei Tzion Even Ha-ezer 2: 9-11
5 See http://www.torahmusings.com/2015/09/a-review-of-international-beit-din-case-105/ for further discussion of this point, particularly with respect to Rav Boyaron’s position.
6 http://jewishlinknj.com/index.php?option=com_content&view=article&id=9424:response-to-rav-schachters-criticism-of-the-international-beit-din-on-torahweborg&catid=156:features&Itemid=585
