(2003/5763)

In the past three issues, we have discussed the rulings of the Beth Din of America (the Beth Din of the Orthodox Union and Rabbinical Council of America) regarding the World Trade Center Agunot.  We will conclude this week our presentation of the logic of the Beth Din’s rulings that permitted the Agunot to remarry.

Six Leniencies Regarding a Mayim She’ein Lahem Sof Situation

There are at least six lenient considerations regarding a situation of Mayim She’ein Lahem Sof.  First, Tosafot note that Chazal were strict in a case of Mayim Sh’ein Lahem Sof, because in a significant minority of cases the husband may have survived the calamity.  However, very few individuals who were at or above the point of impact of the planes survived the WTC attack.  Thus, the stringency that Chazal applied to a Mayim Sh’ein Lahem Sof situation might not apply to the WTC tragedy.  Moreover, even if there is a doubt whether a situation should be categorized as a Mayim She’ein Lahem Sof situation, the Beit Shmuel (17:105) and the Aruch HaShulchan (E.H. 17:224) rule leniently since the Mayim Sh’ein Lahem Sof stringency is only rabbinic in nature.  In a case when there is a doubt concerning a rabbinic law one may rule leniently.

Second, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:43) presents a lenient approach regarding the matter of Mayim She’ein Lahem Sof in his rulings regarding husbands who were missing in the Nazi Holocaust.  Rav Moshe argues that Chazal issued the stringency of Mayim She’ein Lahem Sof only in a situation where only one or a few individuals are missing.  However, Rav Moshe contends, Chazal did not apply this to a situation where large numbers of people are missing. 

Thus, Rav Moshe ruled that if there is adequate knowledge that a husband was taken to a Nazi concentration camp and has not been heard from in years following the War (and there is no reason to believe that the husband is in the Soviet Union) then we permit the wife to remarry even though a minority of people did survive the concentration camps.  Similarly, one could argue that the Mayim Sh’ein Lahem Sof stringency does not apply to the WTC tragedy because so many people are missing.

Interestingly, Rav Moshe states at the beginning of his responsum that a motivation for his very lenient approach to the Agunot of the Nazi Holocaust is his concern that a strict ruling in that situation might be too difficult for most women to bear.  Rav Moshe notes that the Ohr Zarua (twelfth century Germany, number 693) already articulated this concern. Rav Moshe observes that if this concern was relevant in the time of the Ohr Zarua, then it is most certainly relevant in the modern era as well.

Third is that many Acharonim develop the idea that the stringency of Mayim Sh’ein Lahem Sof does not apply in a situation where there are Trei Rubei (two majorities).  A classic example of this approach is a ruling by Rav Chaim of Volozhin and all of the Sages of Vilna of his time (cited by the Pitchei Teshuva E.H. 17:133).  A man fell from a tall bridge onto ice and subsequently fell from the ice into water with an outlet and the body was never found subsequently.  Rav Chaim ruled leniently as there were Trei Rubei in that situation.  First is that most people who fall from the bridge onto the ice perish and second that most people who are swept into water with no outlet and are not found have perished. 

The Pitchei Teshuva notes that some Acharonim did not subscribe to this leniency.  In fact, many Acharonim note that Tosafot (Yevamot 121a s.v. L’kula) appears to reject the Trei Rubei leniency.  Tosafot note that the Gemara (Yevamot 121a) is strict even in a case where a renowned Torah scholar was lost in Mayim Sh’ein Lahem Sof, even though most likely word would spread if he survived.  There exists a Trei Rubei in this case since a majority of those who are lost in a Mayim Sh’ein Lahem Sof have perished and  most likely word would have spread if the renowned Torah scholar survived.  Tosafot note that nevertheless the Gemara forbids even the wife of a missing renowned Torah scholar to remarry!  Rav Yitzchak Elchanan (Teshuvot Ein Yitzchak 1:22 and 2:1) defends the Trei Rubei leniency by noting that the case of the Gemara and Tosafot differs from that of Rav Chaim Volozhin.  The Trei Rubei of Rav Chaim Volozhin emerged virtually simultaneously whereas the Trei Rubei of the Gemara and Tosafot do not.  The second “majority” emerges only when one relinquishes hope that word will come that the renowned Torah scholar has survived.

The Trei Rubei leniency has become an accepted approach among Poskim, as Rav Zalman Nechemia notes in his WTC responsum.  Rav Simcha Zelig, the Dayan of Brisk, Lithuania in the early twentieth century, writes (Dvarim Achadim number 43, cited in Teshuvot Yabia Omer 7:E.H.14) that the Trei Rubei approach has become an accepted approach in Halacha provided that the husband has been missing for quite some time.  Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:48) applies this principle to a case where a plane crashed into the English Channel during World War II and Rav Ovadia Yosef (Teshuvot Yabia Omer 6:4) applies the principle in a case when an Israeli pilot’s plane was shot down by enemy fire and fell into the sea.  In both cases Trei Rubei exist as the pilot of a plane that crashes into the sea will most likely not survive and most people who are lost at sea (Mayim Sh’ein Lahem Sof) do not survive.  Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak 2:8) applies this principle in a case where a car plunged down a steep incline and into the sea.

Rav Ovadia Yosef applies the Trei Rubei to the WTC situation.  He reasons that most or all people at or above the point of the planes’ impact perished and that most (if not all) of those who survived were discovered by the rescuers who made an extraordinary effort.  Rav Ovadia adds that even if the application of the Trei Rubei approach is not appropriate in the WTC situation then one may rely upon a S’feik S’feikah (a double doubt).  One doubt is whether he perished in the fire and one doubt is whether he perished in the collapse of the WTC.  Rav Ovadia thoroughly reviews the dispute among the Acharonim whether a S’fek S’feikah is a valid Halachic tool to resolve an Agunah situation.  He concludes that it is certainly a valid principle according to Sephardic tradition (recall that the WTC case Rav Ovadia adjudicated involved a Sephardic husband).    

A fourth avenue of leniency is an approach that is often quoted in cases of Igun resolution of the past hundred and fifty years.  The Gemara (Yevamot 121a) is strict in case of Mayim Sh’ein Lahem Sof because of concern that the husband has survived unbeknownst to his wife.  The Gemara suggests that perhaps we might be lenient in case of the wife of a renowned Torah scholar because if he survived, word would have spread of his survival.  The Gemara reflects the reality that even during times of poor communication, Jews managed to spread the word and reputation of a great Torah scholar.

The Trumat HaDeshen (Psakim 139) suggests that in his time (the late medieval period) there is more reason to be lenient because of improved means of communication since the time of the Gemara.  He reasons that the Gemara did not wish to distinguish between a wife of a Torah scholar and others because of the principle of “Lo Plug,” that Chazal do not make special exceptions to their rules.  However, reasons the Trumat HaDeshen, in a time of improved communication, if any husband survived the Mayim Sh’ein Lahem Sof word would be communicated to the wife and thus there should be longer any need to be strict in case of Mayim Sh’ein Lahen Sof.  However, the reasoning of the Trumat HaDeshen was not accepted as normative (see Shulchan Aruch E.H. 17:32 and 34). 

Nonetheless, the Chatam Sofer (Teshuvot E.H. 58, cited in the Pitchei Teshuva E.H. 17:135) argues that there is more room to be lenient in his day (the early nineteenth century) as post offices function in every village and newspapers spread news throughout the world.  If the husband survived, then he or the local rabbi would  send letters or advertise in a newspaper of the husband’s survival.  This approach of the Chatam Sofer engendered much discussion that is summarized in Teshuvot Yabia Omer 7:E.H. 14:7 and in Rav Ovadia Yosef’s responsum regarding the WTC tragedy. 

Rav Moshe Feinstein, in writing about the Agunot from the Nazi Holocaust (Teshuvot Igrot Moshe E.H.1:43) that in his time there is even more reason for leniency since the time of the Chatam Sofer as methods of communication have improved greatly since the time of the Chatam Sofer.  Rav Ovadia writing in regard to the WTC tragedy writes that the logic for leniency is even greater in 2001 as telecommunications and methods of communications have improved even more. 

We should note that Poskim do not rely on this line of reasoning alone, as it virtually eliminates a rule from the Gemara, something Poskim are loath to do.  Second, this line of leniency underscores the importance of the Beth Din accurately establishing that the husband and wife were on good terms before the husband’s disappearance, to reduce the possibility that the husband has taken advantage of the tragedy to disappear and establish a new identity.

A fifth avenue of leniency is the lenient approach of Rav Eliezer of Verdun (late medieval period) that is cited by the Mordechai at the conclusion to his notes to Masechet Yevamot.  Rav Eliezer of Vardun notes that the Gemara states that in case of Mayim Sh’ein Lahem Sof, that the wife is forbidden.  However, he argues, that the Gemara does not state that she is forbidden forever.  Thus, he reasons that if after a very long period of time it seems obvious to the great rabbinic authorities of the time that the husband has died, then the rabbis are authorized to permit the wife to remarry.  Rav Eliezer of Vardun reports that he relied upon this approach in a case when a husband was lost at sea and had not been heard from in four years. 

Poskim have vigorously debated the cogency of this argument.  The Mordechai cites two major authorities who rejected Rav Eliezer of Vardun’s leniency.  The Beit Yosef (E.H. 17) firmly rejected it, arguing that it is entirely without basis in the Gemara.  However, other authorities such as the Mahri Bei Rav (number 13) and the Mabit (Teshuvot 1:187) defend the cogency of Rav Eliezer of Vardun’s leniency.  In practice, Poskim from the time of Rav Yechezkel Landau (Teshuvot Nodah B’Yehuda 2 E.H. 47) until Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:43) and Rav Ovaida Yosef (Teshuvot Yabia Omer 7:14) utilize the leniency of Rav Eliezer of Vardun as a S’nif L’hakel (lenient consideration).  However, as noted by Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 15:59) Poskim disagree about the length of time it is necessary to wait to conclude that the missing husband is dead.  The opinions include one year, two years, and four years.  In the case of the WTC tragedy Rav Ovadia Yosef advised the Beth Din of America to wait a year before issuing permission for the Agunot to remarry.

Finally, a sixth avenue of leniency is the approach of Teshuvot Shvut Yaakov (3:110).  He notes that the Gemara states that in a Mayim Sh’ein Lahem Sof situation, if the woman mistakenly remarried then B’dieved (after the fact) the Beth Din does not require her to separate from her new husband.  The Shvut Yaakov notes the principle that “Sha’at HaD’chak K’B’dieved Dami,” (in a case of great need one may permit that which is normally permitted only B’dieved).  The Shvut Yaakov reasons that when an Agunah is a young woman and is quite anxious to remarry, a Sha’at HaD’chak situation exists that justifies permitting that which is normally permitted only B’dieved.  Thus, he permits the Agunah to marry in such a situation.  This ruling of the Shvut Yaakov engendered much discussion and controversy (see Otzar HaOskim 7:37-39).  In practice, many Poskim use this leniency is a S’nif L’hakel (Rav Yitzchak Elchanan Spektor, Teshuvot Ein Yitzchak 22; Rav Yitzchak Herzog, Teshuvot Heichal Yitzchak 2:9; Rav Eliezer Waldenburg, Teshuvot Tzitz Eliezer 15:59; and Rav Ovadia Yosef, Teshuvot Yabia Omer 7:16).  Rav Yonah Reiss told me that many of the Agunot from the WTC attack were very young woman and that the approach of the Shvut Yaakov was a consideration in the rulings of the Beth Din of America.

No Empirical Evidence that the Husband was at the WTC at the time of the Attack

The most difficult task faced by the Beth Din of America was a situation where the Beth Din was unable to discover any empirical evidence that a particular missing husband was at the WTC at the time of the attack.  An approach pursued by the Beth Din was the possibility of relying on the husband’s patterns of arriving at work at the WTC.  Rav Yonah Reiss was able to obtain the husband’s “Metro Card” records for the months of August and beginning of September 2001 as well as the elevator records for the month of August 2001 (people signed into the WTC elevators with an ID card), and subway records of September 11, 2001.  Rav Reiss was able to determine that based on his patterns of the past month, the husband appears to have entered his office in the WTC a few minutes before the attack.  After making this determination, DNA identification were made on the missing husband’s remains. 

The question is whether one may rely on the man’s patterns to conclude that he was at the WTC at or above the point of impact of the hijacked planes.  The following two Teshuvot serve as precedent for leniency.  Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak 2:9) considers the possibility of partially relying on a husband’s patterns to determine that a man was at a particular place where a bridge collapsed into the water.  He cites as a precedent a ruling by the Taz (Yoreh Deah 69:24) that if a woman is unsure if she salted a piece of meat before she cooked a particular piece of meat, she may rely on the assumption that she followed her normal pattern of having salted the meat.  The Taz cites as a precedent the Gemara (Brachot 16) that if one is reading the Shema and is unsure if he has read the Pasuk of “Uch’tavtam” of the first section of Kriat Shema or the second section, the Safek is resolved if he had begun to read the Pasuk “L’ma’an Yirbu”.  Since one normally recites L’ma’an Yirbu only after having read the second Uch’tavtam, the Gemara rules that he may rely on the assumption that he followed his usual pattern. 

Dayan Ehrenberg (Teshuvot Dvar Yehoshua 13) relies on a similar approach to determine that a husband’s usual pattern of travel to work placed him at the point where a terrorist attack occurred in Tel Aviv in 1950.  Dayan Ehrenberg cited the Mabit (number 135) as a major precedent in this context.  A mid-twentieth century Israeli Posek, Rav Ovadia Hadaya (Teshuvot Yaskil Avdi 5:20) also adopts a similar approach to Rav Ehrenberg in a case that he adjudicated.  Rav Schwartz and Rav Zalman Nechemia rule that this approach may be used as a consideration to be lenient in the WTC case.  We may add that there is more reason to be lenient in the WTC case than in the cases of the Mabit and Dayan Ehrenberg, as the Beth Din established empirical evidence of the missing husband’s travel patterns in the months of August and September.   

Conclusion

Unfortunately, every tragedy that befalls the Jewish People adds another layer to the voluminous literature regarding releasing  women from the status of Agunah.  We hope and Daven to Hashem that the WTC tragedy should be the last of these tragedies and that the days of the Mashaich arrive when the prophecy of “Bilah HaMavet LaNetzach” will be fulfilled and the Halachic literature regarding the Agunah will be of only theoretical interest.