(2011/5772)

We resume our discussion of how Batei Din resolved the Agunah crisis caused by the terrorist attacks of September 11, 2001. Until now we discussed identifying the husband’s remains. This week we discuss how we cope with cases without found remains.

When No Remains Are Found

Those missing husbands whose remains did not turn up posed a much greater challenge for the Beth Din of America. If a man is lost in Mayim SheEin Lahem Sof (waters that have no visible boundary), the Gemara (Yevamot 121) prohibits his wife from remarrying. Although most people who are lost in Mayim SheEin Lahem Sof perish, Chazal were concerned that the husband might have surfaced somewhere down the river, unbeknownst to them. Tosafot (Yevamot 36b, s.v. Ha) note that a significant minority (Mi’ut HaMatzui) of husbands might have been saved in such situations. Thus, in any situation where no remains were found, the wife may not remarry if a significant minority of people could have survived her husband’s situation. Although the Halacha normally follows the majority (see Chullin 11), Tosafot explain that the Rabbis treated the case of a missing husband especially strictly due to the severity of adultery, which would result if the woman “remarried” when her husband was still alive.

Nonetheless, once it has been proven that a husband entered a situation in which most people die, there are many circumstances that can permit his wife to remarry. For example, the Shulchan Aruch (E.H. 17:23), based on the Mishnah (Yevamot 122a), presents a situation in which people witnessed a man from afar proclaim, “I, so-and-so the son of so-and-so, have been bitten by a snake and am about to die.” The people later discovered an unrecognizable body. The Mishnah permits the wife to remarry even though the man’s body was not positively identified at a later time. Rav Jonas Prager (in the Journal of Halacha and Contemporary Society 44:5-30) records that the Beit Din of the Belzer community released a woman from the status of Agunah based on similar circumstances, even though the husband’s body was not yet found. The husband, who was trapped in the World Trade Center, called a friend on his cellular phone and said that he was about to die. He remained on the phone until his death.

 The first step for a Beit Din to issue a lenient ruling in such a case is to establish that husband and wife were at peace with each other, in order to establish that the man had no apparent motivations to flee his family (see Yevamot 114b). Rav Yechezkal Landau (Noda Beyehuda, Even HaEzer 2:47) adds that the Beit Din should investigate whether the man established a regular pattern of returning home each day after work or immediately after a brief trip. Rav Landau explains that once this is established, there are serious considerations (Raglayim LaDavar) that the husband is no longer alive. Rabbi Landau explains:

“Although this is insufficient basis upon which to issue a permissive ruling, nonetheless, it is a point of departure from which it is appropriate to search for leniencies within the Halacha [to permit the woman to remarry].”

After determining that the couples were all at peace, the Beth Din of America then sought to establish that each husband was in a section of the World Trade Center where very few or no people survived at the time of the terrorist attacks. The goal was accomplished by finding e-mail messages (as noted by Rav Ovadiah Yosef in his responsum on the World Trade Center Agunot), telephone calls, or eyewitnesses. For example, Rav Ovadiah Yosef verified a husband’s presence in the World Trade Center based on the fact that the man called his wife from there after the plane hit the North Tower, stating that he was evacuating his office in the North Tower, which was located above the ninety-second floor.

In a less simple case, one husband phoned his wife that he arrived in his office in the North Tower (above the ninety-second floor) at 8:20 a.m. and was not heard from subsequently. Accordingly, he clearly arrived at work before a plane hit his building, but there is no evidence that he was in the building at the time the plane hit it. Rav Zalman Nechemia Goldberg ruled that one may rely on the Halachic principle of Chazakah (that the status quo was maintained). Halacha permits relying upon the status quo unless t here is a Rei’utah (a disturbance to the Chazakah). For example, we routinely rely upon the validity of an Eiruv on Shabbat based on an inspection that took place before Shabbat, as normally there is no reason to believe that the Eiruv was damaged since its last inspection. Regarding the World Trade Center, the assumption was that there was no disturbance to the Chazakah applies to those who were in the North Tower before 8:46 a.m., but not to the South Tower’s occupants, as many people evacuated the South Tower after the North Tower was hit.

Rav Mendel Senderovic of Milwaukee writes that it appears difficult to rely on Chazakah in cases of Agunot, as the Halacha does not permit relying upon a Rov (majority) in such situations. In general, the Gemara (Kiddushin 80a) states that a Rov is more effective than a Chazakah, so it appears obvious that the Halacha cannot rely upon Chazakah to permit an Agunah to remarry. Rav Senderovic cites that Rav Yitzchak Elchanan Spektor (Ein Yitzchak 2:1) did not rely upon Chazakah alone to permit an Agunah to remarry, but ruled leniently as there was also a Rov upon which to base a leniency. He had asserted that a combination of a Rov and Chazakah may be relied upon to permit an Agunah to remarry. In the World Trade Center situation, Rav Senderovic argues that in addition to the Chazakah, there exists a Rov that if the missing husband survived, he would have contacted his family. Thus, while he questions Rav Zalman Nechemia Goldberg’s reasoning, Rav Senderovic does not challenge his actual lenient ruling.

Once they established that the husband in question was in the World Trade Center during the attacks, the Beth Din of America began exploring ways to establish that he indeed perished, rather than viewing the World Trade Center as parallel to Mayim She’ein Lahem Sof. The Shulchan Aruch (Even HaEzer 17:30), based on the Gemara (Yevamot 121b), rules that one who witnessed a husband fall into a cauldron of fire may testify that the husband died. The Beit Shmuel (17:92) cautions, though, that this ruling obviously applies only to a fire from which the husband would be unable to extricate himself. Once it has been proven that the husband entered a situation that no person could survive, the Halacha does not concern itself with the possibility that a miracle occurred and that the husband was saved in defiance of the laws of nature.

Rav Ovadiah Yosef ruled that those who were caught at or above the floors where the hijacked planes hit the World Trade Center parallel the case of one who fell into a burning cauldron. A huge fire erupted upon impact, as the evil terrorists chose very large planes that were on cross-country flights and thus held huge amounts of fuel. Those individuals who were unfortunately caught at that point can be described as being trapped in a cauldron of fire. Rav Gedalia Dov Schwartz adds that although we did not see the individual husbands being trapped in the fire, knowledge that they were located in the relevant area constitutes sufficient evidence of their death. Rav Schwartz compares this situation to a case cited in the Otzar HaPoskim (6:255) in which a fire erupted on a ship. The Tzei HaKesef (2:4) permitted the wife of a prisoner who was held in the bottom of the boat to remarry. Although no witnesses saw her husband being engulfed by the fire, he could not have possibly survived because he was shackled in chains, with no possibility of escape.

Rav Gedalia Dov Schwartz suggested another avenue of leniency, which Rav Ovadiah Yosef also adopted. The Gemara (Yevamot 114b) rules that a wife who asserts that her husband died in a building collapse is believed only if she also states that she buried him (see Shulchan Aruch, E.H. 17:51). The Gemara explains that we do not believe her otherwise, lest she actually know only that he was in the building and erroneously assumes that he died in its collapse. The Gemara’s ruling seemingly complicates attempts to permit the World Trade Center Agunot to remarry, as the husband’s presence in a building during its collapse does not prove that he died.

Nonetheless, a responsum from World War I demonstrates that there are situations in which a husband’s presence in a collapse constitutes sufficient proof of his death. Rav Abraham Isaac HaKohen Kook (Ezrat Kohen 25, cited in Otzar HaPoskim 8:83) was presented with a case in which a Jewish soldier was in a railway station that was attacked by German artillery, resulting in a mountain of dirt falling upon the building. Among his reasons for permitting the wife to remarry, Rav Kook suggests that only in the case described by the Gemara and Shulchan Aruch does the building’s collapse not constitute evidence of death, because there was a possibility that the husband was not hit by the collapsing building materials. Thus, it is analogous to Mayim SheEin Lahem Sof, where most people die, but the woman may not remarry because her husband could have been one of the significant minority who survived. However, in the case presented to Rav Kook, the mound of dirt was so massive that it was impossible to survive the collapse.

Similarly, Rav Meir Arik (Imrei Yosher 2:24) determined that there could not be any survivors when a particular train fell off a bridge while transporting troops. Hence, he ruled that demonstrating a husband’s presence on the train constituted sufficient proof that he perished. In light of the response of both Rav Kook and Rav Arik, an argument was presented by Rav Gedalia Dov Schwartz and Rav Ovadiah Yosef: even if the husband somehow survived the fire on the top floors of the World Trade Center, he would have been killed by the collapse of the Twin Towers or falling from a very high story.

Moreover, the Aruch Hashulchan (Even HaEzer 17:247) raises the possibility that in a case where people thoroughly searched the rubble of a collapsed building for survivors and did not find the husband, then one may assume that he perished in the building collapse, though he concludes that he is unsure whether to adopt this position in practice. Rav Ovadiah Yosef applies this ruling in the case of the World Trade Center tragedy, as an extensive and sophisticated search was conducted for survivors.

No Empirical Evidence that the Husband Was There

The most difficult task faced by the Beth Din of America was one situation where they were unable to discover any empirical evidence that a particular missing husband was inside the World Trade Center at the time of the attacks. The Beth Din of America investigated the possibility of identifying a pattern in the husband’s daily routine that would prove he arrived at work. Using various travel records, including a husband’s Metrocard, Rav Yona Reiss was able to prove that the man routinely entered his office during August and early September a few minutes before the time of day when the attacks occurred. It was after making this determination that DNA identification was made on the missing husband’s remains.

Several responses serve as precedents for asserting that a man following his regular routine. Rav Yitzchak Isaac HaLevi Herzog (Heichal Yitzchak, E.H. 2:9:2) considered 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. (Although a pattern is sometimes called a “Chazakah,” it is a very different concept that we mentioned earlier, which referred to the assumption that the status quo had been maintained.) Rav Herzog notes that the Taz (Yoreh Deah 69:24) rules that if a woman is unsure if she salted a piece of meat before she cooked it, she may assume that she followed her normal pattern of salting the meat. As a precedent, the Taz cites the Gemara’s ruling (Berachot 16a) that if one is reading the Shema and is unsure if has read the verse “UCh’tavtam” from the first or second section Shema, the doubt is resolved if one had begun to read the verse of “Lema’an Yirbu,” which follows “UCh’tavtam” in the second section (see Devarim 6:9, and 11:20-21). Since people normally recite the Shema in the proper order, a person may assume that he followed his usual routine and proceeded to the next verse of the second section, because he had recited everything up until that point.

Rav Herzog ultimately rejects the analogy between the Taz’s ruling and an Agunah situation. Meat that was cooked without proper salting is prohibited only on a Rabbinic level, whereas here we wish to rely on the husband’s routine in order to permit the woman to remarry, which could lead to a violation of the Biblical prohibition of adultery. Hence, the Taz’s lenient ruling regarding the salting of meat cannot serve as a precedent for permitting an Agunah to remarry. The routine of one who is reading Shema also differs from the husband’s situation, because we know for sure that the person began reciting Shema, and we merely doubt which verse he was reading. Regarding the Agunah, however, we do not know if the husband crossed over the bridge at all on the day of its collapse.

Despite his inability to demonstrate from the Taz that we may rely on a husband’s patterns, Rav Herzog concludes that the woman in this case may remarry, by combining the likelihood of the husband following his routine with other lenient considerations in that case.

Dayan Yehoshua Ehrenberg (Dvar Yehoshua 3 E.H. 13) relies on a similar approach, determining 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, and combining this information with other lenient factors, he issued a lenient ruling, and cites the Mabit (135) as a precedent in this context. Rav Gedalia Dov Schwartz and Rav Zalman Nechemiah Goldberg rule that this approach may be used as a consideration to be lenient in the World Trade Center case. We might add that there is actually more reason to be lenient regarding the World Trade Center, as the Beth Din of America thoroughly documented the missing husband’s travel patterns in August and early September, with a level of detail not provable in the cases addressed by Rav Herzog and Dayan Ehrenberg.

Conclusion

Every tragedy that befalls the Jewish People adds another layer to the voluminous literature regarding the status of Agunot. In the case of the attacks of September 11, 2001, the Beth Din of America was ultimately able to permit all of the Agunot to remarry. We hope and pray to God that the World Trade Center tragedy should be the last of these tragedies and that the days of the Messiah should arrive, when the Halachic literature regarding Agunot will be of purely theoretical interest.