A Combination of Two Halakhically Kosher Prenuptial

Agreements to Benefit the Jewish Wife

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo
Shalom C. Spira1
7 Menachem Av, 5775
(eighth edition; revised and corrected)2
INTRODUCTION

Written under the general and detailed guidance of Mori ve-Rabbi R. J. David Bleich, to whom this
student is profoundly indebted. I accept full responsibility for any errors in the proposal I am presently
delivering before the poskim to consider.
This essay is dedicated as an enduring tribute to honour my beloved great-aunt Veronica
(Berachah Breindel bat Reb David ha-Levi) Herskovics. Orphaned as a small child by the Holocaust, she
endured hardship and oppression (both in Hungary and subsequently in Canada), yet she righteously shined
through as a Jew. Many daughters have acted valiantly, but you have exceeded them all (Proverbs 31:29).
In her extraordinary merit as a tzaddeket gemurah, I believe that the ladies of Israel are certainly entitled to
a consideration for the prenuptial agreements outlined in the current essay.
2

The first edition of this essay was originally completed on 15 Tevet, 5772 and published at
<http://www.wepapers.com/Papers/213069/Prenuptial_Agreement>. The essays publication was
announced and analyzed in this students Rabbinic Reflections article that appeared in the Canadian
Jewish News of Jan. 19, 2012 (p. 16). Based on valuable feedback from Canadian Jewish News readers, the
second edition of this essay was completed on 15 Menachem Av, 5772, and published at
<http://www.wepapers.com/Papers/443780/Prenuptial_Agreements>. The essays publication was
announced and analyzed in a further Rabbinic Reflections article that appeared in the Canadian Jewish
News of Aug. 9, 2012 (p. 17). Copies of the latter article were sent on Sept. 23, 2012 to the leadership of the
Jewish Community Council of Montreal as well as the leadership of the Agudath Israel of America.
Approximately a year later, the <http://www.wepapers.com> website retired, rendering the second edition
unavailable to the public (except for those who had already downloaded the Word document). In the
meantime, several new references of relevance to this essay were pubished. Thus, the opportunity had
arrived for a third edition, being published on 13 Marcheshvan, 5774, and then presented to R. Asher Bush,
Vaad Halacha Chairman of the Rabbinical Council of America. R. Bush provided valuable feedback,
yielding the fourth edition, being published on 17 Marcheshvan, 5774. Subsequently, R. A. Yehudah
Warburg graciously sent this student a copy of the 2008 Jerusalem Supreme Rabbinical Court discussed
infra, note 63. Additionally, R. Daniel Eidensohn (author of Yad Mosheh index on Iggerot Mosheh) kindly
publicized this essay, allowing for interactive give-and-take between this student and other readers, thereby
bringing to light several new sources. These new sources facilitated the fifth edition published on 1
Menachem Av, 5774. Subsequently, R. Shabsi Asher Tayar, a dayan at Melbournes Heuristic Alternative
for all commercial Disputes and Errorless Resolutions (MeHADER), offered constructive feedback on
Section A in a series of communications with this student from May 20-June 20, 2015. This guidance was
incorporated into the sixth edition, published on 7 Tammuz, 5775. At around the same time, on June 23,
2015, Hamodia published an insight as to the possibility of a kiddushin that is virtually divorce-proof
(infra, note 6b). Moreover, three days after the Hamodia article, on June 26, 2015, the Rabbinical Council
of America issued a statement on the sanctity of marriage (infra, note 8). Those sources were incorporated
into the seventh edition, published on 13 Tammuz, 5775. Finally, this student discovered several sources
(cited infra, note 6a) elucidating the parameters of Exodus 20:14, leading to the publication of the present
eighth edition, published on 7 Menachem Av, 5775 [at the same address as the previous third, fourth, fifth,
sixth and seventh editions, viz. <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>.]

In recent decades, halakhic authorities have carefully analyzed a variety of

proposed methods of addressing the agunah scenario that results from a recalcitrant
husband who declines to voluntarily deliver a get. This is a majestic, rich and
illuminating area of Torah law.
Once a Jewish lady is already married (without the benefit of having ever signed a
kosher prenuptial agreement), each agunah case is complex, and must be decided by a
competent Beth Din empanelled by eminent halakhic authorities for adjudication.3 Based
on the principles codified in Shulchan Arukh Even ha-Ezer nos. 77 and 154, in some
situations the Beth Din is authorized to coerce the delivery of a get (kofin le-garesh), in
other situations the Beth Din is forbidden to coerce but is authorized to encourage the
delivery of a get (chayav le-garesh), and in yet many other situations the Beth Din may
neither coerce nor even morally encourage the delivery of a get. Certainly in the third
case [and to a more nuanced degree possibly even in the second case],4 the Halakhah
demands that the lady remain an agunah, until a bilateral decision is reached between the
husband and wife (without any coercion) as how to proceed.
While the existence of the latter category may come as a surprise to the
contemporary First World [where freedom of a woman to receive a divorce is considered
a moral and ethical value of conscience],5 one might hypothesize that this halakhah
3

For a comprehensive discussion of this point, see Shut Mishneh Halakhot XVII, nos. 79-83 by R.
Menasheh Klein. See also HaRav Eliashiv Protests Improper Methods of Coercion in Gittin, reported in
the online weekly newspaper Deah ve-Dibbur for July 6, 2005, which presents R. Joseph Shalom
Eliashivs letter of 12 Sivan 5765. The article is available at
<http://www.chareidi.org/archives5765/chukas/CHK65agittin.htm>. See also R. Dovid E. Eidelsohns
relevant essay at <http://www.scribd.com/doc/202377527/Rabbi-Safran-Broken-Marriage-Must-Divorcerebuttal>, as well as his website <http://www.torahhalacha.blogspot.ca>, containing an encyclopedic wealth
of material on this topic. [This student would hasten to add that the competing protagonists described by
these reports are certainly all tzaddikim gemurim, to whose eternal credit redounds the fact that they have
caused the present expansion of Torah study. See Rashi to Numbers 27:5.]
4

See infra, note 37.

Actually, since the agunah scenario is purely limited to Jewish ladies, whereas Noahide ladies can easily
free themselves from any disastrous marriage (as discussed infra, note 45 and accompanying text), there is
reason to believe that the ethics of the First World will accept the agunah halakhah with equanimity. As R.
Abraham Isaac Kohen, Shut Daat Kohen no. 199, writes [in the entirely separate context of why Jews
cannot donate cadavers for scientific study, such that a Jewish medical school must purchase study material
from Noahides], all of civilized humanity recognizes that Jews are bound by unique standards of sanctity
presented by the Torah, unique standards which are not required of Noahides. [Thus, concludes R. Kook,
there is no reason to anticipate animosity on the part of Noahides who are asked to sell cadavers to Jews.
And see R. J. David Bleich, Be-Netivot ha-Halakhah III (KTAV Publishing, 2000), pp. 210-211, that the
essence of R. Kooks thesis was earlier articulated by R. Moshe Sofer, Shut Chatam Sofer, Yoreh Deah
no. 336.]
Speaking in more broad terms, what R. Kook means to convey is that there is a separate but cooperative effort in the observance of Torah between Jews and Noahides, where both communities will be
rewarded from Heaven for fulfilling their separate roles. An example of this is the Noahide who purchases
chametz from a Jew before Passover. The Jew will be rewarded for observing the prohibition against
possessing chametz on Passover, and the Noahide will be rewarded for helping the Jew observe the
prohibition against possessing chametz on Passover. [And this is besides the fact that the sale of chametz is
a highly lucrative financial arrangement for the Noahide.] See Shut Daat Kohen, no. 235, where R. Kook
writes this almost explicitly, submitting that in general it is impossible for a Jewish community to not have
in its midst [at least] a few Noahides [living separately from but co-operatively with the Jews], based on the
necessity for those matters that can be performed on the Sabbath and festivals only by way of Noahides.

reflects the philosophy of the Torah that My Name which is written with sanctity should
[in the circumstances described by Numbers 5:23] be erased on the waters in order to
foster peace between a husband and wife, as per the gemara in Shabbat 116a.6 Indeed,
the value of rescuing a Jewish marriage is also philosophically consistent with the Torah
prohibition you shall not covet your neighbours wife (Exodus 20:14), which many
poskim elucidate as a prohibition against verbally pressuring [outside the Beth Din
process] a husband to divorce his wife.6a Moreover, the value of rescuing a Jewish
marriage may be envisaged as being philosophically consistent with the fact that it is
possible to design a kiddushin that is virtually divorce-proof, as presented by Teshuvot

Mutatis mutandis, all of civilized humanity recognizes that the agunah concept [where in many
cases the recalcitrant husband cannot be coerced to divorce his wife] is a Torah commandment which
sanctifies the Jewish People, even if the same concept is inapplicable and counterintuitive for Noahides.
6

R. Joseph Shalom Eliashiv, Kovetz Teshuvot I (Jerusalem, 5760), no. 180, writes that:
According to the judgement (shikul daat) of [contemporary First World] human beings,
they are not emotionally prepared (einam mesugalim) to see any justification in this
husband who refuses to deliver a get. Let us highlight one of them [from the following
case in Shulchan Arukh]: A gentleman who becomes increasingly insane from day to
day, and his wife says My father married me to him on account of his duress, and I
originally thought I could handle him, but I actually cannot because he is crazy; I am
afraid he will kill me in his rage: [the halakhah is that] we do not coerce him to divorce,
for we can only coerce those cases that the Sages identified (Even ha-Ezer 154:5). For
the opinion of the Torah (daat ha-Torah) is different than the opinion of [contemporary
First World] human beings.

While one might initially express surprise that the ruling of Shulchan Arukh seem at variance with
the value of la-asot nachat ruach la-nashim (giving spiritual bliss to the ladies by fulfilling their
aspirations) presented by the gemara in Chagigah 16b, the halakhic reality reflected in Shulchan Arukh
becomes more comprehensible when one considers the fact that the same Oral Torah which presents the
concept of la-asot nachat ruach la-nashim also presents the concept of ve-nivasru kol ha-nashim (married
ladies should be admonished to champion the sanctity of marriage), as per the gemara in Sotah 7b. Thus,
the pro-feminist message of Chagigah 16b is counterbalanced by the pro-familialist message of Sotah 7b.
6a

See R. Meir Zitzman, Be-Inyan Mitzvot Lo Tachmod ve-Lo Titaveh, Kovetz Beit Aharon ve-Yisrael,
Vol. 81 (Shevat-Adar 5759); R. Yitzchak Zilberstein, Chashukei Chemed al Mesekhet Gittin (Jerusalem,
5768), pp. 363-365; Be-Shulei ha-Minchah commentary to Minchat Chinukh, Vol. 1 (Jerusalem, 5771), p.
560.
The latter source explains that although Minchat Chinukh interprets Raavad (gloss to Rambam,
Hilkhot Gezeilah 1:9) as positing that verbally pressuring a husband to divorce his wife would not
transgress Exodus 20:14, others interpret Raavad as including that scenario within the ambit of Exodus
20:14. And even Minchat Chinukh himself agrees that Rambam includes verbally pressuring a husband to
divorce his wife within the ambit of Exodus 20:14. [Accordingly, there would appear to be a sfek sfeka lechumra to forbid verbally pressuring a husband to divorce his wife: (a) Maybe the halakhah follows
Rambam; (b) Even if the halakhah follows Raavad, maybe Raavad agrees that verbally pressuring a
husband is encompassed within Exodus 20:14.]
Not only does Exodus 20:14 apply when a gentleman pressures a husband for the selfish purpose
of subsequently marrying the divorcee himself, but from the analysis of R. Betzalel Stern, Shut Be-Tzel
ha-Chokhmah III, no. 45, it emerges that it is likely that Exodus 20:14 applies to any outside individual
who pressures a husband [outside of the Beth Din process] to divorce his wife, even for the selfless purpose
of freeing the wife so that a third-party alien gentleman can marry her.

ha-Rashba I, no. 706, and [with some variation] as reflected in Shulchan Arukh, Even haEzer 40:7.6b
In any event, whether or not one agrees with the hypothesized philosophical
explanation for the existence of a halakhic category of recalcitrant husbands who are
immunized from coercion, the fact remains that this category exists, and R. Joseph Ber
Soloveitchik declares in a 1975 lecture7 that respect for this concept is subsumed under
the rubric of Kabbalat Ol Malkhut Shamayim, viz. accepting the yoke of the Sovereignty
of Heaven. Similarly, R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim IV, no. 49,
writes that notwithstanding the valuable secular achievements of the womens liberation
movement in our time, secular achievements which are all deserving of resounding
Now, one may legitimately inquire: Why should Exodus 20:14 potentially forbid pressuring a
husband [outside the Beth Din process] to divorce his wife, if the wife herself feels captured, and she wants
to end the marriage? One answer would be to invoke Tosafot to Ketubot 2b, s.v. matzyah amrah leih, who
posit that a wife is the real estate of the husband, whereas a husband is not her real estate. In other words,
the laws of Jewish marriage as revealed by Ha-Kadosh Barukh Hu to Mosheh Rabbeinu are not based on
egalitarianism, but are rather based on unique mitzvah roles that the Creator Has granted Jewish ladies and
gentlemen.
Yet, we can answer with a more philosophical approach, as well. Namely, as explained by Shalom
C. Spira and Mark A. Wainberg, HIV Vaccine Triage: Halakhic Considerations, Jewish Law Annual, Vol.
XX (2013), p.237ff, there is a dispute between Rema to Shulchan Arukh Choshen Mishpat 388:2 (et al.) vs.
Shakh to Shulchan Arukh Choshen Mishpat 163, seif katan 18 (et al.) regarding a particular zero-sum
game lifeboat ethics situation. The particular zero-sum game lifeboat ethics situation concerns a case
where an innocent Jew has been captured by a king, and the captured Jew knows that if he frees himself,
then another Jew will be taken in his place. Is the captured Jew allowed to rescue himself? Rema et al.
answer negatively, whereas Shakh et al. answer affirmatively. At the same time, both sides to the debate
agree that no outside Jew is allowed to intervene by freeing the captured Jew, when that will inevitably
cause a different Jew to be captured. As much as we sympathize with the captured Jew, we cannot save him
when his ipso facto shifts captivity onto a different Jew. So, its the same with an agunah, who is analogous
to the innocent Jew held captive by a king. We all sympathize with the wife, but the problem is that freeing
the wife ipso facto imposes hardship on the husband, who is thereby deprived of the experience of shelom
bayit. Accordingly, we can appreciate why Exodus 20:14 would potentially forbid pressuing a husband
[outside of the Beth Din process] to divorce his wife.
6b

Rashba describes a case where a gentleman presented a lady with a maneh [a coin possessing the same
value as 19,200 perutah coins], specifying (based on the gemara, Nedarim 30a) that the lady is hereby
betrothed with one perutah effective immediately, and then she is subsequently to be betrothed with each
other perutah contained within the maneh after every time she will be divorced in the future. Rashba rules
that the stipulation is effective, and the lady will need 19,200 gittin delivered in sucession in order to be
freed from such a marriage. Shulchan Arukh, Even ha-Ezer 40:7 rules in a manner consistent with Rashba,
with the variation that Shulchan Arukh considers it a safek. Still, the safek means as a matter of practice
that the lady would need 19,200 gittin in order to be allowed to marry an alien gentleman. See Otzar haPoskim, seif katan 19, for further discussion.
[N.B. Rashbas responsum is publicized by the Ruben Shas Kollel of Chicago in Hamodia of June
23, 2015, p. 15, with the added theatrical element that Rashba was approached on this issue when there
was strife in [the] family, and the wifes father was outraged. Actually, a careful examination of
Rashbas responsum reveals that (quite fortuitously) there is no record of any strife or any emotional upset
in the actual case that was presented to Rashba. It may well be the case that the question was presented to
Rashba simply as a matter of analytical curiosity in an already harmonious marriage, and that the wife [as
well as her father] received Rashbas verdict with enthusiastic joy. One therefore assumes that the Ruben
Shas Kollel added the theatrical element for pedagogical reasons, similar to the milta de-bedichuta
(entertaining witticism) with which the sage Rabbah commenced his lectures, as per the gemara, Pesachim
117a. (See also, infra, note 95.)]

applause we are unable to change the laws of the Torah in order to accommodate the
womens liberation movement, and indeed any attempt to change the laws in that manner
would be prohibited as heresy.7 Thus, once a Jewish lady is married (without the benefit
of a kosher prenuptial agreement), she faces the significant possibility of becoming an
agunah via the recalcitrant husband scenario. Coercing the husband to deliver a get will
not help, since the resulting get will be disqualified, and the agunah remains an agunah.8
However, if before they perform the mitzvah of kiddushin a Jewish bride and
groom will sign a kosher prenuptial agreement (or, more accurately stated [as will be
explained in the course of this essay], a series of two specially prepared prenuptial
agreements), the bride can be potentially rescued from becoming an agunah in the future.
7

Responding to the proposal of R. Emanuel Rackman regarding how to rescue agunot, available at
<http://www.yutorah.org/lectures/lecture.cfm/767722/Rabbi_Joseph_B_Soloveitchik/Gerus_&_Mesorah__Part_1>. Particularly memorable is R. Soloveitchiks language to the effect that:
"The truth is attained from within in accord with the methodology given to Moses and
passed on from generation to generation. The truth can be discovered only through
joining the ranks of the chakhmei ha-mesorah. It's ridiculous to say I have discovered
something of which the Rashba didn't know, the Ketzos didn't know, the Vilna Ga'on had
no knowledge. I have discovered an approach to the interpretation of Torah which is
completely new. [It's] ridiculous. In order to join the ranks of the chakhmei ha-mesorah
Chazal, Rishonim, Gedolei Acharonim we must not try to rationalize from without
the Chukei ha-Torah, and we must not judge Chukim u-Mishpatim with the secular
system of man.
7

R. Soloveitchik similarly terms R. Rackmans proposal to rescue agunot as bordering on the heretical. [R.
Soloveitchik prefaces his remarks with a sincere apology that he is loath to critique anyone, but that here R.
Soloveitchik is required to do so in order to rescue the House of Israel. Indeed, R. Soloveitchiks
interpersonal sensitivity is further manifest by virtue of the fact that he never identifies R. Rackman by
name during the critique. This student would hasten to add that the competing protagonists of that episode
are certainly tzaddikim, to whose eternal credit redounds the fact that they have caused the present
expansion of Torah study. See Rashi to Numbers 27:5]
Cf. the golden language of the Rabbinical Council of America Vaad Halacha 2010 report on
determination of death (available at <http://www.rabbis.org/pdfs/Halachi_
%20Issues_the_Determination.pdf>), pp. 8-9, which submits as follows:
This last idea is most troublesome for much of the non-Torah world one patient has, at
best, hours or days left, with absolutely no quality of life, while the other patient can
have many healthy productive years if given the transplant. This is indeed a most painful
issue, but if indeed the potential donor is alive, or even possibly alive, the voice of the
Torah speaks loudly and clearly, that his life too is a life and it may not be taken, even for
the most noble of reasons.
It seems to this student that, methodologically speaking, precisely the same approach would apply
to the wife of a recalcitrant husband in the many cases where tbe wife is not halakhically entitled to divorce
upon demand. Namely, to paraphrase the Vaad Halachas golden language and transpose it (beyond the
original intention of the Vaad Halacha) to the present context:
This last idea is most troublesome for much of the non-Torah world the wife has
absolutely no quality of life while chained as an agunah on account of a recalcitrant
husband, while she would be much happier if she received a kosher divorce. This is
indeed a most painful issue, but if indeed the marriage to the recalcitrant husband is one
where coercion is prohibited, or even possibly prohibited, the voice of the Torah speaks
loudly and clearly, that this marriage too is a marriage and may not be violated [nor may

The following essay will elucidate in clear practical terms how and why these two
prenuptial agreements should be drafted, given the realities of world Jewry in the year
5775, the time of the composition of this essay.9 Given the widespread public interest in
rescuing agunot, this essay will be of potential benefit to the House of Israel.
This essay is composed of several sections in achieving that goal. The first
section (A) will address the 1993 Beth Din of America prenuptial agreement, formulated
by R. Mordechai Willig and featured at <http:// www.theprenup.org>.10 The essay will
explain why that prenuptial agreement, while reflecting a praiseworthy degree of great
lomdut on the part of R. Willig and the other dayanim of the Beth Din of America (all of
whom are tzaddikim gemurim), does not conform with the consensus of poskim, and is
divorce be coerced], even for the most noble of reasons.
[N.B. The subject of the Vaad Halacha 2010 report is beyond the scope of the present essay. The
purpose of the present footnote is simply to highlight that exactly the same philosophical approach
championed by that report regarding the determination of death will apply regarding determination of the
dissolution of marriage, viz. a refusal to allow the ethical values of the contemporary First World to
interfere with pristine Halakhah. It is this which R. Joseph Ber Soloveitchik, in his aforementioned 1975
lecture, described as Kabbalat Ol Malkhut Shamayim.
Actually, there may well be a fundamental difference between the halakhic question of
determining death and the halakhic question of managing agunot. Determination of death is relevant for the
Noahide Code as well as Jewish law (-although R. Avraham Steinberg, in a July 4, 2010 lecture at Lake
Placid, NY, reports that R. Shlomo Zalman Auerbach regarded the Noahide Code as being granted greater
flexibility regarding brain death, but that is a subject beyond the scope of the present essay), whereas
management of agunot is a uniquely Jewish phenomenon, since any Noahide lady can receive an automatic
divorce by permanently leaving her husbands home, as per Rambam, Hilkhot Melakhim 9:8.
Interestingly, an interface between the laws of pikuach nefesh and the laws of agunot is suggested
by R. Eliezer Yehudah Waldenberg, Shut Tzitz Eliezer 18:19, sec. 2, and one which reflects the same
message of accepting the yoke of the Sovereignty of Heaven. Specifically, R. Waldenberg is asked
regarding a lady whose husband has been in a persistent vegetative state for the past ten years, tragically
rendering her an agunah. When the husband enters cardiac arrest, is there an obligation to resuscitate him,
thereby prolonging the ladys agunah status? Answers R. Waldenberg:
It is clear, therefore, that since to resuscitate him is encompassed within pikuach
nefesh, that one cannot take into account in this case that which on the other side the lady
will continue through this [resuscitation] to be an agunah many years, with all the pain
and suffering and sympathy for her travail, because pikuach nefesh overrides everything,
and it is incumbent upon her to accept the judgement of Heaven with love.
Actually, this latest scenario described by R. Waldbenberg does not involve an agunah on account
of a recalcitrant husband (the general subject of the present essay), but rather an agunah on account of an
incapacitated husband. In any event, Section T of this essay will discuss R. Joseph Elijah Henkins tripartite
prenuptial agreement, which enjoys the remarkable advantage of potentially rescuing even this latter type
of agunah. (However, as will be argued in Section T, R. Henkins proposal should not be employed in
practice.)]
This lesson is further highlighted by the subsequent statement of the Rabbinical Council of
America on June 26, 2015, which reads in part:
Marriage is an institution defined by the Bible and subsequent religious codes and it is upon the
foundation of traditional family life that our society has been built for millennia Rabbi Leonard
Matanky, president of the RCA, said We remind all Americans of faith.... that no court can
change [the Holy One, blessed be He]s immutable law. We will redouble our efforts to use
persuasion to make the case for [the Holy One, blessed be He]s eternal truths about the nuclear
family and the bond between husband and wife. We stand committed to not lose faith in faith

disqualified. Accordingly, (i.e. given the conclusion of section A), a new prenuptial
agreement is needed to replace the 1993 Rabbinical Council of America prenuptial
agreement. This is the subject of the next several sections of this essay, which will
explore an approach to indeed rescue all agunot. Namely, two separate (and halakhically
kosher) prenuptial agreements are required in concert. The first prenuptial agreement is
an agreement to shield the bride and groom from the effects of the 1992 New York Get
Law and 1990 Canada Get Law (or any similar act of the judicial or legislative branches
of government), laws that could potentially render all ladies agunot. A great deal of space
in this essay (sections B through M) will be devoted to explanation why brides and
itself, and hope that others who cherish [the Holy One, blessed be He]s teachings will join us.
Although, in context, the Rabbinical Council of America is referring to the impossibility of same
gender marriage, mutatis mutandis the same declaration means that no court can change the immutable law
of the Holy One, blessed be He, that a coerced get [when coerced contrary to Halakhah] is disqualified.
8

A beneficial pedagogical analogy is the episode of Aug. 16, 2014 at the Ebola clinic in West Point,
Liberia. Specifically, a mob of well-meaning citizens, believing Ebola virus to be a hoax, stormed and
looted a potentially infectious clinic where patients were being quarantined. While every Jew
obviously davens that everyone should be blessed with a refuah shelemah, there is no gainsaying the fact
that this episode risked (chas ve-chalilah) causing Ebola to spread further, thereby exacerbating the
problem that the well-meaning mob was trying to solve. [Happily, subsequent to that event, the U.S.
government announced a massive effort to send relief to curb the spread of Ebola in Africa, be-chasdei HaKadosh Barukh Hu, Yishtabach Shemo, which was most effective in providing a remedy. Indeed, on May 9,
2015, all of Liberia (including West Point) was officially declared Ebola-free.] The same is true when a
well-meaning community tries to free an agunah by using means of coercion which are not halakhically
authorized. The well-meaning community may believe that it is doing the agunah a favour, but the
community is actually exacerbating her tragedy, since the get she will receive will be disqualified and
hence useless.
9

The prenuptial agreement presented by this essay follows the value of Kabbalat Ol Malkhut Shamayim of
which R. Soloveitchik and R. Feinstein (cited earlier) speak, since this prenuptial agreement does not
attempt to change the laws of the Torah, but rather attempts to apply the eternal laws of the Torah in such a
manner as to benefit the righteous ladies of Israel.
To explain this by way of analogy, in a lecture of May 21, 2014 (available at
<http://www.yutorah.org/lectures/lecture.cfm/813658/Rabbi_Hershel_Schachter/The_ABC's_of_Our_Relig
ion#>), R. Hershel Schachter cites R. Joseph Ber Soloveitchik as invoking the example of how FDR
encouraged American scientists to split the atom, in order to escape the global domination program
espoused by the Third Reich. Philosophically speaking, it is not the politics of FDR that explain the science
of atomic fission. Rather, it is the laws of physics [as created by the King of Kings, the Holy One, blessed
be He] which dictate atomic fission. Nevertheless, the politics of FDR are what historically inspired
physicists to research the scientific principles [as created by the King of Kings, the Holy One, blessed be
He] by which atomic fission might operate. Similarly, it is not our sympathy for agunot which explains how
a prenuptial agreement might work, for it is heretical to attempt to change the laws of the Torah on the basis
of any feminist (or any other) consideration. Rather, our sympathy for agunot inspires us to invest our
Torah study in inquiring whether or not the principles of Halakhah [as revealed by the King of Kings, the
Holy One, blessed be He] will actually allow for a prenuptial agreement that can indeed be effective.
[N.B. This student would hasten to add that the protagonists described by R. Schachters lecture
are certainly tzaddikim gemurim, to whose eternal credit redounds the fact that they have caused the present
expansion of Torah study. See Rashi to Numbers 27:5. Also, the purpose of the foregoing paragraph is not
to encourage the future employment of nuclear weapons. See R. J. David Bleich, Contemporary Halakhic
Problems III (KTAV Publishing, 1989), pp. 4-10, that nuclear warfare is actually prohibited. Rather, R.
Soloveitchiks invocation of atomic fission can be peacefully understood as a pedagogic device, for

grooms must be shielded from the New York Get Law and the Canada Get Law,11 while
sections N and O will explain how to draft the first prenuptial agreement in practice. The
second prenuptial agreement (outlined in sections P and Q) is an agreement to endow
every bride with an extraordinary maintenance payment on a daily basis, just like the
ketubah of the biblical Rebecca, based on R. J. David Bleichs proposal in his Be-Netivot
ha-Halakhah I (KTAV Publishing, 1996), pp. 3-20, although as diamond-polished by this
student. Finally, section R of the present essay will explore the enigmatic nature of R.
Moshe Feinsteins prenuptial agreement in Iggerot Mosheh, Even ha-Ezer IV, no. 107;
section S of the present essay will explain why the Device of the Sages of Spain should
not be employed as a prenuptial agreement; whereas section T of the present essay will
explain why R. Joseph Elijah Henkins tripartite prenuptial agreement proposal in
Perushei Ivra should not be employed.
By being given the two prenuptial agreements of Section O and Section Q of this
essay, all future wives can be potentially saved from becoming agunot. This can only be a
source of great joy to world Jewry.
It must be emphasized that in none of this discussion is any criticism (chas veshalom) intended toward to those who have participating in drafting, legislating and/or
implementing the Get Laws of New York and Canada, nor toward the mesaderei gittin of
purposes of creating an effective simile.]
10

The website actually attributes the date of the composition of the prenuptial agreement formulated by R.
Willig to 1994. However, that information must represent an oversight (with all due respect to the authors
of the website, who are tzaddikim gemurim), because this student specifically recalls being privileged to
attend two of his brothers weddings in 1993, both of which featured the signing of R. Willigs prenuptial
agreement at the grooms table celebration immediately preceding the chuppah, under the supervision of
Mori ve-Rabbi R. Joshua H. Shmidman. [For more on R. Shmidmans approach toward this agreement, see
infra, note 29.] Indeed, Dr. Rachel Levmore, Rabbinic Responses in Favor of Prenuptial Agreement
(Tradition 42:1, Spring 2009), pp. 36-37, more accurately dates dates R. Willigs prenuptial agreement to
1993 (-or, more precisely, as having been originally formulated by R. Willig in 1992 and having been
endorsed by the Rabbinical Council of America in 1993). Accordingly, as a matter of convention, this essay
will henceforth refer to R. Willigs agreement as the 1993 Beth Din of America prenuptial agreement.
11

See R. Menasheh Klein, Get Meuseh ba-Erkaot (Makhon Mishneh Halakhot, 5754, available at
<http://hebrewbooks.org/9107>), as well as his subsequently published responsa cited supra, note 3, all
addressing the New York Get Law. See further R. David Shure in his Ha-Beit Din Tzedek u-Veit haMishpat be-Kefiyah le-Garesh (Kollel le-Iyunai Halakhah, 5756, available at
<http://www.hebrewbooks.org/34840>), as well as his A Rabbinical Divorce Ordered by the Civil Court
(available at <http://www.science-halacha.com/getlaw/getlaw_eng_homepage.htm>) addressing both the
New York Get Law and the Canada Get Law. [R. Shure maintains that even the 1986 Canada Get Law may
affect the validity of gittin; see further on this topic in Section N of the present essay. I am grateful to R.
Yisrael Zvi Harari for bringing this valuable source to my attention.] And see R. J. David Bleich, BeNetivot ha-Halakhah I (KTAV Publishing, 1996), pp. 32-55, who indicates that brides and grooms must be
shielded from both the New York Get Law and the Canada Get Law. And see R. Eliashiv, Kovetz Teshuvot
I, no. 180 (partially cited supra, note 6), who declares that brides and grooms must be shielded from the
New York Get Law.
By contrast, some poskim have ruled that there is no need to shield brides and grooms from the
New York Get Law and the Canada Get Law. See R. Gedalia Dov Schwartz, Comments on the New York
State Get Law, available at <http://www.jlaw.com/Articles/get_law1.html>, as well as R. Michael
Broyde, Tradition 29:4 (Summer 1995), pp. 5- 13; Tradition 31:3 (Spring 1997), pp. 27-41; and Tradition
32:2 (Winter 1998), pp. 95-97. However, with all due reverence manifest before this latter school, that
position will be challengend in sections B through M of this essay.

New York and Canada. Likewise, in none of this discussion is there any criticism (chas
veshalom) intended toward the scholars who have participated in drafting, encouraging
and/or implementing the Beth Din of America prenuptial. Quite the contrary, all those
individuals are wholly righteous and praiseworthy for their noble intention to free each
and every chained lady of Israel.12 To paraphrase the morning prayer liturgy: Kulam
ahuvim, kulam berurim, kulam giborim, ve-khulam osim be-eimah u-ve-yirah retzon
Konam.13 Moreover, they are to be credited with having expanded the discussion of Torat
Ha-Shem (including prompting the writing of this essay), which is itself a most
formidable achievement and which redounds entirely to their eternal credit.14
It is in the above spirit that the following points will be explicated.
A. THE 1993 BETH DIN OF AMERICA PRENUPTIAL AGREEMENT
According to Torah law, unauthorized financial coercion of a husband disqualifies
any resulting get that the husband delivers to his wife.15 Even so, the Beth Din of America
prenuptial agreement specifies that the husband accepts upon himself that, if for whatever
reason his domestic residence with his wife will cease in the future, he will obligate
himself to pay his wife a certain amount of money per day, so long as they are married
according to Jewish law, and so long as the Beth Din of America has not issued a
declaration that the wife is refusing to following its decision/recommendation.16 R.
12

Logically speaking, the virtually lifesaving kindness of freeing a chained lady (-if orchestrated in
accordance with Halakhah) should surely be reckoned as a mitzvah pursuant to the commandments veahavta le-reakha kamokha (as per Leviticus 19:18) and ve-halakhta bi-derakhav (as per Deuteronomy
28:9), the latter being applicable since the Holy One, blessed be He is mattir assurim (as per Psalms
146:7). See also the sources cited by R. Ovadiah Yosef in his Shut Yabia Omer IV, Even Ha-Ezer no. 15
regarding the grandeur of the mitzvah of rescuing a chained lady, provided that it is so done in consonance
with Halakhah.
Even so, one must recognize that verbally pressuring a husband [outside the Beth Din process] to
divorce his wife is not the fulfillment of any mitzvah, because quite the contrary as demonstrated supra,
note 6a, it is forbidden as a potential violation of Exodus 20:14. And if one goes beyond verbal pressure
and actually resorts to coercion [outside of the Beth Din process] in compelling the husband to divorce his
wife, then the resulting get is completely useless, and we have merely exacerbated the chained ladys
tragedy. So, a cool-thinking strategy is needed in order to actually rescue agunot, and it is to that goal that
this essay is devoted.
13

Cf. the virtually identical language employed by R. Rephael Aharon Ben-Simeon in his Shut u-Mitzur
Devash, Yoreh Deah no. 18, describing the various Torah scholars who dispute one another regarding
metzitzah. [I am grateful to David Tebesh for bringing this source to my attention.]
14

See Rashi to Numbers 27:5.

15

This point will be elaborated at length in the sections of this essay (i.e. sections B to M) devoted to the
New York Get Law and the Canada Get Law.
16

As of the date of the composition of this essay, the Beth Din of America prenuptial agreement [available
at <http://www.theprenup.org>] specifies on behalf of the husband as follows:
I hereby now (meachshav), obligate myself to support my Wife-to-Be from the date that our
domestic residence together shall cease for whatever reasons, at the rate of $150 per day (calculated as of
the date of our marriage, adjusted annually by the Consumer Price Index-All Urban Consumers, as
published by the US Department of Labor, Bureau of Labor Statistics) in lieu of my Jewish law obligation
of support so long as the two of us remain married according to Jewish law, even if she has another source

Bleich, in his Be-Netivot ha-Halakhah I, pp. 21-31, identifies this agreement as an

asmakhta (-a contingency penalty clause that is unenforceable according to Torah law).
Namely, the husband who signs the prenuptial agreement at the time of his wedding
celebration does not seriously anticipate that his domestic residence with his wife will
cease. [And even if the mesader kiddushin says to the groom at the wedding, "this is a
serious document", the Halakhah of asmakhta dictates that the groom does not take it
seriously.] Thus, Torah law does not recognize its enforceability, yet there is strong
reason to suspect that the secular judiciary [in any constitutional liberal democracy
throughout the world] would indeed enforce it, as it is duly notarized. Thus, every
husband who has signed such a contract is under potential financial coercion by virtue of
the very existence of the secular judiciary that stands ready and able at all times to
enforce the contract. Such coercion will disqualify whatever get the husband writes.17
In justifying the prenuptial agreement, the Beth Din of America appeals to two
halakhic mechanisms which bypass the problem of asmakhta: "beit din chashuv" (drafting of the contract in the presence of a highly eminent rabbinical court) as well as
"kinyan me-akhshav" (-performing an act of acquisition whose mercantile effect occurs
immediately). To its credit, the Beth Din of America dutifully implements those two
mechanisms into the signing protocol of its prenuptial agreement. Nevertheless, R. Bleich
posits that those two mechanisms are insufficient to obligate the groom to pay, for the
following reasons: (i) Beit din chashuv" only operates effectively according to the Rema
of income or earnings. Furthermore, I waive my halakhic rights to my wifes earnings for the period that
she is entitled to above stipulated sum, and I recite that I shall be deemed to have repeated this waiver at
the time of our wedding. I acknowledge that I have now (meachshav) effected the above obligation by
means of a kinyan (formal Jewish transaction) in an esteemed (chashuv) Beth Din as prescribed by Jewish
law.
The prenuptial agreement then continues with the following caveat: However, this support
obligation shall terminate if Wife-to-Be refuses to appear upon due notice before the Beth Din of America
or in the event that Wife-to-Be fails to abide by the decision or recommendation of the Beth Din of
America.
17

Ruling in telephone conversation with this student on January 31, 2008. R. Bleich continued that (at least
by that time in 2008) the Beth Din of America prenuptial agreement had never actually been tested before a
secular judiciary, but that it is to be presumed that any secular judiciary would indeed enforce it, and thus
the threat to the husbands wealth exists at least as a matter of safek by virtue of the very existence of
the signed and notarized contract. Such a threat is sufficient to deprive any resulting get of the potential to
free the wife to remarry.
R. Bleichs concern that the secular judiciary might enforce the Beth Din of America prenuptial
agreement appears to have been substantiated by the recent lecture of R. Mordechai Willig delivered on
Nov. 27, 2011, in which R. Willig reports that a secular judiciary has indeed formally recognized the
effectiveness of his prenuptial agreement. The lecture is recorded at
<http://www.yutorah.org/lectures/lecture.cfm/766175/Rabbi_Mordechai_I_Willig/Prenuptial_Agreements>
. The current writer would hasten to add that although R. Willig does not identify the particular protagonists
in the case brought before the secular judiciary, those protagonists are certainly tzaddikim gemurim, to
whose eternal credit redounds the fact that they have caused the present expansion of Torah study. See
Rashi to Numbers 27:5.
Accordingly, based on this substantiation by R. Willigs report (and in concert with the analytical
reasoning that will follow in the coming paragraphs of the main text of the essay), R. Bleich appears quite
correct to disqualify at the very least as a matter of safek any get delivered by a husband who is bound
by the 1993 Beth Din of America prenuptial agreement.

10

in Shulchan Arukh Choshen Mishpat 207:15,18a but not according to the Mechaber (R.
Joseph Karo). Therefore, because a husband has the right to say "kim li" (I prefer to hold)
like the Mechaber, he can never be forced to pay a single penny in Beit Din according to
Halakhah (since the burden of proof always devolves upon the plaintiff in monetary cases
[as per the gemara in Bava Kamma 46b ha-motzi me-chaveiro alav ha-reayah]),
whereas the secular courts will presumably force him to pay.18 Ergo, the husband is under
financial coercion and the get is disqualified. (ii) "Kinyan me-akhshav", as described in
Shulchan Arukh Choshen Mishpat 207:14, only works for a specific tangible item under
discussion, and not for a future debt, as becomes evident from the Device of the Sages
of Spain" subsequently codified by Shulchan Arukh Choshen Mishpat 207:16. Since the
Rabbinical Council of America prenuptial agreement refers to an open-ended future debt,
"kinyan me-akhshav" does not help.19 20 Thus, it remains the case that there is financial
18a

In Be-Netivot ha-Halakhah I, p. 22 (eleventh line), this source is typographically misreferenced as

Shulchan Arukh Choshen Mishpat 27:15. [That misreference was erroneously copied by this student in the
first five editions of the present essay.] I am grateful to R. Shabsi Asher Tayar for alerting me to this
valuable typographical correction.
18

Methodologically likewise, R. Zvi Spitz, in his Mishpetei ha-Torah III (Jerusalem, 5758), no. 17, rules
that a defendant can say kim li by invoking the Mechaber against the Rema, even if the defendant is an
Ashkenazic Jew. R. Spitz conclusion is based on R. Yitzchak Yaakov Weisz, Shut Minchat Yitzchak VI,
no. 170, sec. 25.
Actually, R. Ovadiah Yosef, Shut Yabia Omer VII, Choshen Mishpat no. 2, sec. 4 (final seven
lines), explains that Minchat Yitzchak oversimplified the issue, and that the question of whether an
Ashkenazic defendant can say kim li by invoking the Mechaber against the Rema is itself controversial.
Nevertheless, Yabia Omer appears to conclude that, as a matter of practical halakhah, the defendant can
indeed plead kim li. Similarly, R. Yitzchak Zvi Ushinsky, in a contribution to Beit Hillel, Vol. 34 (Elul
5768), p. 66, writes that the question of whether an Ashkenazic defendant can plead kim li like the
Mechaber against the Rema is controversial, but he proceeds to conclude that as a matter of practical
halakhah the defendant can indeed plead kim li.
19

For R. Bleich's complete analysis of the Device of the Sages of Spain", see Contemporary Halakhic
Problems III, ch. 14.
Parenthetically, the entire purpose of R. Bleichs analysis of the Device of the Sages of Spain in
that chapter (composed several years before the Beth Din of America developed its 1993 prenuptial
agreement) is to advance a prenuptial agreement of his own (-a prenuptial fundamentally different than the
1993 Beth Din of America prenuptial agreement). Namely, the bride and groom both obligate themselves
unconditionally to pay an extravagant sum of money, unconditionally. Then, the bride and groom both grant
one another a mechilah (forgiveness) from that obligation, but the mechilah is modified by a stipulation that
mechilah will only be effective on condition that each one will cooperate in a divorce process. The Device
of the Sages of Spain, maintains R. Bleich, will validate such an arrangement, and the resulting get will be
kosher (pending fulfillment of the specific details outlined by R. Bleich in that chapter). However, this
point is only parenthetical to the present essay, since in R. Bleichs subsequently published Be-Netivot haHalakhah I, R. Bleich renders no mention of a prenuptial agreement based on the Device of the Sages of
Spain.
In this students opinion, R. Bleich was correct to ultimately refrain from codifying (in Be-Netivot
ha-Halakhah I) his prenuptial agreement based on the Device of the Sages of Spain (that he had previously
published in Contemporary Halakhic Problems III). The reason for this is explained in Section S of this
essay. Based on the analysis in Section S of this essay, this student maintains that the Device of the Sages
of Spain should not be employed as a basis for leniency in formulating an effective prenuptial agreement.
All this is academic anyway, since the present essay will formulate (based on the teachings of R. Bleich that
are indeed codified in Be-Netivot ha-Halakhah I) an effective prenuptial agreement to rescue agunot.

11

coercion over husbands who have signed the Rabbinical Council of America prenuptial
agreement.
Indeed, this point appears to be openly conceded by one of the scholars whom the
Beth Din of America invokes as a supporter of the prenuptial agreement. In his letter of
approbation featured on the Beth Din of America website devoted to the prenuptial
agreement, R. Asher Zelig Weiss admits quite openly that a husband cannot be rightfully
made to pay in Beth Din the amount of money specified by the agreement, owing to the
principle ha-motzi me-chaveiro alav ha-reayah. Essentially, then, R. Weiss is admitting
that the prenuptial agreement is disqualified, as R. Bleich rules.
Why, then, is R. Weiss featured as a scholar who supports the prenuptial
agreement, when he really disqualifies it? The answer is that R. Weiss continues that
even though the prenuptial agreement is disqualified he is confident that ladies are not
prone to actually go to Beth Din to sue their husbands, and therefore the prenuptial
20

Intriguingly, this give-and-take between R. Bleich and the Beth Din of America parallels a previous
dispute recorded in the annals of Halakhah. Namely, in his Le-Or ha-Halakhah (2nd edition, pp. 310-335),
R. Shlomo Yosef Zevin analyzes the halakhic status of the fictitious court drama featured in William
Shakespeares Merchant of Venice: Is a contract requiring a debtor to pay a pound of his own flesh [in the
event that he is unable to repay a monetary loan] actually binding? In context, R. Zevin demonstrates at
length that the answer is nugatory, because a human beings life and corporeal entity belong to the Holy
One, Blessed Be He, such that it is halakhically impossible for merchants to formulate a contract over a
pound of human flesh. Thus, the deal envisaged by Shakespeare is legally meaningless. However, in a
footnote appended to the very beginning of his essay, R. Zevin cites the previously published treatment of
Pinchas Shifman on this subject (from the Ha-Tzofeh newspaper of I Adar 10, 5698) and takes issue. As
quoted by R. Zevin, Mr. Shifman himself voids the Shakespearian contract of legal meaning on the grounds
that it constitutes an asmakhta, since the borrower (and/or the guarantor) surely intended to repay with his
money and not with a pound of his flesh at the time he drafted the loan. R. Zevin counters that Mr.
Shifmans asmakhta objection is specious because it could easily be overcome through the mechanisms of
kinyan me-akhshav and beit din chashuv. In other words, if Shakespeare had been a connoisseur of
Halakhah, he could have skillfully scripted those mechanisms into the play.
Alas, R. Zevin fails to take cognizance that beit din chashuv is only advocated by the Rema but
is disputed by the Mechaber, such that through the mechanism of kim li the defendant could indeed insist
that the contract is an asmakhta. Thus, Mr. Shifmans position actually prevails over that of R. Zevin. In
this manner, R. Bleich and Mr. Shifman are positioned on one side, while the Beth Din of America and R.
Zevin are on the other side.
[Nevertheless, regarding the other point he raises, viz., the issue of kinyan me-akhshav, R. Zevin
would appear to be entirely correct, since the pound of flesh in question is a tangible object, concerning
which the debtor could indeed effectively obligate himself through kinyan me-akhshav (if not for the
transcendental thesis of R. Zevins essay that the body does not belong to the human being). Therefore,
through kinyan me-akhshav the problem of asmakhta could be overcome in Shakespeare.
Cf. R. Bleichs article The Problem of Identity in Rashi, Rambam and the Tosafists in Tradition
41:2 (Summer 2008) , pp. 24-49, where he addresses the philosophical question of why an organism is
considered to remain the same organism with the progression of years, when the cells of that organisms are
constantly being replenished and regenerated. Presumably, that disquisition would equally explain why a
pound of flesh should be halakhically considered a tangible object, even though the muscle cells are
constantly being replenished and regenerated as a function of time.
In any event, whereas R. Zevin is correct that kinyan me-akhshav obviates the problem of
asmakhta in Shakespeare, the same cannot be said for the Beth Din of America prenuptial agreement, since
the latter case constitutes an open-ended obligation. (Moreover, as will soon be argued in the main text, the
Beth Din of America prenuptial agreement differs from R. Zevins case for another reason: the Beth Din of
Americas prenuptial agreement depends upon a triple contingency agreement, such that there is no
evidence that even the Rema would accept the Beth Din of Americas prenuptial agreement.)]

12

agreement poses no problem of generating financial coercion. In other words, the

prenuptial agreement is just a ruse; it is a void agreement which no Beth Din could ever
enforce, and so the husbands are all being tricked into thinking that it works. Since the
husbands are merely being tricked into divorcing their wives, this is not considered
financial coercion and the resulting gittin are kosher, claims R. Weiss.
Alas, R. Weiss fails to realize that quite apart from the Beth Din the secular
judiciary will enforce the Beth Din of America prenuptial agreement, and therein lies the
coercion on the husbands. Hence, any get the husband delivers is to be regarded as
potentially coerced and hence potentially disqualified.
Actually, although never mentioned by R. Bleich or any other author who has
published on the topic, it seems to this student that the foregoing may well be superfluous
in rejecting R. Willigs prenuptial agreement. This is because quite apart from the ability
of the husband to plead kim li like the Mechaber, even the Rema himself may never have
agreed with R. Willigs innovation. Namely, what the Rema validates is a contigency
agreement based on a single stipulated condition [provided this is executed by appealing
in a beit din chashuv.] By contradistinction, with R. Willigs prenuptial agreement, there
is a triple stipulated condition, as follows:
(1) If the wife separates from her husband, and.
(2) If the husband does not divorce his wife, and
(3) If the Beth Din of America has not issued a declaration that the wife is
refusing to following its decision/recommendation-----then the husband shall pay his wife a specified sum of money every day. There
is no precedent, even in the words of the Rema, for such an asmakhta that is dependent
upon three separate conditions to ever be actionable, even if executed in a beit din
chashuv. It must be emphasized that the third condition, viz. the question of whether the
Beth Din of America has issued a declaration that the wife is following its
recommendation/decision, is purely capricious. According to Torah law, if the lady is a
moredet (i.e. if she has unilaterally separated from her husband), then any Beth Din in the
world has no choice but to gently recommend that the wife peacefully return to her
husband (barring the exceptional cases described by Shulchan Arukh Even ha-Ezer nos.
77 and 154, where the Beth Din is obligated to encourage or coerce the husband to
divorce his wife.) Ergo, this strengthens the conclusion that there is no halakhic basis for
the husband to pay his estranged wife the sum of money specified by the 1993 Beth Din
of America prenuptial agreement.
More recently, R. Willig has independently advanced a novel argument to validate
the Beth Din of America prenuptial agreement, based on the gemara in Ketubot 102b.21
There, the gemara declares that if the parents of a bride and groom verbally promise one
21

Oral lecture delivered by R. Willig at his Young Israel of Riverdale congregation on the Sabbath of Nov.
6, 2010, prior to the minchah prayers, at which this student was privileged to attend. For obvious reasons
pertaining to Sabbath restrictions, no recording of that lecture is available. However, a subsequent lecture
R. Willig delivered on Saturday night, Feb. 12, 2011 is indeed recorded and available at
<http://www.yutorah.org/lectures/lecture.cfm/756394/Rabbi_Mordechai_I._Willig/Women_in_Halacha_#1
2:_Prenuptial_Agreements>. At 24:50 into the latter lecture, R. Willig briefly refers to his previous Nov. 6,
2010 lecture, although it is impossible to understand the brief reference without having heard the earlier
lecture. Hence, among a myriad other reasons, this student is pleased to honour R. Willig by presently
bringing his earlier (unrecorded) lecture to the public attention.

13

another (as part of the in-law negotiations that ubiquitously precede every wedding)
certain sums of money to be given to the groom and/or bride upon their marriage, their
verbal commitments themselves are binding as an automatic kinyan. [Hence, a person can
subsequently be successfully sued in Beth Din to fulfill his verbally announced
commitment.] The reason the verbal commitment is exceptionally construed as a kinyan
in this particular fact pattern, explains the gemara, is that the in-laws realize that
without the binding nature of such verbal commitments the wedding itself will never
come to logistical fruition. Thus, because of the enjoyment they receive from seeing their
children married, the verbal commitments of the in-laws are sincerely professed and are
automatically reckoned as a kinyan.
Shulchan Arukh Even ha-Ezer 51:1 rules that the same principle applies to the
bride and groom themselves.22 Thus, any sums of money verbally promised from the
groom to the bride or vice-versa as part of the negotiations prior to the wedding are
binding as an automatic kinyan.
In discussing this principle, R. Joseph Shalom Eliashiv, Kovetz Teshuvot I
(Jerusalem, 5760), no. 163, seems to indicate although his words are somewhat cryptic
in this regard that even an asmakhta undertaken by the groom before a wedding is
validated by virtue of Ketubot 102b. Accordingly, reasons R. Willig, the Beth Din of
America prenuptial agreement must perforce be valid because of Ketubot 102b as
interpreted by R. Eliashiv.
Alas, R. Willig appears to have overlooked that this very question, viz. whether
Ketubot 102b validates an antenuptial asmakhta, is actually disputed by the poskim, as
catalogued by the Otzar ha-Poskim, Even ha-Ezer 51:1, seif katan 10, sec. 2. Some
poskim do indeed validate an antenuptial asmakhta, but others disqualify it. Accordingly,
the principle of kim li would presumably disqualify the Beth Din of America prenuptial
agreement, as the husband can say he follows the opinion of those poskim who disqualify
an antenuptial asmakhta.
Fascinatingly, one of the poskim cited by Otzar ha-Poskim, viz. Lechem Rav,
states that an antenuptial asmakhta is disqualified unless it is also accompanied by a
kinyan me-akhshav in a beit din chashuv. According to this opinion, the three factors
of Ketubot 102b, kinyan me-akhshav and beit din chashuv all synchronized in concert
leads to a valid prenuptial asmakhta. With amazing prescience, then, Lechem Rav appears
to follow R. Willigs complete thesis, which relies on all three of these factors.
Nevertheless, the other authorities cited by Otzar ha-Poskim who disqualify an asmakhta
render no distinction whether or not kinyan me-akhshav and/or beit din chashuv are
employed. Indeed, there does not seem to be any reason for such a distinction (with all
due reverence manifest before the Lechem Rav) since, as mentioned earlier, each of the
factors of kinyan me-akhshav and beit din chashuv are themselves subject to dispute (in
addition to the fact that the validity of an antenuptial asmakhta is subject to dispute), and
In an even more recent lecture, delivered on Nov. 27, 2011, and referenced supra note 18, R.
Willig explicitly discusses the gemara in Ketubot 102b.
22

Although the gemara in Ketubot 102b speaks only of the parents of the bride and groom, Arukh HaShulchan (Even ha-Ezer no. 51, seif katan 6), explains that a bride and groom presumably receive even
more enjoyment from the fact that they are willing to marry one another than the enjoyment received by
their parents, and so a fortiori the rule of Ketubot 102b applies to verbal antenuptial agreements of the willbe-bride and will-be-groom themselves.

14

so on every single count of the three factors (kinyan me-akhshav, beit din chashuv,
asmakhta) there is always a legitimate halakhic opinion on which the husband can rely in
refusing to give any money to his wife. Kim li applied three-fold (which kim li most
certainly can be applied) will thus presumably disqualify the Beth Din of America
prenuptial agreement.23 Furthermore, one might argue that even Lechem Rav only
validates an asmakhta that is dependent upon a single contingency, whereas as observed
earlier in this section R. Willigs prenuptial agreement depends upon a triple
contingency, such that there is no evidence that even Lechem Rav would agree with R.
Willig.
In any event, R. Willig also appeals to Nachalat Shivah no. 9 (basing itself on the
medieval Takanat Shum public ordinances of the Jewish community in Speyer, Worms
and Mayence) as a precedent for his prenuptial agreement.24 Alas, this precedent is
refuted by R. Bleich (Be-Netivot ha-Halakhah I, pp. 26-29), where the latter observes that
Nachalat Shivah refers only to a prenuptial agreement where the husband agrees (on
penalty of money) to appear before a specific Beth Din if he should experience marital
disharmony with his wife. Once the husband materializes before the Beth Din, the
23

In response to this argument, R. Willig (in his lecture on Nov. 27, 2011, referenced supra, note 18) asks
that every ketubah with its various tosefet ketubah additions should therefore be disqualified, since
every ketubah operates on the basis of an asmakhta! [Viz. the groom does not anticipate at the time he
marries his bride that he will divorce his bride in the future. Why then should the groom be able to obligate
himself to pay the bride money in the case that he divorces her?] R. Willig argues that just as the tosefet
ketubah is valid, so too must be the 1993 Beth Din of America prenuptial agreement.
Alas, R. Willig appears to overlooked the fact that the institution of the ketubah was ordained by
the Sanhedrin, such that it operates by virtue of hefker beit din hefker. [See Rashi to Pesachim 7a, s.v. afilu
be-chitei kurdenaita.] By contradistinction, the Sanhedrin never ordained the 1993 Beth Din of America
prenuptial agreement. Thus, with all due respect to Mori ve-Rabbi R. Willig, his extrapolation from the
validity of tosefet ketubah to the proposed validity of the 1993 Beth Din of America prenuptial agreement
does not appear plausible. Indeed, this refutation to R. Willig is recognized by R. Yosef Blau in a lecture
delivered on Feb. 16, 2006 at
<http://www.yutorah.org/lectures/lecture.cfm/713796/Rabbi_Yosef_Blau/Prenuptial_Agreements_(2006)>,
at 18:50-19:40 into the recording.
[N.B. Despite his own cogent refutation to R. Willig, R. Blau proceeds to suggest that the 1993
Beth Din of America prenuptial agreement should nonetheless be valid on the alternate grounds that it
follows Takkanat Shum. Alas, with all due reverence manifest before Mori ve-Rabbi R. Blau, the next
paragraph of the main text of this essay will demonstrate that Takkanat Shum cannot serve as a precedent
for the 1993 Beth Din of America prenuptial agreement. Interestingly, R. Blau mentions toward the end of
his lecture that he was unable to present R. Bleichs contribution on the topic of prenuptial agreements and
that he therefore encourages his audience to independently study R. Bleichs work. Given that R. Bleichs
work essentially refutes the Takkanat Shum precedent (as will be demonstrated in the next paragraph of the
main text of this essay), it is certainly to be hoped that Mori ve-Rabbi R. Blau will retract his advocacy for
the 1993 Beth Din of America prenuptial agreement, and instead advocate the combination of two
prenuptial agreements presented by Sections O and Q of the current essay.]
24

Lecture of Nov. 27, 2011 (referenced supra, note 18). Identically, the website
<http://theprenup.org/rabbinic.html> states as follows in presenting a precedent for R. Willigs prenuptial
agreement: In 1664, Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany, published a
compilation of Jewish legal forms called the Nachalas Shiva. One of the forms in that book is a version of
the tanaim, a Jewish wedding document, with a provision that is very similar to the Prenup. In a footnote
to that provision, the Nachalas Shiva cites some authorities who held that the provision dates back to the
Takanos Shum, the authoritative communal enactments adopted in the early Middle Ages by the leaders of
the German communities of Speyer, Worms and Mayence.

15

husband is automatically freed from paying any money, even if he never agrees to divorce
his wife. [This is completely different than the 1993 Beth Din of America prenuptial
agreement, which obligates the husband to pay until he divorces his wife, which
potentially represents financial coercion over the get, thereby disqualifying the resulting
get.] Moreover, continues R. Bleich, the Nachalat Shivah prenuptial agreement was only
possible in seventeenth century Germany (and in the earlier medieval setting of Speyer,
Worms and Mayence) where Jews were organized in a kehillah system. What R. Bleich
appears to be indicating is that in seventeenth century Gemany (and medieval Speyer,
Worms and Mayence), all Jews were obligated to bring their disputes before a specific,
centralized community Beth Din, such that imposition of a financial penalty upon a
husband who refuses to materialize before the Beth Din was nothing more than requiring
the husband to fulfill his pre-existing halakhic obligation. In the post-emancipation era of
today, those conditions do not exist in the Diaspora (i.e. there is a free market of batei din
from which litigants can choose when they experience a dispute), and so to compel a
husband to appear before a specific Beth Din represents unauthorized coercion, as the
husband enjoys the right to request having his case heard before a different Beth Din.25
25

This theme will be elaborated in Section R of this essay. As will be discussed there, R. Bleichs second
refutation of R. Willigs prenuptial agreement (as interpreted by this student) represents a reversal of R.
Bleichs own article A Suggested Antenuptial Agreement: A Proposal in Wake of Avitzur that appeared in
the Journal of Halachah and Contemporary Society, VII (1984), pp. 25-41. In any event, R. Bleichs
second refutation [of R. Willigs prenuptial agreement] is not even necessary, in light of R. Bleichs first
refutation, viz. that Nachalat Shivah refers only to imposing a penalty upon the husband until he
materializes before a Beth Din. Thus, even without R. Bleichs second refutation, Nachalat Shivah cannot
be construed as a precedent for the 1993 Beth Din of America prenuptial agreement.
Indeed, R. Willig himself has acknowledged the difficuly of his extrapolation from Nachalat
Shivah. In his Nov. 27, 2011 lecture (referenced supra, note 18), R. Willig explains that My interpretation
of this Nachalat Shivah is that it doesnt really mean what it says. Yet, R. Willig then proceeds to confess
I cant be sure that Im right.
In a more recent lecture, delivered as a eulogy for R. Ovadiah Yosef on Oct. 9, 2013 (recorded at
<http://www.yutorah.org/lectures/lecture.cfm/798801/Rabbi_Mordechai_I_Willig/Reflections_on_Rav_Ov
adia_Yosef>), R. Willig testifies that on Rosh Chodesh Shevat 5752, R. Yosef signed his approval on R.
Willigs prenuptial agreement. R. Willig submits that he signed his name I have his signature in my
house. R. Willig then proceeds to explain how precisely ten years later on Rosh Chodesh Shevat 5762
R. Willig approached R. Yosef with a question regarding an agunah whose husband had disappeared in the
WTC on 9/11. In response to this latter question, R. Yosef composed a detailed responsum permitting the
agunah to remarry, which was published just a few months later in the 5762 Kol Zvi journal published by
RIETS (pp. 44-63), and then republished in Shut Yabia Omer, Vol. X (released in 5764). I.e., within
months (and certainly within two years) of receiving the WTC question, R. Yosef had published a
comprehensive halakhic explanation why the agunah was permitted to remarry.
A careful analysis of R. Willigs Oct. 9, 2013 testimony reveals that while R. Yosef published a
detailed responsum within two years of receiving the WTC agunah question, at no time did R. Yosef ever
publish a responsum explaining why he validates R. Willigs prenuptial agreement to rescue agunot and
this despite the fact that over twenty-one years elapsed between the time R. Yosef originally received R.
Willigs prenuptial agreement question and the time of R. Yosefs ultimate ascent to the Heavenly
Academy. During those intervening twenty-one years, R. Yosef published volumes seven, eight, nine and
ten of Yabia Omer, yet no mention appears anywhere regarding R. Willigs prenuptial agreement.
Moreover, R. Willig himself proceeds to state during his aforementioned Oct. 9, 2013 lecture (commencing
17:48 into the recording) regarding R. Yosef that:
Yes, he was unafraid to articulate bold halakhic positions even if he was in a very small
minority against many others who were also giants. As I mentioned to you, he was
particularly forthcoming when he would help individuals that I would term in halakhic

16

In an alternate attempt to validate the 1993 Beth Din of America prenuptial

agreement, R. Chaim Jachter (p. 14 of Gray Matter Vol. 1, Noble Book Press, 2000)
reports that he was told by R. Hershel Schachter that the problem of asmakhta only
arises when one commits to an exorbitant sum, which he undoubtedly does not plan on
paying/ In this case, however, the husband is agreeing to pay a reasonable sum for
supporting his wife. The source offered for R. Schachters thesis is the gemara in Bava
Metzia 104a.
With all due reverence manifest before the great luminaries R. Jachter, shlita,
and R. Schachter, shlita, this justification is torpedoed by R. Bleich in Be-Netivot haHalakhah I, pp. 21-22. R. Bleich demonstrates that Bava Metzia 104a addresses a unique
case of an employee who promises to work his employers field, reinforcing his promise
with a financial penalty should he fail to materialize at his job post. Rashi to that gemara
explains that the reason the employee must pay when he fails to materialize at his job
post is that the employee caused the employer massive financial loss (since the field was
ruined through neglect), and a promise to work a field that demands immediate attention
distress: questions of agunot, questions of mamzerut, things of this nature where theres
really a problem. He tried so hard to try to solve it. Its a part of the midat ha-chessed that
we all have, that every one of us has, back to Avraham Avinu.
Thus, it would appear that the justification for R. Willigs prenuptial agreement depends on
following a minority view (presumably meaning the Lechem Rav referenced earlier in the main text of this
section of the essay), and whatever endorsement R. Yosef granted R. Willigs prenuptial agreement would
have been predicated on this minority view. Alas, due to considerations of kim li, the husband enjoys the
prerogative to claim to follow the poskim who dispute the Lechem Rav, and thus R. Willigs prenuptial
agreement is disqualified. [Moreover, as argued in the main text, even the Lechem Rav only validated a
contingency agreement based on a single stipulation, whereas R. Willigs prenuptial agreement depends on
the confluence of three stipulations. Arguably, then, it is not even clear that Lechem Rav would agree with
R. Willig.] As R. Willig so aptly observes, R. Yosef tried so hard to try to solve it (emphasis added by
this student). R. Yosef indeed tried, but actual success will have to be reserved for a more fine-tuned
prenuptial agreement, to be presented in Section Q of this essay. [And see Iggerot Mosheh, Yoreh Deah III,
no. 88, where R. Feinstein writes that even if an outstanding Torah authority such as the Chazon Ish (specific example adjudicated by R. Feinstein) has issued a pesak halakhah, but posthumous evidence
becomes available to overturn that same pesak halakhah, one is no longer permitted to rely on the original
pesak halakhah.]
{In a methodologically similar manner (albeit regarding a completely separate halakhic topic), this
student was privileged to receive a communication from R. Asher Bush on Oct. 8, 2013 (responding to an
e-mail dispatched by this student earlier the same day) addressing the opinion(s) on the subject of brain
death that was/were issued by R. Ovadiah Yosef during his lifetime. R. Bush claims that:
It was clear that R. Ovadiah Yosef had never really been involved in this matter-not in
his writings nor in daily pesakimDo I know what he meant or intended or did not
intend, no, but personally I need to read a full analysis to evaluate what was said and
written and that was never provided by R. Ovadiah Yosef.
[N.B. The topic of brain death is obviously well beyond the scope of the present essay. The only
reason for its tangential mention here is that R. Bush methodological observation regarding R. Yosefs
approach to brain death could (in the opinion of this student) equally be applied to R. Yosefs approach to
R. Willigs prenuptial agreement. Viz. R. Yosef never explained why he validated R. Willigs prenuptial
agreement. This student would hasten to add the personal opinion that the competing protagonists in the
brain death debate are certainly all tzaddikim gemurim, to whose eternal credit redounds the fact that they
have caused the present expansion of Torah study. See Rashi to Numbers 27:5.]}

17

 when one actually will not materialize at the job post ipso facto damages the land
owner (who would have otherwise hired someone else had he realized in advance that the
worker is not trustworthy). Alternatively, Rashba, Ran, Nimukei Yosef and Ramban in the
name of Rav Hai Gaon (all on Bava Metzia 73a) explain that the reason the employee
must pay is that this is a special communal enactment that the Sanhedrin ordained.
Obviously, concludes R. Bleich, neither of those justifications are germane in the case of
the 1993 Beth Din of America prenuptial agreement. The husband never agreed in
advance of the marriage to divorce his wife (-nor, for that matter, is it halakhically
possible for an advance agreement to divorce to operate, as the laws of divorce are
different than the laws of hiring field workers), nor did the Sanhedrin ever ordain the
1993 Beth Din of America prenuptial agreement.
[Moreover, although superfluous in refuting the justification advanced by R.
Jachter and R. Schachter, it seems to (le-havdil ani ha-katan) this student that one can
hardly term a support agreement to be reasonable when a wife is a moredet. A husband
owes a moredet wife absolutely nothing.]
If so, it emerges that gittin may not be written anywhere in the world where a
secular judiciary stands prepared to enforce the Beth Din of Americas prenuptial
agreement, in the particular instance where the husband has signed such an agreement. In
order to rectify this problem, any couple that has signed the Beth Din of America
prenuptial agreement should now jointly sign a new postnuptial agreement (notarized if
so required by local legal standards), affirming that the husband and wife release each
other from the Beth Din of America prenuptial agreement. Only after such a release is
jointly signed is the husband capable of delivering a kosher get to his wife.
Of course, this latest point is made with the sincere and humble request of
permission of the forgiveness of the Torah scholars, Ha-Rabbanan ha-Geonim, shlita,
of the Beth Din of America. They are all superior to this student, and they are all to be
praised for their heroic efforts and sparkling scholarship that have been wonderfully
manifest in the development of their prenuptial contract. Indeed, as will be presented in
the coming sections of this essay, an alternate set of two prenuptial agreements can be
signed to reach the praiseworthy goal of the Beth Din of America, viz. to rescue all
agunot. This series of two prenuptial agreements could be easily adopted by the Beth Din
of America as a perfect solution to satisfy all parties (batei din, husbands and wives) in
consonance with Halakhah. This alternate agreement can be implemented at every Jewish
wedding, thereby correctly championing the honour of the righteous ladies of Israel. As
such, with the publication of this essay, it is certainly to be anticipated that the Beth Din
of America will modify its prenuptial agreement accordingly.26
26

Indeed, in a recent lecture on June 10, 2015, recorded at

<http://www.yutorah.org/lectures/lecture.cfm/837439/Rabbi_Mordechai_I_Willig/Tanaim_and_Prenuptial_
Agreements>, at 19:35 into the lecture, R. Willig acknowledges that he attended an Israeli governmental
meeting during Elul 5774 on the subject of his prenuptial agreement, where a dayan identified semianonymously as R. Beeri critiqued the Beth Din of America prenuptial agreement as a penalty (knass).
R. Willig continues that the same theatrical scene repeated itself at a subsequent meeting two months later.
In R. Willigs words:
For a whole hour, he kept saying one thing Its a knass. Its a knass. Its a knass. And at this
meeting two months later, he said again. Its a knass. Its a knass. He has only one pizmon [musical
refrain] Its a knass!

18

For those brides and grooms who have already signed the 1993 Beth Din of
America prenuptial agreement, thus essentially rendering the wife an agunah (since she
can no longer be divorced with a kosher get), the bride and groom should be directed to
solve the problem by signing the following joint release from the 1993 Beth Din of
America prenuptial agreement:
JOINT RELEASE FROM A PREVIOUSLY SIGNED PRENUPTIAL AGREEMENT
Agreement made this ________day _________ of ________ by and between
_______________________ hereafter known as the wife and _______________________
Accordingly, it is certainly to be hoped that the Beth Din of America will choose to modify its
prenuptial agreement, so as to address R. Beeris concerns, which have now been apparently substantiated
by Section A of the present essay.
See also Dr. Levmores illuminating and tour de force article (referenced supra, note 11), which
implicitly recognizes the imperative to replace the 1993 Beth Din of America prenuptial agreement. Dr.
Levmore advocates a prenuptial agreement in which the bride and groom agree in advance to forfeit their
right to ever invoke kim li. Although not explicitly stated by Dr. Levmore, the reason she does so is
evidently because the 1993 Beth Din of America prenuptial agreement is precisely disqualified on account
of kim li, as elucidated in the main text of this section of the essay.
Now, in truth, one may seriously question whether there is any concept in Halakhah such as the
ability to enter an agreement in which a person agrees to forfeit invocation of kim li in the future, for that
itself presumably constitutes an asmkakhta. It is true that the gemara in Makkot 3b authorizes a prospective
participant in a sale to stipulate that he/she waives in advance his/her rights to claim onaah (being
financially defrauded), and similarly authorizes one to borrow money with a stipulation that he/she waives
in advance his/her rights to have the loan cancelled by Shemitah. In the case of onaah, one has essentially
agreed on the sale/purchase price in advance, and has forgiven the ability to ever protest any subsequently
discovered fraud. In the case of Shemitah, one has essentially agreed to repay the loan no matter what, even
if Shemitah intervenes. However, the question becomes: can the same be said regarding waiving kim li in
advance to a prenuptial agreement? Or is it an asmakhta for a person to say I am entering this contract
waiving in advance my kim li rights, since at the time the person does not anticipate ever needing to
invoke kim li? [This might be different from the sale and the loan, where one knows with certainty in
advance that the sale will stand and that the loan will be repaid.] In a correspondence between Dr. Levmore
and (le-havdil ani ha-katan) this student during the period of June 1-7, 2012 (published at
<http://torahmusings.com/2012/05/mandating-prenuptial-agreements/>), Dr. Levmore and myself both
admitted that neither of us have any proof as to the definitive answer to this question. Therefore, it seems to
this student that ha-motzi me-chaveiro alav ha-raayah (the burden of proof is on the plaintiff, as per the
gemara in Bava Kamma 46b) dictates that the husband may indeed invoke kim li, even if he stipulated in
the prenuptial agreement that he will never invoke kim li. Thus, the present writer believes that the
prenuptial agreement advocated by Dr. Levmore serves an analytical purpose, i.e. to elucidate why the 1993
Beth Din of America prenuptial agreement is disqualified. And to this effect, Dr. Levmore a tzaddeket
gemurah is to be praised for her contribution. But it seems clear to this writer that in terms of practical
implementation, Dr. Levmores prenuptial agreement is also disqualified, for no one can waive the right to
kim li in advance.
Indeed, R. David Joseph Mescheloff, in his illuminating and tour de force article A Marital
Agreement to Mediate (Tradition 43:3, Fall 2010) responds effectively to Dr. Levmore. R. Mescheloffs
argumentation appears to corroborate the conclusion of the previous paragraph of the present footnote, viz.
that Dr. Levmores prenuptial agreement is disqualified. Thus, R. Mescheloff himself a tzaddik gammur
is to be praised for his contribution.
Yet, R. Mescheloff proceeds to advance a prenuptial agreement which is itself disqualified, as will
be explained in Section S of this essay. Thus, this writer believes that the prenuptial agreement advocated
by R. Mescheloff serves an analytical purpose, i.e. to elucidate why Dr. Levmores prenuptial agreement is
disqualified. But R. Mescheloffs prenuptial agreement is itself disqualified on account of the same general
principle of asmakhta.

19

hereafter known as the husband. Whereas the wife and the husband are both Orthodox Jews who
were married on ____________________________ according to the laws of Moses and Israel;
and
Whereas on __________________________ the wife and husband signed in good faith
the 1993 prenuptial agreement of the Beth Din of America; and
Whereas the wife and husband have now discovered that the 1993 Beth Din of America
prenuptial agreement, in the eminent opinion of Rabbi J. David Bleich (and as elaborated in the
essay written by Shalom C. Spira entitled A Combination of Two Halakhically Kosher Prenuptial
Agreements to Benefit the Jewish Wife, eighth edition, dated 7 Menachem Av, 5775) can render
the wife an agunah (with all due respect to the judges of the Beth Din of America, who are wholly
righteous);
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
The wife and husband formally release each other from the 1993 Beth Din of America
prenuptial agreement that they previously signed. That 1993 Beth Din of America prenuptial
agreement is hereby revoked, and the wife and husband do not wish to be bound by it ever again.
Joint release drafted in ___________________________on ________________________ .
Signed: _________________________________, wife, (address)
Signed: _________________________________, husband, (address)
Signed: _________________________________, first witness, (address)
Signed:_________________________________, second witness, (address)
Notarized: (if deemed necessary by local notarial practice)

Thus, what is needed is a prenuptial agreement which genuinely avoids all problems of financial
coercion. Such a prenuptial agreement is indeed available based on the teachings of R. J. David Bleich
(albeit with some minor modification required), as will be explained in this essay, culminating in section Q.
But this achievement in analytical reasoning was only possible (be-chasdei Ha-Kadosh Barukh Hu,
Yishtabach Shemo) thanks to a careful study of the illuminating contributions of Dr. Levmore and R.
Mescheloff. And so the present writer expresses his profound hakarat ha-tov both Dr. Levmore and R.
Mescheloff. [A bride and groom who have signed either Dr. Levmores prenuptial agreement or R.
Mescheloffs prenuptial agreement should draft a legal release from those agreements, comparable to the
release that will be presently suggested in the text to free the couple from the 1993 Beth Din of America
prenuptial agreement.]

20

Copies of this joint release from the previous prenuptial agreement should be
given to the wife, husband and the Beth Din of America for safe keeping.27 The wife will
thereby be saved from becoming an agunah.28
***
And now (in the following sections B to N) to explain the background of the first
of the two proposed kosher prenuptial agreements: a prenuptial agreement to shield the
bride and groom for the effects of the New York Get Law and Canada Get Law. It is
instructive in this regard to note that the Arukh Ha-Shulchan, Even ha-Ezer 154, seif
katan 64, explicitly declares that, notwithstanding the ecclesiastical ostracism that is
placed upon any observer who gratuitously questions the validity of a get, an observer
who recognizes a potential genuine defect in a get being granted is permitted and indeed
obligated to present the mesader gittin with the evidence of the potential problem with
the get. Thus, this student is authorized to write sections B to N, which argue that it is
difficult or even impossible to write kosher gittin in New York or Canada today without a
prenuptial agreement specifically shielding the bride and groom from the Get Laws in
those jurisdictions.29 Hence, the first step in protecting future brides from becoming
27

The semantic phraseology of this joint release form is adapted from R. J. David Bleichs (conceptually
unrelated) heter iska agreement published in his Contemporary Halakhic Problems IV (KTAV Publishing,
1995), pp. 380-383.
28

As mentioned supra, note 11, this students mentor R. Joshua H. Shmidman officiated at two weddings in
1993 at which R. Willigs prenuptial agreement was indeed employed. However, it appears to this student
that these two episodes do not necessarily mean that R. Shmidman would challenge Section A of this essay.
Firstly, as reported by this students sisters-in-law, R. Shmidman initially discouraged the employment of R.
Willigs prenuptial agreement, and R. Shmidman was only ultimately willing to accommodate the
prenuptial agreements employment because the in-laws (who were and who remain tzaddikim
gemurim) would otherwise decline to proceed with the wedding. Under such circumstances, R. Shmidman
may well have calculated that it is better to proceed with the wedding (since R. Willigs prenuptial
agreement does not affect the validity of the marriage, only the validity of an attempt to divorce at some
later date). Moreover, at the time R. Shmidman officiated at those two weddings in 1993, R. Bleichs BeNetivot ha-Halakhah I (which refutes R. Willigs prenuptial agreement, as explained in this section of the
essay) had not yet been published (-the publication of Be-Netivot ha-Halakhah I arriving only in 1996).
Indeed, subsequent to the publication of Be-Netivot ha-Halakhah I, R. Shmidman officiated at the wedding
of a third brother to this student, and on the latter occasion R. Willigs prenuptial agreement was not
employed. Thus, this student believes that if R. Shmidman (who has since ascended to the Heavenly
Academy) would see Section A of the present essay (published as it currently is in 5774), it is possible that
he would applaud its contents. [See also Iggerot Mosheh, Yoreh Deah III, no. 88, where R. Feinstein writes
that even if an outstanding Torah authority such as the Chazon Ish (-specific example adjudicated by R.
Feinstein) has issued a pesak halakhah, but posthumous evidence becomes available to overturn that same
pesak halakhah, one is no longer permitted to rely on the original pesak halakhah.]
29

See also R. Yisrael Isser Isserlein, Pitchei Teshuvah to Shulchan Arukh Orach Chaim 156, who applies
the Torah commandment you shall not stand idly by your fellows blood (Leviticus 19:16) to not only
saving ones fellow from physical death, but even to saving ones fellow from mistakenly pursuing a
marriage partner whose true identity is unkown to the other spouse (-where the information that the other
spouse is lacking is so significant that the other spouse would immediately walk away even after the
marriage if he/she became aware of the information) . [R. Ovadiah Yosef, Shut Yechaveh Daat IV, no. 60,
cites R. Isserleins words as an obiter dictum, apparently in approval.] Presumably, then, by the same token,
Leviticus 19:16 would obligate bystanders to rescue a gentleman from marrying a lady is presumed to be a
divorce but who is actually still halakhically married in the event that her get was disqualified due to

21

agunot is to write a prenuptial agreement that addreses the New York and Canada Get
Laws (which will be presented in section O).
B. FINANCIAL COERCION A SFEK SFEKA LE-CHUMRA
The gemara in Bava Batra 40b, which is the source for the ruling of Shulchan
Arukh Choshen Mishpat 205:7 that financial coercion constitutes coercion, relates the
following episode regarding a mashkanta de-Sura (-a particular arrangement in which
real estate serves as the collateral for a loan wherein the annual harvest of the lands
produce may be collected by the creditor to gradually satisfy the total debt, whereupon
the land is finally returned to the debtor): an orchard was used as the collateral of a threeyear30 mashkanta de-Sura loan. After the three years, the creditor (unlawfully) demanded
that the debtor sell him the land. The creditor threatened that if the debtor would not sell
him the land, then the creditor would keep the land anyway (-effectively stealing it-) by
suppressing the original mashkanta de-sura loan document and by (falsely) claiming to
all outside observers that he purchased the land three years ago. The gemara rules that
such a sale is regarded as coerced.
Based on the above episode, the majority of poskim rule that externally imposed
financial coercion constitutes coercion which disqualifies a get, as is demonstrated by R.
Bleich on pp. 40-43 of his Be-Netivot ha-Halakhah I and R. Zvi Gartner on pp. 397 444
of his Sefer Kefiyah be-Get.
However, there are two Rishonim who seem to indicate otherwise. Shut Tashbetz
I, no. 1 expresses uncertainty as to whether or not financial coercion constitutes coercion,
whereas Rabbeinu Yerucham (netiv no. 24, section no. 1) rules that it is definitely not
coercion.
Because of these two dissenters among the Rishonim, R. Isaac Herzog in his
Shut Heikhal Yitzchak I, Even ha-Ezer no. 3 believes that one can posit, as a safek that
may be joined with other lenient considerations, that perhaps financial coercion is never
regarded as coercion. Somewhat differently expressed, but also to the side of leniency, R.
Isaac Liebes in his Shut Beit Avi IV, no. 169 believes that in conjunction with other
considerations one may rely on the Tashbetz and the Rabbeinu Yerucham, because the
agunah problem in America is an emergency, and in an emergency one may rely on a
minority lenient position even regarding a biblical prohibition, as per the Taz to Yoreh
Deah no. 293 and the Bach (as quoted by the Shakh to Yoreh Deah no. 242). [N.B. The
Shakh dismisses both the Taz and the Bach, ruling that one must follow the majority view
on a biblical prohibition, even in the case of an emergency. See further.]

financial coercion having been imposed upon the first husband.

Somewhat analogously, R. Yitzchak Zilberstein, Chashukei Chemed to Yoma 86b, writes that
Leviticus 19:16 requires not only saving a fellow from physical death, but also from the spiritual death of
violating the laws of family purity. [In context, R. Zilberstein refers to the obligation to build a mikveh in a
community which lacks such a facility.] Presumably, then, by the same token, Leviticus 19:16 would
obligate bystanders to rescue a gentleman from marrying a lady is presumed to be a divorce but who is
actually still halakhically married.
30

According to the Rifs manuscript of the gemara, it was a ten-year loan.

22

Nevertheless, it seems clear to this student that, halakhah le-maaseh, the

consideration raised by the R. Herzog and R. Liebes must be bypassed due to the
following sfek sfeka le-chumra:
(i) Safek le-chumra #1: It is not in fact clear that the Tashbetz and the Rabbeinu
Yerucham actually disagree with the other Rishonim as a matter of practice (in the context
of the modern Get Laws). There is considerable evidence that perhaps the Tashbetz and
Rabbeinu Yerucham agree with the other Rishonim that financial coercion constitutes
coercion which disqualifies a get. Let us examine each of these two authorities
independently.
Regarding the Tashbetz, there are three different reasons to assume that he might
actually agree with the other Rishonim, as follows:
(a) The Torat Gittin to Even ha-Ezer 134:4 explains that the Tashbetz is
only in doubt where a substantial amount of money has already been
unlawfully seized from the husband (or where the wife threatens for
unspecified reasons to steal money from the husband), and the husband
understands on his own that he can grant a get in order to receive his
money in return (or to free himself of the threat to have money stolen from
him). But where the lady explicitly states that she is stealing the money
from her husband in order to extract a get from him, the Tashbetz agrees
that the get is disqualified.
The Torat Gittins approach is recognized as a legitimate
possibility by R. Moshe Feinstein in his Iggerot Mosheh, Even ha-Ezer I,
no. 137. Indeed, there seems to be an indication (albeit not absolute) that
the Torat Gittins approach is possibly adopted by R. Feinstein in his later
responsum Iggerot Mosheh, Even ha-Ezer IV, no. 106. In the paragraph
that begins with the word hineh, R. Feinstein first declares that a husband
who is threatened with a government-imposed punitive loss of money is
definitely considered to be coerced. R. Feinstein then states that if money
has already been seized from the husband, and the husband grants a get in
order to receive his money in return, there is a dispute among the poskim
as to whether he is considered to be coerced. Seemingly, R. Feinstein
mirrors the Torat Gittins approach (though he does also mention the
Pitchei Teshuvah, who as will be presently noted disagrees with the
Torat Gittin).31
31

See also Iggerot Mosheh, Even ha-Ezer III, no. 44 (end of paragraph that begins with the word bidvar),
where R. Feinstein straightforwardly posits that the threat of financial loss is definitely considered coercion.
R. Feinstein records no dissenting opinion. This is entirely consistent with the hypothesis that R. Feinstein
endorses the Torat Gittins position. However, one cannot deny that Feinstein also takes cognizance of the
Pitchei Teshuvah by citing him both in Iggerot Mosheh, Even ha-Ezer I, no. 137 and Iggerot Mosheh,
Even ha-Ezer IV, no. 106. As will be presently mentioned in the text, the Pitchei Teshuvah disagrees with
the Torat Gittins understanding of the Tashbetz (and believes that, for the Tashbetz, all kinds of financial
coercion are identical and are subject to a safek). It is for this reason that the text parenthetically specifies
that there is no absolute indication that R. Feinstein endorses the Torat Gittin. Nevertheless, the language of
his responsa seemingly points in that direction.

23

In a manner analogous to the Torat Gittin, Shut Maharshakh I, no.

67 (as elucidated by the Shut Beit Efrayim, mahadura tinyana, Even haEzer no. 74) explains that the Tashbetz agrees with all other Rishonim that
financial coercion definitely constitutes coercion which disqualifies a get.
Maharshakh (as elucidated by the Beit Efrayim) explains that the Tashbetz
was only in doubt regarding a case where the wife entertained legitimate
monetary claims against her husband according to Halakhah. Rather than
go to Beth Din to adjudicate her claims, she preempted the Beth Din by
seizing the money (or threatening to seize the money) from her husband
unilaterally. And rather than risking a loss in Beth Din, the husband simply
divorced his wife. It is only here where it is unclear whether or not the
husband should be regarded as coerced. But in a normal situation of
financial coercion, the Tashbetz agrees that a get is definitely to be
regarded as coerced. This is the same as the conclusion of the Torat Gittin.
Admittedly, the Torat Gittins approach is contested by the Pitchei
Teshuvah to Even ha-Ezer, seifkatan no.11, the Devar Moshe (Teumim)
no. 36 and the Shut Berit Yaakov, Even ha-Ezer no. 59. It is also
tentatively contested by the Shut Beit Efrayim, mahadura tinyana, Even
ha-Ezer no. 73 (although subsequently in no. 74, the Beit Efrayim reverses
himself and defends the Torat Gittin). Those who contest the Torat Gittin
maintain that the Tashbetz always harbors a doubt as to whether financial
coercion is not coercion regarding a get.
Nevertheless, one cannot discount the possibility that the Torat
Gittin might be correct in his interpretation of the Tashbetz.
(b) Even according to those who dispute the Torat Gittin, the
Tashbetz might still agree that nowadays financial coercion definitely
constitutes coercion. This is because Shut Toafot Reem, Even ha-Ezer
no. 71 posits that nowadays, when every Beth Din requires a husband to
perform bittul modaot before granting a get, even the Tashbetz agrees that
financial coercion definitely constitutes coercion.
(c) Moreover, as cited by R. Zvi Gartner on pp. 411-415 of his
Sefer Kefiyah be-Get, the following poskim hold that the Tashbetz
eventually came to a resolution of his doubt and ruled that financial
coercion definitely constitutes coercion: Shut Rav Betzalel Ashkenazi
no. 15, Shut Aholei Yaakov no. 131, Shut Mishpat Tzedek III, no. 33,
Shut Beit Efrayim, mahadura tinyana, Even ha-Ezer no. 73, Shut
Nachalat Shimon no. 32, Shut Neot Deshe no. 162, Shut Oneg Yom
Tov no. 168 and Shut Mishkenot Yaakov, Even ha-Ezer no. 41, seif
katan no. 19.
Thus, there is a very strong reason to believe that, halakhah le-maaseh
nowadays, the Tashbetz agrees with all the other Rishonim that financial coercion
constitutes coercion.

24

And as for the Rabbeinu Yerucham, his view is open to more than one legitimate
interpretation. It is true that Mikhtav me-Eliyahu , shaar no. 7, subsection no. 22, Shut
Uryan Telitaei no. 61 and Shut Tzemach Tzedek ha-Chadashot, Even Ha-Ezer no. 262,
ot no. 3 (as well as R. Herzog and R. Liebes cited above) understand Rabbeinu Yerucham
to be ruling that financial coercion is not coercion. However, Rabbeinu Yeruchams
words are endowed with an entirely different meaning by Shut Beit Efrayim, mahadura
tinyana, Even ha-Ezer no. 73. The latter authority understands that Rabbeinu Yerucham
was discussing a problem of get muteh (where the husband was tricked), but that normal
financial coercion indeed disqualifies the get (like all the other Rishonim agree). R. Zvi
Gartner on p. 423 of his Sefer Kefiyah be-Get reports that R. Joseph Shalom Eliashiv
endorses this interpretation of the Rabbeinu Yerucham. Moreover, Shut Mateh Lechem,
Even ha-Ezer, no. 53 understands that the Rabbeinu Yerucham does deal with financial
coercion but only in a case where the wife says nothing about wanting a get and the
husband grants a get on his own to escape the dilemma. In a normal case of financial
coercion, even the Rabbeinu Yerucham agrees that the get is disqualified. [Thus, the
Mateh Lechem explains the Rabbeinu Yerucham in exactly the same way the Torat Gittin
cited above explains the safek of the Tashbetz.] Indeed, R. Bleich, on p. 43 of his BeNetivot ha-Halakhah I cites the Shut Chelkat Yoav, Dinei Oness, sec. 5, as explaining
the Rabbeinu Yerucham in precisely the same way.
It is also noteworthy that in his subsequent remarks in ot no. 4, the
aforementioned Shut Tzemach Tzedek ha-Chadashot expresses doubt as to whether his
interpretation is correct, for perhaps the Rabbeinu Yerucham was not dealing with
financial coercion but rather with a get muteh (precisely as the Beit Efrayim and R.
Eliashiv conclude).
Thus, factoring into account the explanations on the one hand of the Beit Efrayim
and R. Eliashiv, and on the other hand of the Mateh Lechem and the Chelkat Yoav, it
emerges that there is a significant possibility that the Rabbeinu Yerucham agrees with all
the other Rishonim that financial coercion disqualifies a get.
In sum total, then, there exists a real safek le-chumra that perhaps all Rishonim
(including the Tashbetz and the Rabbeinu Yerucham) agree that financial coercion
nowadays (where the threat is linked to the absence of a get) definitely disqualifies a get.
(ii) Safek le-chumra #2: Even according to the position of R. Herzog and R.
Liebes that not all Rishonim agree that financial coercion constitutes coercion, the
majority view is still that financial coercion always constitutes coercion. Perhaps, then,
the halakhah follows the majority view.
Indeed, to say perhaps is to apparently render an egregious understatement,
since the halakhah invariably follows the majority view among the poskim! However, it
is helpful to cautiously speak this way in order to effectively neutralize R. Liebes
invocation of the Taz and the Bach. As mentioned, those two authorities permit relying on
a minority view in an emergency case even in the context of a biblical prohibition. So,
one may counter, as the second safek le-chumra, that quite the contrary perhaps the
halakhah follows the Shakh who (in his commentary to Shulchan Arukh Yoreh Deah 242
and his Nekudot ha-Kessef to Shulchan Arukh Yoreh Deah 293) cogently challenges the

25

Taz and Bach and who demonstrates that, even in the case of an emergency, the halakhah
follows the majority view on a biblical prohibition.32
In conclusion, then, because of this sfek sfeka le-chumra, a get which is issued by
a husband in order to avoid the unlawful loss of a substantial amount of money (or in
order to recover that loss) where the loss is linked to the get must be assumed,
halakhah le-maaseh, to have been definitely coerced, with all the implications that this
bears, bein le-kula bein le-chumra, even in an emergency, without a doubt.33
ItisnoteworthyasaconfirmationoftheabovethattheArukhhaShulchan,Even
haEzer134:22unequivocallydeclaresthatfinancialcoercionconstitutescoercion.
Indeed,R.ShilohRefael,renderingajudgmentinPiskeiDinShelBateihaDinha
RabbaniyimbeYisrael,vol.16(p.275),affirmativelycitestheArukhhaShulchanas
normativeandruleslikehim.Likewise,R.OvadiahYosef,inhisShutYabiaOmerV,
EvenhaEzerno.14,rulesthataBethDinunjustlychargingahusbandtopaymezonotto
hiswife(whenheisactuallyhalakhicallyexemptfrompayinghermezonot)constitutes
coercionthatwilldisqualifyanygetgrantedasaresultofsuchanorder.
Thus, it is clear that if it can be established that husbands face a threat of the
substantial loss of money as a result of the Get Laws in New York and Canada then the
32

Indeed, methodologically speaking, this safek consideration finds precedent in the words of R. Ovadiah
Yosef. In his Shut Yabia Omer X, Yoreh Deah no. 43, he analyses the dispute between the Shakh on the
one hand and the Taz and the Bach on the other. He concludes that the issue remains a safek. Therefore, in
contradistinction to the Chazon Ish who opposed the hetter mekhirah as a means of observing the
Shemitah, the Yabia Omer permits the hetter mekhirah due to the following sfek sfeka le-kula: Even if
Shemitah nowadays is regarded as a biblical commandment (as a minority of poskim claim it is), there is
presently a situation of economic emergency for Israeli farmers and perhaps one may rely on the Bach and
Taz that in the case of an emergency one may rely on a minority view even in the case of a biblical
prohibition. This safek is joined with a list of other considerations and opinions (which are beyond the
scope of this particular hilkhot gittin discussion) to create a sfek sfeka le-kula. But the key point to glean
from the Yabia Omers words, which is relevant for this hilkhot gittin discussion, is that this safek
implicitly recognizes that the opposite possibility is also true: perhaps the halakhah actually does follow
the Shakh!
33

Although superfluous in rendering the (already established) case that the gittin are disqualified, it seems
to this student one must also challenge R. Liebes invocation of Taz and Bach to be rely on a minority view
in a time of emergency. That principle has always been enunciated regarding ritual questions Bein Adam laMakom (between a human being and the Creator), such as the prohibition against eating new grain before
the Omer sacrifice. By contradistinction, until R. Liebes wrote his responsum, that principle has never been
enunciated regarding interpersonal disputes Bein Adam la-Chaveiro to favour one litigant, for the simple
reason that just as there is an emergency for one litigant, so too is there an emergency [in the opposite
direction] for the countervailing litigant. Thus, it is highly surprising to see R. Liebes invoke the Taz and
Bach for the sake of validating a ladys get, when this adversely affects the countervailing husband.
Namely, just as there is an emergency for the lady (who is desperate to free herself from her undesirable
husband), so too is there an emergency for the gentleman (who is desperate not to lose his wife). Indeed, is
this not the meaning of Exodus 23:3 which commands And you shall not favour a pauper in his dispute
[with another litigant]? Viz., although the pauper is in a state of distress, the countervailing litigant is also
in a state of distress.
Presumably, because of this powerful objection, R. Liebes (sec. 17 of his responsum) is forced to
limit his authorization for financial coercion to cases where the Beth Din has already ruled that the husband
is chayav le-garesh. [In such a limited situation, there is no real emergency for the husband, since it
would be a mitzvah for him to divorce his wife.] See also infra, note 37.

26

gittin of New York and Canada must be halakhically regarded as definitely coerced
according to the consensus of poskim anytime that the husband (being aware of the Get
Law) grants the get.
D. FINANCIAL COERCION REVISITED
However, quite apart from the Tashbetz and the Rabbeinu Yerucham, R. Liebes
introduces two of his own novel proofs that financial duress cannot be considered
coercion. If either of these proofs are acceptable, then they would neutralize the
absoluteness of the sfek sfeka le-chumra described above. It is therefore necessary to
carefully examine both of these proofs offered by R. Liebes, and they are as follows:
(a)

The Mishnah in Ketubot 18b presents a case where a creditor demands

repayment of a loan on the basis of an IOU document whose validity
the debtor contests. In order to demonstrate the truth of his case to the
beit din, the creditor has the witnesses whose signatures appear on the
IOU document testify before the court. However, the witnesses, while
admitting that it is their signature, submit that they were coerced by the
creditor to sign against their will, and that the instrument is actually
invalid (and thus the creditor is no creditor). The Mishnah rules that
we do not believe the witnesses claim that they were coerced, and the
creditors instrument is valid and actionable. The gemara then qualifies
this ruling by asserting that we only dismiss the witnesses claim that
they were coerced if they explain that they were financially coerced
[i.e. they claim that the creditor threatened to steal their money if they
would not sign.] Since a Jew must be willing to lose money rather than
testify falsely (or sign a false IOU document), the witnesses are
essentially incriminating themselves by claiming that they signed a
false IOU document in order to save themselves from losing money. A
witness self-incrimination is never believed by the court. However,
continues the gemara, if the witnesses claimed that they were
threatened with the loss of their lives by the creditor if they would
not sign the IOU document, then their claim is believed and the IOU
document is not actionable. This is because pikuach nefesh
considerations allow a witness to sign a false IOU document, and so
the witnesses are not incriminating themselves by asserting that they
were coerced. Thus, concludes R. Liebes, we see from Ketubot 18b
that financial coercion is not regarded as coercion, whereas coercion by
threatening to kill (or physically harm) is regarded as coercion.

(b)

As mentioned above in section B, the gemara in Bava Batra 40b,

which is the source for the ruling of Shulchan Arukh Choshen Mishpat
205:7 that financial coercion constitutes coercion, relates the following
episode regarding a mashkanta de-Sura: an orchard was used as the
collateral of a mashkanta de-Sura loan. After the three years, the
creditor (unlawfully) demanded that the debtor sell him the land. The

27

creditor threatened that if the debtor would not sell him the land, then
the creditor would keep the land anyway (-effectively stealing it-) by
suppressing the original mashkanta de-Sura loan document and by
(falsely) claiming to all outside observers that he purchased the land
three years ago. The gemara rules that such a sale is regarded as
coerced. The coercion exists because the debtor will lose the purchase
price of the land, and thus we see that financial coercion is regarded as
coercion. However, R. Liebes points to the comment of Rashbam upon
this sugya (s.v. ki hai gavna): she-mafsid ha-kol im lo yimkor the
debtor loses everything if he will not sell. The Beit Yosef on Tur,
Choshen Mishpat 205 highlights this comment of the Rashbam,
explaining that the entire field was at stake. This implies, says R.
Liebes, that the debtors entire livelihood was based on the orchard,
and that the loss of his orchard would have constituted the loss of his
entire wealth. Only in such an extreme situation is financial coercion
regarded as coercion. But where a threat to seize a more moderate sum
of money is advanced, such that the victim will be left with at least a
fraction of his original wealth, the victim is perhaps not regarded as
being coerced, argues R. Liebes.
R. Liebes bolsters his thesis by quoting the gemara in Bava
Kamma 119a which derives from Scripture that one who steals even a
perutah from his friend is considered to be taking his soul. R. Liebes
infers from this that a threat to steal money is only truly duress when it
is the kind of money that endangers the victims soul, i.e., so much
money that the entire livelihood of the victim is endangered.
Upon careful analysis, with all due reverence to Ha-Rav ha-Gaon R. Liebes,
these proofs appear questionable.
Firstly, it seems to this student that the two proofs actually contradict one another.
According to proof (a), even if witnesses would be threatened with a 100% loss of their
wealth if they refused to sign the false IOU document, they would still not be considered
coerced, because to love the Holy One, Blessed Be He, with all of ones wealth as per
Deuteronomy 6:5, requires even forfeiting ones entire wealth to avoid transgressing. And
yet, rather incongruously, proof (b) submits that loss of ones entire wealth does
constitute coercion. The contradiction between the proofs seems to render R. Liebes
thesis problematic.34
34

That one is absolutely required as a function of Deuteronomy 6:5 to experience a loss of his entire
wealth rather than (at least overtly) transgress a negative commandment [such as testifying falsely] is
codified by the Rema to Orach Chaim 656:1 and to Yoreh Deah 157:1.
Arguably, one might rescue R. Liebes from this refutation on the basis of the remarks of R. Barukh
Ha-Levi Epstein in his Torah Temimah commentary to Genesis 28:22 (note no. 23) and Deuteronomy 6:5
(note no. 24). There, R. Epstein casts aspersions upon the Remas ruling by suggesting that perhaps the
prospect of the loss of ones entire fortune is to be considered duress that endangers the persons life.
Accordingly, one would not be required to forfeit ones entire wealth in order to avoid transgressing a
biblical interdiction. If so, one could claim that Ketubot 18b only deals with witnesses who were threatened
with the loss of a sum of money worth less than their entire fortune, whereas Bava Batra 40b deals with a
debtor who was threatened with the loss of his entire fortune.

28

Still, one might defend R. Liebes by submitting that testifying falsely is reckoned
as an inactive transgression (lav she-ein bo maaseh) since speech is not halakhically
quantified as an action, as per the gemara in Makkot 2b and there are indeed poskim
who rule that a Jew need only forfeit up to a fifth of his wealth in order to avoid a lav
sheein bo maaseh [while other poskim rule that a Jew must forfeit all of his wealth in
order to avoid any interdiction, even a lav she-ein bo maaseh]. The controversy among
the poskim to this effect is catalogued by R. J. David Bleich on p. 91 of his Bioethical
Dilemmas: A Jewish Perspective I (KTAV Publishing, 1998). Thus, one could argue that
R. Liebes might assert that if the witnesses in Ketubot 18b would claim that they signed
the IOU document because they were threatened with the loss of more than 20% of their
wealth, then their claim would indeed be validated and the IOU document would be
voided. If this approach to R. Liebes understanding to Ketubot 18b is correct, then it
would emerge that whether or not R. Liebes two proofs contradict one another would
hinge upon the aforementioned dispute amongst the poskim catalogued by R. Bleich in
Bioethical Dilemmas.
However, such a defense appears implausible, because the witnesses who sign on
an IOU document are not merely speaking in court, but are rather writing their names,
and writing ones name is indeed an action, which would accordingly trigger the
aforementioned principle that one must forfeit all of ones wealth rather than transgress
Although not discussed by the Torah Temimah, the position of the Shut Mahari Weil no. 157 is
highly significant to this issue. Mahari Weil writes that one is not required to spend all ones money on
rebuking a fellow Jew, because the commandment to love the Holy One, Blessed Be He, with all of ones
money (as per Deuteronomy 6:5) is only stated in the context of avoiding idol worship. There are two
distinct ways to interpret the Mahari Weil. According to the Vilna Gaon (Biur Ha-Gra to Yoreh Deah no.
157, seif katan no. 5), Mahari Weil means that one is not required to forfeit all of ones wealth in order to
avoid transgressing any interdiction other than idolatry. As such, the Mahari Weil would support the Torah
Temimahs chiddush. By contradistinction, according to Shut Shevut Yaakov I, no. 143, Mahari Weil
means that one is required to forfeit all of ones wealth in order to avoid any interdiction (as opposed to
rebuking a fellow Jew, which constitutes a positive commandment) ; idolatry was only an example of a
negative interdiction chosen by the Mahari Weil. As such, the Mahari Weil would contradict the Torah
Temimahs chiddush.
However, it seems to this student that such an attempted defense of R. Liebes is difficult because
of the confluence of the following considerations: (a) The Torah Temimah himself is not certain whether his
chiddush is correct. In his comments on both Genesis 28:22 and Deuteronomy 6:5, he concludes that his
chiddush is tzarikh iyun in terms of halakhah le-maaseh. Thus, even according to the Torah Temimah,
his chiddush is only a safek. [Indeed, it appears difficult to attempt to read the Torah Temimahs approach
into Ketubot 18b. The gemara there only distinguishes between machamat mammon and machamat
nefashot. According to the Torah Temimah, the gemara should have distinguished between kol mamono and
miktzat mamono.] (b) The suggested proof that the Torah Temimah suggests for his own safek chiddush is
cogently refuted by R. Mordecai Rothenberg in the latters Imrot Tal (pp. 22-23) [-a volume devoted to
correcting the Torah Temimah]. (c) The Remas ruling that one is required to forfeit his entire wealth in
order to avoid (at least overtly) transgressing a biblical interdiction is accepted by a host of authorities,
including Magen Avraham (Orach Chaim no. 656, seif katan no. 8), Vilna Gaon (Biur Ha-Gra to Orach
Chaim no. 656, s.v. ve-davka, as well as Biur Ha-Gra to Yoreh Deah no. 157, seif katan no. 4), Chatam
Sofer (commentary on Orach Chaim 656:1), Shakh (Yoreh Deah no. 157, seif katan no. 3), R. Akiva Eger
(Chiddushim on Yoreh Deah no. 157, s.v. ve-lo yaavor), Pitchei Teshuvah (Yoreh Deah no. 157, seif
katan no. 4), R. Ishmael ha-Kohen of Modona in his Shut Zera Emet II, no. 51 (s.v. akhen beinei u-veinei),
the Mishnah Berurah (Orach Chaim no. 656, seif katan no. 10), R. Moshe Feinstein (Iggerot Mosheh,
Yoreh Deah II, no. 174 [final paragraph]) and R. Shmuel Wosner (Shut Shevet ha-Levi V, no. 174).

29

an interdiction. And so it would indeed appear that R. Liebes two proofs contradict one
another.
Actually, a more nuanced resolution to this question may hinge upon the precise
legal-conceptual relationship that exists between oral testimony of witnesses in court and
the signed testimony of witnesses upon an IOU document. This relationship is carefully
considered by Ketzot ha-Choshen on Choshen Mishpat no. 28, seif katan no. 6.35
In its original context, Ketzot ha-Choshen addresses an intriguing problem. Since
the gemara in Gittin 71a derives from Scripture that witnesses must testify by their mouth
and not in writing (mi-pihem ve-lo mi-pi ketavam), how are IOU documents ever
admissible in court as evidence? In response to this problem, Ketzot ha-Choshen
catalogues four distinct approaches among the Rishonim: (a) According to Rashi and
Baal ha-Maor, since IOU documents are only written with the consent of the debtor, the
IOU document is considered to be the writing of the debtor rather than the writing of the
witnesses. Thus, mipihem velo mipi ketavam does not apply. (b) According to Ramban,
when witnesses sign on an IOU document, the testimony is considered to have rigorously
pre-examined in court, such that the testimony will be accepted. Mi-pihem ve-lo mi-pi
ketavam only applies to testimony that has not been previously examined in court. (c)
According to Rabbeinu Tam, mi-pihem ve-lo mi-pi ketavam applies only to witnesses who
are mute. Witnesses who are capable of speech may indeed offer their testimony in
writing. (d) According to Rambam, it is indeed the case that Torah law enjoins a court
from accepting an IOU document as evidence, precisely because of mi-pihem ve-lo mi-pi
ketavam. It is only by rabbinic enactment that an IOU document is granted any credence
in court.
Now, it would seem that, per the fourth school of thought, since IOU documents
possess no biblical meaning in court, falsely signing an IOU document cannot be
regarded as the violation of a biblical interdiction. Rather, falsely signing an IOU
document would constitute a rabbinic transgression. As such, the case could be made that
witnesses would not be required to forfeit all of their wealth in order to avoid falsely
signing such an instrument, in which case R. Liebes proofs will not contradict one
another. [Actually, there is a dispute among the poskim whether one must forfeit merely a
fifth of his wealth, or all of ones wealth, in order to avoid the active violation of a
rabbinic interdiction. See Pitchei Teshuvah to Shulchan Arukh Yoreh Deah 157, seif
katan no. 4. Thus, if one accepts the Rambams approach, the question of whether or not
R. Libes proofs refute one another would hinge upon the dispute within the Pitchei
Teshuvah.]
But according to the other three schools of thought, the act of signing an IOU
document bears biblical weight. And thus the act of a witness falsely signing an IOU
document would be biblically prohibited, which would in turn require a Jew to forfeit all
of his wealth to avoid such a transgression. Ergo, according to the other three schools of
thought, R. Liebes proofs will certainly contradict one another, and therefore be
apparently refuted. [Indeed, it is noteworthy in this regard that the Shakh to Choshen
Misphat no. 39, seif katan, rules like the first school of thought (viz. Rashi and Baal haMaor), whereas the Sema to Choshen Mishpat no. 28, seif katan no. 42 rules like the

35

I am grateful to R. Yisrael Zvi Harari for illuminating my eyes with this insight.

30

third school of though (viz. Rabbeinu Tam). Either way, R. Liebes proofs would
contradict one another.]
In any event, R. Zvi Gartner, on pp. 428-429 of his Sefer Kefiyah be-Get,
effectively challenges R. Liebes proofs. R. Gartner points out that disqualification of
testimony is unrelated to issues of coercion. A witness who states that he signed a false
IOU document under financial coercion is disbelieved not because financial coercion is
not considered duress but rather because a Jew is expected to endure any amount of
financial coercion rather than transgress (as a function of Deuteronomy 6:5). R. Gartner
also cites Shut Tzemach Tzedek (Acharon), Even ha-Ezer 262:3 who, at first, analyzes
Ketubot 18b in the like manner as R. Liebes, but who then refuses to rely on this line of
reasoning, declaring that the consensus of all the poskim is that monetary duress is
considered coercion Heaven forbid that we should stray from this [ruling]And as
for the episode of the orchard, observes R. Gartner, there is no hint whatsoever in the
Rashbam or the Beit Yosef that the creditors entire livelihood depended upon the orchard.
She-mafsid ha-kol simply means that the creditor was threatened with the loss of his
entire orchard without any pay.
Furthermore, this student would respectfully point out that R. Liebes inference
from the gemara in Bava Kamma 119a (be-mechilat kevod torato shel Ha-Rav ha-Gaon
Rabbeinu Liebes) is simply not correct. The gemara is emphasizing that even when one
takes what seems to be an innocently meagre amount of money from his friend, it is as if
he is taking his friends soul. The gemara is not limiting the severity of the prohibition
against larceny (and hence the scope of the concept of oness mammon), but quite the
contrary is homiletically amplifying upon the severity of larceny. This seems implicit in
the fact that the gemaras statement is codified in Shulchan Arukh Choshen Mishpat
359:3, in the context of stealing modest amounts of money from a victim, sums which do
not endanger the livelihood of the victim.
But moreover, R. Liebes himself explicitly stipulates that his responsum is only a
valid leniency for cases where the Beth Din has already ruled that the husband is
definitely chayav le-garesh, and is moreover only valid if two other poskim will consent
to his conclusion. Many (if not most) cases of divorce are instances where a Beth Din has
not ruled chayav le-garesh.36 Moreover, this student is not aware that two poskim have
36

There are presumably two reasons why R. Liebes must limit his authorization for financial coercion upon
recalcitrant husbands to cases of where the Beth Din has already ruled chayav le-garesh, as follows:
(a) R. Isaac Herzog, Shut Heikhal Yitzchak, Even ha-Ezer I, no. 1, expresses a safek that it is
perhaps possible that if a husband who is chayav le-garesh (yet not under the category of kofin le-garesh) is
actually coerced, then be-dieved the get may be regarded as valid. (And perhaps not.) Thus, not being
certain that one could actually assert that there is any basis to his novel proofs that financial coercion might
not be coercion, R. Liebes refuses to rely on his own novel proofs that financial coercion might not be
coercion, unless joined with the other safek that perhaps the get of a coerced husband who was anyway
chayav le-garesh is valid. And even this sfek sfeka is uncertain in the eyes of R. Liebes unless two other
poskim will formally approve of it.
It should be noted that R. Herzogs safek (viz. that perhaps the coerced get of a husband who is
chayav le-garesh is kosher) is ultimately rejected by R. Ovadia Hodaya in his Shut Yaskil Avdi VI, no. 96.
R. Hodaya begins with the proposition that the get should indeed be definitely kosher, since the coercion is
not over the get itself but rather over the husbands hubris in refusing to listen to the Beth Din and refusing
even to so much as apologize politely to the Beth Din. However, R. Hodaya then realizes he is trapped by
the Rambams ruling in Hilkhot Gerushin 2:20 that a coerced get is only kosher in a situation of kofin legaresh and not chayav le-garesh. R. Hodaya proposes that this is on account of the fact the batei din make
errors sometimes, and so one cannot say that a coerced husband agrees to actually divorce his wife when it

31

ever formally, independently approved of R. Liebes conclusions. [It is, moreover, most
noteworthy that R. Liebes only issued his responsum before (and not after) the New York
and Canadian Get Laws were actually authored.] Taken together, these points clearly
augur in favor of recognizing the very strong safek that, even according to the
conceptualization of R. Liebes, the halakhah may well follow the majority of poskim that
financial coercion is always treated as coercion.
In any event, the essential point of R. Liebes, viz., that an insignificant amount of
money can be reckoned as not constituting coercion, will anyway be calculated as a safek
le-kula in section G below. And thus, although one must take cognizance of R. Liebes
words, the conclusion of the previous section appears to stand. Namely, a get which is
issued by a husband in order to avoid the unlawful loss of a substantial amount of money
should be assumed to have been definitely coerced and hence definitely disqualified.
E. THE VILNA GAONS POSITION ON FINANCIAL COERCION
Notwithstanding the conclusions of the above two sections, there is one more
point regarding financial coercion that must be addressed. In the context of the Get Law
discussion, the question has arisen as to what is the position of the Vilna Gaon regarding
financial coercion. The Vilna Gaon issues two seemingly contradictory comments on this
matter, and it is therefore essential that the subject be properly clarified.
Shulchan Arukh Choshen Mishpat 205:7 rules that financial coercion is regarded
as coercion. Commenting on this provision, the Biur ha-Gra in seif katan no. 18 offers
two examples of financial coercion: the orchard case [of Bava Batra 40b] and the case of
the donkey being transferred to the government officer [of Bava Batra 47a]. The former
case has already been explained above. The latter case concerns a fact pattern where
Reuven claims that a certain object presently in the hands of Shimon, the son of a
notorious thief, actually belongs to him [i.e. to Reuven]. The son of the thief subsequently
summons witnesses who testify that Reuven actually admitted in their presence that he
sold the object to the thief, Shimons father. Thus, Shimon claims that his father rightfully
purchased the object and that he [Shimon] himself is the rightful heir of the object since
his fathers death. The gemara rules that these witnesses are not to be believed, because
we are afraid that the thief surreptitiously threatened Reuven into making a false
admission in the presence of the witnesses by telling him that (if he would not cooperate)
is merely a situation of chayav le-garesh. R. Hodaya therefore surmises that if there is a supreme court of
the chief rabbinate of Israel which hears appeals, then the problem of erroneous judicial verdicts is avoided
and then indeed the coerced get would be kosher. However, R. Hodaya ends his responsum by retracting
this proposition as well, since he realizes that just as one Beth Din can err, so can two! Thus, R. Hodaya
concludes that a coerced get which has been granted by a husband who is chayav le-garesh is disqualified.
Moreover, R. Herzogs safek is also disputed by the Chazon Ish (Even ha-Ezer 99:1) who rules
that a coerced get which has been granted by a husband who is chayav le-garesh is disqualified.
(b) As described supra, note 34, it is unprecedented in halakhic jurisprudence to rely on a minority
opinion in an emergency on any dispute between a husband and wife, because just as the wife is in a state
of emergency, so too is the husband. By limiting his authorization for financial coercion to cases of where
the husband has already received a ruling of chayav le-garesh, R. Liebes apparently hopes to circumvent
this powerful objection. [Since it is now a mitzvah for a husband to divorce his wife (having received such
a ruling from a qualified, expert Beth Din), there is no emergency for the husband, only an emergency for
the wife.]

32

he would hand him and his donkey over to a government officer. This, too, is counted by
the Vilna Gaon as a case of financial coercion.
Actually, the Vilna Gaons citation of the second case is surprising, since that
case seemingly involved not only the threat to hand over Reuvens money [viz. his
donkey] to the government officer, but also the threat to hand over Reuven himself to the
government officer [whereupon he would have conceivably received physical punishment
such as incarceration, battery or even death]. Apparently, the Vilna Gaon understands
that the key aspect of the threat described by Bava Batra 47a concerned the donkey and
not Reuven himself. Be that as it may, although the second of the two proofs requires
further elucidation, it is clear from the first proof, as well as the fact that the Vilna Gaon
makes no effort to contest the ruling of the Shulchan Arukh, that the Vilna Gaon agrees
as a matter of fact with all other poskim that financial coercion constitutes coercion.
However, in Shulchan Arukh Even ha-Ezer 154:21, the Vilna Gaon renders a
rather different remark. There, the Rema canonizes the concept of Harchakot deRabbeinu Tam. When a husband is condemned by a Beth Din as being chayav le-garesh
(but not kofin le-garesh), although it is prohibited to ostracize the husband with an
official cherem, Rabbeinu Tam holds that the Beth Din may instruct the community to
distance itself from him by refusing to ever benefit him (such as by hosting him for a
meal or honouring him in the synagogue) until he grants a get. The Biur ha-Gra,
seifkatan no. 67, explains why this form of social castigation is a permissible form of
pressure which is not considered coercion: Because he can save himself from this by
walking to another city, and as long as they do not do any action to his body, it is not
called coercion, and all of this is executed because he violated the words of the Sages
[who instructed him chayav le-garesh]. [This comment of the Vilna Gaon is cited
approvingly by R. Ovadiah Yosef in Shut Yabia Omer VII, Even ha-Ezer no. 23 and
Yabia Omer VIII, Even ha-Ezer no. 25.]
Looking at this latter comment of the Vilna Gaon in isolation, one might
conclude that the only kind of coercion which disqualifies a get, for the Vilna Gaon, is
physical coercion. As such, financial coercion would not constitute coercion. However,
such a conclusion is impossible in light of the aforementioned Biur ha-Gra to Choshen
Mishpat. How, then, does one explain this latest comment of the Vilna Gaon?
The answer is that the Vilna Gaon is focusing on forms of social castigation.
When it comes to social castigation, the only form which constitutes coercion is one that
affects his body. Putting a husband in cherem is like lashing him and represents coercion.
Refraining from benefiting him, by contradistinction, does not affect his body and is not
coercive. However, in no way does this detract from the fact that there other forms of
coercion besides social castigation, one of them obviously being financial coercion.
This is implicitly reflected in R. Ovadiah Yosefs two responsa which cite the
Vilna Gaon. R. Yosef only uses the Vilna Gaon as a license to implement the Harchakot
de-Rabbeinu Tam. R. Yosef does not even contemplate imposing financial sanctions upon
a husband who is chayav le-garesh, evidently because R. Yosef realizes that this will
constitute coercion. Indeed, in a previous and unrelated responsum (Shut Yabia Omer
V, Even ha-Ezer no. 14), R. Yosef explicitly posits that financial coercion constitutes
coercion which disqualifies a get.
Admittedly, R. Moshe Feinstein, in his Iggerot Mosheh, Even ha-Ezer I, no. 137,
equates Rabbeinu Tams position with permission to impose partially-indirect financial

33

coercion upon a recalcitrant husband. Namely, in the case of the Torat Gittin cited above
in section B, (viz. where the lady steals money from her husband for no specified reason,
and the husband understands on his own that he can grant a get in order to recover him
money,) Rabbeinu Tam would hold [according to R. Feinstein] that the get is kosher. [As
described above in section B, this is a situation where, according to the Torat Gittin, the
Tashbetz is in doubt. The Torat Gittin himself is certain that the get is disqualified. And
the Rabbeinu Yerucham as understood by the Mateh Lechem holds that the get is
definitely kosher.] R. Feinstein reasons that it will cost the husband money to travel to
another city in order to find a more hospitable milieu, and so Rabbeinu Tam must be
authorizing the imposition of partially-indirect financial coercion upon the husband.
This extrapolation of R. Feinstein is rather surprising. Refraining from offering a
husband any social benefits can hardly be construed as the imposition of a financial
threat. As R. Gartner points out on p. 427 of his Sefer Kefiyah be-Get, any decision to
travel to another city is the husbands alone, and his expenditure of funds to that effect is
remunerated with the benefit of experiencing a new city.37
But even if R. Feinsteins chiddush is accepted, it remains the case that Rabbeinu
Tam (like most other poskim) never sanctioned direct imposition of a financial threat
upon a recalcitrant husband. Such a threat would constitute coercion. Thus, it apparently
remains the case that the Vilna Gaon (whose words explain Rabbeinu Tam) agrees with
most other poskim that financial coercion constitutes coercion.38
[Although superfluous to making the point, it is also worth noting that Rabbeinu
Tam and the Vilna Gaon only speak of imposing the harchakot in the case of a husband
who has already received a verdict of chayav le-garesh.]
F. MAEESE ALAI THE REPREHENSIBLE HUSBAND
R. Shmuel Wosner in his Shut Shevet ha-Levi V, no. 27 (final paragraph) posits
that in the absence of the limited cases of Shulchan Arukh Even ha-Ezer no. 154 we
are unable to compel a husband to grant a get even if the wife asserts that she is disgusted
with her husband (maeese alai). A coerced get will be useless. Rather, diplomacy by the
presiding Beth Din should to be employed to convince the husband to reach an amicable
37

Indeed, when this student sought the guidance of R. Bleich to explain how R. Feinstein so nonchalantly
assumed that Rabbeinu Tam endorses Rabbeinu Yeruchams position (as quoted by the Mateh Lechem), R.
Bleich responded that he also regards R. Feinsteins equation as being quite astonishing. (Telephone
conversation with this student on January 17, 2006).]
38

Indeed, one might further postulate, in elucidating the words of the Vilna Gaon, that every financial
threat is ultimately a physical threat, in light of the teaching of Sanhedrin 72a that every household owner
knows that when his property is being plundered by an intruder, his life is ultimately being placed at risk as
well. After all, chazakah ein adam maamid atzmo al mamono is the governing psychological rule for all
victims of unlawful intrusion. By analogy, then, when a husband is threatened with seizure of his property,
he is ultimately being threatened with physical force. In other words, the husband has a psychological
inclination to resist the bailiff who comes to seize his property, whereupon the bailiff will summon the
police to use physical force in order to make the husband cooperate. Although the specter of noncooperation with the bailiff is unlikely for any prudent husband with a balanced sense of priorities, the
danger is still automatically inherent in the secular judges order to seize money from the husband and, by
extension, is automatically inherent in the existence of a Get Law on the government books that empowers
a secular judge to seize money from the husband. The get is thus coerced with the threat of physical force.

34

and mutual agreement with his wife as to how to dispose of their marriage (i.e. either by
establishing shelom bayit, or by convincing the husband to grant a get without coercion).
In the meantime, continues R. Wosner, we do not force the wife to live in the husbands
home anymore if she says she feels disgusted with him. Essentially the same message is
delivered by R. Moshe Sternbuch in his Teshuvot ve-Hanhagot I, no. 789. Thus, Halakhah
promotes the peace of mind, safety and security of the wife while at the same time
insisting on the sanctity of the marriage.
R. Ovadiah Yosef, in his Shut Yabia Omer III, Even ha-Ezer nos. 18-20, also
addresses the situation of a married lady who asserts maeese alai. The Yabia Omer
cites authoritative sources to prove that the situation is akin to a person who expresses
discomfort with a certain food it is not the persons fault that he/she is disgusted with
the food and it would surely be unethical to force the person to eat the food. Mutatis
mutandis, it is unethical to force a lady to live with a husband whom she finds disgusting,
for she is not a prisoner of war. A lady legitimately deserves her freedom and must be
granted her freedom.
However, this in and of itself does not lead to the conclusion that one may
compel the husband to grant a get. The Yabia Omer says that where there is an amatla
mivoreret (obvious justification) for the lady to assert "ma'eese alai", and the lady and
gentleman happen to be Yemenites (who got married under the express understanding that
they follow the Rambam's minority ruling that "ma'eese alai" is justification for the Beth
Din to compel the granting of a get, since Yemenites follow the Rambam instead of the
Shulchan Arukh), and there are other significant considerations to combine for the sake of
leniency, then and only then the presiding Beth Din can reach a halakhic decision that
"kofin le-garesh". [The particular fact pattern addressed by the Yabia Omer was quite
unique: the lady in question never intended to get married. She was threatened with
physical punishment if she wouldnt accept kiddushin money from her groom. Thus,
the entire marriage was a charade in the first place (for it was foisted upon the lady
without her consent), and this itself is a significant legal consideration, which when
combined with the facts that the groom and bride are Yemenites, that the lady clearly
has logical justification to be presently disgusted with her husband (since she never
wanted to marry him), and that the husband has no children from this lady (for she fled
from him soon after the wedding) and so the husband will surely be better and happier
marrying an actual wife in the future who will actually live with him in harmony and be
able create a family with him justifies the decision of the Beth Din to decide to compel
him to grant a get.]
Accordingly, the Yabia Omers analysis should be understood as concluding that
a Beth Din cannot, in fact, normally compel a husband to grant a get to a wife who claims
maeese alai. Rather, as the aforementioned Shevet ha-Levi and Teshuvot ve-Hanhagot
explained, the lady should be granted her freedom to live separate from the husband (for
as long as is necessary for both the husband and the wife to freely and voluntary arrive at
a mutual agreement), while the sanctity of the marriage remains respected.39
39

Indeed, this is confirmed by a subsequent responsum of R. Ovadiah Yosef, in Shut Yabia Omer V,
Even Ha-Ezer no. 14. There, addressing a separate case, the Yabia Omer explicitly rules that we cannot
compel a husband to divorce his wife in a case of maeese alai. Moreover, the Yabia Omer rules that a
wife is not entitled to mezonot in a case of maeese alai. If the Beth Din were to charge the husband to pay
mezonot, continues the Yabia Omer, that itself would constitute coercion which would disqualify any
resulting get. [See further in the text for the approach of R. Isaac Herzog and R. Eliezer Waldenberg on this

35

The problem of maeese alai is also addressed by R. Isaac Herzog in his Shut
Heikhal Yitzchak, Even Ha-Ezer I, no. 2. Like the Yabia Omer, R. Herzog cites sources
which corroborate the view of the Rambam (Hilkhot Ishut 14:8) that maeese alai is
grounds for a Beth Din to arrive at a decision that kofin le-garesh.40 But also like the
Yabia Omer, R. Herzog cannot escape the fact that the Shulchan Arukh rejects the view
of the Rambam. He therefore concludes (again like the Yabia Omer) that the Rambams
view is sufficient to create a safek that may be joined with other mitigating halakhic
considerations. In the particular case adjudicated by R. Herzog, the following are his
other considerations:
(1)

(2)

(3)

R. Herzog has a safek that perhaps a Beth Din is entitled to insist that
mezonot support payments be imposed upon the husband of a lady who
claims maeese alai, particularly when the maeese alai assertion has a
provable basis. (And perhaps the Beth Din is not).
Even if the Beth Din is not entitled to insist on mezonot support
payments, and therefore it emerges that the imposition of these
payments constitutes financial coercion of the husband, perhaps the
amount demanded of the husband is too small to be considered
substantial41 (and perhaps not).
Even if the mezonot payments are considered substantial, and therefore
the husband has been coerced, perhaps the coerced get can
nevertheless be considered valid post facto because of considerations
of talyuhu ve-zavin zevineih zevinei [-a coerced sale is valid when the
seller receives commensurate tangible benefits (besides for avoidance
of the coercion) in exchange for that which he was coerced to sell.]
Although the gemara in Bava Batra 48a explicitly limits talyuhu vezavin zevineih zevinei to a case where a Beth Din has already ruled
kofin le-garesh, it is nevertheless possible to argue that perhaps since
the husband is bound by the Cherem de-Rabbeinu Gershom not to
marry another lady unless this one is divorced we are doing the
husband a favor by ridding him of his non-cooperative wife and so it

same subject. R. Herzog and R. Waldenberg agree with the Yabia Omer that one cannot compel a husband
in a case of maeese alai, but (by contradistinction) they hold that the wife is entitled to mezonot.]
40

It should be incidentally mentioned that one of the sources marshaled by R. Herzog to corroborate the
view of the Rambam is essentially contested by R. Joseph Ber Soloveitchik. R. Herzog claims that the
Raavad agrees with the Rambam by virtue of the fact that the Raavad does not issue an attacking gloss on
the Rambams ruling that maeese alai is grounds for kofin le-garesh. The silence of the Raavad implies
acquiescence, says R. Herzog, calling this method of inference a klal gadol etzel ha-Poskim and further
attributing this method of inference to R. David of Novardok in the latters Galiya Masekhet. However, R.
Soloveitchik is quoted by R. Hershel Schachter in the latters Mi-Peninei ha-Rav (p. 163) as having
dismissed the epistemological validity of the assumption that the Raavad agrees with the Rambam every
time the Raavad is silent. R. Schachter further reports that he saw R. Soloveitchiks position equivalently
attributed to the Chazon Ish by the Steipler Gaon (though R. Schachter does not identify the written source
of this information). [As referenced by R. Schachter, see Sdei Chemed IX, Klalei Ha-Poskim 6:1 for
further sources on this matter.]
41

See next section (entitled G) for a discussion of the substantiality of the financial threat.

36

too is a situation of talyuhu ve-zavin zevineih zevinei (and perhaps

not). And although Cherem de-Rabbeinu Gershom does not apply to an
uncooperative wife (since she is a moredet), R. Herzog feels that when
the moredet demands a get, Cherem de-Rabbeinu Gershom does apply.
[Of course, perhaps this latter supposition, which is unsubstantiated by
R. Herzog, is true, and perhaps not.]
Finally, on top of this compounded-doubt argument, R. Herzog concludes that
even if all of the above justifications fail, we can always rely on hefker beit din hefker to
grant the Supreme Court of the Chief Rabbinate of the State of Israel the authority to
unilaterally appropriate money from the husband and grant it to the wife.
Essentially, R. Herzog was unwilling and unable to actually compel a husband to
divorce his wife on the basis of maeese alai. He only regards maeese alai as a safek
consideration for the Beth Din to be able to join with other considerations, if they are
present. And even in the presence of those other considerations, R. Herzog still has to
ultimately appeal to hefker beit din hefker. It goes without saying that, in the absence of a
verdict to compel by the Beth Din, if an outside party (e.g. the secular New York or
Canadian judiciary) were to compel the husband to grant a get to his wife, the get would
be absolutely null and void even where the lady had previously claimed maeese alai.
Accordingly, like the Yabia Omer, the Heikhal Yitzchaks analysis should be
understood as concluding that a Beth Din cannot, in fact, normally compel a husband to
grant a get to a wife who claims maeese alai (and it goes without saying that parties
other than the Beth Din certainly can never do so). Rather, as the aforementioned Shevet
ha-Levi and the Teshuvot ve-Hanhagot explained, the lady should be granted her freedom
to live separate from the husband (for as long as is necessary for both the husband and the
wife to freely and voluntary arrive at a mutual agreement), while the sanctity of the
marriage remains respected.
In an analogous manner, R. Eliezer Waldenberg in his Shut Tzitz Eliezer IV, no.
21 and V, no. 26 addresses the problem of maeese alai. He describes the plight of ladies
from Edot ha-Mizrach who have been married against their will by their fathers, and
once they ascend to the land of Israel absolutely can no longer tolerate living with a
husband whom they never wanted to marry in the first place. He offers the following
justification for the Beth Din to insist that the husband pay mezonot to a wife who asserts
maeese alai:
(a)
(b)
(c)

Perhaps the halakhah follows the Rishonim who agree with the
Rambam that maeese alai constitutes grounds to compel divorce,
particularly when an obvious justification for this claim exists.
Perhaps even the Rishonim who disagree with the Rambam hold that
when a lady was originally married against her very will, we can
compel the husband to divorce his wife.
Even if coercion is impossible, perhaps mezonot payments may be
imposed on the husband of a lady who claims maeese alai,
particularly when the assertion has a provable basis.

37

R. Waldenberg concludes that this should become the accepted halakhic practice
if and only if all the batei din in the land of Israel grant their assent.
[Incidentally, the reason that R. Waldenberg wrote two separate responsa on the
same subject is that, after the first responsum, R. Joseph Shalom Eliashiv sent him a letter
vigorously disputing his contention (which serves as the basis for the first safek) that
there exists a significant school of allies to the Rambam. R. Waldenberg authored the
second responsum to address R. Eliashivs objections. It is not clear whether or not R.
Eliashiv ever accepted the arguments of the second responsum.]
Thus, it emerges that R. Waldenberg agrees with Shevet ha-Levi, Teshuvot veHanhagot, Yabia Omer and Heikhal Yitzchak that maeese alai is not in and of itself
grounds for a Beth Din to rule kofin le-garesh. Rather, maeese alai is merely one factor
that the Beth Din may join with other mitigating factors. And if the Beth Din does not
formally render such a decision of kofin le-garesh, but instead the secular judiciary of
New York or Canada imposes financial coercion on the husband, the get will definitely be
disqualified due to coercion, without a safek. In the absence of other mitigating factors,
the lady who asserts maeese alai must be granted her freedom to live separate from the
husband (for as long as is necessary for both the husband and the wife to freely and
voluntary arrive at a mutual agreement), while the sanctity of the marriage remains
respected.42
Indeed, this evaluation of R. Waldenbergs position appears to be confirmed by
his introduction to Tzitz Eliezer V (-the same volume containing the second of the two
aforementioned responsa), p. 24. In critiquing the Lieberman Clause addition to the
ketubah as a means of freeing agunot, R. Waldenberg writes Behold we will stand in
many cases of major problems of coerced gittin such that the concern for mamzerut will
be in them, when a Beth Din which has not learned and which has not serviced [qualified
halakhic authorities as mentors] will address [divorce cases] using the [secular] legal
power in its hands [granted by the Lieberman Clause]. Because rare are the cases and in
any event not frequent wherein we can force according to the law [of the Torah] the
husband to grant a get.
Remarkably, R. Waldenbergs critique of the Lieberman Clause is repeated
verbatim (including the aforementioned paragraph) in a responsum published by him four
decades later in Shut Tzitz Eliezer XXI, no. 62, sec. 8. Accordingly, it emerges from R.
Waldenbergs words (both in the introduction to Tzitz Eliezer V as well as the responsum
in Tzitz Eliezer XXI), that the majority of agunah cases do not merit a ruling of kofin legaresh. Evidently, this is so despite the fact that any chained wife can claim maeese
alai.43
42

Moreover, as mentioned supra, note 40, Shut Yabia Omer V, Even ha-Ezer no. 14 rules that a Beth Din
cannot even charge a husband to pay his wife mezonot in a case of maeese alai. To charge the husband
mezonot would constitute coercion which would disqualify any resulting get. Thus, the Yabia Omer
essentially disagrees with the approach of the Heikhal Yitzchak and the Tzitz Eliezer who although they
prohibit coercion on the basis of maeese alai do at least authorize a Beth Din to charge the husband to
pay mezonot in a case of maeese alai.
43

A discussion of the halakhic status of the author of the Lieberman Clause is beyond the scope of the
present essay. See Dr. Marc B. Shapiro, Saul Lieberman and the Orthodox (University of Scranton Press,
2006)[*]; R. Hillel Goldberg, Discontinuities: The Case of Saul Lieberman, (Tradition 40:3, Fall 2007);
R. Aaron Rakeffet-Rothkoff, A note on Saul Lieberman and the Rav (Tradition 40:4, Winter 2007)[**];
and Communications, Tradition 41:1 (Spring 2008). It is not the goal of the present essay to address that

38

The question of maeese alai is also addressed by R. Abraham Isaac Kook in his
Shut Ezrat Kohen, no. 56. He, too, explicitly denies the possibility of coercion of the
husband in a case of maeese alai. Regarding the ability of the Beth Dein to award
standard mezonot to such a husband, R. Kook envisages three possible maeese alai
scenarios: (i) Where the wife claims maeese alai without an amatla (justification), (ii)
Where the wife claims maeese alai with an amatla that is not clear in the eyes of the
Beth Din, (iii) Where the wife claims maeese alai with an amatla that is convincing to
the Beth Din. In the first scenario, rules R. Kook, the wife is not awarded mezonot. In the
the third scenario, the wife is awarded mezonot. R. Kook is uncertain about the second
scenario. Accordingly, R. Kook is essentially consistent with Shevet ha-Levi, Teshuvot veHanhagot, Yabia Omer, Heikhal Yitzchak and Tzitz Eliezer that a Beth Din cannot coerce
a husband whose wife proclaims maeese alai. Certainly, financial coercion by the
secular judiciary will disqualify any resultant get. The most the Beth Din can do is charge
the husband normal mezonot, and even that requires the official decision of the Beth Din,
question. The sole reason that the Lieberman Clause is being mentioned in this essay is in order to
appreciate the background of R. Waldenbergs declaration that the majority of agunah cases do not merit a
ruling of kofin le-garesh. This declaration is independent of however one regards the personal status of Saul
Lieberman (and, indeed, at no time in his responsum does R. Waldenberg actually identify Saul Lieberman
by name). I.e., regardless of Saul Liebermans personal status, his Lieberman Clause is disqualified.
Subsequent to the departure of Saul Liebermans soul from this world, R. J. David Bleich
published Parameters and Limits of Communal Unity in his Contemporary Halakhic Problems III, pp.
84-96, which provides definitive halakhic guidance on how to address the institution where Saul Lieberman
was employed. [Note, however, that the first responsum catalogued in footnote 6 of R. Bleichs chapter is
slightly misrepresented (with all due reverence manifest before Mori ve-Rabbi R. Bleich). Namely, contrary
to R. Bleichs claim, Iggerot Mosheh, Even ha-Ezer I, no. 135 actually recognizes extraordinary
circumstances where a graduate of a heterodox seminary might still be regarded as Orthodox (at least as a
snif le-hakel to be combined with other considerations). In any event, all the other responsa from Iggerot
Mosheh catalogued by R. Bleich in that footnote are indeed accurately presented. Also, even Iggerot
Mosheh, Even ha-Ezer I, no. 135 prohibits a Jew from entering a heterodox institution on account of the
gemara in Avodah Zarah 17a; the leniency advanced by that responsum is to post facto validate the
miscreants testimony. Moreover, R. Yom Tov ha-Levi Schwarz, Ma aneh la-Iggerot no. 169, challenges
Iggerot Mosheh, Even ha-Ezer I, no. 135, and counter-submits that under no circumstances whatsoever can
a graduate of a heterodox seminary be regarded as Orthodox. Thus, R. Schwarz agrees with R. Bleich.
(***)] See also R. Bleichs article referenced infra, note 98, which further discusses the Lieberman Clause,
establishing beyond cavil that the Lieberman Clause is disqualified, and also quoting to that effect R.
Norman Lamm, Recent Additions to the Ketubah, (Tradition 2:1, Fall 1959). See also R. Yosef Eliyahu
Henkin, Lev Ivra, pp. 74-78, for a refutation of the Lieberman Clause.
[*=In addition to the five citations of Saul Lieberman in Ha-Moadim ba-Halakhah catalogued by
Dr. Shapiro on pp. 37-38, several further references can be found in Ha-Moadim ba-Halakhah as follows:
Ha-Teshuvah ve-Yom ha-Kippurim, footnote 23; Shemini Atzeret (main text, paragraph on berakhah leatzmo); and Mekhirat Chametz ve-Hishtalshelutah, footnotes 7 and 8.]
[**=Although the title of R. Rakeffet-Rothkoffs article actually grants Saul Lieberman a rabbinic
honourific, the present writer would prefer to refrain from recapitulating the honourific, given R. Moshe
Feinsteins rulings documented by Contemporary Halakhic Problems III (op. cit.). Even Iggerot Mosheh,
Even ha-Ezer I, no. 135 merely post facto validates the testimony of one who has attended a heterodox
seminary (-ve-khulei hai ve-ulai, to borrow the expression from Chagigah 4b). See, also, R. Moshe Stern,
Shut Be'er Mosheh VIII, no. 3. On the other hand, this does not detract from the cogency of the article by
R. Rakeffet-Rothkoff (who is a tzaddik gammur).]
[***=See also the present writers letter Unity is important, published in Canadian Jewish
News, Aug. 18, 2013, p. 6, referring to Shut Meshiv Davar I, no. 44 as a precedent to justify R. Joseph Ber
Soloveitchiks approach to this topic.]

39

which will potentially hinge upon what kind of justification the lady can offer for the
claim of maeese alai.
[Although the foregoing is assuredly proof enough that maeese alai can never
serve as a safek le-kula to justify gittin granted in the wake of the seculat Get Laws, yet
another consideration to the side of stringency deserves mention. Chazon Ish (Even haEzer 99:2, paragraph that begins with the words yesh le-ayen) demonstrates that a Beth
Din which erroneously rules that a husband is chayav le-garesh might potentially
disqualify any resulting get. Thus, the consideration raised by R. Herzog and R.
Waldenberg as a snif le-hakel, viz. that perhaps a husband whose wife professes maeese
alai is one concerning whom a Beth Din may rule chayav le-garesh, is counterbalanced
by a safek le-chumra: Perhaps when a Beth Din rules that a husband whose wife
professes maeese alai is one who is chayav le-garesh, the Beth Din is actually
disqualifying any resulting get!]
Thus it parenthetically emerges that the Torah posits a distinction between the
norms that govern Noahides and those that govern Jews. Under Noahide law, a wife
unilaterally jettisons her husband by simply leaving his home, thereby dissolving the
marriage, as per the Rambam in Hilkhot Melakhim 9:8. As such, maeese alai is
appropriately managed with ease and swiftness. In Jewish law, by contrast, a wife can
legitimately free herself by moving out of the home when she invokes maeese alai, but
the original kiddushin still exists and the Beth Din is powerless to make the husband grant
a kosher get to his wife.44
Of course, the Beth Din is always welcome to remind the husband of his duty to
honour his wife even more than he honours himself (as per Yevamot 62b and Chullin
84b), and thus fundamentally change and improve his behaviour so that he will not be the
kind of husband who will elicit the reaction of maeese alai, even as the Beth Din
simultaneously champions the sanctity of his marriage.
G. THE SUBSTANTIALITY OF THE FINANCIAL LOSS
In order to qualify as financial coercion which disqualifies a get, the threatened
(or actualized) seizure of money must amount to a substantial sum. An inconsiderable
quantity of money does not constitute financial coercion. Thus, the question arises as to
how much money constitutes substantiality, and whether the Get Laws of New York and
Canada involve such substantiality. [As discussed in section D above, it is the opinion of
R. Liebes that any amount of financial coercion worth less than a husbands entire
livelihood is considered insignificant. However, as further explained there, the
application of R. Liebes ruling is highly questionable, particularly since R. Liebes
himself limited it to cases where a Beth Din has already ruled that the husband is chayav
le-garesh.45]
44

That such disparately opposite standards can exist in the two parallel systems of Torah law (viz. the
Noahide and Judaism) is not unprecedented. As established by Sanhedrin 58b, it is forbidden for a Noahide
to observe the Sabbath. A Noahide enjoys a mitzvah to creatively improve the universe every single day
without cessation. A Jew, by contradistinction, is obligated to observe the Sabbath and is duty bound to
cease from all creative labor on that day.
45

Even if R. Liebes unique approach rises to the threshold of a safek le-kula, it could not be considered a
safek le-kula that is legally independent from the one being described in this section (G). The Shakh, in his
commentary to Shulchan Arukh Yoreh Deah no. 110, enumerates thirty-six principles that govern the

40

As cited by R. Gartner (on p. 418 of his Sefer Kefiyah be-Get), Shut Beit
Efrayim, Mahadura Tinyana, Even ha-Ezer no. 70 rules that a Beth Din must assess
whether, in any particular case, the threatened loss of money is of sufficient substance
such that most sensible people would refuse to endure it when faced with the alternate
prospect of having to divorce their spouses. Similarly, R. Moshe Feinstein rules in
Iggerot Mosheh, Even ha-Ezer I, no. 137 that if the secular courts have ordered a husband
to pay his wife mezonot in such a situation where according to Halakhah the husband is
indeed so obligated, there is no danger of coercion even if the sum that the secular judge
orders slightly exceeds the specific amount a Beth Din would have ordered because it is a
small quantity of money (rak sakh muat), and logic dictates that a small sum of money
not be regarded as coercion. [R. Feinstein adds that this logic is especially reliable since it
seems likely (to him) that the secular courts actually award less mezonot than the batei
din.] In Iggerot Mosheh, Even ha-Ezer III, no. 44, R. Feinstein similarly speaks of
mamon rav (abundant money) as constituting coercion, which implies that if the
amount of money is not abundant, there is no coercion. Likewise, R. Isaac Herzog in
Shut Heikhal Yitzchak, Even ha-Ezer I, no. 2 (subsection no. 15) regards it as axiomatic
that a small financial threat is not regarded as coercion. Quite the contrary, he continues:
a small financial threat constitutes the perfect litmus test as to whether or not a husband
genuinely wishes to remain married to his wife!46
Offering a specific monetary example, Shut Tzemach Tzedek (Acharon), Even
ha-Ezer 262:3 writes that if a lady has seized five hundred and fifteen rubles from her
husband and then returns four hundred of them, the one hundred and fifteen remaining
rubles in her hand are too small a quantity (vis--vis the original five hundred and fifteen
that were originally seized) to be regarded as coercion. R. Gartner expresses surprise at
this ruling, since the money remaining in the hands of the lady should presumably be
judged in an absolute (and not relative) sense, as to whether it imposes a sufficiently great
hardship upon the husband to coerce him to divorce his wife.47
application of a sfek sfeka le-kula. The eleventh of these ordains that when the sfekot are mi-shem echad
(i.e. of the same nature), a sfek sfeka le-kula cannot be constructed. R. Liebes contention that perhaps
financial coercion is never coercion unless the husbands entire wealth is threatened, and the present
sections contention that perhaps the amount of money involved in the New York and Canada Get Laws is
questionable, arise mi-shem echad. They both consider the amount of money negotiated by the Get Laws to
be too trivial to constitute financial coercion vis--vis the husband.
46

Thus, the specific argument of R. Chaim Malinowitz (on p. 25 of Tradition 31:3) that the New York Get
Law must be threatening husbands with a substantial amount of money for otherwise the law is pointless, is
hereby refuted. Based on the Heikhal Yitzchak, one could explain that the drafters of the Get Law carefully
designed the law to extract only small sums of money from the husband as a genuine litmus test as to
whether or not he truly wishes to remain married to his wife. [Even so, in practice, this student agrees with
R. Malinowitz thesis that the Get Law potentially involves a substantial amount of money. See further in
text.]
47

It seems to this student, however, that the Tzemach Tzedeks approach is possibly understandable in light
of the particular fact pattern he adjudicated. The husband originally refused to issue a get unless all five
hundred and fifteen of his rubles were returned. Only four hundred were returned. It thus became necessary
to compare the one hundred and fifteen outstanding rubles with the original sum for which the husband
agreed. (Of course, it is also necessary to independently verify whether the original five hundred and fifteen
rubles that were stolen, when compared to the husbands entire wealth, constituted a substantial amount of
money.) It also seems to this student that, although he does not literally employ the word safek, the
Tzemach Tzedek might not have been completely certain with his thesis (that the one hundred and fifteen

41

Responding directly to the question of whether the New York Get Law creates a
threat of a substantial loss of money, R. Joseph Shalom Eliashiv, in a teshuvah (dated 1
Cheshvan, 5759) appearing in the Yeshurun journal (Nissan 5761, pp. 534-535), has
responded in the affirmative. The Get Law entitles a judge to increase a husbands
support payments up to 5% and to increase the wifes share of the distribution of the
property by up to 5% (in addition to the standard 50% which she generally receives,
ceteris paribus). In many cases, writes R. Eliashiv, support is not even warranted
according to Halakhah because the wife classifies as a moredet.48 Moreover, the standard
50% of the property which the wife receives is certainly not warranted in Halakhah. Thus,
in many if not most cases, there is clearly a substantial financial threat being imposed
upon the husband.
R. Eliashivs practical ruling that a moredet is not entitled to mezonot is fully
endorsed by R. Moshe Feinstein in his Iggerot Mosheh, Even ha-Ezer I, no. 137, where
he specifies that the wife (in the particular case he was adjudicating) was entitled to
mezonot since it was the husband who was rebelling against his wife and not vice-versa.
[In the specific fact pattern, the husband wanted to have his brother sleep in the same
room as the husband and wife, effectively making the marital relationship impossible.]
The obvious implication is that if the wife had been a moredet, she would have forfeited
mezonot, in accordance with Shulchan Arukh Even ha-Ezer no. 77.
It has, of course, been pointed out in the previous section that R. Isaac Herzog in
his Shut Heikhal Yitzchak, Even ha-Ezer I, no. 2 and R. Eliezer Waldenberg in his Shut
Tzitz Eliezer IV, no. 21 and V, no. 26 entertain the safek that a wife who claims maeese
alai should be distinguished from the classic case of a moredet and may be entitled to
mezonot, particularly when the claim has a provable basis.49 Likewise, R. Abraham Isaac
rubles constitutes an insignificant sum), since he introduces it with the words yesh lomar. [However, this
student may be mistaken, and the matter requires further investigation.]
48

R. Broyde (pp. 37-38 of Tradition 31:3) correctly asserts that if the husband indeed claims that his wife is
a moredet, then he will be chayav le-garesh apropos the many poskim who disagree with (or limit the
impact of) Tosafot to Zevachim 2b, s.v. stam. However, that is only true when it is a lady who is a moredet
and who has also violated the sanctity of the marriage, such that she is presently forbidden to her husband
anyway. There is no evidence from those poskim that one is actually chayav le-garesh for a regular
moredet. Moreover, even if a husband is chayav le-garesh, a Beth Din must formally rule chayav le-garesh.
Furthermore, even if the Beth Din actually issues a ruling a chayav le-garesh, there is a strong reason to
assume (as concluded by R. Hadaya and the Chazon Ish cited supra, note 37) that a coerced get will still be
disqualified. R. Herzog and R. Liebes calculation to the contrary (also cited supra, note 37) is itself only a
safek and not a certainty. Thus, there is a sfek sfeka lichumra to assume that financial coercion will
disqualify the get given to a moredet: (a) Perhaps the husband of a regular moredet is not chayav le-garesh,
and (b) Even if he is chayav le-garesh, and even if the Beth Din actually rules that he is, perhaps the
coercion of a husband who is only chayav le-garesh (and not defined by kofin le-garesh) disqualifies the
get.
49

In his very next responsum, Shut Heikhal Yitzchak, Even ha-Ezer I, no. 3, R. Herzog strengthens this
safek to the point of calling it a certainty (that the husband must pay mezonot) when the claim of maeese
alai has a approvable basis. However, it seems clear to this student that, even so, R. Herzog only regarded
the obligation of mezonot as a safek (and not an actual halakhic certainty), seeing as he found it necessary
to join that consideration with other mitigating considerations for his ultimately lenient ruling in that
particular fact pattern. Also, it seems rather incongruous that R. Herzog would contradict in responsum no.
3 that which he wrote in his earlier responsum no. 2 (viz. that it is only a safek).

42

Kook definitely awards mezonot when the claim of maeese alai has a provable basis. But
even this safek le-kula can only be triggered by the formal decision of the Beth Din that
the husband is obligated to pay mezonot. [Moreover, as also mentioned in the previous
section,50 the ruling of the Heikhal Yitzchak and the Tzitz Eliezer is contested by Shut
Yabia Omer V, Even ha-Ezer no. 14. The Yabia Omer holds that a Beth Din cannot
compel a husband to pay mezonot in a case of maeese alai, and that any such compulsion
would disqualify a resulting get.] As such, the decision of a secular judiciary to grant
support to a lady who says maeese alai (when no verdict of chayav le-shalem mezonot
has yet been actually issued by a Beth Din) will automatically create financial coercion
(assuming the amount of money involved is substantial).51
Moreover, even if a wife is entitled to mezonot (e.g. she is not a moredet), the 5%
addition to the mezonot, coupled together with the 55% of the property division that the
wife receives, may certainly constitute grounds to declare that the amount of money in
question is substantial.
As the Beit Efrayim ruled, a Beth Din must assess in each particular case whether
or not the loss of money is substantial enough to inspire the husband to divorce his wife.
Absent such a formal assessment, one might halakhically inquire whether one may say
that there is a safek le-kula that perhaps the amount of money is insignificant (since no
Beth Din has yet rendered a formal assessment). This safek le-kula might then be joined
with other considerations to create an ultimate sfek sfeka le-kula in the context of the Get
Laws.
It seems to this student, however, that it is not clear that such a safek le-kula even
exists. The reason becomes apparent when considering the dichotomy of the thirty-fourth
and thirty-fifth principles of the Shakh (in Yoreh Deah no.110) that govern the
application of a sfek sfeka le-kula. The thirty-fourth principle specifies that unresolved
factual questions due to lack of knowledge do not even rise to the threshold of a safek for
the sake of leniency.52 [An example of a lack of knowledge is a case where an observer
does not know how to measure whether the volume of meat into which a drop of milk has
50

Supra, notes 40 and 43.

51

Although superfluous in rendering the point, it is also worthwhile to mention that, as discussed in section
F, the Heikhal Yitzchak ultimately came to his decision that the husband may be charged mezonot in
reliance upon a sfek sfeka le-kula approach in combination with invocation of the dictum hefker beit din
hefker such that the Supreme Court of the Chief Rabbinate of the State of Israel enjoys the authority to
transfer money from one Israeli citizen to another (even if the sfek sfeka le-kula were to fail). Now, the
Arukh ha-Shulchan, Even ha-Ezer no. 28, seif katan 96, cites some poskim as limiting hefker beit din
hefker to the unequally greatest Beth Din of the generation. Perhaps, then, in the particular case that R.
Herzog was adjudicating, it was manifestly evident to R. Herzog that the Supreme Court of the Chief
Rabbinate of the State of Israel represented the unequally greatest Beth Din of the generation, and so it was
possible for him to invoke hefker beit din hefker under those particular circumstances. Accordingly, any
attempt to replicate R. Herzogs lenient ruling elsewhere would first necessitate establishment of the fact
that the Beth Din in question is indeed the unequally greatest Beth Din of the generation. The matter
requires further analysis.
Thus, in this students opinion, the Heikhal Yitzchaks decision may be limited to circumstances in
which it is clear that the Beth Din at hand is the unequally greatest of the generation. The matter requires
further analysis.
52

The Shakhs ruling also appears in his commentary to Yoreh Deah no. 98 (seif katan 9). This student is
indebted to R. Broyde for first raising this point in his article in Tradition 29:4 (p. 13).

43

fallen exceeds the drop by at least sixty-fold.] This rule is universally accepted. The
thirty-fifth principle discusses a case where an unresolved factual question arises due to
lack of a bedikah (but not a lack of knowledge). Here, the ruling is more complex, for it is
subject to a dispute among the poskim. The Shakh himself opines that the doubt cannot be
treated as a safek except in a case of hefsed merubeh. Others hold differently.53
Equipped with this information, let us turn to the specific question at hand of a
case where a Beth Din has not yet formally assessed whether the financial threat of the
Get Law is substantial enough to force this particular husband to divorce his wife. One
may inquire whether such a predicament should be deemed a doubt due to lack of
knowledge or due to lack of bedikah. On the one hand, one could argue it is a simple lack
of knowledge because the Beth Din will simply use their common sense to assess the
situation (much like a decisor assesses whether the meat exceeds the milk by a factor of
sixty). On the other hand, R. Ovadiah Yosef, in his Shut Yabia Omer VI, Yoreh Deah
no. 24, speaks of consulting a Chief Rabbinate of Israel list which enumerates those fruit
orchards which are not orlah as a constituting a case of bedikah. Accordingly, one could
argue that consulting the Beth Din regarding the impact of the Get Law on a particular
husband is a matter of bedikah. This student is uncertain which way to argue. Now, if we
categorize the doubt as one which arises due to a lack of knowledge, then for sure there is
no safek le-kula, as per the Shakhs thirty-fourth principle. But even if we categorize the
doubt as one which arises due to a lack of a bedikah, it is controversial whether this even
classifies as a safek le-kula.54
Presumably, similar problems affect Canadas Get Law, whenever the husband is
financially threatened.
H. DINA DE-MALKHUTA DINA
The question arises as to whether one may invoke dina de-malkhuta dina to argue
that Halakhah automatically awards to the wife whatever amount of money the
government laws say should be awarded according to the Get Law. If so, then there
would be no halakhic problem with a get granted because of the New York or Canadian
Get Laws. The husband is not threatened with the loss of money, since the money in
question intrinsically belongs to the wife by virtue of state statute.
The basis for such an assumption arises from a cryptic comment by R. Moshe
Feinstein in Iggerot Mosheh, Even ha-Ezer I no. 137, where he states (in the paragraph
that begins with the words aval af im ha-emet) that, if a husband would not be liable to
his wife for mezonot according to Halakhah (e.g. when she is a moredet), then there is a
problem if a secular judge rules that he should pay her support and then he sends the
husband to jail for failing to pay, whereupon the wife promises the husband that she will
intervene to free him from jail if he grants a get. This is because, continues R. Feinstein,
there are two ways to examine the support payment that the judge has ordered: (a) Dina
53

See R. Ovadiah Yosef, Shut Yabia Omer VI, Yoreh Deah no. 24; R. Feivel Cohen, Badei HaShulchan, Yoreh Deah no. 110 (seif katan nos. 149-150 with the accompanying biurim); and R. J. David
Bleich, Sonograms and the Unborn Kohen, Tradition 39:2 (Summer 2005), pp. 95-96 for a
comprehensive survey of opinions on this issue.
54

See sources cited in the previous footnote.

44

de-malkhuta dina does not apply, and so the husband was coerced to pay an unjustified
sum of money. (b) Even if dina de-malkhuta dina does apply, perhaps the judge
sentenced the husband in a manner which is at odds with the secular governmental
regulations, e.g., the judge was bribed.
From this comment by R. Feinstein, it emerges that he seems to have entertained a
safek as to whether dina de-malkhuta dina can be applied to monies which a judge
obligates a husband to pay.
However, a very different picture emerges from Iggerot Mosheh, Choshen
Mishpat II, no. 62. There, R. Feinstein limits dina de-malkhuta dina to matters that affect
the government. However, in other realms, says R. Feinstein, such as the inheritance of a
daughter when there is also a son (where halakhic norms vary from secular norms), or the
damages caused by an animal, or the responsibilities of custodians, or the laws of
neighbors or the laws of agents, or the laws governing a husband and wife [emphasis
added], which are matters that do not affect the government, dina de-malkhuta dina does
not apply. Thus, it seems clear from the latter responsum that, without a doubt, money
awarded by the Get Laws would constitute coercion. [Indeed, such a conclusion would be
consistent with Rema to Shulchan Arukh Choshen Mishpat 369:11 that dina de-malkhuta
dina only applies to matters that affect the government or takkanat bnei ha-medinah (the
welfare of the citizens of the state), but not to interpersonal disputes between Jews.
Otherwise, argues Rema as a reductio ad absurdum, all Jewish interpersonal law would
be nullified by government fiat.]
Moreover, R. Feinstein straightforwardly assumes without reservation in Iggerot
Mosheh, Even ha-Ezer III, no. 44, that a judges decision to fine the husband for failing to
divorce his wife constitutes financial coercion. Clearly, then, R. Feinstein concludes that
dina de-malkhuta dina definitely does not apply. Precisely the same sentiment is
expressed in Iggerot Moshe, Even ha-Ezer IV, no. 106 (paragraph that begins with the
words hineh bi-dvar ha-hishtadlut).
The problem, then, is how does one reconcile R. Feinsteins safek in Iggerot
Moshe, Even ha-Ezer I, no. 137 that perhaps dina de-malkhuta dina does apply, with his
other three contradictory responsa (Choshen Mishpat II, no. 62; Even ha-Ezer III, no. 44;
Even ha-Ezer IV, no. 106) which emphatically deny the applicability of dina de-malkhuta
dina?
In a letter addressed to R. Eliashiv (seeking his guidance for how to respond to the
New York Get Law) that appears on pp. 521-527 of Yeshurun (Nissan 5761), dated Elul
5758, R. Mordechai Willig, R. Shraga Feivel Cohen and R. Shmuel Yehudah Leib
Landesman take note of this problem. They suggest as a possibility (on p. 523) that
Since the separation of husband and wife has become widespread in these
generations, and in many instances one of them (usually the wife) is left
without support or sustenance, behold this is a tikkun ha-medinah that
myriads of these wives should continue to receive some support from their
husbands of the past, instead of them perishing in hunger or depending
upon the charity box of the state [i.e. social welfare]. Such that, according
to this, perhaps one could argue that this is so when the main purpose of
the legislation is for the husband to support his divorcee which is coming
to fix a problem in existence for the entire population, which is not the

45

case for the Get Law which is coming to find a solution for Jewish ladies
who follow the law of the holy Torah and refrain from remarrying unless
they are divorced in accordance with the law of Moses and Israel. [In the
latter case] it could be that this is not such a widespread matter in terms of
the population of the entire medinah such that it would be considered
tikkun ha-medinah. And the matter requires further analysis.
In other words, Rabbis Willig, Cohen and Landesman are observing that the
secular law of which R. Feinstein speaks in Iggerot Moshe, Even ha-Ezer I, no. 137 was a
general provision (in Portland, Oregon of the 1920s) that concerned itself with all ladies
in the state. They posit that R. Feinstein entertained a safek as to whether dina demalkhuta dina might apply since such a law might be argued to impact on tikkun hamedinah. Myriads of ladies (chas ve-chalilah) starving to death or depending on social
welfare is clearly a phenomenon that any prudent government would seek to avoid. By
sharp contradistinction, government legislation designed to force the narrow population
of Jewish husbands to grant kosher gittin is clearly outside the ambit of dina de-malkhuta
dina, without a doubt.
Rabbis Willig, Cohen and Landesman also submit (on p. 522) and this they say
is the case without any doubt that it is obvious that dina de-malkhuta dina can only
possibly ever apply to a government law that deals with maintenance of the wife. It
cannot apply to a law which punishes a husband who causes his wife to be an agunah.
Matters of gittin ve-kiddushin do not belong under government legislation.55 Likewise,
evidently echoing their sentiments, in footnote no. 12 on p. 40 of his Be-Netivot haHalakhah I, R. Bleich axiomatically declares that according to all views and all opinions
it is not possible to force a divorce through dina de-malkhuta dina, even through a
monetary fine, without engendering a get meusseh.
It is noteworthy that R. Eliashiv, in his response (printed on pp. 534-535 of the
same edition of Yeshurun), does not directly address the question of how to understand R.
Feinsteins invocation of dina de-malkhuta dina. Rather, he says that, in practice, R.
Feinstein was only lenient in Iggerot Moshe, Even ha-Ezer I, no. 137, because it
happened to be a case where the husband was anyway obligated to pay mezonot
according to Torah law [and whatever amount the secular court would add was small].
Thus, R. Eliashiv does not seem to place any weight on the value of dina de-malkhuta
dina to vindicate a get obtained through the Get Laws (quite possibly because he agrees
with the analysis of Rabbis Willig, Cohen and Landesman). R. Eliashiv then proceeds to
approvingly cite the Beit Yosef to Choshen Mishpat 26 who quotes the Rashba responding
to the claim that since everyone living in a certain country knows that spouses in a state
of dispute follow the laws of the government, the husbands are considered to have
stipulated at the time of the wedding that they intend to follow the government
regulations if a dispute should ever arise. The Rashba declares as follows:

55

But, again, even in the maintenance department, Rabbis Willig, Cohen and Landesman are expressing
doubt on p. 523 as to whether R. Feinstein would have ever applied dina de-malkhuta dina for a
government law that is designed only for Orthodox Jewry, since there is no appreciable tikkun ha-medinah
in this.

46

This is forbidden, for he is imitating the gentiles, and this is what the
Torah has commanded before them and not before the gentiles [as per
Gittin 88b], and even though both sides want it and it is a matter of money,
for the Torah has not allowed the [Jewish] people to which it has been
bequeathed to follow their desire to endear the statutes of the gentiles and
their laws. Chas ve-shalom for a holy nation to conduct itself like this. One
who relies on this broken reed-support and does these things is felling the
walls of the Torah and is uprooting a root and a branch. And the Torah will
demand from him [accountability], and I say that anyone who relies on
this to say it is permitted because of dina de-malkhuta dina is mistaken
and is a robber and is included in [the category of] one who uproots the
laws of the entire Torah.
In these words, the Rashba clearly rejects the applicability of dina de-malkhuta
56

dina.

Although not mentioned by R. Eliashiv, the Rashbas ruling is also unequivocally

championed by R. Moshe Sofer in his Shut Chatam Sofer, Choshen Mishpat no. 142.
Thus, in sum total, it emerges that there is a sfek sfek sfeka le-chumra to reject the
application of dina de-malkhuta dina in the context of the New York Get Law:
(i)
(ii)

Safek le-chumra #1: Iggerot Mosheh, Even ha-Ezer I, no. 137 is not sure
whether a secular law requiring a husband to support his estranged wife is
covered under the ambit of dina de-malkhuta dina. Perhaps it is not.
Safek le-chumra #2: Even if the resolution to the Iggerot Moshehs safek
is that dina de-malkhuta dina does apply, it does not seem likely that it
could be invoked for a government law like the Get Law, which is
designed for the purpose of the Orthodox Jewish population of estranged
wives, and is therefore not a matter of tikkun ha-medinah, as noted by
Rabbis Willig, Cohen and Landesman, and apparently endorsed by R.
Eliashiv.
Moreover, in a joint audio lecture on the subject,57 R. Willig and R.
Bleich both declare that dina de-malkhuta cannot possibly apply where the
law was inspired by changing societal philosophies. Nowadays, given the
improved economic status of ladies, it is not possible to argue that tikkun
ha-medinah is benefited by granting the lady the monies granted by the
Get Laws. The monies granted by the Get Laws meet a modernized
philosophical need of egalitarianism, not a societal need of saving ladies
from starvation. Thus, there is no tikkun ha-medinah in the Get Laws. This
point strengthens the second safek that even according to the doubt of R.
Feinstein that dina de-malkhuta dina might be invoked in 1920s Portland,
Oregon, it is irrelevant for the Get Laws of today.

56

Also in these words, the Rashba clearly rejects the applicability of minhag ha-socharim [see next section
Section I].
57

Available at <http://www.yutorah.org/showShiur.cfm?shiurID=705529>.

47

(iii)

Safek le-chumra #3: On at least one occasion, a New York judge has
explicitly ruled that money may be extracted from a recalcitrant husband
as punishment for his failure to grant a get.58 As noted by Rabbis Willig,
Cohen, Landesman and Bleich, this indisputably is outside the ambit of
dina de-malkhuta dina. Although it is not clear whether or not this one
case is reflective on the New York Get Law in general, it is certainly a
sufficient precedent to create a safek that it might be.

In Canada, although the third safek cannot apply (since it is difficult to envisage a
New York court case as serving as a precedent for Canadian jurisprudence), the first two
sfekot do apply, which is itself sufficient to create a sfek sfeka le-chumra.
To conclude, because of the sfek sfeka le-chumra in Canada and (all the more so)
the sfek sfek sfeka le-chumra in New York, dina de-malkhuta dina cannot rescue a get
from the potential disqualification that the Get Laws impose on it.
I. MINHAG HA-SOCHARIM
However, quite apart from dina de-malkhuta dina (which has been rejected in the
previous section), one might inquire as to whether minhag ha-socharim may be invoked
in order to claim that the monies awarded to the wife by the Get Laws intrinsically belong
to her according to Halakhah. Minhag ha-socharim (which operates independently of
dina de-malkhuta dina) dictates that Jews who draft a contract implicitly include in the
contract the societal norms that govern the type of activity described by the contract.
Perhaps one might argue that a husband and wife who marry in a jurisdiction that is
governed by the Get Laws agree to the Get Laws by virtue of minhag ha-socharim.
Nevertheless, R. Willig (in the aforementioned audio lecture) demonstrates that
one cannot apply minhag ha-socharim. The Sema to Choshen Mishpat no. 369 (seifkatan
no. 20) rules that if one marries in a jurisdiction where the social custom is for inheritance
of a wifes property to proceed in a manner at variance with Torah law, minhag hasocharim does not apply to the inheritance of the wifes property if she dies. This is
because at the hour that they married one another, it was not the hour of inheritance, and
there was no revelation of intent that he married her on the premise to follow the
custom. Likewise, explains R. Willig, when a husband and wife get married, it is not the
hour of divorce and they make no revelation of any intent to divide their property in
accordance with societal custom should they eventually divorce. Indeed, it is absurd to
think that the husband and wife seriously contemplate divorce when they marry. A
prudent individual with a balanced set of priorities does not marry a spouse whom he
thinks is a potential candidate for divorce.
R. Willig is not the first to arrive at this conclusion. Minhag ha-socharim is
explicitly rejected by the aforementioned Rashba cited approvingly by both the Chatam
Sofer as well as the Beit Yosef to Choshen Mishpat 26 discussed in the previous section.
Thus, it is clear that minhag ha-socharim cannot serve to rescue a get from
disqualification at the hands of the Get Laws, not even out of doubt.
58

The case is described by R. Zvi Gartner on p. 93 of Tradition 32:3. This student would hasten to add that
those protagonists are certainly tzaddikim gemurim, to whose eternal credit redounds the fact that they have
caused the present expansion of Torah study. See Rashi to Numbers 27:5.

48

However, if it is indeed the case that minhag ha-socharim is irrelevant to divorce,

one must address R. Michael J. Broydes very cogent observations on pp. 31-32 of
Tradition 31:3, as follows:
(a)
(b)

R. Broyde asks every groom at whose wedding he officiates whether

the groom intends for the ketubah to control the division of assets in
case of divorce. The answer is almost always negative.
It is not customary in the North American Jewish community to
negotiate the dollar amount value of the ketubah for purposes of
practical implementation.

Why do these two phenomena exist if minhag ha-socharim is truly irrelevant to

divorce?
The answer is that the two phenomena described by R. Broyde are actually telltale
signs as to the widespread observance of the minhag of following the promulgation of
Rabbeinu Gershom not to divorce a lady against her will. Since a lady cannot be divorced
against her will, the ketubah has become meaningless, because a lady can demand any
price (e.g. even ten times the value of a ketubah) for her consent to receive a get from her
husband. This is minhag of following Rabbeinu Gershom in action, and not minhag hasocharim.
[It should also be noted that the responses of the candidates interviewed by R.
Broyde should be taken with a grain of salt. No husband seriously anticipates the future
prospect of divorce on his wedding day, as noted by R. Willig.]
Thus, it remains the case the minhag ha-socharim be disregarded.
R. Broyde (on p. 32) also correctly cites R. Avigdor Neventzal to the effect that
in many activities that are dependent on the state of mind of a person, their state of
mind follows the secular law and not Torah law. This remark certainly reflects the
existence of a concept entitled minhag ha-socharim. But it says nothing about hilkhot
gittin ve-kiddushin, and indeed it cannot say anything about hilkhot gittin ve-kiddushin, in
light of the rulings of the Rashba, the Beit Yosef and the Shakh cited above. Minhag hasocharim simply does not apply to divorce.
To fully appreciate this point, it is helpful to examine this remark of R. Neventzal
in its full context. R. Neventzal is offering his letter of approbation to a book entitled
Hishtanut ha-Tevaim ba-Halakhah, a book that discusses how scientific, paranormal and
cultural evolution is treated in various halakhic realms. There is no discussion in this
book whatsoever of hilkhot gittin ve-kiddushin. And, quite logically, there is no mention
whatsoever in R. Neventzals comments as to hilkhot gittin ve-kiddushin.
Rather, in offering his approbation to the book, R. Neventzal notes that there are
certain areas of Halakhah where one must take account of evolution. The following are
the examples that R. Neventzal provides:
(a) In R. Shmuel Salants time, it was prohibited for Diaspora tourists visiting
Jerusalem to form Yom Tov Sheni prayer quorums, owing to the interdiction of
lo titgodedu, as per the gemara in Yevamot 14a. Nowadays, when the
incidence of Diaspora tourists is far greater, it is certainly appropriate for
Diaspora tourists to form Yom Tov Sheni prayer quorums.

49

(b) Economic and agricultural conditions have changed in the land of Israel since
the time of R. Kook and the Chazon Ish, such that their Shemitah dispute must
be reevaluated.
(c) Some of the rulings of the Mishnah Berurah related to halakhic time
calculations are based on the celestial conditions that would be observed in
Radin (where the author of the Mishnah Berurah lived) and are not suitable
for Jerusalem [or other terrestrial locations].
(d) Changed socioeconomic conditions since the time of the Vilna Gaon require a
reevaluation of the propriety of the Vilna Gaons stringency to prohibit
repurchasing after Passover the chametz sold before Passover.
(e) The laws of edim zomemim change with the technology of transportation. The
faster vehicles travel, the more difficult it is to convict a witness of being an
ed zomem.
(f) In the laws of vows, oaths, sales and leases, one must possess an up-to-date
understanding of common parlance, and one must appreciate the fact that all
dates [unless otherwise specified] are predicated upon the civil calendar. [R.
Neventzal adds that this is much to our shame and disgrace.59]
(g) [Finally, as quoted by R. Broyde,] .in many activities that are dependent on
the state of mind of a person, their state of mind follows the secular law and
not Torah law.
The last of these items refers to minhag ha-socharim, which evolves with the
society and impacts on many kinds of contracts. But in no way does it refer to the laws of
gittin ve-kiddushin.
R. Broyde (on p. 40) also correctly cites Shut Chavalim ba-Neimim IV, no. 55
(a responsum which is, in turn, predicated upon Shut Mabit I, no. 309), as evidence for
minhag ha-socharim in action. Here, too, let us examine the source in context. The
Chavalim ba-Neimim addresses the question of who is the owner of the jewelry that a
husband grants his wife during the marriage: Does it belong to the husband, and the wife
59

Cf., however, Shut Yabia Omer III, Yoreh Deah no. 9, where R. Ovadiah Yosef asserts that the civil
calendar is a completely secularized and purely utilitarian method of measuring chronology whose
employment is neither prohibited nor disgraceful on the part of a Jew. Employment of the civil calendar
nowadays is simply a matter of convenience. [Nevertheless, R. Yosef does posit that it is preferable for a
Jew to restrict himself to making reference to the Jewish calendar, wherever possible.]
If R. Yosefs ruling is normative, then it is entirely logical to make use of the civil calendar for
purposes of interpersonal agreements in such realms as vows, oaths, sales and leases because it is an
institution whose days change at a time when most people are sleeping, viz. 12:00 a.m. This prevents
confusion in interpersonal agreements. By contradistinction, the Jewish calendar contains the complexity
that the day changes when people are awake, and, moreover, because of the concept of bein ha-shemashot
(a concept whose parameters are themselves disputed by poskim), it is not entirely certain with crystal clear
precision as to when the day changes. [In this manner, the civil calendar is methodologically analogous to
the arbitrary international date line that the nations of the world have capriciously and conveniently decided
traverses the middle of the Pacific Ocean. It is permissible to refer to the international dateline capriciously
designated by the nations of the world, even though the halakhic determination of the date does not follow
that international dateline. See the article co-authored by R. Moshe Ashen and this student in Beit Yitzchak
XXXIX (Yeshiva University, 2007), pp. 369ff.] Thus, although Halakhah obviously follows the Jewish
calendar, it is understandable how people would predicate their interpersonal agreements upon the civil
calendar, and there is no shame in doing so (assuming one accepts the lenient pesak halakhah of R.
Ovadiah Yosef.)

50

only uses it with his permission? Or does it fully belong to the wife? The ramification of
this investigation occurs if the husband dies, thereby dissolving the marriage. If the
jewelry really belonged to the husband all along, then the jewelry will be inherited by the
husbands heirs, and not the wife. (E.g. if the couple has a son, the jewelry will be
inherited by the son.) But if the jewelry belonged to the wife all along, then the wife
keeps her jewelry upon her husbands death.
The Chavalim ba-Neimim demonstrates that this question is subject to a dispute
between the Shulchan Arukh and the Rema in Even Ha-Ezer 99:2. The Shulchan Arukh
holds that the jewelry belongs to the wife, whereas the Rema holds that it belongs to the
husband. The Chavalim ba-Neimim further proves that the weight of evidence favors the
Shulchan Arukh. Moreover, even according to the position of the Rema, if the husband
wrote a tosefet ketubah for his wife, and specified that the jewelry worn by the lady
belongs to her, they indeed belong to her. To this latest point, the Chavalim ba-Neimim
adds that even if the husband did not write such a tosefet ketubah for his wife, if the
common custom of the land is that the jewelry belongs to the wife, then we say that it is
on this condition that the husband gave the jewelry to his wife, and indeed it belongs to
the wife, particularly since the weight of evidence anyways supports the Shulchan Arukh
(and the only reason the Remas view has been followed by Jews is by virtue of custom).
Thus analyzed, it becomes evident that the Chavalim ba-Neimim cannot serve as
a precedent to invoke minhag ha-socharim in the context of the Get Laws. This is
because:
(a) The Chavalim ba-Neimim is discussing the fact that minhag ha-socharim
determines the meaning of the act of a husband handing a piece of jewelry to his wife.
When a husband gets married, he certainly intends to hand pieces of jewelry to his wife.
Since the minhag ha-socharim is that this is regarded as a bona fide gift, the jewelry is
immediately acquired by the wife when she receives them from her husband. This is
fundamentally different than the Get Laws, where the question focuses on how much
money a lady will receive upon her separation from her husband. As per the Rashba, the
Beit Yosef and the Shakh cited above, no husband contemplates such matters when he gets
married, and thus there is no minhag ha-socharim of which to speak.
(b) Even where the Chavalim ba-Neimim applies minhag ha-socharim to
marriage, he is doing so because, strictly speaking, the halakhah should anyway follow
the Shulchan Arukh (that the jewelry is acquired by the wife), and it is only due to
common custom that the Remas contrary position has heretofore been obeyed.
Therefore, once Jews live in a land where the common custom is that the wife owns the
jewelry (which is synchronized with the proper law of the Shulchan Arukh), we may as
well follow the pristine law of the Shulchan Arukh and say that the wife owns the jewelry.
Clearly, such considerations are not germane in the context of the Get Laws.
And so it seemingly remains the case that minhag ha-socharim does not even
create a safek le-kula in the context of the Get Laws.
Nevertheless, in a personal communication this student was privileged to
receive,60 R. Broyde correctly identifies a new source which sheds a novel light on the
60

Electronic mail correspondence on November 26, 2007.

51

applicability of minhag ha-socharim. In Iggerot Mosheh, Even ha-Ezer IV, no. 91, R.
Feinstein discusses why it is not the norm in contemporary American society to calculate
the dollar value of the ketubah. R. Feinstein responds that Cherem de-Rabbeinu Gershom
has rendered the dollar value of the ketubah meaningless, since a lady cannot be divorced
against her will. [This consideration has already been noted earlier in this section.]
However, R. Feinstein proceeds to address why it is not the norm in American society to
calculate the dollar value of the ketubah for the sake of widows. [After all, Cherem deRabbeinu Gershom bears no impact on the halakhic process of a widow collecting the
ketubah money from her deceased husbands estate. This is potentially a particular point
of concern in instances where the husbands estate is inherited by children from a
previous wife, wherein those children might not necessarily be sympathetic to the
legitimate needs of the new wife, and so will only give her that which a Beth Din orders
to be the letter of the law.)] R. Feinstein explains as follows (with bold emphasis added
by this student):
And even for widows, even if they are not the mothers of the sons [who
inherit the deceased husbands estate], in the vast majority of cases there is
a bequested will [such that the widow is assigned a specific amount of
money, rendering the ketubah irrelevant], and also there is in this dina
de-malkhuta that many want or are compelled to orchestrate, such that
on the few occasions where it occurs to [actually] follow the halakhah [of
awarding the real dollar value of the ketubah to a widow] our Rabbis have
not analyzed this [question of the practical dollar value of the ketubah] and
they simply arrange a compromise arbitration, which is not the proper
halakhah, such that I have found it to be correct to offer my own
calculation, in my humble opinion. [And R. Feinstein proceeds, in the
following paragraphs, to calculate the dollar value of the ketubah.]
In the above passage, R. Feinstein indicates that dina de-malkhuta impacts on
Jewish widows, such that many want or are compelled to orchestrate the American
societal norm in ignoring the actual dollar value of the ketubah. Apparently, this is
minhag ha-socharim in action. If so, one might justify for the validity of a get granted in
the context of the Get Laws based on minhag ha-socharim.
However, the proof is not entirely convincing. Firstly, R. Feinstein only applies
minhag ha-socharim to the husbands death, not to divorce. Secondly, even in the case of
death, it is not entirely clear that R. Feinstein is ruling that minhag ha-socharim applies.
Perhaps R. Feinstein is simply offering a sociological observation that people mistakenly
think that minhag ha-socharim applies, such that they do not go to Beth Din to assess the
real dollar value of the ketubah, although in halakhic fact they should be going to Beth
Din for such an assessment because minhag ha-socharim does not apply. Thirdly, even if
R. Feinstein actually intended to rule that minhag ha-socharim applies, he would be
contradicted by the Sema, Chatam Sofer, Beit Yosef and Rashba cited earlier, who all
negate the applicability of minhag ha-socharim to the husbands death.
Presumably, because of considerations of kim li, the husband is justified in relying
on Sema, Chatam Sofer, Beit Yosef and Rashba who deny the applicability of minhag ha-

52

socharim, and the husband cannot be charged money for minhag ha-socharim. As such,
in this students opinion, minhag ha-socharim does not even create a safek le-kula to
validate a get granted under the Get Laws.
J. THE MECHANICS OF THE SECULAR LAWS
The New York Get Law requires a judge to take into consideration the husbands
failure to remove religious barriers to his wifes remarriage as a basis for seizing money
from the husband. Every attorney employed by a husband knows that he is professionally
obligated to inform his client of this fact. An attorney who fails to inform the husband of
this fact can be sued for legal malpractice. Thus, the vast majority of husbands who
divorce their wives in New York must be assumed to be aware of the Get Law and hence
that they are being threatened by financial loss if they do not grant a get. Accordingly,
assuming the amount of money involved is substantial (as discussed by section E above),
there is a massive coercion overshadowing most, if not all, New York gittin.
In Canada, the Get Law is more complex. It allows a judge to strike down the
pleadings in secular court of a husband who declines to grant a get. R. Bleich, on p. 47 of
his Be-Netivot ha-Halakhah I, posits that this can lead to coercion in two different ways:
(a) If in any particular case, the wife asks the judge to seize money from her
husband and, moreover, and the judge chooses to invoke the Get Law to strike down the
husbands pleadings in an effort to defend himself from losing the money, then coercion
over the get has been generated.
(b) If it becomes the habit of Canadian courts to always agree to invoke the Get
Law in favor of the wife, then Canada will essentially have been New York-anized.
Under such circumstances, even before the case goes to court, the Canadian husband will
be regarded as being coerced. I.e., all husbands who are aware of the existence of the Get
Law will be considered coerced. [Further research is required to ascertain whether this
habit has actually come to fruition.]
Admittedly, the foregoing analysis of the legal mechanism of the Get Laws is
challenged by R. Yitzchak Breitowitz on p. 226 of his Between Civil and Religious Law:
The Plight of the Agunah in American Society. R. Breitowitz correctly notes that
Halacha recognizes that if the source of compulsion arises from factors extraneous to the
granting of the get, e.g. imprisonment for an unrelated debt, removal of the compulsion in
exchange for a get does not result in a get meusah. Therefore, continues R. Breitowitz,
one might argue that a Get Law does not adversely affect the validity of a get offered in
its wake since it addresses a factor extraneous to the granting of a get, viz., the additional
economic burdens a lady faces due to her inability to remarry. When the Get Law
threatens the husband with a loss of money, it is not related to the lack of a get. Rather, it
is related to the hardship the lady faces with her inability to remarry.
Nevertheless, it seems clear to this student that the distinction between coercing
the husband over his wifes get and coercing the husband over his wifes inability to
remarry is purely a matter of semantics. For, behold, what is written in the text of a get?
You are permitted to marry any gentleman. The get and the ability to remarry are truly
one and the same! Any attempt to separate them is specious.
And, indeed, R. Breitowitz (pp. 227-228) immediately proceeds to torpedo the
extraneous-factor thesis he has just presented. He points to a New York case where a

53

judge explicitly declared that the Get Law punishes a husband for failing to grant a get.
He also points to ladies improved economic status our era as suggesting that there are no
economic burdens of which to speak in inability to remarry. And he further points to
the inequality between the debtors prison case and the Get Laws: a husband may be in
jail for reasons unrelated to a get, but the Get Law exists only because of the lack of a get.
In order to strengthen R. Breitowitz refutations of the extraneous-factor thesis,
this student would marshal Shut Yaskil Avdi VI, no. 96. There, R. Ovadiah Hodaya
begins with the proposition that a coerced get should be kosher in the case of a husband
who has received a Beth Din verdict of chayav le-garesh, since the coercion is not over
the get itself but rather over the husbands hubris in refusing to listen to the Beth Din and
refusing even to so much as apologize politely to the Beth Din. Surely, this represents
coercion over a recognizably extraneous factor (viz. over the mitzvah to heed the words
of the Sages) and should result in a kosher get according to the extraneous-factor thesis.
However, R. Hodaya then realizes he is contradicted by the Rambams ruling in Hilkhot
Gerushin 2:20 that a coerced get is only kosher in a situation of kofin le-garesh and not
chayav le-garesh. R. Hodaya proposes that this is on account of the fact the batei din
sometimes err, and the husband realizes this. Thus, even when a Beth Din says that it is
coercing the husband over the mitzvah to listen to the Sages, the husband suspects that
they may be in error, and the husband realizes that he is really being coerced over the get
itself.61 Mutatis mutandis, the extraneous-factor thesis cannot justify a get granted under
the Get Laws on the nebulous plea that it is coercing the husband over the economic
burdens experienced by a lady who is unable to remarry, since it is clear and apparent
that the coercion is over the get itself.
Moreover, Chazon Ish (Even ha-Ezer 99:3) effectively dismisses all extraneousfactor hypotheses from serving as any significant source of leniency in the context of
coercion over gittin. This is because the Chazon Ish disagrees with the Tashbetz cited by
the Beit Yosef to Even ha-Ezer no. 134. The Tashbetz had expressed a safek that if the
husband is being unlawfully coerced over an extraneous matter (unrelated to a get), and
the husband delivers a get in order to escape the coercion, then the get might possibly be
valid. The Chazon Ish reacts by diagnosing the Tashbetz as "tzarikh iyun" because the get
should definitely be disqualified in such an instance. What emerges from this discussion
is that even if one were to accept the claim that the Get Laws coerce over an extraneous
factor rather than the get, according to the Tashbetz this would only generate a safek lekula, and according to the Chazon Ish there would be no grounds for leniency
whatsoever.
61

Accordingly, Yaskil Avdi concludes that the get is disqualified. See supra, note 37, for further discussion
of the Yaskil Avdi. As noted there, Chazon Ish independently arrives at the same conclusion. As also noted
there, R. Herzog and R. Liebes evidently disagree, insofar as each of them posits as a safek that perhaps the
coerced get of a husband who is chayav le-garesh is valid. However, even according to them, there is still a
safek refutation of the extraneous-factor thesis. Moreover, even on the alternate side of the safek that the
coerced get of a husband who has received a ruling of chayav le-garesh is valid, that may only be the case
there where there are two recognizably distinct concepts involved: the lack of a get, and the failure of the
husband to respect the Sages. In such a situation, one may possibly argue (as a safek) that the coercion is
over an extraneous factor. By contradistinction, where a husband has not received any sort of ruling that
chayav le-garesh, there is only one factor over which to coerce the husband: the lack of a get, which is one
and the same as the economic hardships a wife faces over her inability to remarry.

54

Indeed, R. Yitzchak Yaakov Weiss (Shut Minchat Yitzchak VIII, no. 136) and R.
Shmuel Wosner (Shut Shevet ha-Levi V, no. 210) both explicitly reject the extraneousfactor hypothesis in the context of a French court ordering a Jew to pay money over the
extraneous hardship caused to his wife for her inability to remarry. R. Weiss and R.
Wosner rule that the extraneous hardship is none other than the matter of the get itself,
and so the financial penalty imposed on the husband directly disqualifies the resulting
get.62
Thus, there is in effect a sfek sfeka le-chumra to reject the extraneous-factor
hypothesis:
62

These two rulings are highlighted by R. A. Yehudah Warburg, The Propriety of Awarding a Nezikin
Claim by Beit Din on behalf of an Agunah, Tradition 45:3 (Fall 2012). [I am grateful to R. Warburg for
bringing these responsa to my attention. I would also add that the competing protagonists in the case
adjudicated by Minchat Yitzchak and Shevet ha-Levi are certainly all tzaddikim gemurim, to whose eternal
credit redounds the fact that they have caused the present expansion of Torah study. See Rashi to Numbers
27:5.]
In his tour de force article, R. Warburg proceeds to suggest that although the extraneous-factor
hypothesis must be rejected in the case of a secular judiciary imposing financial coercion upon a
recalcitrant husband (as Minchat Yitzchak and Shevet ha-Levi rule), a properly constituted Beth Din might
reach a halakhic ruling imposing legitimate financial punishment upon the same recalcitrant husband. R.
Warburg believes that such financial coercion will not disqualify the resulting get, since the financial
coercion is not directed toward compelling the husband to actually divorce his wife, but is rather directed to
compensate the agunah for the tort she experiences by her being an agunah. And what exactly is the
nature of the tort for which the agunah deserves to be compensated? Firstly, R. Warburg cites the gemara in
Bava Kamma 111a that a lady prefers to be married than to be single. Thus, argues R. Warburg, the
recalcitrant husband is imposing boshet (shame) and tzaar (emotional distress) on the agunah by
preventing her from being married. Secondly, R. Warburg cites poskim who permit imposing le-migdar
milta (as a protective measure) a financial penalty upon a party that breaks an engagement. Thus, argues R.
Warburg, the recalcitrant husband should also be punished le-migdar milta. Thirdly, R. Warburg cites some
poskim who argue that the mitzvah of populating the world incumbent upon ladies, and accordingly R.
Warburg proposes that a recalcitrant husband be prosecuted with the financial penalty imposed upon one
who prevents a fellow Jew from performing a mitzvah. Fourthly, as a paramount meta-argument, R.
Warburg cautions that failure to deliberate upon the merits of this nezikin claim may undermine a
communitys trust and confidence in rabbinic authority in general and rabbinic courts in particular. Fifthly,
in an addendum to his article, R. Warburg establishes three additional avenues to empower a Beth Din to
adjudicate nezikin claims even in the absence of le-migdar milta: pesharah (compromise, which allows a
Beth Din to impose a creative solution at odds with the letter of the law), shetar borerut (an arbitration
agreement which specifically authorizes a Beth Din to address nezikin) and the minhag of batei din to
appease the battered victim.
In response to R. Warburgs five arguments, it seems to this student (ke-talmid ha-yoshev bakarka
ve-dan lifnei Rabbo) as follows: Regarding the first argument, it is true that the gemara in Bava Kamma
111a establishes that a lady would prefer to be married than to be single. However, in a situation of feuding
spouses, the recalcitrant husband can simply claim that it is the estranged wifes fault for the dissolution of
marital harmony, and thus the onus devolves upon the estranged wife to change her comportment and
thereby restore marital harmony. Thus, the recalcitrant husband cannot be charged a penny; there is no
proof he did anything wrong, and the burden of proof rests on the plaintiff (as per the gemara in Bava
Kamma 46b). [Interestingly, R. Joseph Ber Soloveitchik in his lecture cited supra, note 7 actually
interprets the same gemara in Bava Kamma 111a as a basis to say that we are unable to free agunot.]
Similarly, regarding the second argument, it is true that there is a le-migdar milta basis to punish one who
breaks an engagement, since by breaking an engagement the miscreant is preventing a marriage from
occurring. But in the case of the recalcitrant husband, he can simply claim that it is the estranged wifes
fault for the dissolution of marital harmony, and thus the onus devolves upon the estranged wife to change
her comportment and thereby restore marital harmony. Again, the recalcitrant husband cannot be charged a

55

(i) Safek le-chumra #1: Perhaps the Get Laws coerce over the get itself (as would
emerge from the analyses of Yaskil Avdi, Minchat Yitzchak and Shevet ha-Levi), in which
case the get is certainly disqualified.
(ii) Safek le-chumra #2: Even if the Get Laws coerce over a matter extraneous to
the get, the Tashbetz entertains a safek that perhaps resulting coercion will disqualify the
resulting get, and moreover the Chazon Ish definitely disqualifies such a get.
Although, as mentioned, R. Breitowitz himself correctly casts aspersions upon the
extraneous-coercion thesis, he proceeds (pp. 228-229) to suggest a possible proof for the
(refuted) thesis from the final paragraph of Iggerot Mosheh, Even ha-Ezer IV, no. 106.
penny; there is no proof he did anything wrong. Indeed, specifically in the context of this second argument,
R. Warburg states as follows in a footnote (viz. footnote 30 of his article): Implicit in one contemporary
approach to this question is that migdar milta is inapplicable to the agunah question. See R. Uriel Levi,
The Arrangement of a Get after a Husbands Monetary Compensation Award to his Wife, [in Hebrew],
Tehumin 26 (2006), 160, 164. In other words, R. Levi rejects R. Warburgs second argument. Regarding
the third argument: (a) As R. Warburg himself implicitly notes, not all poskim obligate a lady in the
obligation of populating the world; and (b) more significantly, the recalcitrant husband can simply claim
that it is the estranged wifes fault for the dissolution of marital harmony, and thus the onus devolves upon
the estranged wife to change her comportment and thereby restore marital harmony. Again, the recalcitrant
husband cannot be charged a penny; there is no proof he did anything wrong. Regarding R. Warburgs
fourth argument, while it may be true that a communitys trust and confidence in rabbinic authority could
be undermined when ladies remain agunot, R. Moshe Feinstein explains in Iggerot Mosheh, Orach Chaim
IV, no. 49 that we are powerless to change the laws of the Torah even if we perceive the laws of the Torah
to treat ladies differently than gentlemen. This is because the laws of the Torah flow directly from the Holy
One, blessed be He, and thus cannot be amended even if 100% of humanity feels otherwise. Regarding the
fifth argument, it seems to this student that even pesharah, shetar borerut and minhag have their limits.
Once one accepts this students responses to the previous four arguments (viz. that the recalcitrant husband
can legitimately plead before Beth Din that he has done nothing wrong), there is no basis to punish the
husband even under the guise of pesharah, shetar borerut and/or minhag.
In fairness to R. Warburg, he does cite a Jerusalem Supreme Rabbinical Court ruling (March 11,
2008) where R. Tzion Algarbali validates a nezikin claim related to a husbands conduct during marriage
(-see footnote 36 of R. Warburgs article and accompanying text), but R. Warburg does not inform us what
precisely was the husbands conduct which merited the nezikin claim. Without this crucial information, it is
impossible to discern the precedent for which an estranged wife might bring a nezikin claim against a
recalcitrant husband. Despite a subsequent and illuminating debate between R. Nachum Spirn and R.
Warburg over this issue (Tradition 46:2, Summer 2013), the crucial information (viz. what was the
husbands conduct in the case adjudicated by R. Algarbali) is still not disclosed.
In point of fact, on Nov. 28, 2013, R. Warburg (to whom this student is gratefully indebted) kindly
sent this student a copy of R. Algarbalis ruling. The relevant section of R. Algarbalis ruling reads:

.
, .
" - " ,
,
. , ." '

.
Now, the precedents that R. Algarbali cites (viz. Rav Pe'alim and Yissa Berakhah) do not refer to
cases of recalcitrant husbands (as R. Algarbali himself concedes). Apparently, R. Algarbali has no real need
to find appropriate precedents that address recalcitrant husbands, since the overall message of R. Algarbali's
ruling (affirmed by the following two judges) is to negate the possibility of divorce in the particular case

56

There, R. Feinstein is asked by South African Jewry if there is a halakhic problem with a
secular government law which requires a husband to support his wife as long as he has
not granted her a Jewish divorce. R. Feinstein responds that it is pashut straightforward
and obvious that there is no problem with such a law. After all, until the husband grants
his wife a get, he is obligated to furnish her with mezonot according to Torah law.
Thus far, the responsum is unexceptionable and simply reflects the decision the
Iggerot Mosheh already rendered in Even ha-Ezer I, no. 137 (viz. that on the slight and
improbable chance that a secular court will charge the husband more money than a Beth
Din, the difference in price would be so negligible as to not constitute financial coercion),
as discussed above in section G. Appropriately so, this is all termed pashut by the Iggerot
Moshe in his responsum to South African Jewry.
However, R. Feinstein presently introduces one further point. He adds that even if
the wife earns her own money, and the secular court compels the husband to grant his
wife mezonot, any resulting get will be kosher le-katchilah. This, too, is included under
the rubric of R. Feinsteins description of pashut.
R. Breitowitz cogently observes that this seemingly novel point is in need of
explanation. After all, if a wife earns her own money, doesnt Halakhah exempt the
husband from granting her mezonot? Why, then, is it so pashut to R. Feinstein that a
secular court can charge the husband with mezonot for which he is not halakhically
responsible, and yet the resulting get will not be regarded as coerced?
Perhaps this proves, continues R. Breitowitz, the extraneous-factor thesis.
Namely, the reason the get is kosher is because the secular court is not coercing the
husband over the lack of a get, but rather over the economic hardships the wife faces due
to her inability to remarry. And, as such, the argument goes, even significant sums of
money which have no basis in Halakhah can be demanded through the secular courts
without endangering the validity of the get. R. Breitowitz concludes, however, that this is
only one of several possible interpretations of R. Feinsteins teshuvah, and so one cannot
be certain that this is the meaning of his responsum.
Indeed, this student would strengthen R. Breitowitz questioning of the Iggerot
Mosheh as a support for the extraneous-factor thesis. R. Feinstein does not seem to say in
the last paragraph that he is introducing the chiddush that even monies to which a wife is
not halakhically entitled are acceptable forms of coercion in gittin. [Quite the contrary, R.
Feinstein explicitly declares earlier in the same responsum that financial coercion of a
husband disqualifies a get.] In this latest paragraph, he is only discussing pashut cases of
where the wife is entitled to money according to Halakhah. How, then, does one explain
under adjudication. Thus, the above quoted paragraph represents a obiter dictum, and R. Algarbali should
be consulted to amplify upon what he wrote. Viz., what are the actual cases when he will actually allow
imposing a nezikin claim on the husband, and what halakhic proof for this does he possess. Until such
elaboration is provided by R. Algarbali, it seems to this student that nothing can be demonstrated from the
obiter dictum of R. Algarbali.
In any event, all of the foregoing is academic, because even R. Warburg is only willing to
contemplate the validity of a get that follows in the aftermath of financial punishment imposed upon the
husband when the husband was coerced by a Beth Din. By contradistinction, when a husband was coerced
by the secular government, R. Warburg acknowledges that the get may be disqualified. [R. Warburg adds in
footnote 51 of his article that this matter is beyond the scope of our presentation.] Accordingly, it
harmoniously follows that the Get Laws directed as they are by secular government will indeed
disqualify any resulting get.

57

R. Feinsteins additional reference to a wife who earns her own money? How is she
entitled to money according to Halakhah? Although there is no simple answer, several
possibilities suggest themselves:
(a) Perhaps R. Feinstein refers to a case where the lady is earning only a small
amount of money (-inadequate for self-sufficiency), such that there is still, in large part, a
halakhic obligation for the husband to furnish his wife with mezonot. Although the
secular court will charge a full measure of mezonot, the difference between that and what
she genuinely deserves according to Halakhah is sufficiently small to be regarded as
insignificant.
(b) Perhaps R. Feinstein refers to a case where a lady is earning a substantial
amount of money, but still inadequate for self-sufficiency. Under such circumstances, the
Rema to Even Ha-Ezer 69:4 and the Chelkat Mechokek to Even ha-Ezer no. 69 (seif
katan no. 7) and no. 70 (seif katan no. 33) rule [based on the Ran] that the husband can
unilaterally ask the wife to deduct her income from the amount of mezonot he owes her,
whereas the Beit Shmuel to Even ha-Ezer no. 69 (seif katan no. 4) and no. 70 (seif
katan no. 30) rules [like Rashi and the Rambam] that the husband cannot make such a
request. As such, R. Feinstein would be accepting the position of the Beit Shmuel, at least
insofar as not adversely the resultant get is concerned.
(c) Perhaps R. Feinstein refers to a case where a lady heroically performs more
labor than would be expected [haadafah al yedei ha-dechak], wherein she works at night
or performs two or three jobs together. Under such circumstances, R. Bleich outlines [on
p. 40 of his Be-Netivot ha-Halakhah I, footnote no. 12] a dispute among the poskim
whether the husband is obligated to provide mezonot to his wife. R. Feinstein may very
well have ruled like the poskim who respond in the affirmative. [Indeed, this is R.
Bleichs explanation for the responsum of R. Feinstein.]
Indeed, R. Joseph Shalom Eliashiv, in a letter dated 18 Sivan 5753 (published on
pp. 535-536 of Yeshurun [Nissan 5761]), explicitly rejects the extraneous-support thesis
as being without merit. He specifically raises the subject of R. Feinsteins final paragraph
of Iggerot Mosheh, Even ha-Ezer IV, no. 106, and dismisses it as being any sort of proof
(although he does not precisely explain how he elucidates R. Feinsteins reference to the
lady who earns her own money). Accordingly, R. Eliashiv rules that a get granted due to
the New York Get Law is definitely disqualified.
Another responsum by R. Eliashiv (Kovetz Teshuvot I, no. 180) has a note
appended to it by R. Eliashivs disciple R. David Aryeh Morgenstern which reports that
R. Morgenstern similarly asked R. Eliashiv whether Iggerot Mosheh, Even ha-Ezer IV,
no. 106 could serve to justify a get granted under the New York Get Law. R. Eliashiv is
quoted as answering:
There is no relevance between the responsum of Iggerot Mosheh and the
case of the new law in the United States. And it is explicit in the words of
Iggerot Mosheh, and this is his language: Behold until she will be
divorced from her husband, he is obligated in her mezonot and all her
needs by [Jewish] law, such that Iggerot Mosheh was not dealing with any
case except where the lady is entitled to mezonot according to [Jewish]
law, yet according to the new [New York Get] law the judge can obligate
the husband [to pay] even in a case when she is not entitled to mezonot.

58

And also the division of the property of the couple (equitable

distribution) is not included under the rubric of mezonot, even if it is done
[by New York law] in order to guarantee the sustenance of the wife for the
future, and if so even according to Iggerot Mosheh there is no place to rely
[leniently] upon this [New York Get] law.
R. Morgenstern concludes that he is publishing this response of R. Eliashiv with
the latters authorization. Accordingly, it is clear that R. Eliashiv rejects the extraneousfactor thesis.
Thus, in sum total, the extraneous-factor thesis is highly questionable. That is
sufficient to activate the principle of kim li which shields the husband from paying his
wife for the extraneous-factor thesis [-just as kim li was invoked in the previous section to
shield the husband from paying for minhag ha-socharim.] Ultimately, then, it seems to
this student that no safek le-kula can be said to exist on account of the extraneous-factor
thesis to validate a get granted under the Get Laws.
K. RABBI FEINSTEINS SEVARA GEDOLAH
Another justification for gittin written under the Get Laws that is identified by R.
Broyde is the sevara gedolah offered by R. Feinstein in Iggerot Mosheh, Even ha-Ezer
III, no. 44. There, R. Feinstein partially justifies the validity of a get that has been coerced
(in certain situations as will be presently explained) even when the husband has not
received any judgment of chayav le-garesh or kofin le-garesh. As a note of introduction,
it is worthwhile to emphasize that R. Feinstein only partially justifies such a get with
his sevara gedolah. The sevara gedolah on its own does not render a coerced get kosher,
declares R. Feinstein. Rather, he continues, the sevara gedolah is fit to be combined with
another mitigating consideration in order to be lenient. Evidently, what R. Feinstein
means is that his sevara gedolah creates a safek toward the side of leniency.
And what precisely is the sevara gedolah? R. Feinstein points to Tosafot on Bava
Batra 48b, s.v. kadish, who ask why a coerced get is not deemed kosher under the rubric
of talyuhu ve-zavin zevineih zevinei [-a coerced sale is valid when the seller receives
commensurate tangible benefits (besides for avoidance of the coercion) in exchange for
that which he was coerced to sell.] After all, a husband must spend money on supporting
his wife. By divorcing her, he receives the relief of being exempted from these payments.
Shouldnt, then, a coerced get always be regarded as kosher? Tosafot answer that every
husband is happy to spend money on his wife and indeed wants to continue doing so with
pleasure. Thus, a husband gains nothing when he is compelled to divorce his wife. But,
argues R. Feinstein, if a husband genuinely does not want to be married any longer to his
wife or if he knows that there is no possible way that she will stay with him as a wife
and therefore he truly wants to divorce her - and he is only refraining from granting her a
get in order to use it as a bargaining chip, then the husband does benefit when he is
compelled to divorce his wife, apropos the initial question of Tosafot. After all, the
minhag to observe Cherem de-Rabbeinu Gershom prevents him from remarrying until he
divorces his first wife. Therefore, we have a sevara gedolah to invoke talyuhu ve-zavin
zevineih zevinei in order to conclude that the get is kosher.

59

There are two different instances where R. Feinstein prescribes this sevara
gedolah, each of which must be examined independently. One is where the husband
genuinely no longer desires to be married to his wife, whereupon he is coerced into
divorcing her [a.k.a. sevara gedolah type-1]. The other is where the husband knows that
there is no way for his wife to stay with him, and therefore he wishes to divorce her,
whereupon he is coerced into divorcing her [a.k.a. sevara gedolah type-2].
As R. Chaim Malinowitz observes (on p. 24 of Tradition 31:3), the application of
sevara gedolah type-1 is fraught with difficulty with the existence of the New York Get
Law. The particular fact pattern that R. Feinstein was originally addressing involved a
husband who openly declared that he desired to divorce his wife but was only using the
get as a bargaining chip in order to make certain requests about the childrens education,
whereupon financial coercion was employed to curtail the husbands ability to do so.
Since (based on the details of the case) R. Feinstein adjudicated this husband as being
someone who was speaking sincerely all along, there was every reason to believe that the
husband honestly desired to divorce his wife. But, as R. Malinowitz asks, now that a Get
Law exists, how, then, in any divorce case, would such a fact ever be determined, and by
whom? The answer is obviously that no Beth Din can ever make such a determination
now. Since it is commonly known that a husband who declines to divorce his wife can
automatically lose money thanks to the New York Get Law, no husband ever genuinely
has a desire to divorce his wife that precedes the threat. And thus there does not even
appear to be a safek to justify a New York get on the basis of sevara gedolah type-1.
In the context of Canada, where a judge merely enjoys the option (but not the
obligation) to seize money from a husband who declines to grant a get, there is more
room to admit the application of sevara gedolah type-1. But even in Canada, sevara
gedolah type-1 can only be invoked when the husband openly declares that he desires to
divorce his wife even before a judge starts to threaten him. And even then, it is only a
safek le-kula. Moreover, if as described in the previous section Canada becomes
New York-anized, then sevara gedolah type-1 cannot ever be invoked in Canada.
Sevara gedolah type-2 concerns the scenario where the husband knows that his
wife absolutely will not stay with him under any circumstances (even though he wishes it
were otherwise), and therefore he desires to divorce her. This scenario can indeed apply
even with the existence of a Get Law, because it is concerned with the disenchantment of
the wife. The question is: just how disenchanted must the wife be in order for the husband
to be epistemologically certain that she will never, ever return to him? Is it not possible
that just as the wife once married the husband and subsequently changed her mind to
begin requesting a divorce, so too she will change her mind again in the future and agree
to return to shelom bayit with her husband? This matter is not clearly defined by R.
Feinstein.
However, one can infer from the circumstances that R. Feinstein was describing
the kind of situation where the circumstances are drastic enough that the sevara gedolah
type-2 applies. R. Feinstein begins the responsum by explaining that the husband was
repeatedly striking his wife with cruelty. It is highly intuitive that no human being with a
sense of self-preservation will agree to remain in a relationship where she is being
continually physically harmed. Thus, under such circumstances, where the lady was
fleeing danger, R. Feinstein could say with confidence that there is no way the wife

60

would stay with the husband any longer.63 But in a less drastic set of circumstances, it is
not clear whether R. Feinstein would apply the sevara gedolah type-2.
At least two other poskim have independently articulated R. Feinsteins sevara
gedolah type-2, and they have already been cited in this essay: R. Ovadiah Yosef in his
Shut Yabia Omer III, Even ha-Ezer no. 20 (subsection no. 32), and R. Isaac Herzog in
his Shut Heikhal Yitzchak, Even ha-Ezer I, no. 2 (subsection no. 13). They both posit as
a safek that is fit to be joined with other considerations that, in our society, where
monogamy is the norm, we might be doing the husband a favor by coercing him to
divorce a wife whom he knows will not stay with him, since he now will have the ability
to remarry. Thus one can invoke talyhuhu ve-zavin zevineih zevinei.
There is a subtle difference between the words of R. Yosef and R. Herzog. R.
Yosef recognizes that the custom to observe Cherem de-Rabbeinu Gershom might not
apply when the wife is a moredet. Nevertheless, he still accepts the sevara gedolah type-2
(which is entirely predicated upon the custom of Cherem de-Rabbeinu Gershom) because
marrying a second wife in addition to a moredet is impossible in our society, either
63

Parenthetically, it is appropriate to note at this juncture that there is a dispute amongst the poskim as to
the practical approach that a Beth Din should adopt toward a husband who physically abuses his wife, as is
recorded in the Rema in Shulchan Arukh Even ha-Ezer 154:3, as follows: A husband who strikes his wife
is commiting a transgression, like someone who strikes his fellow [which is biblically proscribed], and if he
is in the habit of doing so, the Beth Din should punish him and lash him with all sorts of assault and
coercion and to adjure him that he will not do this anymore. And if he does not listen to the Beth Din, some
say that we coerce him to divorce [his wife], provided that we initially warn him once or twice, for it is not
the way of the Children of Israel to strike their wives
It must of course be emphasized, as the Rema indeed emphasizes, that it is monumental lunacy for
any husband to strike his wife (or any human being for that matter), because he would be transgressing a
most severe commandment of the Torah. Not only must a husband assiduously avoid causing even the
slightest of harm to his wife, but a husband is obligated to honour his wife even more than he honours
himself, as per the gemara in Yevamot 62b and Chullin 84b. However, in the hypothetical case of a
husband who is found guilty of striking his wife, it is not clear that the Beth Din possesses the practical
halakhic authority to coerce him to divorce his wife, owing to the dispute that is reported by the Rema.
Indeed, delivering a pesak halakhah on the matter, the Arukh ha-Shulchan, Even ha-Ezer no. 154, seif
katan 18 shies away from actually countenancing coercion. [On the other hand, it should be noted that the
Arukh ha-Shulchan was written as the Arukh Ha-Shulchan himself emphasizes in the same paragraph
for a Jewish community which operates under Czarist Russia wherein the Beth Din possesses no
autonomous powers whatsoever. This is because the Arukh ha-Shulchan was written under the watch of a
government censor. Thus, it is not clear that the Arukh Ha-Shulchans words are dispositive in this matter.]
In any event, although the Beth Din may be powerless to coerce the husband to divorce his wife, the Beth
Din does possess the halakhic authority to apply corporal punishment on the husband in order to convince
him to stop striking his wife, as the Rema unequivocally rules. See also R. A. Yehuda Warburg,
Harnessing the Authority of Beit Din to Deal with Cases of Domestic Abuse, Tradition 45:1 (Spring
2012).
In conclusion, then, what can enunciated with certainty is that although it is not clear that a Beth
Din would possess the practical halakhic authority to coerce an abusive husband to divorce his wife the
wife herself is obviously entitled to flee for her own life and never return to her husband, in which case it is
understandable why R. Moshe Feinstein feels that sevara gedolah type-2 becomes cogent. [Of course, as
was established in section F above, the accepted halakhah is that a wife can always move out from her
husbands home by claiming maeese alai, even in the absence of any abuse. But the point to be
appreciated here is that when a wife abandons her husband because the husband has been repeatedly
striking her with cruelty, there is strong reason to suspect that the wife will never agree to return, thus
triggering the possibility of R. Feinsteins sevara gedolah type-2.]

61

because of dina de-malkhuta dina64 or because such a matter has never been heard. By
contradistinction, R. Herzog simply postulates (without substantiation) that Cherem deRabbeinu Gershom applies in the context of a moredet who requests a get. Either way,
both of these authorities believe, like R. Feinstein, that the sevara gedolah type-2 creates
a safek in the case of a coerced get. But also like R. Feinstein, neither of them explain
how disenchanted a lady must be in order to even be able to appeal to the safek of sevara
gedolah type 2. Therefore, let us reflect on the particulars of each of the cases those two
poskim were addressing.
In the case R. Yosef adjudicated, the Yemenite lady involved was drastically
disenchanted. She never wanted to marry her husband, but was rather coerced into it by
her husband and brother through threats of physical harm. Moreover, once she got
married, she only lived with her husband once, and then had to flee due to repeated
battery from her husband (or at least so she claims). And she has been since separated
from him for the past nine years. It is reasonable to assume that, under such macabre
circumstances, there is no way a wife will agree to return to her husband, and therefore
the sevara gedolah type-2 can be said to create a safek le-kula of tal'yuhu ve-zavin
zevineih zevinei. But, in the real life of the New York and Canadian scenes, such
extraordinary circumstances seldom if ever arise. It is therefore not clear whether R.
Yosef would ever apply such a safek le-kula in practice.
In the case R. Herzog adjudicated, he writes in the introduction that the Beth Din
has concluded that there is no hope that the wife will ever return to the husband (though
he does not explain how the Beth Din arrived at this conclusion). He also writes in the
introduction, again without explaining himself, that hechlitu al ha-gerushin they
[presumably both the husband and wife] have decided on divorce. R. Herzog further
writes in the introduction that he conducted a factual interview of the people involved and
has received the impression that the wife has sibot nafshiot ha-gormot le-meiunah lashevet ito reasons of the soul (?) causing her refusal to dwell with him.
Perhaps, then, R. Herzogs sevara gedolah indeed applies in common situations in
New York and Canada. But even if so, from R. Herzogs description, it seems that only a
Beth Din is capable of making the determination that there is no way a wife will return to
her husband. And, then again, perhaps R. Herzog was only dealing with a case where the
husband has already openly declared his interest in an ultimate divorce. After all, he does
say hechlitu al ha-geirushin, which implies verbal input from the husband. If so, then this
is not an instance of sevara gedolah type-2, but rather sevara gedolah type-1. And, as
before, sevara gedolah type-1 definitely cannot be invoked in the context of the New
York Get Law (and as for Canada, it is questionable whether it can be invoked).
Moreover, it must be noted that R. Joseph Shalom Eliashiv, in his letter dated 1
Cheshvan 5759 (published on pp. 534-535 of Yeshurun [Nissan 5761], paragraph that
begins with the words ve-hineh be-khamah) openly dismisses R. Feinsteins sevara
64

R. Yosef can only be referring to the society contained within the political boundaries of the modern state
of Israel. In any other society, the husband of a moredet could halakhically marry a second wife without a
simultaneous civil marriage. Accordingly, it should be noted that R. Yosefs assumption that the regulations
of the modern state of Israel are binding by force of dina de-malkhuta dina is subject to dispute. According
to some authorities, dina de-malkhuta dina only applies to the statutes of a Noachide government and not a
Jewish government. [The tangential details to this effect are beyond the scope of this essay. See sources
cited on p. 22 of Mishnat Zekhuyot ha-Yotzer (ed. R. Menasheh Weisfish, Jerusalem, 5762).] It is perhaps
for this reason that R. Yosef adds the second reason that such a matter has never been heard.

62

gedolah type-2 in a case of a moredet, because in such an instance the husband has no
financial responsibilities toward his wife, and is therefore not gaining any financial
savings by being coerced into divorcing his wife.65
Two further points to the effect of neutralizing the sevara gedolah may be
rendered. Firstly, the Vilna Gaon is cited by R. Ovadiah Yosef in his Shut Yabia Omer
IX, Orach Chaim no. 85 (sub-section no. 21) to the effect that the contemporary custom
to observe monogamy is unnecessary.66 It would seemingly emerge, then, from the Vilna
Gaons words, that there is no sevara gedolah to claim that we are doing an ostensibly
recalcitrant husband a favour by forcing him to divorce his wife [in the sense that he can
now marry another wife], because he could have anyway married a second wife without
65

This letter is reprinted in R. Eliashivs Kovetz Teshuvot II, no. 107.

66

As explained by R. Ovadiah Yosef (in an earlier and parallel responsum) Shut Yabia Omer VII, Even
ha-Ezer no. 2, the Vilna Gaons remarks can be understood in light of the approach to polygamy codified
by Shulchan Arukh Even ha-Ezer 1:9-10. The Torah does not prohibit polygamy for any Jew (other than the
High Priest according to Rambam, Hilkhot Klei ha-Mikdash 5:10). The Sages of the Talmud did not
rabbinically outlaw polygamy either, though they did recommend limiting oneself to four spouses so as to
be able to properly care for each wife. Rabbeinu Gershom issued a ban on polygamy which was accepted
by Ashkenazic Jewry but which expired in the Jewish year 5000. Thenceforth, maintenance of monogamy
has become a matter of universal custom. [According to some authorities, where the custom exists to
observe monogamy in the post-5000 era, the original cherem of Rabbeinu Gershom rests in place. Other
authorities dispute this contention and submit that the custom is devoid of any cherem. See Otzar haPoskim to Even Ha-Ezer 1:10 (sec. 76) for a complete synopsis.] The Vilna Gaon believed that the practice
to eschew polygamy in the post-5000 era is unnecessary, and accordingly he sought to annul the custom.
Now, the Beth Din of America, in its Standards and Guidelines with Respect to Get Proceedings
[published (as of the date of the composition of the present essay) at <http://www.bethdin.org/docs/PDF9Get_standards_and_proceedings.pdf>], attempts to grapple with this problem. The guidelines state (in
paragrapha 11, 12 and 13) as follows:
11. The Beth Din of America agrees that Heter Meah Rabbanim should be used only in extreme
cases, such as severe and irreversible mental illness.
12. The Beth Din of America will not perform a Heter Meah Rabbanim without a hashlashas
haGet a Get provided for the woman and held in escrow by the Beth Din to be delivered to the woman as
soon as she is prepared to accept it. The Beth Din of America will not perform a Heter Meah Rabbanim
when the woman is prepared to accept a Get.
13. The Beth Din of America believes strongly in the continuing force today of Cherem
DeRabbeinu Gershom which prohibits polygamy. The Beth Din will not permit a man to marry or to date
other women until he has delivered a Get to his wife.
Nevertheless, with all due respect to the Beth Din of America, it appears to this student that the
Vilna Gaon does not share the conviction of the above pronouncement. Cf. Otzar ha-Poskim to Even haEzer 1:10, sec. 61, subsec. 16, which cites authorities who proclaim that it is a great mitzvah for every
rabbinic decisor to sign a Heter Meah Rabbanim to allow a husband facing a difficult situation to marry a
second wife. That position appears to be somewhere in between the two poles of Beth Din of America vs.
Vilna Gaon, because on the one hand it recognizes the binding nature of the obligation of monogamy (like
the Beth Din of America), but on the other hand it appears rather eager to grant permission for bigamy via a
Heter Meah Rabbanim (somewhat approaching the style of Vilna Gaon).
See, also, R. Chaim Jachter, Hatzagat Sheelot la-Ishah im Hi Mekabelet Get me-Retzonah, Beit
Yitzchak Vol. 39 (5767), pp. 560-566, who forbids being excessively stringent regarding Rabbeinu
Gershoms enactment not to divorce a lady against her will. R. Jachter characterizes such excessive
stringency as violating the prohibition against ziyuf ha-Torah (falsification of the Torah). Mutatis mutandis,
the same should be true to forbid us from being excessively stringent about Rabbeinu Gershoms enactment
of monogamy.The matter requires further analysis. [See also infra, notes 68-69.]

63

divorcing the first. And although R. Feinstein as well as R. Herzog clearly disagree with
the Vilna Gaon [and R. Yosef possibly disagrees with the Vilna Gaon],67 the Vilna
Gaons opinion may generate an additional snif le-hachamir in the context of any
attempted justification of coerced gittin by means of the sevara gedolah. [Alternatively,
perhaps the opinion of Vilna Gaon may itself be a reason that R. Feinstein forbade
relying on the sevara gedolah alone in the first place.] Indeed, Vilna Gaon appears (at
least to a limited extent) to be supported by Teshuvot Rabbi Akiva Eger II, no. 82, who
describes a situation where the husband of a moredet is allowed to take a second wife
without divorcing his moredet wife.68a

67

On the one hand, R. Yosef employs the sevara gedolah in Shut Yabia Omer III, Even Ha-Ezer no. 20
(subsection no. 32). On the other hand, R. Yosef endorses the Vilna Gaons position in his subsequent
responsa in Yabia Omer VII, Even ha-Ezer no. 2 and Yabia Omer IX, Orach Chaim no. 85 (sub-section
no. 21), which as noted is antithetical to the sevara gedolah. Perhaps R. Yosef changed his opinion
during the intervening years between the authorship of those two responsa. Alternatively, perhaps the
resolution lies in a distinction between le-katchilah vs. be-dieved situations. Where le-katchilah the
husband orchestrated the dilemma in the first place (such as by coercing the lady to marry him), then the
sevara gedolah applies. On the other hand, where the dilemma is orchestrated by the wife who consented to
the kiddushin in the first place but subsequently became a moredet (such that it is a be-dieved situation for
the husband), perhaps there is no requirement of monogamy and hence no sevara gedolah.
Notwithstanding the above, R. Yosefs position becomes more difficult to decipher in light of what
he writes elsewhere, viz. Yabia Omer VIII, Even ha-Ezer no. 2. In this responsum, R. Ovadiah Yosef also
cites the Vilna Gaon, but here while applauding the Vilna Gaon [as he previously does in Yabia Omer
VII] R. Yosef claims that Vilna Gaons position has only been accepted for Sefardim, not Ashkenazim [and this despite the obvious fact that Vilna Gaon lived in an Ashkenazic community]. Furthermore, R.
Yosef adds that we should not allow even a Sefardic husband of a moredet to take a second wife until he
deposits a get in escrow with a Beth Din [so that whenever the moredet wishes, she can retrieve the get
from the Beth Din and thereby be divorced]. R. Yosefs responsum (in Yabia Omer VIII) is puzzling since
he not only contradicts what he earlier wrote in Yabia Omer VII (viz. that the halakhah follows the Vilna
Gaon for both Sefardim and Ashkenazim), but he even ackowledges (now in Yabia Omer VIII) that in
previous generations it was indeed the accepted practice of batei din to allow the husband of a moredet to
take a second wife without placing a get in escrow. The only reason to suddenly deny a husband this
privilege in our era, claims Yabia Omer, is that we are living in a secularized world, and there is a fear that
the moredet wife will transgress. [It is difficult for this student to understand (a) why we should suspect a
lady of committing future transgressions, and (b) even if such suspicion were to exist, why that should be
calculated in the halakhic process to the husbands disadvantage. On the contrary, based on the logic of
Yabia Omer VII, the wife should (a) not be suspected of any future transgression and (b) be told that when
she repents from her rebellion against her husband, she can return in harmony to her husband and the cospouse, the marriage of the husband to two co-spouses being sanctified by Vilna Gaons ruling.]
Mysteriously, R. Yosef concludes by referring readers to his responsum in Yabia Omer VII. Continuing
along the lines of this mystery, the very last responsum that R. Yosef wrote on this topic (viz. Yabia Omer
IX) is one which cites his two contradictory earlier responsa of Yabia Omer VII and Yabia Omer VIII. In
any event, the simple meaning of the final responsum on this topioc (viz. Yabia Omer IX) appears to be an
endorsement of Vilna Gaon. The matter requires further analysis.
It is also noteworthy that R. Isaac Liebes, Shut Beit Avi II, no. 120, cites the position of the Vilna
Gaon, stating that these words shatter the roof (i.e. are significant in the halakhic process.) R. Liebes
continues, however, that he is not sure whether the verdict attributed to Vilna Gaon was actually stated by
Vilna Gaon, and therefore should not be publicized among the ignorant. Nevertheless, Yabia Omer VII (p.
309, right-hand column, two lines from top), after citing R. Liebes, comments in my opinion, one can say
see how great a scholar it is who testifies to the matter (i.e. the report attributed to Vilna Gaon is indeed
accurate).

64

This caveat is especially significant when the recalcitrant husband does not yet
possess a son and a daughter (such that he has not discharged his obligation of piryah
ve-rivyah yet), since R. Ovadiah Yosef, Shut Yabia Omer VII, Even ha-Ezer no. 2 cites
poskim who explain that even Rabbeinu Gershom himself never forbade a person from
taking a second wife in that predicament.68 Indeed, the sevara gedolah of R. Feinstein
(Iggerot Mosheh, Even ha-Ezer III, no. 44) was only originally stated in the context of a
husband who already had several children. Thus, there is no evidence that R. Feinstein
would ever apply his own sevara gedolah in the case of a husband who has not yet sired a
son and daughter. Machatzit ha-Shekel (Orach Chaim 453, seif katan 8) writes that if a
poseks responsum is lenient based on a combination of considerations, one may not be
lenient in any future case unless all of the considerations are duplicated. [This principle of
Machatzit ha-Shekel is cited approvingly by R. Moshe Sklars, Chayei Mosheh al
Shulchan Arukh Yoreh Deah I (Bnei Berak, 5755), p. 219.]69
Secondly, it would appear to this student that with the greatest of trepidation and
reverence for Moreinu ve-Rabbeinu ha-Gaon R. Moshe Feinstein there is an entirely
novel possible reason to question the validity of sevara gedolah type-2. This novel
consideration arises from the gemara in Kiddushin 50a. There, the gemara asks why
there are two separate mishnayot in the Talmud which offer what is ostensibly the same
teaching. Namely, the mishnah in Kiddushin 50a declares that if a gentleman dispatches
an agent for purposes of kiddushin with the added stipulation that the kiddushin be
performed in a specific location, any attempt by the agent to offer kiddushin in an
alternate location will be disqualified. And the mishnah in Gittin 65a declares that if a
gentleman dispatches an agent for purposes of gittin with the added stipulation that the
get be delivered to his wife in a specific location, any attempt by the agent to offer the get
in an alternate location will be disqualified. Asks the gemara: For what purpose did the
Mishnah duplicate the same lesson?
68a

R. Akiva Eger bases himself on Shut Maharashdam, Even ha-Ezer no. 120. The same responsum of
Maharashdam is cited approvingly by R. Joseph Shalom Eliashiv, Kovetz Teshuvot II, no. 116. [Cf. the
posthumously published Kovetz Teshuvot IV, no. 178, where R. Eliashiv approvingly cites both the
responsum of Maharashdam as well as that of R. Akiva Eger.]
68

While R. Yosefs responsum is primarily directed toward Sefardic husbands, he includes Ashkenazic
husbands by way of an obiter dictum, since he writes (Yabia Omer VII, p. 308, left-hand column, fifteen
lines from the bottom) that even for our brethren the Ashkenazim it is not appropriate to be so stringent,
since according to many wholesome [authorities], Rabbeinu Gershom the light of the Diaspora only
decreed [against polygamy] until the end of the fifth millennium, and afterward it is a mere custom. Cf.
supra, note 68.
69

Indeed, taking this logic (based on Machatzit ha-Shekel) a step further, it is noteworthy that R. Feinstein
only articulated his sevara gedolah as an additional factor to permit the wife to remarry in a particular case
where there was already a full and certain reason to validate the get. Thus, we can argue based on
Machatzit ha-Shekel that R. Feinsteins sevara gedolah could only work when we are anyway certain that
a get has been validly delivered. The sevara gedolah could never work on its own to serve as a safek for
purposes of building an original sfek sfeka.
Given this argument, plus R. Eliashivs two responses to the sevara gedolah cited earlier in the
main text, it is not surprising that R. Mordechai Willig (in a lecture on Feb. 19, 2011) calls R. Feinsteins
sevara gedolah a daat yachid perhaps. See
<http://www.yutorah.org/lectures/lecture.cfm/757339/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#13
:_The_New_York_State_Get_Law>, 37:43 into the recording.

65

The gemara answers that one could not have derived gittin from kiddushin, nor
the converse. For if the mishnah only taught the law regarding kiddushin, one would have
thought that the gentleman is only insistent about a specific location vis--vis kiddushin,
because he knows that he may need help to convince the lady to accept his betrothal
proposal, and so he is relying on the local population of a specific location to advocate on
his behalf to the lady. But by gittin, there is obviously no such concern, and so perhaps
the get may be acceptably delivered anywhere, even contrary to the dispatchers initial
request. Conversely, if the mishnah only taught the law regarding gittin, one would have
thought that since it is embarrassing for the dispatcher to be someone who is divorcing
his wife, he is sensitive about the place where the get is delivered. It is only in such-andsuch a place that the husband is willing to be humiliated. But since there is obviously no
embarrassment that accrues to a gentleman when he offers kiddushin, perhaps the
kiddushin will be valid in any location, even contrary to the dispatchers initial request.
And this is why we require both mishnayot.
What emerges from this sugya is that the Talmud recognizes, obiter dictum, an
inherent disgrace that accrues to a husband when he divorces his wife. Accordingly, it
would appear to this student that R. Feinsteins supposition in his sevara gedolah type-2,
viz. that we are doing the husband an exclusive favour by compelling him to divorce his
wife when his wife will never again live with him, is open to question. Although the wife
may never again agree to live with the husband, at least the husband is spared
embarrassment by not divorcing his wife. Compelling the husband to divorce his wife is
foisting upon him a form of humiliation that he would otherwise not face. [Alternatively,
perhaps the gemara in Kiddushin 50a may itself be a reason that R. Feinstein forbade
relying exclusively on the sevara gedolah type-2 in the first place.]
In conclusion, then, although the words of R. Feinstein, R. Yosef and R. Herzog
certainly give rise to a theoretical concept of sevara gedolah type-2 which may create a
safek le-kula in the context of the gittin granted under the Get Laws, its practical
application is nebulously unclear. The practical application of sevara gedolah type-2
requires an instance of severe disenchantment whose halakhic parameters have never
been defined for posterity, and whose parameters would apparently be disputed by the
Vilna Gaon. Moreover, this student has raised a novel reason to question the validity of
the sevara gedolah type-2, based upon the gemara in Kiddushin 50a. Therefore, at best
there is only a safek le-kula, and at worst there is not even a safek le-kula. It may very
well be that only a Beth Din can render the determination that there is even a safek lekula.
[Intriguingly, the precise parameters of R. Feinsteins sevara gedolah might be the
focus of an aggadic dispute in a beraita featured on Eruvin 41b. One tanna declares that
a husband should divorce a wife with whom he cannot get along. The other tanna
disagrees, positing that even in a bad marriage the husbands best interests are not
served by a divorce. His wifes ketubah may be prohibitively expensive, or perhaps he
already has children from her, such that it is better to be lovelessly married rather than
happily divorced.70]
70

Additionally, to argue in the opposite direction, if the recalcitrant husband does not have children, there is
an independent reason to reject the sevara gedolah, as per Yabia Omer cited supra, notes 68 and 69. Viz.
since the husband has not fulfilled the obligation piryah ve-rivyah, he can take a second wife without
divorcing the first.

66

L. CHAZON ISH ON VOLITION IN THE FACE OF COERCION

Quite apart from the sevara gedolah described in the previous section, R. Broyde
correctly points to an assertion of Chazon Ish (Even ha-Ezer 99:2) which recognizes the
possibility of genuine volition on the part of a husband in the face of coercion.71 Chazon
Ish writes that if after a husband has been unlawfully coerced, a new consideration totally
unrelated and coincidental to the previous coercion arises which prompts the husband to
wish to divorce his wife, and the husband announces before he grants the get that he is
divorcing his wife because of this new stimulus and that he is not at all being influenced
by the previous coercion, then the get will be kosher. If the husband says nothing, then
the get will be disqualified, because we must assume that the previous coercion is still
impacting him.
Certainly, R. Broyde is to be praised for calling attention to this highly significant
lesson of Chazon Ish. At the same time, it seems to this student that the words of Chazon
Ish can only be applied once the Get Laws will be neutralized.72
Chazon Ish accepts the possibility of volition in the face of coercion if a new
reason for the husband to divorce his wife appears after the original coercion disappears.
The implication of Chazon Ish is that if the new reason materializes simultaneously with
protracted coercion, then there is no possibility of volition and the get is disqualified. A
hypothetical illustration of the latter scenario would be a husband who enters the Beth
Din chambers accompanied by a threatening armed henchman. The gentleman announces
as follows: Please, dayanim mumchim, pay no attention to the gunman next to me. I
would want to divorce my wife anyway because of x, y and z. Although x, y and z may
constitute highly rational reasons why the husband would wish to divorce his wife, the
fact that he is being presently threatened by the gunman renders volition impossible, and
any get that he attempts to offer will be disqualified. The only solution, would say
Chazon Ish, is for the henchman to (irretrievably) discard his gun, and then the husband
can announce to the Beth Din even though I was originally threatened by a gun, the
threat has since disappeared and I am now disclosing that due to new developments, I
independently and voluntarily wish to divorce my wife on account of considerations x, y
and z.
Whatever coercion is generated by the Get Laws can only disappear with the
neutralization of the legislation itself. Once and only once the legislation is neutralized
will it be possible to invoke Chazon Ish.
[Of course, the Get Law is not a firearm. But the metaphor is apt because sections
B, C, D and E above have established that financial coercion is also sufficient to
disqualify a get.]
M. THE NET RESULT IS COERCED GITTIN

71

Electronic mail correspondence with this student on November 26, 2007.

72

See Section N of this essay for the precise legislative language that could be adopted in both New York
and Canada in order to neutralize the Get Laws.

67

It thus emerges from the above sections of this essay that a massive coercion
presently looms over the gittin of New York and Canada. The two mitigating sfekot lekula that have been discovered are as follows:
(a) Maybe financial coercion is only coercion when the husband is
threatened with the loss of his entire wealth, in accordance with the
unique approach of R. Liebes, as per section D above. As emphasized
there, even R. Liebes is forced to limit his leniency to a case when the
husband has already received a Beth Din verdict of chayav le-garesh.73
Alternatively, even if financial coercion is indeed coercion when the
husband is threatened with the loss of less money than his entire wealth,
maybe the amount of money endangered by the New York and Canada
Get Laws is insignificant [as per section G above]. {And, specifically in
the context of Canada, maybe the husband was not threatened financially
at all (assuming Canada has not been New York-anized yet, which is
itself questionable) [as per section J above].}
(b) Maybe the sevara gedolah of R. Feinstein applies [as per section K
above].
However, as explained in the text, each of these two mitigating sfekot le-kula is
weak, and may very well be completely inoperative. They are potentially factual matters
that must be clarified through a formal assessment of the Beth Din in each and every
case.
A careful analysis of these facts reveals that it is distinctly possible that a certain
number of cases of New York and Canadian gittin at the present time do not even possess
a single safek le-kula to validate them, such that they are completely disqualified
according to Torah law. Certain other cases may only possess a single safek le-kula to
validate them, such that the lady is still forbidden to remarry as a matter of practical
Halakhah.
Moreover, it should be noted that even two sfekot le-kula would not resolve the
problem. The twenty-seventh of the thirty-six principles which govern the application of
a sfek sfeka le-kula (as enumerated by the Shakh in his commentary to Shulchan Arukh
Yoreh Deah no. 110) ordains that a sfek sfeka cannot permit a prohibition which enjoys a
chezkat issur, e.g. a married lady. Citing the pertinent supporting evidence from the later
Acharonim, R. Feivel Cohen rules like this stringency of the Shakh in his Badei haShulchan (ad locum, seif katan no. 145).
[Admittedly, R. Ovadiah Yosef cites sources to the contrary in his Shut Yabia
Omer VI, Even ha-Ezer no. 3 (subsection nos. 9-15). However, there R. Yosef deals with
the case of a lady whose husband has disappeared and is presumed dead. Accordingly, the
chazakah that every lady scrupulously investigates as to whether her husband is truly
dead somewhat neutralizes the chezkat eishet ish and allows the admission of a sfek sfeka
le-kula. But in a case of a husband who is not dead but who rather simply refuses to

73

See supra, note 37.

68

voluntarily divorce his wife, even R. Ovadiah Yosef would agree with the Shakh and the
Badei ha-Shulchan that a sfek sfeka is inadequate.
Similarly, in Shut Yabia Omer IV, Even ha-Ezer no. 5 (sec. 11) and VI, Even
ha-Ezer no. 6 (sec. 7), R. Yosef asserts that he is willing to apply a sfek sfeka in a case
where there are problems with the initial kiddushin. There, the chezkat eishet ish is
contradicted by a chezkat penuyah which the lady possesses. However, R. Yosef would
agree that, once a lady is definitely married, and her husband is definitely alive but
refuses to voluntarily grant her a get, a sfek sfeka cannot be applied to regard the lady as
being divorced.]
Still, these objections require further analysis because there is no denying that R.
Feinstein allowed synthesis of his sevara gedolah with another consideration for the sake
of being lenient. Seemingly, then, R. Feinstein supported a sfek sfeka approach and was
apparently unconcerned by these objections. However, as noted in section K, it is not
even clear that R. Feinstein would apply his sevara gedolah to the contemporary
circumstances surrounding the Get Laws. [As well, perhaps R. Feinstein only supported
combining his sevara gedolah with considerations that obey all the principles of sfek
sfekot. For instance, perhaps R. Feinstein would only countenance combining his sevara
gedolah with a safek regarding the very validity of the original kiddushin, or if the
husband disappeared after the coerced get was delivered and there is a serious safek that
he might be dead. This way, the sfekot would not be counteracting a bona fide chezkat
eishet ish and would also not be mi-shem echad. Moreover, it is instructive to note that, in
his original responsum, R. Feinstein combines his sevara gedolah with not another
safek at all but a vadai reason why the lady is divorced anyway. Based on the Machatzit
ha-Shekel cited in Section K, this would limit application of the sevara gedolah to only a
case where the get is anyway independently kosher. As such, the sevara gedolah could
not even participate in the sfek sfeka construction process.74] Thus, these objections
appear credible.
In sum total, then, there appears to be a grand safek le-chumra to prohibit the
batei din in New York and Canada from writing any further gittin until the Get Laws are
modified. This is because perhaps neither of the two mitigating factors (listed above as a
and b) apply, and the gittin of New York and Canada are definitely disqualified, such that
it would constitute lifnei iver lo titen mikhshol for any Beth Din to write a get. [Moreover,
the acceptance of financial remuneration by a Beth Din in New York or Canada for
processing the siddur haget would constitute geneivah.] And even if one or both of the
mitigating factors (listed above as a and b) do apply, perhaps the objections noted above
to the construction of a sfek sfeka le-kula hold true, and therefore there is no sfek sfeka lekula possible to justify any of the gittin being written in New York and Canada.
R. Broyde correctly notes (p. 10 of Tradition 29:4) that every Beth Din of expert
judges has a presumption of issuing valid gittin unless demonstrated otherwise.
Seemingly, however, with the publication of this essay as of this date, that can no longer
be assumed to be the case. With the publication of this essay, and the step-by-step
elucidation therein of the grand safek le-chumra that exists to prohibit the batei din of
New York and Canada to write further gittin, all the batei din of New York and Canada
have forfeited their presumption of expertise in the writing of gittin, until the
74

See supra, note 70.

69

modification of the Get Laws. This is not at all a deficiency (chas ve-shalom) in the batei
din, but is rather a reflection of the interaction between the secular laws and the Jewish
community.
It is precisely for this reason that, commenting upon the New York Get Law, R.
Shlomo Zalman Auerbach declares pashut hu be-einai she-ein zeh takanah ela sakanah
(it is obvious in my eyes that this is not a solution, but rather a danger).75 The danger that
the batei din would become paralyzed as a result of the Get Laws was presciently
anticipated by that decisor.76 With the publication of the grand safek le-chumra in this
essay, R. Auerbachs dramatic concerns have come to fruition.77
75

Letter dated 28 Menachem Av, 5752 appearing in Moriah, Iyar 5753, p. 61. Similarly, in his letter dated
18 Sivan 5753 appearing on p. 536 of Yeshurun (Nissan 5761), R. Auerbach states that he agrees with R.
Eliashiv that a get written because of economic coercion generated by the New York Get Law should be
suspected of being coerced.
One may inquire whether, in using the term suspected (yesh lachashosh) in his 5753 letter, R.
Auerbach meant that the get is definitely coerced or is safek coerced. One indication that R. Auerbach
meant that the get is definitely coerced is the fact that he states that he agrees with R. Eliashivs
accompanying letter, a letter which clearly pronounces the get as being definitely coerced. Another
indication to that R. Auerbach meant that the get is definitely coerced is R. Auerbachs language in his
previous letter of 5752 which refers to the get as being definitely coerced. These indicated findings are
consistent with the submission of R. Chaim Malinowitz in Tradition 31:3 (p. 24) that it is commonly
known that they [i.e. R. Eliashiv and R. Auerbach] both shared the opinion that the Get bill creates
economic coercion which would invalidate any Get written as a result of [the] said bill. (Unfortunately, R.
Malinowitz does not explain how he came into possession of this information. I.e., is he referring to the two
indicated findings that this student has already highlighted, or does he have access to independent evidence
confirming this conclusion? Further elaboration would be appreciated.) [In his rejoinder to R. Malinowitz,
R. Broyde (ibid., p. 33) asserts that both R. Eliashiv and R. Auerbach only meant in their letters appearing
in Moriah (Iyar 5753) that there was a possibility that some of the gittin given might be coerced.
Nevertheless, with all due reverence for R. Broyde, it seems to this student that a straightforward reading of
the letters in Moriah indicates that both R. Eliashiv and R. Auerbach regard the gittin as definitely coerced.
R. Broyde is of course correct that there is some degree of equivocation in the Moriah letters, but that
equivocation only exists in the realm of cases of where a Beth Din has already ruled kofin le-garesh, or
where a wife summons her husband to Beth Din on the accusation that he is a person for whom kofin legaresh applies and the husband refuses to appear before the Beth Din (-a minority of divorce cases; see
supra, main text accompanying note 44). In all other cases, R. Eliashiv and R. Auerbach seem to agree in
their Moriah letters that a get granted through the New York Get Law is disqualified.]
76

And see Shut Rabbi Akiva Eger ha-Chadash, Mahadura Tinyana, no. 83 (subsection no. 1), where R.
Akiva Eger describes a law passed by the government of Berlin which was potentially interfering with the
validity of gittin in Berlin in that time.
The specific legislation at hand was fundamentally different in R. Akiva Egers case: the secular
law insisted that a husband will inherit his wifes property even after she receives a get, until she also
receives a secular government bill of divorce. Thus, there was reason to fear that all gittin were no longer
completely separating between the lady and gentlemen, and so all the gittin of Berlin might be halakhically
disqualified. In that particular instance, R. Akiva Eger elaborates on the various aspects of the doubt created
by the situation and concludes that it is tzarikh iyun whether the gittin are kosher. Although this is a
markedly different fact pattern than the contemporary Get Laws, the point to be appreciated here is that a
halakhic precedent is set by this case that a secular government law can indeed interfere with the validity of
all gittin in a given jurisdiction. [I am grateful to Adam Elisha Lenetsky for bringing this valuable source to
my attention.]
Similarly, in an e-mail this student was privileged to receive on Sept. 7, 2007, R. Bleich wrote Rav
Eliashiv shelita is reliably quoted as stating (in translation) I dont understand how one can write a get in
77

70

N. THE IDEAL SOLUTION: LEGISLATIVE MODIFICATION

Sections B to M above have argued that all ladies in New York and Canada are
agunot because it is difficult (or even impossible) to write kosher gittin there on account
of the New York and Canada Get Laws. Accordingly, the most straightforward solution
tp permit the batei din of New York and Canada to once again write kosher gittin would
be for those socities to encourage their legislatures to formally repeal the New York and
Canada Get Laws, replacing them with the following statute (appropriate for New York as
well as Canada).
Actually, however, in an analysis of the New York Get Law published in the
Jewish Observer (September 1993, pp. 26-39), R. Chaim Dovid Zwiebel remarks (p. 38)
that even repeal of the New York Get Law might not suffice to solve the problem,
because a few months before the 1992 New York Get Law was legislated, the New York
State Supreme Court (March 1992, reported at 583 N.Y.Supp.2d 716) already interpreted
Section 236 of New Yorks Domestic Relations Law to allow a court to seize money from
a recalcitrant Jewish husband who refuses to grant a get. Thus, the 1992 New York Get
Law merely served to formalize a new government policy that had already been created
by a judicial decision a few months earlier, viz. that the government intends to coerce
recalcitrant husbands into granting gittin, pursuant to the statute known as Section 236 of
New Yorks Domestic Relations Law. Therefore, writes R. Zwiebel, the solution to this
problem is to amend the statute so as to preclude any possibility of judicial compulsion
through equitable distribution.
This student would also observe that in the opinion of R. David Shure78a not
only the 1990 Canada Get Law can create a problem with the validity of gittin, but even
New York! See also Tradition 32:1 (Fall 1997), p. 99, where R. Bleich attributes a comparable position to
the overwhelming consensus of informed rabbinic opinion with regard to this matter.
Cf., however, the lecture of R. Willig on Feb. 19, 2011 (cited supra, note 70), where R. Willig
testifies (at 52:25 into the lecture) that R. Gartner told him the following report. R. Gartner asked either R.
Eliashiv or R. Shlomo Zalman Auerbach [-R. Willig admits he is not sure which one] Do you mean to say
that every get is passul in New York State?! The decisor (either R. Eliashiv or R. Auerbach) waved his
hands (to indicate a negative response), and responded I already wrote on the topic. I dont want to write
any more.
However, quite apart from the fact that R. Willig is uncertain whether R. Eliashiv or R.
Auerbach is being quoted in this story, it seems difficult to this student to place much stock in such a
cryptic answer as I already wrote on the topic. I dont want to say any more. [N.B. Tangentially, this
student would like to presently correct an independent error articulated during that lecture, with all due
reverence manifest before R. Willig (to whom this student is profoundly indebted for graciously reviewing
earlier drafts of this essay and discussing the topic at length). Namely, during the lecture, R. Willig rules
(ostensibly quoting R. Bleich) that if the husband after being financially coerced to deliver a get and after
having indeed delivered that get will voluntarily take an oath that he delivered the get of his own volition,
then based on Shut Beit Efrayim, Even ha-Ezer II, no. 70 the get is valid because the oath negates all
external coercion. Alas, that ruling of R. Willig is in need of rectification. It is only if the husband
voluntarily takes the oath before delivering the get that an oath will help in negating all external coercion,
as explained by R. Bleich in Be-Netivot ha-Halakhah I, pp. 54-55. An oath taken after the get has already
been delivered will not help.]
78a

Cited supra, note 12.

71

under certain circumstances the 1986 Canada Get Law. On the other hand, R. Bleich
(Be-Netivot ha-Halakhah I, p. 47) refers only to the 1990 Canada Get Law, offering no
mention whatsoever of the 1986 Canada Get Law. Since this student was unable to
further clarify this question before the publication deadline of this essay, it will be left to
the poskim for further investigation. In any event, even if the 1986 Canada Get Law
indeed presents a problem (as R. David Shure maintains), this can be remedied through
the same legislative modification as the 1990 Canada Get Law.
Accordingly, it seems to this student that the ideal solution in the form of
legislative modification would be to pass the following bill, both in Canada as well as in
New York State:
In recognition of the sensitivity of religious divorce to the imperative
that coercion be avoided, the failure of a spouse to remove all barriers to a
religious divorce shall under no circumstances be grounds to take away
money from that spouse. All previous legislation which contradicts the
foregoing [for example, the 1986 Canada Get Law, the 1990 Canada Get
Law and the 1992 New York Get Law, which take money away from a
recalcitrant spouse] is hereby repealed. Moreover, all previous judicial
interpretations which contradict the foregoing are hereby repealed. Thus,
for example, the New York State Supreme Court decision of March 1992
reported at 583 N.Y.Supp.2d 716, which allowed taking money from a
recalcitrant spouse in the context of religious divorce, is hereby repealed.
This way, the decision of whether or not to consent to a religious divorce
shall remain exclusively a choice of conscience for each spouse, with no
external financial coercion.
O. THE PRACTICAL SOLUTION: PRENUPTIAL AGREEMENT
NUMBER ONE, SHIELDING THE BRIDE AND GROOM FROM THE
GET LAWS
However, until such the legislative development outline by section N above is
accomplished (-something which may take time because it would require a massive
consensus and co-operative effort on the part of New York and Canadian societies), there
exists a practical solution for all mesaderei kiddushin to protect all future brides from
being affected by the New York Get Law and Canada Get Laws. This solution will not
save the ladies who are already married in New York and Canada; those ladies can
basically never get divorced until the legislation changes.78 But at least for all ladies who
78

Actually, there are two independent expedients proposed by R. Bleich in Be-Netivot ha-Halakhah I, pp.
54-55 that enable a husband to deliver a kosher get to his wife even when the husband is bound by the New
York/Canada Get Laws. One expedient (already discussed tangentially supra, note 78) is based on Shut
Beit Efrayim, Even ha-Ezer II, no. 70 for the husband to voluntarily take an oath before he delivers the
get that he is granting the get of his own free will and not because of the financial coercion generated by the
Get Laws. [Since the husband was never coerced to take the oath, the oath reveals that the subsequent
delivery of the get is of his own free volition.] The other expedient is for the husband to deliver two
consecutive gittin, the first being disqualified as coerced, the second being kosher (since by that time the
husband is no longer endangered with the loss of money by the Get Laws). In any event, it seems to this
student that as a matter of sociological reality, no husband is willing to pursue either of those two

72

are not yet married, they can be protected from becoming agunot if both the bride and
groom sign the following prenuptial agreement before the chuppah which shields them
as a matter of freedom of religious conscience from the government legislation.
PRENUPTIAL BINDING ARBITRATION AGREEMENT OF BRIDE-TO-BE AND GROOM-TO-BE
Agreement made this ________day _________ of ________ by and between
_______________________ hereafter known as the bride-to-be and _______________________
hereafter known as the groom-to-be. Whereas the bride-to-be and the groom-to-be are becoming
married through a wedding on _________________________ at
____________________________, and they are both Orthodox Jews; and
Whereas the bride-to-be and groom-to-be both desire freedom of religious conscience to
be able to fulfill the commandments of Orthodox Judaism at all times in the future; and
Whereas one of the commandments of Orthodox Judaism is that if a husband and a wife
both desire a divorce - for the husband to divorce his wife by writing her a kosher bill of divorce, as
described at length in the Talmud in Tractate Gittin, and as codified by the Shulchan Arukh and
subsequent rabbinic authorities; and
Whereas a number of Orthodox rabbinic authorities including Rabbi J. David Bleich
rule that it is not possible to write a kosher bill of divorce if one is subject to the 1992 New York Get
Law and/or 1990 Canada Get Law and/or 1986 Canada Get Law [as described at length in the
essay written by Shalom C. Spira, entitled A Combination of Two Halakhically Kosher Prenuptial
Agreements to Benefit the Jewish Wife, eighth edition, dated 7 Menachem Av, 5775]; and
Whereas in the opinion of Rabbi Chaim Dovid Zwiebel the judicial interpretation of the New
York State Supreme Court of March 1992 (reported at 583 N.Y.Supp.2d 716) itself may have
precluded the possibility of writing a kosher bill of divorce in New York State; and
Whereas the above effectively means that if the bride-to-be and groom-to-be were subject
to the New York Get Law and/or Canada Get Laws and/or March 1992 decision of the New York
State Supreme Court, then the bride-to-be and groom-to-be would be deprived of freedom of
religious conscience; and
Whereas the laws of every constitutional liberal democracy guarantee that the bride-to-be
and groom-to-be should enjoy freedom of religious conscience;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
The bride-to-be and groom-to-be hereby solemnly affirm that they are entering a binding
arbitration agreement. The terms of the binding arbitration agreement are that under no
circumstances whatsoever do either of the parties ever wish for their marriage (and any
relationships and/or disputes that flow from that marriage) to be governed by the 1986 Canada Get
Law or the 1990 Canada Get Law or the 1992 New York Get Law or the March 1992 decision of the
New York State Supreme Court, whether they currently live or ever will live in New York State or
not, whether they currently live or ever live in Canada or not, whether they currently possess or
ever will possess property in New York State or not, whether they currently possess or every will
possess property in Canada or not, so that there will be no possible claim of financial coercion that
might disqualify a religious divorce. Moreover, in general, under no circumstances whatsoever do
expedients. Hence, it is safe for the main text of this essay to posit that all married ladies in New York and
Canada are basically agunot until the pertinent legislation is modified.

73

either of the parties wish to ever be governed by any form of government legislation in any
constitutional liberal democracy anywhere that financially coerces a husband to deliver a religious
divorce, whether or not the parties reside in that particular constitutional liberal democracy.
Moreover, in general, under no circumstances whatsoever do either of the parties wish to ever be
governed by any form of judicial decision in any constitutional liberal democracy anywhere that
financially coerces a husband to deliver a religious divorce, whether or not the parties reside in that
particular constitutional liberal democracy.

Agreement made in ___________________________on ________________________ .

Signed: _________________________________, bride-to-be, (address)
Signed: _________________________________, groom-to-be, (address)
Signed: _________________________________, first witness, (address)
Signed:_________________________________, second witness, (address)
Notarized: (if deemed necessary by local notarial practice)
Copies of this prenuptial agreement should be given to the bride, groom and
officiating rabbi for safe keeping. This prenuptial agreement number one will guarantee
that the bride will never become an agunah on account of the New York Get Law or
Canada Get Laws (or any other government legislation that should ever be proposed in
any constitutional liberal democracy anywhere in the world). If ever the bride or groom
goes to secular court, the other party can show the court that it have already signed a
prenuptial agreement shielding itself from the effects of the New York Get Law and
Canada Get Laws. This would be analogous to the principle presented by the gemara in
Makkot 3b that one can enter a deal on condition that the other party not charge oneself
with the laws of onaat mammon (monetary fraud) or shemitat kesafim (cancellation of
debts as a consequence of the Sabbatical yeart).
Although superfluous in demonstrating the case, further precedent to the legal
effectiveness of the prenuptial agreement presented in this section emerges from the
proposal presented by R. J. David Bleich in Contemporary Halakhic Problems IV (KTAV
Publishing, 1995), p. 236, that a scientific journal stipulate as a condition for accepting
papers that all authors waive their right to attribution should an ethical impropriety in
their research be discovered. Mutatis mutandis, the bride can waive her secular legal
right in advance to ever be awarded any money for her being denied a get by her future
recalcitrant husband.
P. PRENUPTIAL AGREEMENT NUMBER TWO: FINANCIAL
EMPOWERMENT OF THE BRIDE LIKE REBECCA OUR MATRIARCH

74

R. Bleich, on pp. 3-20 of his Be-Netivot ha-Halakhah I, develops a prenuptial

agreement which extraordinarily empowers every bride by granting her an enhanced
maintenance support analogous to that which the matriarch Rebecca received as
described by Rashi to Genesis 27:9. This prenuptial agreement essentially obligates the
husband, as part of the ketubah, to pay his wife a fantastic sum of extra mezonot (support)
every day. It must be emphasized that the extra mezonot have nothing whatsoever to do
with divorce.79 Divorce is not mentioned and is not desired. Rather, as R. Bleich
explained in a telephone conversation with this student, the purpose of such extra
mezonot is to allow the wife to attend an all-ladies yarchei kallah Torah study retreat in
any foreign location she chooses, at any time she chooses, in order to spiritually fortify
herself as an antidote to the inclination (as per the gemara in Kiddushin 30b that the
study of Torah serves as an antidote to the inclination). It is certainly reasonable for a
generous-minded groom to sincerely accept upon himself such an obligation prior to the
marriage, in light of the insistence of the Chafetz Chaim and other poskim that nowadays
Torah study should be made available to the righteous ladies of Israel.80
As long as the marriage remains in a state of bliss, the wife may obviously choose
to refrain from embarking on any yarchei kallah voyages with any significant degree of
frequency, and thus refrain from going to Beth Din to request the extra mezonot to which
she is technically entitled. But as soon as the wife decides to bail out of the marriage, she
possesses the option of proceeding to Beth Din and requesting not a get but simply
her rightful mezonot in order to embark on a yarchei kallah voyage. The Beth Din will be
able to coerce the husband to either grant mezonot or divorce his wife. The lady may then
decide to embark on yarchei kallah voyages with significant frequency (perhaps as much
as every single day, without end, since that is her technical prerogative). The husband
might decide, once his wife continuously embarks on yarchei kallah voyages, that it is
more profitable to divorce his wife, and so he will give his wife a get (which will be
absolutely kosher). The secular judiciary will also be able to enforce this contract, which
79

Thus, R. Bleichs prenuptial agreement endeavours to avoid any problem of asmakhta. See section A
above.
80

Telephone conversation with student on February 19, 2008. R. Bleich acknowledges that there is an
element of considerable novelty in his prenuptial agreement proposal. Certainly, the validity of his proposal
depends entirely upon the credibility of the claim that a groom truly accepts upon himself before marriage
to enable his future wife to depart on a yarchei kallah trip at any time she wishes. [In this students opinion,
a trip out of the home for any other purpose does not appear credible as earning the genuine consent of the
groom, in light of the value of kol kevudah bat melekh penimah that is codified by the gemara in Yevamot
77a and Shevuot 30a. (SeealsoRashitoEruvin100b,s.v.vechavushahbeveithaassurim;Rashito
AvodahZarah18a,s.v.dikdekah;andMefareshtoNazir12a,s.v.amarleihaminahlakhanaishahdelo
naida,whounderstandthosesugyottobepredicateduponkolkevudahbatmelekhpenimah,aswell.)See
also R. Moshe Sofer in his Chiddushei Chatam Sofer to Shabbat 21b, and R. Shimon Sofer in his Shut
Hitorerut Teshuvah I, no. 35, who both posit that a lady whose husband lights the Chanukah candles
should not light her own candles, since the value of kol kevudah bat melekh penimah opposes the gratuitous
sortie of a married lady outside the home, and Chanukah candles are lit at the entrance of the home.]
Nevertheless, R. Bleich affirms that he carefully consulted with R. Shlomo Zalman Auerbach, R. Jacob
Kamenetzky and R. Joseph Shalom Eliashiv who all approved of, and indeed encouraged, the prenuptial
agreement. Evidently, then, those authorities agree with the credibility of the yarchei kallah claim. [The
essential point here is that kol kevudah bat melekh penimah cannot be invoked to hinder a lady from leaving
the home for the noble sake of attending a yarchei kallah.]

75

 it must be emphasized has nothing to do with divorce, but rather with providing the
wife as many yarchei kallah opportunities as she desires.
As R. Bleich notes, this prenuptial agreement so greatly empowers the bride that
essentially the wife will always instantly win in any dispute with her husband, and no
wife will ever be an agunah. R. Bleich calls this situation which deprives all husbands
of any leverage in a marital dispute the lesser of two evils. In other words, while this
agreement will result in automatically granting victory to the wife (at the potential
expense of the stability of established families), it is preferable than the alternative a
situation in which many wives (not having been empowered by a prenuptial agreement
like that of Rebecca our matriarch) become agunot. Hence, R. Bleich believes the proper
course of action is to employ this prenuptial agreement.81 [As of the time of the writing of
this essay, R. Bleich does not actually employ his prenuptial agreement at weddings at
which he officiates, because it is not currently employed by a consensus of poskim
throughout the Jewish world. However, R. Bleich affirms that the agreement is valid
halakhah le-maaseh and could be used at any time, and he himself will use it as soon as
consensus emerges to employ it.]82
Fundamentally, R. Bleichs prenuptial agreement recognizes every pre-chuppah
bride in the contemporary era to be a clone of Rebecca our matriarch, i.e. a prestigious
and high-maintenance lady who deserves to be guaranteed an extravagant allowance
beyond the letter of the law. In previous generations, such a prenuptial agreement (while
it theoretically could have been employed) was both unnecessary and inappropriate on a
wholesale basis. In todays society, social conditions are different from centuries ago and
the agreement becomes appropriate for wholesale implementation. This can be compared
to the comment of Mishnah Berurah in Orach Chaim 489 (seif katan 3) that ladies
should not recite a blessing over counting the Omer because they do not understand the
Hebrew text of the Omer count. As R. Israel David Harfenes cogently observes a century
later in his Shut Mekadesh Yisrael (Sefirat ha-Omer) no. 3, ladies today are highly
sophisticated, and every lady understands the text of Sefirat ha-Omer perfectly well. The
Halakhah is eternal, whereas social conditions change, and todays ladies are therefore
candidates for R. Bleichs prenuptial agreement built on the template of Rebecca our
matriarch.
81

A similar objection has been advanced by R. Moshe Feinstein in one of the two published editions of
Iggerot Mosheh, Even Ha-Ezer IV, no. 107. Some background explanation is required in order to appreciate
this point.
In Iggerot Mosheh, Even ha-Ezer IV, no. 107, R. Feinstein discusses a prenuptial agreement (to be
analyzed in Section R of this essay). Surprisingly, there are two different published versions of this
responsum. The originally published version is featured in the edition of the Iggerot Mosheh published in
Israel by Yeshivat Ohel Yosef Printers as well as the one published in the United States by Noble Book
Press Corporation. It contains no judgment call as to the appropriateness of widespread use of prenuptial
agreements. However, as is evident from the smaller typeset, R. Feinstein subsequently added new
information to that same responsum, in which he discourages the widespread use of prenuptial agreements.
This more complete responsum was published in the edition of Iggerot Mosheh published by Moriah Offset
Company of Brooklyn, NY. In the revised edition of the responsum, R. Feinstein explicitly discourages the
wholesale employment of prenuptial agreements. Thus, R. Bleichs position is that R. Feinsteins policy
objection is cogent but that the lesser of two evils summons the Jewish community to embrace the
prenuptial agreement that he (viz. R. Bleich) has ordained.
82

Confirmed in several oral communications with this student.

76

Actually, it further seems to this student that even within the Mishnah Berurah
itself we find support for R. Bleichs idea. In the Biur Halakhah to Shulchan Arukh
Orach Chaim 306:6, s.v. u-lelamdo sefer o umanut, the Biur Halakhah speaks of a need,
in our modern mobile age, to provide a newly sophisticated form of education to our
children, so as to ensure that the secular education they receive is suffused with Torah
education, as well, something that was not specifically required in previous eras. Mutatis
mutandis, this student would argue that the same considerations (viz. our modern mobile
age, which creates difficulties in summoning a recalcitrant husband to an expert Beth
Din) should inspire every groom today to offer his bride a much more extravagant daily
allowance than in previous eras. It is the proper way to prevent the bride from becoming
an agunah in the future.83
Q. A PROPOSED MODIFICATION TO PRENUPTIAL AGREEMENT
NUMBER TWO
In this students opinion, it is imperative that a modification be effectuated to R.
Bleichs prenuptial agreement outlined in the previous section. The reason is as follows.
As mentioned in the previous section, R. Bleichs prenuptial agreement entitles a
lady to a fantastic sum of extra mezonot every day, so that the lady can travel anywhere in
the world any time she wishes to attend an all-ladies yarchei kallah Torah study session.
Accordingly, the prenuptial agreement is specifically formulated by R. Bleich to give the
lady a choice on a quotidian basis: either the lady eats in her husbands home, or if she is
outside of the home, she is entitled to a large sum of money to support her yarchei kallah
voyages. Every day the lady chooses to stay home with her husband, she receives no
money. Every day the lady is outside of her husbands home, she can compel her husband
in Beth Din to pay her a generous allowance, as he guaranteed her prior to the marriage.
Thus far, R. Bleichs prenuptial agreement is entirely cogent and fully synchronized with
hilkhot gittin.
However, R. Bleich correctly notes that this prenuptial agreement is so
advantageous to the lady that it could hypothetically lead to situations where her husband
will be impoverished. Specifically, if marital harmony dissolves and the lady moves out
of the house, but at the same time the lady paradoxically (and from a belligerent
perspective cleverly) refuses to accept a get from her husband, the lady can then charge
the husband for a fantastic sum of allowance every subsequent day without end, until her
husband is left without a cent. Since Cherem de-Rabbeinu Gershom prevents a gentleman
from divorcing a lady against her will, the gentleman will be trapped in this predicament.
Therefore, R. Bleich advances a caveat in his prenuptial agreement that the lady is
only guaranteed her allowance to travel on yarchei kallah trips so long as a Beth Din has
not yet ruled that the lady is not being stopped by her husband from remarrying. But if
the Beth Din will rule that the lady (albeit married) is no longer being stopped by her
husband from remarrying, then she will not receive any further allowance for yarchei
kallah trips. The implicit meaning of this provision is that if the gentleman will deposit a
83

Cf. the audio cassette tape of R. Yissocher Frand (of the Ner Israel Yeshiva in Baltimore) entitled
Teaching Torah to Women, which in a methodologically parallel manner invokes the mobile society
of today as justification for a new approach to teaching Torah to ladies. The Halakhah is eternal, whereas
societal realities evolve.

77

get in the custody of the Beth Din - thereby granting the lady the ability to be divorced at
any time she chooses to retrieve the get he can no longer be charged allowance for his
wife. Thus, R. Bleich has rescued the gentleman from being bankrupted by his wife.
With all due reverence manifest before R. Bleich, it seems to this student that this
caveat disqualifies his entire prenuptial agreement, much the same way as the Beth Din of
America prenuptial (described in section A) is disqualified. The reason for this is that
from the perspective of a bride who is purported to be a clone of Rebecca our matriarch
(as discussed in the previous section) there is no logical reason to place a limitation on
the allowance to travel on yarchei kallah trips so long as a Beth Din has not yet ruled that
the lady is not being stopped by her husband from remarrying. The only possible
explanation for such a limitation (by virtue of an umdena demukhakh, i.e. a self-evident
societal understanding of the agreement) is that really the prenuptial agreement is not
designed for the purpose of giving the bride money while she is married but rather to
serve as a penalty if marital harmony dissolves in the future, so that the get is
expeditiously delivered. Such a penalty prenuptial agreement would then be categorized
as an asmakhta and would be disqualified just like the Beth Din of America prenuptial
agreement, as explained in section A above. Any secular court that would enforce such a
prenuptial agreement would then be creating financial coercion over a get, which would
disqualify the resulting get.
In this students opinion, this objection to R. Bleichs caveat can be compared to
the sevara gedolah bespoken by section K above. There, the case was presented that the
fact that Cherem de-Rabbeinu Gershom prevents a husband from remarrying until he
divorces his first wife suggests that the husband who is compelled to divorce his first wife
may anyway have wanted to divorce her. Of paramount importance is are the facts that
(a) this sevara gedolah is controversial and is potentially subject to refutation (as
explained at length in section K above), (b) even those poskim who espouse the sevara
gedolah admit that it cannot be applied in vast majority of marriages (as explained at
length in section K above), (c) even those poskim who espouse the sevara gedolah admit
that even in the minority of marriages where it could be applied, it is only a safek le-kula
(as explained at length in section K above). Thus, the sevara gedolah is virtually
worthless in practice as a real source of leniency. However, at the same time, it seems
clear to this student that the sevara gedolah, when inversely reformulated in the context
of R. Bleichs prenuptial agreement, should legitimately serve as a valid source of
stringency. Namely, since the reason R. Bleich is adding his caveat (viz. that the wife is
only granted her allowance so long as a Beth Din has not yet ruled that she is not being
stopped by her husband from remarrying) is in order to rescue the husband from being
bankrupted on account of Cherem de-Rabbeinu Gershom (which prevents the husband
from unilaterally divorcing his wife against her will), therefore this creates a sevara to
say that the entire prenuptial agreement is a penalty clause to compel a husband to
divorce his wife expeditiously when the marital harmony dissolves. R. Bleichs prenuptial
agreement would then be disqualified as an asmakhta.
When this objection was presented by the student before R. Bleich, R. Bleich
graciously responded, but in this students opinion (with all due reverence manifest
before R. Bleich) not in a manner that deflects the objection.84
84

In an e-mail this student was privileged to receive from R. Bleich on July 11, 2011, R. Bleich wrote:

78

At first glance, to resolve the problem, one could reformulate R. Bleichs

prenuptial agreement to simply state that the lady is guaranteed her allowance to travel on
yarchei kallah trips so long as she is married. In this modified way, R. Bleichs prenuptial
agreement would ostensibly follow the prenuptial agreement of Rebecca our matriarch.
This can indeed potentially impose catastrophic financial consequences on the husband
(if the wife leaves the home but refuses to ever receive a bill of divorce). Nevertheless, if
the mesader kiddushin believes this is the lesser of two evils [and if the groom
knowledgeably agrees to undertake the risk], it then becomes the correct path to pursue.
However, upon further consideration, it emerges that even this attempt to resolve
the problem proves futile. After all, the prenuptial agreement offers the lady a choice on a
quotidian basis: either the lady eats in her husbands home, or if she is outside of the
home, she is entitled to a large sum of money to support her yarchei kallah voyages.
Every day the lady chooses to stay home with her husband, she receives no money. And,
clearly, the groom signing the prenuptial does not seriously anticipate at the time he signs
that his wife will ever move out of the house. Thus, his promise to grant her tosefet
mezonot is entirely an asmakhta and thus disqualified, just like the Beth Din of America
prenuptial agreement (described above in section A).85
One form of duress is acceptable, viz., the duress of chiyuvei ishut. The simple reason is that is
what the get is designed to accomplish. Support and maintenance is of that category. My sole
chiddush is that enhanced support and maintenance is included in that category. Hence the phrase
meukevet mi-linaseh. It was for that point alone that I sought and received approbations. The rest
is alef bet. At a meeting convened by Agudah with Rabbi Yaakov [Kamenetzky] ztl one highly
respected gentleman made your argument verbatim. Rabbi Yaakov simply turned to him and said
Ploidert nisht. What he meant was quite simple. If tosefot mezonot is recognized as chiyuvei
ishut the problem disappears.
In counter-response to that communication, this student asked R. Bleich that perhaps R.
Kamenetzky meant that the prenuptial agreement in principle patterned after Rebecca our matriarch is
kosher, but that R. Kamenetzky did not address the implications of the caveat to which this student is
objecting. R. Bleich further addressed an e-mail to this student on August 4, 2011:
There is an umdena de-mukhach but it is an umdena de-mukhach that the get is designed to
avoid chiyuvei ishut rather than a penalty. There is such an umdena de-mukhach with regard to
every get otherwise he would keep her as a scullery maid.
In this students opinion, R. Bleichs case is entirely correct, but only serves to justify the
prenuptial agreement in principle, not the caveat (with all due reverence manifest before R. Bleich).
85

I am grateful to the students of Montreals Yeshiva Gedola Merkaz Hatorah (particularly Yisrael Maline,
Yosef Franklin, and a third unidentified talmid chakham who is their mutual friend) for bringing this highly
valuable consideration to my attention in a conversation at the Montreal Community Kollel on Aug. 18,
2011. Those students further remonstrated that although R. Bleich received oral approval for his prenuptial
from R. Yaakov Kamenetzky, R. Shlomo Zalman Auerbach and R. Joseph Shalom Eliashiv [as reported
supra, note 81], such an oral report (when unsupported by any detailed written responsum) cannot survive
the scrunity of a cogent objection, as per the gemara in Bava Batra 131a, particularly as elaborated by R.
Moshe Feinstein, Iggerot Mosheh, Yoreh Deah III, no. 88. Of course, R. Bleich has himself written a
detailed responsum, but the problem is that his responsum assumes (on p. 14 of Benetivot Hahalakhah I)
that the choice he grants the lady is comparable to the husband promising the wife a choice of merchandise
type A or merchandise type B on any given day of the marriage. To this writer, with all due reverence
manifest before R. Bleich, that analogy seems inapt. If the wife stays home, she is not given any tosefet
mezonot. Thus, it is not a choice between merchandise type A and merchandise type B, but rather between
merchandise and no merchandise. It seems evident that a husband signing such an agreement intends that

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Accordingly, to truly duplicate the prenuptial agreement of Rebecca our

matriarch, R. Bleichs prenuptial agreement would have to grant the lady an extravagant
allowance of tosefet mezonot every day, precisely when she lives in her husbands home
(-for when she leaves the husbands home, she is anyway a moredet and can neither
collect mezonot nor tosefet mezonot).86 This and only this would truly follow the
prenuptial agreement of Rebecca our matriarch, who received two goats a day,
unconditionally and throughout the duration of her marriage, as long as she was never
moredet (and indeed Rebecca never became a moredet).
Moreover, to ensure that the absolute universal consensus of all poskim will agree
that this enhanced daily maintenance agreement is halakhically binding, it seems to this
his wife never move out of the house and that he will never have to grant her any merchandise as tosefet
mezonot. Hence, the entire prenuptial agreement should be categorized as an asmakhta and hence
disqualified.
Upon apprising R. Bleich of this cogent refutation, this student was privileged to receive the
following response by e-mail on August 30, 2011:
In removal of chiyuvei ishut, even those voluntarily undertaken, by definition, never constitutes
duress. Rivkah is cited only for purposes of demonstrating that there are voluntary chiyuvei ishut.
Nevertheless, this student responded that the voluntary chiyuvei ishut must be seriously
undertaken for while the marriage is in progress, not for when the wife rebels and moves out of the house,
which is an asmakhta, precisely the reason R. Bleich was able to reject the Rabbinical Council of America
agreement, as above, Section A.
R. Bleich then responded with the following e-mail on August 31, 2011:
The point is that an obligation that is actionable immediately upon its assumption is not an
asmakhta. And obligation in the alternative, with sole discretion to chose one of two alternatives
vested in the in the beneficiary is not an asmakhta. The obligation of tosefet mezonot is
immediately actionable.
This student then remonstrated that R. Bleichs prenuptial agreement only begins when the lady
leaves the home, and so cannot be characterized as actionable immediately upon the assumption of the
marriage (since she is home). R. Bleich sent the following e-mail on Sept. 6, 2011:
Not true. It begins while she is at home at her discretion.
This student then remonstrated that no husband at the time of marriage anticipates that his wife
will leave the home, and so the very anticipation of the wife leaving the home constitutes an asmakhta. R.
Bleich responded with the following e-mail on Sept. 14, 2011:

Who says the woman must leave the home? She can take the cash and buy (kosher) filet minion,
whenever she so desires.
This student then remonstrated that even so if the wife does leave the husbands home (which
is invariably the case if marital harmony ceases), she would constitute a moredet and thus forfeit the daily
allowance. Since the secular judiciary will nevertheless enforce the daily allowance to the moredet (against
Halakhah), the husband will be financially coerced over the divorce of his wife, just like in the case of the
Rabbinical Council of America prenuptial agreement, resulting in a potentially disqualified get. R. Bleich
responded with the following e-mail on Sept. 21, 2011:
I think I made it clear that [an] agreement might explicitly include a moredet or exclude a
moredet. For obvious reason I prefer to include. The difference between this and the RCA is that it
includes every woman from the day of the marriage not when she leaves home.

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student that the prenuptial agreement should be verbally announced by the groom and
signed by the groom immediately prior to the kiddushin, so as to take advantage of the
mechanism of Shulchan Arukh Even ha-Ezer 51:1. Namely, as discussed in Section A
above, verbal commitments of the groom to the bride that immediately precede the
kiddushin are automatically binding, since the bride would not have agreed to the
kiddushin in their absence, so long as those commitments are not in the form of an
asmakhta.87
In sum total, then, the second prenuptial agreement should be written as follows:
PRENUPTIAL COMMITMENT ON THE PART OF GROOM
Nevertheless, with all due reverence to R. Bleich, including a moredet should be obviously
impossible, by virtue of the principle of asmakhta. No husband, at the time of marriage, seriously
anticipates that his wife will be moredet. If he anticipated that, he would not marry the bride in the first
place! It is true that the mishnah in Ketubot 101b speaks of an unconditional prenuptial agreement to
support ones step-daughter, which applies even the wife rebels against her husband or even if the couple
becomes divorced or the groom dies. [In this context, step-daughter means a daughter the bride possesses
from a previous marriage.] The mishnah continues that only ha-pikchim (the astute husbands) who would
agree to support their step-daughter so long as the bride is still living in the husbands home (kol zeman
sheat imi). However, the students of Yeshiva Gedola maintain correctly so in the opinion of this writer
that when it comes to supporting ones wife (as distinct from ones step-daughter), it is patently obvious
that no husband at the time of marriage intends to support a bride with tosefet mezonot once she becomes a
moredet. Thus, any promise to grant his wife money when she is moredet is entirely void according to
Halakhah. Since, however, the secular judiciary will enforce the promise, the husband will be unlawfully
coerced to pay money in a dispute over divorcing his wife. Any resulting get will therefore be disqualified.
It is precisely for this reason that our Patriarch Isaac gave his bride Rebecca two goats daily while and only
while Rebecca was living in marital harmony with him. Had Rebecca become a moredet, she would
have forfeited any and all claim to allowance from Issac. Therefore, the students of Yeshiva Gedola (and
this writer as well) believe that R. Bleich should modify his proposal, in the manner described by the text of
this essay.
In an e-mail this student was privileged to receive on Jan. 6, 2012, R. Bleich responded as follows:
1. You do not need to draft a new agreement. One already exists it is called Tosefet Ketubah,
which can be any amount (as is the case among Sefardim). It would also have the advantage of a
huge sum at the very beginning of the marriage.
2. No groom will accept it for reasons that are obvious.
3. As Reb Yaakov Kaminetzky before me, I fail to understand the objection.
4. Le-ravha de-milta I suggested a remedy in the form of a pro forma action brought by a happily
married wife designed to show that the obligation is not a disguised penalty.
5. Ergo, I am not prepared to modify my proposal.
In response to R. Bleichs latest letter, (le-havdil ani ha-katan) this unworthy student responded
that points 1 and 2 neutralize one another. It is true (as R. Bleich writes in point 1) that a huge sum could be
awarded to the bride at the beginning of the marriage, but no groom will ever agree to that (as R. Bleich
writes in point 2), hence rendering the proposal implausible for practical implementation. The bride could
be a con artist and disappear after one day of marriage with millions of dollars in her possession; no groom
will ever agree to that, let alone be able to even theoretically afford that. More practical and eminently
reasonable as an emulation of the marriage between Isaac and Rebecca is a large sum (such as $1000 a

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TO ENHANCED DAILY MAINTENANCE

Whereas I, the gentleman named ______________________ am an Orthodox Jew; and
Whereas I wish to perform the mitzvah of marriage according to the laws of Moses and
Israel by offering kiddushin to the lady named ________________________; and
Whereas I recognize this lady to be an extraordinarily prestigious lady who is deserving of
what Orthodox Judaism terms tosefet mezonot (an increased maintenance allowance) on a daily
basis throughout the marriage, to be incorporated into her ketubah, analogous to what the biblical
matriarch Rebecca received as described by Rashi in his commentary to Genesis 27:9, as
described by Rabbi J. David Bleich but only as subsequently modified by Shalom C. Spira, in the
day) awarded to the wife on a daily basis. As the marriage progresses and the trust between husband and
wife increases, the husband continues paying $1000 a day. [At the same time, if the husband discovers
within the first few days (or weeks or months) of the marriage that his wife is a con artist, he can bail out of
the marriage without excessive financial loss.]
More significantly, R. Bleichs point 3 inspired this unworthy student to discover that Or
Sameach to Hilkhot Mekhirah 11:17 vindicates this students reading of the mishnah in Ketubot 101b, in
refutation of Moreinu ve-Rabbeinu ha-Gaon R. Yaakov Kamenetzky. [I am grateful to R. Yosef Ben-Arza,
in his Yosef Daat to Ketubot 101b, for bringing this valuable point to my attention.] Namely, Or Sameach
cites the Taz (Choshen Mishpat 60) who writes that based on the mishnah in Ketubot 101b if the father
of the groom promises to support the bride for five years, this debt continues even after the marriage
dissolves through death of the groom. But Or Sameach himself disagrees; Or Sameach writes that since
the support of the bride is an intrinsic obligation as part of marriage (as distinct from supporting a stepdaughter), we automatically read into the support agreement that it exists only so long as the husband is
obligated to support his wife according to Torah law. If the husband dies, then the obligation ceases, writes
Or Sameach. [And obviously, the same would apply if the wife becomes a moredet.] Due to considerations
of kim li, Or Sameachs opinion prevents a Beth Din from taking money from the grooms father. By the
same token, this student would argue that since a husband is obligated to support his wife as an instrinsic
part of any marriage, any tosefet mezonot obligation the husband prenuptually accepts upon himself
disappears once the wife becomes a moredet.
As for point 4 of R. Bleich, with all due reverence manifest before Mori ve-Rabbi R. Bleich, the
pro forma action arrangement will not help. Any Beth Din approached to adjudicate the prenuptial
agreement, even in a pro forma manner, will be forced to admit that the prenuptial agreement is an
asmakhta. Thus, the pro forma action arrangement is circular reasoning which cannot validate R. Ya akov
Kamenetzkys suggestion. Indeed, R. Bleich in Tradition 40:2 (Summer 2007) employs a methodologically
parallel logic to challenge R. Shlomo Moshe Amar. R. Bleich argues that an appellate judge cannot overtun
a lower court simply be reiterating its own previously announced ruling. Such an action would constitute
circular reasoning. [The current writer would hasten to add that all the protagonists discussed in that case
(including R. Amar) are certainly tzaddikim gemurim, to whose eternal credit redounds the fact that they
have caused the present expansion of Torah study. See Rashi to Numbers 27:5.]
Indeed, the fact that R. Shmuel Kamenetzky (son of R. Yaakov Kamenetzky) does not implement
his own fathers suggestion even though his father publicly told the Agudath Israel of America to
implement R. Bleichs prenuptial agreement seems to confirm the contention of the Yeshiva Gedola
students of Montreal. Namely, R. Yaakov Kamenetzkys suggestion needs to be fine-tuned, as per the
principle reflected in Iggerot Mosheh, Yoreh Deah III, no. 88. A judge has only what his eyes see, and
the current consensus of poskim does not accept R. Yaakov Kamenetzkys suggestion. However, with
minor modification (as presently explained in the main text of this essay), R. Bleichs prenuptial agreement
can become a reality, be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo.
In an attempt to persuade (ke-talmid ha-yoshev ba-karka ve-dan lifnei Rabbo) R. Bleich of the
cogency of the Yeshiva Gedola students approach, this writer further suggested to R. Bleich that perhaps R.
Kamenetzkys whole point to the Agudath Israel of America convention was that there is a possibility of a
prenuptial agreement (based on Rebecca our Matriarch), in contradistinction to the imagination of male
chauvinists who think that all forms of prenuptial agreements should be unfathomable. [To appreciate the
background of this point: at that convention (as related to this student by R. Bleich in a telephone

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essay entitled A Combination of Two Halakhically Kosher Prenuptial Agreements to Benefit the
Jewish Wife, eighth edition, dated 7 Menachem Av, 5775; and
Whereas I wish to commit myself to this tosefet mezonot now, immediately prior to the act
of kiddushin, so that the commitment is binding upon me by Torah law, as codified in Shulchan
Arukh Even ha-Ezer chapter 51, paragraph 1;
NOW, THEREFORE, I HEREBY COMMIT MYSELF AS FOLLOWS:
If the lady ______________________ will agree to accept kiddushin from me, then every
day of the marriage I will give the lady tosefet mezonot of one thousand dollars U.S. (or its
conversation), R. Shmuel Yehudah Leib Landesman was present, and R. Landesman objected to R.
Kamenetzky that R. Bleichs prenuptial agreement represents an asmakhta and is hence disqualified. R.
Kamenetzky responded that R. Landesmans remonstration constitutes gibberish (using the Yiddish term
to describe the same) and should be totally ignored; R. Kamenetzky emphatically vindicated R. Bleich and
instructed the Agudath Israel of America leadership to implement R. Bleichs proposal. (The current writer
would hasten to add that the protagonists at that convention including R. Landesman who was repudiated
by R. Kamenetzky are certainly tzaddikim gemurim, to whose eternal credit redounds the fact that they
have caused the present expansion of Torah study. See Rashi to Numbers 27:5.)] Thus, this student
suggested (ke-talmid ha-yoshev ba-karka ve-dan lifnei Rabbo) to R. Bleich that perhaps when R.
Kamenestzky described R. Landesmans argument as gibberish, he meant only to negate the perspective
of male chauvinism which gratuitously claims that no prenuptial agreement whatsoever is valid according
to Halakhah. However, perhaps R. Kamenetzky would simultaneously agree with the students of Yeshiva
Gedola of Montreal that R. Bleichs prenuptial requirement requires fine-tuning, as analyzed in the main
text of this essay.
To this latest attempt to persuade R. Bleich, R. Bleich responded as follows (in an e-mail this
student was privileged to receive on Feb. 16, 2012):
I was present and heard what Rabbi Kaminetsky said and the context in which it was said. Rabbi
Landesman made exactly the same point as the students of Yeshiva Gedolah and nothing
more. Rabbi Kaminetsky was responding to precisely that point. All of that is irrelevant since I
was not attempting to hide behind Rabbi Kaminetskys kapota no matter how ample or
comfortable it might be.
Thus, it emerges that R. Landesman supported the Yeshiva Gedola students whereas R.
Kamenetzky clearly rejected the approach of the Yeshiva Gedola students. However, this simply means that
R. Kamenetzky was following the opinion of Taz (Choshen Mishpat 60) outlined earlier in this footnote,
whereas R. Landesman was following the countervailing opinion of Or Sameach (Hilkhot Mekhirah
11:17). Due to considerations of kim li, the halakhah follows Or Sameach, and hence R. Landesman. To
that effect, this student remonstrated before R. Bleich that the reality that Agudath Israel of America
presently refuses to endorse R. Kemenetzkys approach, despite R. Kemenetzkys explicit directive to the
Agudath Israel of America to implement R. Bleichs proposal, proves the halakhah follows Or Sameach
and not Taz. Therefore, it seems to this student that the current consensus of poskim supports the Yeshiva
Gedola students, and pursuant to Iggerot Mosheh, Yoreh Deah III, no. 88 that a judge has only what his
eyes see R. Bleichs tosefet mezonot prenuptial agreement must be fine-tuned, as the main text of the
essay will presently explain. Namely, the groom should unconditionally give the bride an extravagant daily
allowance of tosefet mezonot, specifically while they are in a state of harmony. [After marital harmony
dissolves, the wife is not entitled to any more money, but by this time, the lady has accumulated so much
money, that she can offer to purchase a get from her husband, as explained in the main text of this section
of this essay.] Surely, this would truly match the precedent set by Rebecca our Matriarchs prenuptial
agreement, and this is a prenuptial agreement that the Agudath Israel of America could indeed endorse in
good conscience.
In an e-mail this student was privileged to receive on April 26, 2012, R. Bleich responded as
follows:

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equivalent in any internationally recognized currency), so long and only so long as the lady
continues to live in domestic harmony with me. On any day that passes on which the lady does not
claim in whole or in part the tosefet mezonot herein specified, the lady will forgive me for the
balance of what she has not claimed on that day that has already passed. This agreement will be
enforceable in any qualified Beth Din.
Commitment made in ___________________________on ________________________ .
My signature serves to confirm my commitment: _________________________________

Assume the following scenario: Couple separates. Wife not interested in get or
remarriage. Husband wants to remarry. You have enabled wife to present huge claim for past
mezonot, why should a chatan agree?
Plus the mezonot becomes a claim against husbands estate after death.
It seems to me that the Sages of Spain proposal is more palatable.
Again, I must propose my tosefot mezonot. It is not because of halakic considerations that it has
not been instituted. The reasons are (a) policy concerns and (b) lack of initiative and/or interest
that will apply to any proposal you, I and anyone else will propose.
Quite significant in this response of R. Bleich is that he recognizes the validity of the diamondpolished tosefet mezonot agreement which this student is proposing (as inspired by the Yeshiva Gedola
students). R. Bleich is merely rejecting it on the grounds that it is foolish in that in severely endangers the
groom.
Yet, it seems to this student that R. Bleichs fear (with all due respect) is excessive; the lady
cannot retroactively collect money once the marital harmony dissolves. She only possesses as much money
as the husband actually gave her while the marriage was in a state of harmony. Whatever she did not claim
on any given day is forgiven once the day has ended. Granted, if the husband and wife conscientiously
follow through on the prenuptial agreement (which they should, as the main text of the essay will presently
advocate), every day that the marriage is in a state of harmony the husband will actually deposit into the
hands of his wife a huge sum of money (whereupon the wife immediately makes a kinyan on the money),
and if the sum is sufficiently large this means that the wife will (for all intents and purposes) control the
purse strings of the marriage. The husband will thus be financially dominated by his wife. But this applies
only so long as the marriage is in a state of harmony, meaning that the husband and wife continue to cooperate. Once the marital harmony dissolves, there is no charge whatsoever that the husband faces; any
money his wife failed to claim on any past day in history is forgiven. R. Bleich himself recognizes this
point in Be-Netivot ha-Halakhah I, p. 13.
For the same reason, R. Bleichs fear (expressed in the e-mail to this student) that the tosefet
mezonot remains as a charge against the husbands estate is with all due respect to R. Bleich unfounded.
The lady only possesses as much money as the husband actually gave her while the marriage was in a state
of harmony. The death of the husband automatically abolishes any further entitlement of the wife to any
money.
As for the Device of the Sages of Spain advocated by R. Bleich in this e-mail, this point is refuted
in Section S of this essay.
As for policy considerations advocated by R. Bleich in this e-mail, once one appreciates that R.
Yaakov Kemenetzky told the Agudath Israel of America (as a matter of genuine public policy
considerations) to implement a tosefet mezonot agreement as R. Bleich himself reports (for R. Bleich was
the catalyst to this fortuitous development) and once one further accepts this thesis of this student that the
dispute between R. Kemenetzky vs. R. Landesman parallels that of Taz vs. Or Sameach, it emerges that
public policy considerations would advocate implementing a diamond-polished tosefet mezonot agreement,
as will be presently outlined in the main text of this essay. This would be an example of allowing the flour
dust to pass through and retaining the fine flour (Pirkei Avot 5:18) from the teachings of R. Kemenetzky.

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We hereby affirm by the affixation of our signatures as two kosher witnesses that we have seen
the gentleman verbally recite the above commitment.
Signature of first witness: _________________________________,
Signature of second witness:_______________________________.

To this latest attempt to persuade R. Bleich, R. Bleich responded as follows (in an e-mail this
student was privileged to receive on May 17, 2012):
The Taz and Or Sameach have no relevance. The phrase kol zman etc. establishes an explicit
obligation obviating any umdena. The obligation is immediate and ongoing rather than contingent
thereby eliminating any problem of asmachta.
Nevertheless, with all due respect to R. Bleich, it seems to this student that R. Bleich is simply
restating Taz position (which was indeed shared by R. Kaminetzky), without taking into consideration Or
Sameachs position (which is indeed shared by R. Landesman). As Rashi to Shir ha-Shirim 1:8 states,
when a doubt arises in terms of normative Jewish practice, one must follow be-ikvei ha-tzon, i.e. the
established precedent set by our Patriarchs. [R. Hershel Schachters book Be-Ikvei ha-Tzon is indeed
devoted to this theme.] Thus, if we are to innovate a prenuptial agreement which gives extra money to the
wife, we can only follow what Isaac our Patriarch gave Rebecca our Matriarch as a prenuptial agreement
(viz. an unconditional daily tosefet mezonot which terminates as soon as the wife becomes a moredet); it is
only this which will satisfy the consensus of poskim (Taz as well as Or Sameach), thus avoiding the
problem of the husband being able to say kim li. [It is interesting to note that applying the be-ikvei hatzon to a prenuptial agreement is an instance of lashon nofel al lashon (to borrow the expression from
Rashi to Numbers 21:9), since the verse from which Rebeccas prenuptial agreement is derived states lekh
na el ha-tzon.] The money (or at least a significant fraction of the money) that the wife possesses from
this endeavour would be set aside by the wife as an agunah fund, to pay her husband for a get if she feels
the need ever arises.
In an e-mail this student was privileged to receive on July 12, 2012, R. Bleich responded as
follows:
Or Sameach would not regard an explicit undertaking to support a daughter-in-law after death of
her husband as an asmachta.
In a happy marriage a wife will not ask for per diem cash to establish an agunah fund. Moreover,
where will she eat that day? In addition, most husbands don't have enough money to actually pay a
daily allowance.
You could simplify your proposal but having the groom execute a simple promissory note
actionable at any time and not coupled with forgiveness in the event of a get. The wife can use the
promissory note as her agunah fund to "buy" a get whenever she wishes.
The drawbacks, as with regard to your proposal, is that (a) she can reject a get and simply collect
on the note and (b) in case of the husband's death it remains a charge on his estate.
Nevertheless, with all due respect to R. Bleich, his reading of Or Sameach (in this particular email) is entirely speculative. Quite the contrary, the same passage in Otzar ha-Poskim, Even ha-Ezer 51:1,
seif katan 10, sec. 2 which refutes R. Willig (as explained at length in Section A of the main text of this
essay) refutes R. Bleichs reading of Or Sameach. Namely, from that passage in Otzar ha-Poskim it

85

The procedure for completing this prenuptial commitment is as follows. The

information (other than the witnesses signatures) should be filled at the grooms table
celebration prior to the chuppah. At the chuppah itself, after the bride arrives, the
chuppah ceremony is interrupted, whereby the groom designates two kosher witnesses to
affirm the validity of his prenuptial commitment. The groom then verbally reads the text
of the prenuptial commitment aloud, so that both the bride and two witnesses hear it,
reading until Commitment made in ____________________ on
_______________________. The groom then signs the prenuptial commitment, and
reads the line My signature serves to confirm my commitment
________________________. The witnesses then sign the bottom of the prenuptial
emerges that due to considerations of kim li the mishnah in Ketubot 101b (and the corresponding
gemara in Ketubot 102b) cannot be employed to justify forcing a groom (or the grooms father) to pay the
bride (or the brides family) money in case of a contingency where the marriage dissolves due to death of
the husband, or even where marital harmony dissolves with the accompanying rebellion of the wife.
As for R. Bleichs question that a wife will not ask for money for an agunah fund while she
resides in a state of harmony with her husband, it seems to this student that the diplomatic problem can be
rectified by the wife stating as a pretext that she would like to the money to acquire for herself the luxury of
chalav yisrael ice cream, a set of four species for Sukkot, the ability to give extra charity to the poor, or a
myriad of any other goods. Once the wife performs a kinyan on the money (by the husband placing the
dollar bills in the wifes hand), she if sufficiently astute (pikachat) should save at least a sizeable
fraction of the money in a safety deposit box, as an agunah fund. [Indeed, every lady of Israel should be
trained in advance how to be a pikachat in pre-marriage-education classes delivered in Beit Yaakov day
schools.]
As for R Bleichs question of what will a wife eat that day, the prenuptial agreement can be drafted
to allow her to eat on her husbands table plus collect tosefet mezonot. Moreover, if the tosefet mezonot is
sufficiently large, she can purchase the food of the household (as she will de facto control the purse strings
of the marriage) while still retaining a sufficiently large fractional reserve as money as an agunah fund.
Presumably, Rebecca our Matriarch ate other foods besides goat meat!
As for R. Bleichs question that most husbands cannot afford to actually pay a daily allowance,
this is precisely the point (ve-hi ha-notenet, to borrow the expression from Rashis edition of the gemara in
Makkot 2b). The daily allowance should be so large that the husband will have to give virtually his entire
daily earnings to his wife. [Whatever the husband cannot afford to pay that day, the wife will forgive. If the
wife is not willing to forgive that day, the husband can simply write his wife a promissory note covering the
cost of that particular day.] As such, the wife will control the purse strings of the marriage (so long as the
marriage remains in a state of harmony). All expenditures of the family (e.g. rent and board, utility bills,
clothing purchases, medical insurance, dayschool tuition and synagogue congregational dues, etc.) will be
paid by her (so long as the marriage remains in a state of harmony), although at the same time she will
be careful to leave herself a sizeable agunah fund to the best of her ability.
As for R. Bleichs suggestion that the husband execute a promissory note (-by which R. Bleich
means a promissory note equaling a tremendous sum of money), R. Bleich evidently answers his own
question. That proposal cannot be countenanced lest the wife be a con artist. Moreover, although
superfluous in rendering the point, one may also raise the objection that the husband executing a
promissory note may trigger the same problem that affects the application of the Device of the Sages of
Spain, discussed in Section S of this essay. Neither of these objections applies to the tosefet mezonot
proposal of this student (as inspired by the Yeshiva Gedola students). The lady possesses only the precise
amount of money that she actually requested on any given day, while the marriage was in harmony.
Whatever the lady has forgiven is forgiven forever. Whatever the lady has spent is spent forever. There is
no coercion on the husband (as the obligation begins from the inception of marriage), there are no
retroactive charges on the husband, and there are no unreasonable charges on the husbands estate [other
than whatever limited promissory notes the husband has written for any particular day while the marriage
was in harmony bu t where the wife was working to rule and insisted on receiving her fully daily
allowance for that day.] This is exactly the tosefet mezonot that Isaac our Patriarch gave Rebecca our
Matriarch.

86

commitment. The groom then hands the prenuptial commitment text to the bride. The
bride then says the following statement out loud: In light of the commitment to tosefet
mezonot you have now accepted, I am willing to receive kiddushin from you according to
the laws of Moses and Israel. Immediately, without interruption, the mesader kiddushin
directs the groom to perform the act of kiddushin (i.e. the mesader kiddushin fills a goblet
of wine, recites the birkat erusin, gives the wine to the celebrants to drink, asks the groom
to designate two kosher witnesses for kiddushin, verifies that the ring belongs to the
groom, verifies that the ring is worth a perutah and then watches as the groom performs
the kiddushin).88
After having presented the foregoing arguments before R. Bleich, this student was privileged to
receive the following response from R. Bleich by e-mail on Aug. 3, 2012:
If you are going to provide automatic mechilah together with a daily allowance plus mezonot it
will not work for two reason:
1) Virtually no chatan will be able to afford the daily allowance
2) No happily married woman is going to pressure her husband for a daily allowance he cannot
afford so that she can accumulate money to buy a get.
Quite noteworthy in this response of R. Bleich is that it implicitly acknowledges the kashrut of
this students prenuptial agreement. R. Bleichs only objections are of a reality check nature, viz. a
prediction that almost no husband and wife will follow through on the agreement on a daily basis.
Nevertheless, it seems to this student (ke-talmid ha-yoshev ba-karka ve-dan lifnei Rabbo) that these reality
check problems identified by R. Bleich can be overcome. The husband pays as much of the daily
allowance as he can, and the rest of the sum is automatically forgiven by the wife. In this manner, the wife
controls the purse strings of the marriage, which can itself help bring shelom bayit. And as for what will
inspire the happily married lady to ask for the money on a daily basis, she can simply resolve that she
wishes to follow the precedent of Rebecca our Matriarch. Moreover, let us grant that R. Bleichs reality
check objections are correct. What would this mean? It would mean that the married lady will simply
forget about asking her husband for her daily allowance, and she will accumulate no money in the marriage,
meaning that she will have no way of freeing herself if she becomes an agunah, which is no worse than the
status quo default situation of marrying without any prenuptial agreement altogether.
Subsequent to the latter response of R. Bleich, this student discovered that Or Sameach appears to
have overlooked an extensive discussion in Pitchei Teshuvzah to Shulchan Arukh Even ha-Ezer 114, seif
katan 2 devoted to whether or not the halakhah follows the Taz. First, Pitchei Teshuvah cites Beit Shmuel
to Shulchan Arukh Even ha-Ezer 114, seif katan 11, as endorsing Taz. Then, Pitchei Teshuvah cites both
R. Jacob Reischer, Shut Shevut Yaakov II, no. 142 and R. Meir Posner, Beit Meir to Shulchan Arukh Even
ha-Ezer 114:6 as opposing Taz (exactly like Or Sameach). Further, Pitchei Teshuvah cites R. Jonathan
Eyebeshutz, Urim ve-Tumim, Choshen Mishpat 60, seif katan 9, who expresses uncertainty how to rule,
and therefore who advocates that a pesharah (compromise between the two competing litigants, with the
advance forgiveness of the litigants) be performed, given that the Sage (i.e. the Taz) has already ruled
(kevar korah zaken). Somewhat similarly, Pitchei Teshuvah then cites R. Jacob Meshulam Orenstein,
Yeshuot Yaakov on Shulchan Arukh Even ha-Ezer 114, seif katan 5, who expresses initial disagreement
with Taz, but who adds that when an actual case of this nature materialized for adjudication, he brokered a
compromise between the two parties even though the parties had not granted their consent for a
compromise, given that kevar korah zaken (-exactly the same expression as employed by Urim ve-Tumim,
although not exactly the same conclusion, since Yeshuot Yaakov advocates a compromise even without the
litigants permission). Finally, Pitchei Teshuvah concludes that R. Meir Eisenstadt, Shut Panim Meirot II,
no. 144 [-in some editions, no. 145], addresses the flip-side of the situation debated by Taz and Shevut
Yaakov. Namely, if the father of the bride agreesto support the bride and groom, and then the bride dies, in
such a situation even Taz will concede the father is exempt. This is because, writes Panim Meirot that there
is more ogmat nefesh (aggravation) in a father losing his daughter, and under such tragic circumstances the
father is not willing to continue to pay.

87

Actually, since pursuant to Shulchan Arukh Even ha-Ezer 51:1 the verbal
negotiations between a lady and gentlemen that immediately precede the act of kiddushin
are automatically binding, the signed document (with witnesses to boot) is presumably
not even necessary. Nevertheless, this student would include the signed document (with
witnesses to boot) to the proposal, because it is advantageous to help confirm the
seriousness and the halakhically binding nature of the commitment. Indeed, Rashi to
Genesis 27:9 speaks of the two goats being written in Rebeccas ketubah. Crystallizing
the tosefet mezonot into writing thereby makes clear that the groom is perpetuating an
ancient tradition of tosefet mezonot.
The advantage and effectiveness of this prenuptial agreement is clear. On every
single day of the marriage (while the wife lives in harmony with the husband), the
husband will hand to his wife the $1000 US, which immediately belongs to the wife and
which she can keep for herself. [Obviously, on the Sabbath and festivals, the husband will
be unable to do so, but even so, the extravagant amount of wealth the wife will acquire
Given the foregoing, it seems to this student that (a) it is not 100% clear that the halakhah follows
Taz; and (b) the case could be advanced [pursuant to Panim Meirots logic] that perhaps even Taz would
agree that the husband of a moredet does not pay tosefet mezonot, since the husband has so much ogmat
nefesh from his wife becoming a moredet, that under such tragic circumstances the husband is not willing
to continue to pay.
Therefore, it appears to this student that R. Bleichs prenuptial agreement should be fine-tuned, as
the main text of the essay will presently explain. [Parenthetically, as of the date of the completion of this
essay, R. Bleich himself does not employ his own prenuptial agreement when he is mesader kiddushin (as
noted supra, note 83 and accompanying text), and thus the debate between himself and (le-havdil ani hakatan) this student is entirely academic.]
86

R. Bleich, Be-Netivot ha-Halakhah I, p. 9, footnote 10, final paragraph, declares that although a moredet
forfeits mezonot, she does not forfeit tosefet mezonot. This represents the essence of the question at hand. It
seems to this student that while R. Bleichs declaration might follow from the Taz (described supra, note
86), it would not follow from the Shevut Yaakov (also described supra, note 86), and it is not clear whether
the halakhah follows Taz or Shevut Yaakov. Also, the case could be advanced that perhaps even Taz would
agree that the husband of a moredet does not pay tosefet mezonot, since the husband has so much ogmat
nefesh from his wife becoming a moredet, that under such tragic circumstances the husband is not willing
to continue to pay. [See final three paragraphs supra, note 86.]
87

As explained in Section A of this essay, the mechanism of Shulchan Arukh Even ha-Ezer 51:1 was
previously suggested by R. Mordechai Willig to justify the 1993 Beth Din of America prenuptial
agreement, except that (with all due reverence to R. Willig, and as further explained in Section A) the
mechanism is unsuccessful in that context, since the 1993 Beth Din of America prenuptial agreement
constitutes an asmakhta, as no groom seriously expects at the time of marriage for his domestic residence to
later cease with his bride. By contradistinction, the mechanism of Shulchan Arukh Even ha-Ezegr works
successfully in the context of R. Bleichs prenuptial agreement described in this section, since every groom
indeed sincerely expects to be obligated to support his bride throughout the marriage, and indeed a groom
who is in awe of his prestigious bride and who deems her as a worthy successor to Rebecca our Matriarch
will even sincerely agree to grant her an enhanced daily maintenance support.
88

This is the sequence of siddur kiddushin that this student recalls witnessing his mentor R. Joshua H.
Shmidman supervise. By contradistinction, R. Hershel Schachter prefers the reverse sequence of
designating the kosher witnesses and verifying the ownership plus value of the ring before the birkat erusin
is recited, in accordance with his understanding of over la-asiyatan bespoken by the gemara in Pesachim
7b, viz. precedence of blessing over act with immediacy maintained. [Actually, if the same two witnesses
designated for the tosefet mezonot prenuptial agreement are also designated for the act of kiddushin, the
difference between the two schemes is somewhat albeit not completely minimized.]

88

from secular weekdays is itself most impressive.] The bride will rapidly acquire an
extravagant amount of wealth ($1000 per secular weekday).89 Thus, the bride will control
the purse-strings of the marriage (-an appropriate prerogative to be awarded to the
righteous ladies of Israel), while the marriage proceeds in harmony. In the case of a
groom who does not even possess $1000 to his name, but the marriage is still in harmony,
he can give his wife whatever amount of money he possesses, and the wife will forgive
the rest of the sum for that particular day.
On any day that the husband does not give the wife the money (due to disinterest
on the wifes part), the wife forgives the money for that day, and can never claim it again
in the future.90 Thus, for example, if the husband only earns $50 a day (obviously
insufficient to pay the full tosefet mezonot), he will give his wife the $50, and the $950
balance will be forgiven by the wife. [In the event that the wife remains in harmony with
her husband but is unwilling to forgive the $950 balance on any particular day, the
husband will simply write her a promissory note for $950.]
If the marital harmony dissolves and the wife leaves the house, she is no longer
entitled to any money (since she is a moredet), but by this point she has presumably
become exceedingly wealthy (assuming she set aside at least a significant fractional
reserve of the money over which she performed a kinyan each day). Thus, the wife will
89

The proposal (written in this section of the main text of this essay) that the prospective groom offer the
prospective bride a tosefet mezonot of $1000 per day represents a quantative suggestion. At the
recommendation of competent rabbinic guidance, the prospective groom might consider redrafting the
prenuptial agreement to offer either a higher or lower amount.
United States dollars is chosen as the currency of reference for this prenuptial agreement, since it
is perceived as of the time of the composition of this essay to constitute the most stable international
currency. The fact that the United Nations General Assembly and Security Council complexes are housed
within the borders of the United States of America seems to indicate that the United States is considered the
economic superpower of human civilization (be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo).
Obviously, the United States constitutes the Diaspora and can never rival the sacred environs of Eretz
Yisrael. However, matters of international economics (at least until the eschatological era arrives) are
independent of the sanctity of Eretz Yisrael. [And see also the final lectures delivered by R. Menachem
Mendel Schneerson of Lubavitch prior to his death, where he speculates that the United States
preeminence as a global superpower represents an integral part of the process leading to the eschatological
era. I am grateful to Reb Zalmen Smetana of the Lubavitch Yeshiva of Montreal for bringing these lectures
to my attention. Whether or not the late R. Schneersons speculation is correct, the current economic reality
of the international pre-eminence of the United States of America cannot be denied.] Therefore, the U.S.
dollar is the ideal reference for this prenuptial agreement as of the time of the composition of this essay. It
can be used to emulate that which the Torah considers to be over la-socher (Genesis 23:16), i.e. money
that is accepted everywhere. Nevertheless, to avoid confusion, the prenuptial agreement (presented in this
section the main text of this essay) adds the clause or its equivalent in any internationally recognized
currency, such that [for example] a husband and wife living in Canada can employ Canadian dollars.
90

R. Bleich demonstrates (Be-Netivot ha-Halakhah I, p. 13) that such forgiveness is an automatic and
intrinsic feature of the laws of tosefet mezonot, and according to the letter of the law need not even be
explicitly stipulated. Nevertheless, R. Bleich recommends that it be spelled out clearly, so as to avoid
confusion. Therefore, inspired by R. Bleich, the prenuptial agreement presented by this student (in the
present section of the main text of the present essay) explicitly specifies that On any day that passes on
which the lady does not claim in whole or in part the tosefet mezonot herein specified, the lady will
forgive me for the balance of what she has not claimed on that day that has already passed.

89

be in a position to say to her husband: I am a nice person. I will agree to give you all the
money [and any promissory notes] I have amassed during the marriage on condition that
you immediately give me a kosher get. This is not halakhically considered coercion on
the husband. On the contrary: the wife is offering the husband a most generous deal, in
which she will handsomely reward the husband with a lot of money (which according to
Torah law belongs purely to her) in exchange for the husband giving her a kosher get.
And so, the husband and wife will proceed to Beth Din, as it serves both of their personal
interests. The Beth Din should then arrange for the transfer of the get from the husband to
the wife and the transfer of the money [and any promissory notes] from the wife to the
husband in a manner that is simultaneous. This can be easily accomplished by the
expert Beth Din instructing the husband to deliver the get to his wife on the stipulated
condition that the wife pay the husband the money [and any promissory notes]. The
condition would have to be a tenai kaful with hen kodem le-lav and tenai kodem lemaaseh, as per the rules of stipulations described by the mishnah in Kiddushin 61a.91
Given this arrangement, future brides will be rescued from becoming agunot.
At the same time, it is important to recognize the caveat that there is a certain
measure of financial risk assumed by the groom who undertakes this prenuptial
agreement. Due to considerations of lifnei iver lo titen mikhshol (Lev. 19:14) which
prohibits an individual from offering unsound advice to another it would be necessary
for the mesader kiddushin to inform the groom of the financial risk involved, before the
groom undertakes the prenuptial agreement.92 Namely: if the husband predeceases the
wife, and the wife possesses promissory notes on account of the prenuptial agreement,93
91

Admittedly, Rema to Shulchan Arukh Orach Chaim 638:2 codifies the custom not to perform a tenai on
sukkah decorations [that are normally prohibited in enjoyment during the Sukkot holiday but which become
permissible in enjoyment when a tenai has been rendered.] Mishnah Berurah (seif katan 23) explains that
the reason for this custom is that we are no longer proficient in how to formulate a tenai. [Mishnah Berurah
continues that some dispute the Remas stringency.] According to the strict side within Mishnah Berurah,
the Rema might be understood to be outlawing tenai formulations in all areas of Torah law, including gittin,
thereby endangering this students proposal [in the text adorned by the present footnote] that the get be
delivered with a tenai. This student posed the question to R. Bleich, and was privileged to receive the
following response by R. Bleich in an e-mail on Oct. 10, 2013:
We would countenance a conditional divorce on the part of a deathly ill kohen. You can well
argue that your contingency also represents an emergency situation for which there is no other
remedy.
See also R. Shlomo Zalman Auerbach, Shut Minchat Shelomoh III, no. 100, who authorizes
performing kiddushin with a tenai in certain exceptional situations. Although R. Auerbach never discusses
the aforementioned Rema, he presumably shares R. Bleichs premise, thus validating this students
proposal.
92

Personal correspondence with R. Bleich, Oct. 13-14, 2013. [N.B. As of the conclusion of that
correspondence, R. Bleich does not necessarily advocate this students proposal in the most enthusiastic of
terms. On the other hand, R. Bleich is unable to contest the validity of this students proposal either, and
indeed the universal consensus of poskim recognizes the validity of this students prenuptial agreement (as
distinct from enthusiastically endorsing it). The extensive give-and-take between R. Bleich and (le-havdil
ani ha-katan) this student recorded supra, notes 85-86 reflects this reality.]
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A promissory note would have been written by the husband on each day that the wife was in harmony
with him, but yet the wife was working to rule such that she not only demanded her daily allowance that
day, but she refused to accept a mere fraction of her allowance that day. Under such circumstances, a

90

she will be able to collect from the husbands estate, thereby impacting on the husbands
would-be heirs. Alternatively, if the wife (chas ve-chalilah) becomes a moredet but is not
interested in a get (e.g. she does not seek to remarry, or chas ve-chalilah she becomes
a renegade), and the wife possesses promissory notes on account of the prenuptial
agreement, she will be able to seize capital from the estranged husband. Moreover, even
if no promissory notes were ever written, the simple fact that the husband has been giving
his money to his wife on a daily basis will mean that the husband will have no financial
wealth to his name, and no financial inheritance to bequeath to his heirs. Thus, if the
husband predeceases his wife or if the wife becomes a moredet plus a renegade, the
husband may [under certain circumstances] be left financially impoverished.
Nevertheless, if the groom truly wishes to prevent an agunah situation, the groom
is certainly entitled to assume this risk if he so chooses, as a measure of honouring the
righteous ladies of Israel. Essentially, each bride and groom must decide for themselves
before they marry whether they wish to impose these financial risks on the groom. In the
case of our Patriarch Isaac and Matriarch Rebeccah, they arrived at the conclusion that
such a financial risk was warranted, and it is a legitimate choice for every bride and
groom to select. [By contradistinction, the 1993 Beth Din of America prenuptial
agreement is not a legitimate choice, since it disqualifies resulting gittin, as explained in
Section A of this essay.]
Thus, the tosefet mezonot agreement (as diamond-polished by this student) is not
a gimmick signed before the wedding which works on auto-pilot. The tosefet mezonot
agreement, like the agreement Isaac our Patriarch gave Rebecca our Matriarch, is an
authentic Jewish way of marriage which requires the conscientious and diligent followthrough of husband and wife on a daily basis. If the husband and/or wife are indifferent to
the prenuptial agreement while their marriage is in harmony, it serves no purpose at the
time the marital harmony dissolves, because by then the wife has accumulated no money.
Such is the nature of real life; at the end of the day, you get nothing with nothing.94
With the noteworthy exception of the tripartite prenuptial agreement of R. Joseph Elijah
Henkin [to be analyzed in Section T of this essay], auto-pilot prenuptial agreements are
fraudulent gimmicks and will not be recognized according to Torah law; any attempt to
employ a gimmick as a prenuptial agreement will only result in a disqualified get due to
unauthorized coercion that has been placed on the husband. Rather, implementation of the
established precedent of Rebecca our Matriarch, when applied in concert with the
mishnah in Ketubot 101b and actively followed by a co-operative husband and wife on a
daily basis (while their marriage is in a state of harmony) represents the prenuptial
agreement which is halakhically kosher and can financially empower the wife.95
husband who could not afford the full daily allowance will have written his wife a promissory note that day.
94

Quotation from Les Misrables musical theatre production (London, 1985). [The propriety of citing that
material by way of illustration emerges from the gemara in Megillah 6a which expounds upon Zechariah
9:7 to mean that the theatres and circuses of Edom will be used by Jews as vehicles for Torah study. Indeed,
the Shakespearian analysis of R. Zevin, cited supra note 21, is presumably predicated on that basis.]
95

Although, as presently conceded in the text, it is quite possible that the tripartite prenuptial agreement of
R. Joseph Elijah Henkin is effective as auto-pilot method of freeing agunot, it seems to this to this student
(as will be discussed in Section T of this essay) that actual employment of R. Henkins tripartite prenuptial
agreement is forbidden by virtue of the gemara in Nedarim 20b. If so, our hands are tied from employing
the tripartite prenuptial agreement, and so the logical alternative is to employ the prenuptial agreement

91

R. RABBI MOSHE FEINSTEINS PRENUPTIAL AGREEMENT

R. Moshe Feinstein himself proposes a novel prenuptial agreement in Iggerot
Mosheh, Even ha-Ezer IV, no. 107.96 That prenuptial agreement is not being incorporated
into the current students proposal for A Combination of Two Halakhically Kosher
Prenuptial Agreements to Benefit the Jewish Wife. The reason for this omission on this
students part demands explanation, particularly since this student possesses a tradition
from his mentor R. Joshua H. Shmidman that one can apply (at least in a homiletical
sense) to R. Feinstein the dictum Shekhinah medaberet mi-gerono shel Mosheh. Why,
then, is R. Feinsteins prenuptial agreement being presently ignored?
Essentially, the reason for this omission is the synergic interaction between two
considerations: (a) R. Feinsteins prenuptial agreement is (to the limited comprehension
of this unworthy student) unclear; and (b) R. Feinsteins prenuptial agreement is
essentially no longer necessary to rescue agunot, given the powerful combination of the
prenuptial agreements in sections O and Q above. Therefore, this student feels it is best to
leave R. Feinsteins prenuptial agreement to the academic realm of Torah study, rather
than to use it halakhah le-maaseh.
Why is R. Feinsteins prenuptial agreement unclear? In a responsum that literally
measures only half a column of a page of Iggerot Mosheh, R. Feinstein authorizes a
prenuptial agreement which states: If after marriage they [the bride and groom] will
come to separation, chas ve-chalilah, then the husband will not hinder from giving a bill
of divorce and the wife will not refuse to accept it, when this will be commanded by Beth
Din Ploni.
R. Willig interprets97 R. Feinstein to authorize a prenuptial agreement which
designates in advance a particular Beth Din where the bride and groom can be compelled
(under the force of police, as commanded by any secular judiciary) to appear in the
future, should any marital dispute arise between them. This is also the interpretation to R.
Feinsteins responsum that this student was privileged to receive in a telephone
conversation with R. Bleich.98 Indeed, such a manner of prenuptial agreement was
outlined by the present section of the essay (i.e. Section Q).
96

See supra, note 82.

97

In his oral lectures referenced supra, notes 18 and 22.

98

Telephone conversation with this student on January 31, 2008. R. Bleich explained that he reads R.
Feinstein to mean that if the husband will not appear before any Beth Din, he could be fined by the secular
judiciary. Although such a contract is obviously halakhically disqualified due to problems of asmakhta (-a
contingency penalty clause that is unenforceable according to Torah law, as per section A above), the
secular judiciary [-being oblivious to the halakhic intricacies of asmakhta-] will recognize it as binding.
This will result in an amusingly maladroit situation in which the husband is being rightfully financially
pressured by the secular judiciary to appear before the Beth Din [-rightfully since according to Torah law
a husband is independently obligated to appear before the Beth Din when his wife so summons him-] but
for the wrong technical reason [-since the secular judiciary will be thinking only about the contract, which
is actually null and void according to halakhah.] Nevertheless, as maladroit and amusing a situation as this
may be, all resulting gittin will be completely kosher, since in the final analysis the husband is
independently obligated to appear before the Beth Din when his wife so summons him.

92

independently formulated by R. Bleich in his article A Suggested Antenuptial

Agreement: A Proposal in Wake of Avitzur that appeared in the Journal of Halachah
and Contemporary Society, VII (1984), pp. 25-41.99 [At that time, the Iggerot Mosheh
volume in which R. Feinsteins responsum would appear, i.e. Even ha-Ezer IV, was not
yet published, and so R. Bleich understandably did not quote R. Feinstein in his Journal
of Halachah and Contemporary Society article.]
As explained by R. Bleich, the prenuptial agreement formulated by R. Feinstein
(and independently advanced by R. Bleich) serves as a binding arbitration agreement to
require the bride and groom to materialize before a specific Beth Din should they ever
experience a matrimonial dispute in the future. Although this prenuptial agreement is
disqualified as an asmakhta (since the bride and groom do not anticipate experiencing a
dispute that will send them to Beth Din), it nevertheless works in secular court. The fact
that it is only enforceable in a secular court is exceptionally to this particular prenuptial
agreement acceptable since the bride and groom are anyway obligated to proceed to a
Beth Din to adjudicate their disputes, and since appearance before a Beth Din essentially
costs nothing of either the bride or groom.
Alas, this explanation of R. Willig and R. Bleich appears problematic for it does
not match the language of R. Feinsteins responsum in Iggerot Mosheh, Even ha-Ezer IV,
no. 107. R. Feinstein never writes that the bride and groom can commit themselves in the
prenuptial agreement to materialize before a particular Beth Din. Rather, what R.
Feinstein writes is that the bride and groom can commit themselves in advance to cooperate with a divorce if a particular Beth Din will command that a bill of divorce be
delivered. R. Feinstein makes no mention of how the bride and groom will arrive at that
Beth Din in the first place, such that the Beth Din will issue the command. R. Bleich and
R. Willig are completing the blanks in R. Feinsteins responsum that R. Feinstein means
that the bride and groom will designate a particular Beth Din in advance. But that is not
what R. Feinstein writes explicitly. Perhaps R. Feinstein alternatively means that there is
a particular Beth Din with already universally recognized jurisdiction over the bride and
groom.
Indeed, the objection of this student to the way Iggerot Mosheh, Even ha-Ezer IV,
no. 107 is interpreted by both R. Willig and R. Bleich appears strengthened by the
modification that was orchestrated to this responsum by R. Feinstein after its initial
publication. To elaborate: The originally released version of the seventh volume of
Iggerot Mosheh (which contains Iggerot Mosheh, Even ha-Ezer IV, no. 107) was
published in Israel by Yeshivat Ohel Yosef Printers and in the United States by Noble
Book Press Corporation. However, R. Feinstein subsequently modified sixty-five of the
responsa in that volume, including Even ha-Ezer IV, no. 107, and released it by Moriah
Offset Company of Brooklyn, NY. [See footnote for a tabulation of these sixty-five
responsa.]100
99

R. Bleichs article is also available online at

<http://www.jlaw.com/Articles/antenuptial_agreement1.html>. This student hastens to add that the
protagonists discussed by R. Bleichs article are certainly tzaddikim gemurim, to whose eternal credit
redounds the fact that they have caused the present expansion of Torah study. See Rashi to Numbers 27:5.
100

It seems to this student that the change to sixty-five responsa by R. Feinstein after he had already
published the seventh volume of Iggerot Mosheh is reflected in the video-taped testimony of R. Shabtai
Rappaport, who explains that he was granted the privilege of editing the final two volumes of Iggerot

93

In the second version (i.e. the Moriah Offset Company version) of his prenuptial
agreement, R. Feinstein refers only to denying a husband the right to a civil divorce
should he refuse to grant his wife a get despite the fact that a Beth Din has issued
instructions to deliver a get. True to form, R. Feinstein references his immediately
preceding respondum (Iggerot Mosheh, Even ha-Ezer IV, no. 106), devoted to the same
topic. [To merely deny a husband the right to a civil divorce does not constitute halakhic
coercion altogether, as explained by R. Bleich in a separate context (viz. Be-Netivot haHalakhah I, pp. 32-38).] But there does not seem to be any reference in R. Feinsteins
prenuptial agreement (-especially in the second version) to compelling the bride and
groom to materialize before any particular Beth Din.101
Mosheh that were published in R. Moshe Feinstein's physical lifetime (viz. volumes 6 and 7). The following
is a transcript of his testimony from <http://www.hods.org/English/h-issues/YouTube_video
%20pages/RabbiRappaportFull01.asp>, at 2:45-3:13 into the recording. During the testimony, R. Rappaport
refers to Vol. 6 at the first volume (since it is the first volume of Iggerot Mosheh that R. Rappaport
published) and Vol. 7 as the the second volume (since it is the second volume of Iggerot Mosheh that R.
Rappaport published). R. Rappaport says as follows:
The first volume he reviewed very very carefully. I did not Every editorial note that I had I showed it to
Rav Moshe. And he approved of it or he did not approve of it. Completely reviewed every sentence was
reviewed by Rav Moshe. The second volume came out closer to his petirah. So it was also very carefully
reviewed but not as thoroughly as the previous volume.
Although not stated explicitly by R. Rappaport, it seems to this student that R. Rappaport's reference to the
relative lack of thoroughness in R. Feinstein's proofreading of Iggerot Mosheh, Vol. 7 refers to the visually
identifiable fact that R. Feinstein published this volume in two installments. The first installment published in regular sized font (like all the previous volumes of Iggerot Mosheh) - materialized in two
(identical) editions: Yeshivat Ohel Yosef Printers (in Israel) and Noble Book Press Corporation (in the
USA). After these two editions were already published, new information was inserted in a smaller font
into sixty-five of the responsa (which will presently be listed), and published as the Moriah Offset
Company (of Brooklyn, New York) edition. Apparently, then, (as interpreted by the present student,) R.
Rappaport means that R. Feinstein decided to revisit sixty-five of the responsa in Vol. 7 and update them,
after the first two editions of Vol. 7 were already released and could not be recalled.
The following is a listing of the updates rendered in the Moriah Offset Company edition of Iggerot Mosheh,
Vol. 7:
REVISIONS IN EVEN HA-EZER IV
(1) Siman 10: Top of left column on p. 21, R. Feinstein adds reference to the name of the parashah (viz.
Shoftim), its chapter and verse (viz. Deut. 18:13).
(2) Siman 21: Eight lines from end of left column on p. 43, R. Feinstein adds reference to where
the Nimukei Yosef may be located in Dapei ha-Rif.
(3) Siman 26, sec. 3: Nineteenth line on left column on p. 54, R. Feinstein adds reference where Tosafot
may be found.
(4) Siman 30: At the beginning, R. Feinstein expands the abbreviation that prefaces the name of his
interlocutor. Viz., in the first installment R. Feinstein wrote hay-reish-hay-gimmel, representing ha-Rav haGa'on. Now, in the second installment, R. Feinstein actually writes ha-Rav ha-Ga'on. Also, in the second
installment, the date is deleted.
(5) Siman 32, sec. 3: Top of right column on p. 75, R. Feinstein adds the words be-Hilkhot Ishut to
complete the reference from Rambam.
(6) Siman 34: Three lines from end of right column on p. 78, R. Feinstein adds reference where the Torat
Kohanim may be found.

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Indeed, who says that the bride and groom are ever halakhically obligated to
materialize before any particular Beth Din? To be sure, as explained by R. Bleich in
Contemporary Halakhic Problems IV, ch. 1, Jews must proceed to a Beth Din when they
experience an adversarial dispute. But why this particular Beth Din as opposed to that
particular Beth Din? Both the bride and groom enjoy the right to stall for time in
negotiating tactics (generally in the form of zablaah, as explained in that chapter of R.
Bleich). Thus, if the bride and groom commit themselves in a prenuptial agreement to
appear before a particular Beth Din, one might argue that this asmakhta dare not be
enforced, since it would constitute unlawful incarceration of the bride and/or groom,
(7) Siman 37: Seventeenth line of left column on p. 81, R. Feinstein adds the words amud beit to the
reference from Nedarim, daf tzadi.
(8) Siman 38: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour prefacing
his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav Rabbi. Now,
in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(9) Siman 44, sec. 5: Fifth line of right column on p. 94, R. Feinstein corrects a mistake from the first
installment of this responsum. Previously he wrote Hilkhot Issurei Bi'ah 2:8. Now it is corrected to Hilkhot
Issurei Bi'ah 2:7.
(10) Siman 45: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(11) Siman 46: R. Feinstein corrects an error in the abbreviation of the title of honour prefacing his
interlocutor's name. Viz., in the first installment R. Feinstein had written mem-hay-dalet-resh, a meaningless
expression. Now, in the second installment, R. Feinstein corrects this to mem-vav-hay-resh-resh, accurately
representing Moreinu ve-Rabbeinu ha-Rav Rabbi.
(12) Siman 49: At the beginning, R. Feinstein adds a title of honour to his interlocutor, viz. Moreinu veRabbeinu ha-Rav Rabbi.
Also in the same responsum: At the end, R. Feinstein revises his concluding salutation to "zekenkha
ohavkha be-lev ve-nefesh ". [In the first installment of this responsum, R. Feinstein had only written
"zekenkha ohavkha ".]
(13) Siman 52: Tenth line of left column on p. 107, R. Feinstein revises the references from the first
installment of this responsum. Previously he referred to the Ran on the basis of the pagination of the main
text of the gemara in both Ketubot and Gittin. Now, R. Feinstein refers to the Ran on the basis of the
pagination in Dapei ha-Rif.
(14) Siman 55: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(15) Siman 60: Six lines from end of right column on p. 118, R. Feinstein adds the specific location in
Ba'alei ha-Nefesh (-written by Ra'avad).
(16) Siman 62: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
Also in the same responsum: At the end, R. Feinstein revises his concluding salutation to " ve-hineni
dodkha ". [In the first installment of this responsum, R. Feinstein had written "ve-hineni dodkha ohavkha
be-lev ve-nefesh ".]
(17) Siman 64: At the beginning, R. Feinstein expands the abbreviation that prefaces the name of his
interlocutor. Viz., in the first installment R. Feinstein wrote hay-reish-hay-gimmel, representing ha-Rav haGa'on. Now, in the second installment, R. Feinstein actually writes ha-Rav ha-Ga'on. Also, in the first
installment, R. Feinstein concludes the greeting to his interlocutor by writing "shalom u-verakhah le-olam"
(peace and blessing forever). In the second installment, R. Feinstein changes this greeting to "shalom uverekhev le-olam" (peace and the privilege of inhabiting the chariot forever). This student presumes that the
latter change represents a typographical misadventure, although it is a theoretically plausible blessing (even
if it is somewhat unconventional among Jews).

95

who will be forced by the police to appear before a particular Beth Din, when they could
just as well have negotiated through zablaah to appear before a different Beth Din.
It is true that in that chapter R. Bleich advocates that a universal Beth Din
system be implemented for American Jewry (and, by extension, for all Jews everywhere),
with the goal that all Jews be bound by the jurisdiction of a particular Beth Din from
which they cannot escape and cannot appeal for zablaah. This would constitute a true
kehillah system, explains R. Bleich. And it is certainly the way batei din operate in the
modern State of Israel, where Israeli law compels citizens of the State of Israel to appear
before a particular Beth Din on all disputes over marriage and divorce. R. Bleich declares
quoting R. Yosef Eliyahu Henkin that the implementation of a Beth Din system in
(18) Siman 65: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
Also in the same responsum (Siman 65, sec. 10): Final line of right column on p. 130, R. Feinstein corrects
a mistake from the first installment of this responsum. Previously he wrote Sanhedrin 21a. Now it is
corrected to Sanhedrin 22a.
(19) Siman 66: At the beginning, R. Feinstein adds a title of honour to his interlocutor, viz. Moreinu veRabbeinu ha-Rav Rabbi.
Also in the same responsum: Twenty-sixth line of right column on p. 136, R. Feinstein adds a reference to
the page of gemara in Yevamot (75b).
Furthermore in the same responsum: Eleventh line of left column on p. 136, R. Feinstein adds a reference
to Yevamot 76a.
(20) Siman 73, sec. 1: Fourth line from end of right column on p. 140, R. Feinstein adds a reference to
Yevamot 12a.
(21) Siman 75: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(22) Siman 82: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu veRabbeinu ha-Rav. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav
Rabbi.
(23) Siman 87, sec. 3: Thirteen lines from end of left column on p. 156, R. Feinstein adds a reference to
chapter and verse (viz. Deut. 9:1)
(24) Siman 88: At the beginning, R. Feinstein adds the date (viz. 3 Adar, 5738). In the first installment, no
date was provided.
(25) Siman 89: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
Also in the same responsum: Fifteen lines from end of left column on p. 159, R. Feinstein adds reference to
name of parashah (viz. Va-yetzei), chapter and verse (viz. Gen. 29:26).
(26) Siman 91: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu veRabbeinu ha-Rav. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav
Rabbi.
Also in the same responsum: Seven lines from end of left column on p. 160, R. Feinstein rewrites the
responsum with several changes. He adds a reference to the verse from Mishpatim, as well as a reference
to R. Eliyahu Mizrachi, as well as a reference to the verse from Chayei Sarah. More substantially, R.
Feinstein begins to introduce an idea from the gemara in Sanhedrin 21a, but was evidently unable to
complete the idea in the limited space alotted, such that it is not clear to this student what R. Feinstein was
attempting to write. However, this typographical misadventure in R. Feinstein's attempted revision does not
appear (to the limited comprehension of this student) to substantially change the overall meaning of the
responsum.

96

every Jewish community in the Diaspora constitutes the fulfillment of a mitzvah

dioraita, based on Numbers 35:29 as exposed by Makkot 7a.
Nevertheless, it seems to this student that until the utopian vision of R. Henkin
comes to fruition in all sectors of the Diaspora, one may seriously question whether a
bride and groom can force themselves in advance [when they dont live in a true kehillah
system] to materialize before a particular Beth Din, and one may question whether this is
what R. Feinstein actually intended. After all, how can we deprive the bride or groom
from the right to stall for time through the zablaah process?102 And if we deprive the
groom of that right, by gratuitously compelling the groom to materialize in a particular
Beth Din, is that not perhaps a form of incarceration, which might affect the validity of
a resulting get? This is a question which merits careful attention.
Also in the same responsum: Twentieth line of right column on p. 161, R. Feinstein adds amud aleph as a
reference to Sanhedrin daf kuf zayin.
(27) Siman 92: At the end, R. Feinstein revises his concluding salutation to "chotankha ohavkha be-lev venefesh ". [In the first installment of this responsum, R. Feinstein had only written "chotankha ohavkha ".]
(28) Siman 95: At the beginning, addressing two interlocutors, R. Feinstein adds a letter in both
abbreviations of the titles of honour prefacing his interlocutors' names. Viz., in the first installment R.
Feinstein had written Moreinu ha-Rav Rabbi for each interlocutor. Now, in the second installment, R.
Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi for each interlocutor.
Also in the same responsum: Eighteenth line of left column on p. 166, R. Feinstein adds se'if vav as a
reference to Shulchan Arukh siman kuf tet vav.
(29) Siman 96: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(30) Siman 98: Third line of right column on p. 168, R. Feinstein adds an extra letter in the rashei teivot
prefacing R. Tendler's name. [Viz. instead of Moreinu ve-Rabbeinu ha-Rav, it now reads Moreinu veRabbeinu ha-Rav Rabbi ].
Also in this responsum: At the end, R. Feinstein corrects a punctuation error in the concluding salutation.
Viz., R. Feinstein had previously concluded "yedido " followed by a period in the first installment. Now, in
the second installment, R. Feinstein corrects this to "yedido " followed by a comma, consistent with the
punctuation mannerism of the concluding salutations throughout all volumes of Iggerot Mosheh.
(31) Siman 99: R. Feinstein completely rewrites the second paragraph of the responsum. In the first
installment, R. Feinstein was addressing a particular mesader gittin, telling him that - despite his
proficiency in hilkhot gittin - he should only supervise gittin as part of a Beth Din. Now, R. Feinstein
rewrites the second paragraph to address the message to all mesaderei gittin.
(32) Siman 101: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(33) Siman 103: Top of left column on p. 176, R. Feinstein adds the specific reference from the Sedei
Chemed.
(34) Siman 104: At the beginning, R. Feinstein adds a title of honour to his interlocutor, viz. Moreinu veRabbeinu ha-Rav Rabbi.
(35) Siman 105: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(36) Siman 106: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(37) Siman 107: As discussed in the main text of this essay, R. Feinstein completely rewrites the entire
responsum regarding his prenuptial agreement.
(38) Siman 108: R. Feinstein adds a brand new paragraph at the end of the responsum. He writes that he
agrees with his grandson that it is wrong for one who receives an aliyah la-Torah to recite the birkot haTorah in a pronunciation different than that of the congregation.

97

Indeed, writing in a completely different context (viz. Be-Netivot ha-Halakhah I,

pp. 26-29), R. Bleich appears to actually endorse this students thesis. Namely, as already
described in Section A of this essay, R. Bleich rejects invocation of Nachalat Shivah no.
9 as a precedent for the 1993 Beth Din of America prenuptial agreement, on account of
two refutations. The second of these two refutations (as interpreted by this student) is that
in seventeenth century Gemany (where Nachalat Shivah was writing), all Jews were
obligated to bring their disputes before a specific, centralized community Beth Din, such
that imposition of a financial penalty upon a husband who refuses to materialize before
the Beth Din was nothing more than requiring the husband to fulfill his pre-existing
halakhic obligation. In the post-emancipation era of today, those conditions do not exist
(39) Siman 115: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu veRabbeinu ha-Rav. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav
Rabbi.
(40) Siman 117: Eighteenth line of left column on p. 189, R. Feinstein adds the reference where in the
dapei ha-Rif the Ramban's Milchamot can be found.
Also in this responsum: At the end, R. Feinstein revises his concluding salutation to "ben gilo ohavo be-lev
ve-nefesh ". [In the first installment, R. Feinstein employed a different concluding salutation, viz. "yedido
".]
(41) Siman 120: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu veRabbeinu ha-Rav. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav
Rabbi.
REVISIONS IN CHOSHEN MISHPAT II
(42) Siman 12: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(43) Siman 13: At the beginning, one title of R. Feinstein's interlocutor (viz. "ha-mefursam") is omitted.
(44) Siman 15: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(45) Siman 16: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(46) Siman 18: At the beginning, R. Feinstein adds a title of honour to his interlocutor, viz. Moreinu veRabbeinu ha-Rav Rabbi.
(47) Siman 19: At the beginning, two titles of R. Feinstein's interlocutor, viz. "ha-mefursam kuf-shintav" [the second word - an abbreviation - potentially representing kevod shem tifarto, or alternatively
kitrah shel Torah (-see R. Abraham Isaac Sterns Sefer Rashei Teivot, published in 1926)] are omitted.
Also in this responsum: At the end, R. Feinstein revises his concluding salutation to "ve-hineni yedido ". [In
the first installment of this responsum, R. Feinstein had written "ve-hineni yedido mokiro me'od ".]
(48) Siman 27: At the beginning, R. Feinstein adds a rabbinic title to his interlocutor.
(49) Siman 28: At the end, R. Feinstein revises his concluding salutation to "avikha ohavkha be-lev venefesh ". [In the first installment of this responsum, R. Feinstein had only written "avikha ohavkha ".
(50) Siman 29: At the beginning, R. Feinstein adds the date. [The first installment of the responsum did not
include the date.]
(51) Siman 30: At the beginning, R. Feinstein adds the blessing to his interlocutor nun-yud (presumably
representing nero ya'ir).
(52) Siman 33: Fourth line of right column on p. 246, R. Feinstein renders a changes to the responsum, but
which unfortunately experiences two typographical misadventures. First, R. Feinstein adds in the sentence
"for they were also there from last year, and the Beth Din can verify whether or not they enjoy a chazakah",

98

in the Diaspora (i.e. there is a free market of batei din from which litigants can choose
when they experience a dispute), and so to compel a husband to appear before a specific
Beth Din represents unauthorized coercion, as the husband enjoys the right to request
having his case heard before a different Beth Din. Mutatis mutandis, this student believes
that one should not employ the prenuptial agreement which R. Willig103 and R. Bleich104
attribute to Iggerot Mosheh, Even ha-Ezer IV, no. 107.
And, in any event, the prenuptial agreement attributed by R. Willig and R. Bleich
to Iggerot Mosheh, Even ha-Ezer IV, no. 107 is no longer necessary in order to rescue
agunot, once the prenuptial agreements advocated by sections O and Q above are
except that R. Feinstein mistypes gam hayu as gahar. Secondly, as a consequence of adding this sentence,
there is insufficient room for R. Feinstein to complete his idea in the space alotted (before R. Feinstein
arrives at the word ha-menahel, where the responsum resumes to the same format as the first installment),
forcing R. Feinstein to drop several words, and rendering the passage incomprehensible. Presumably,
however, R. Feinstein intended to complete the idea the same way as in the first installment of the
responsum; if this student's presumption is true, then the passage becomes comprehensible.
(53) Siman 39: At the beginning, the date of the responsum is omitted, and also one title of one of R.
Feinstein's interlocutors (viz. "ha-mefursam") is omitted.
Also in this responsum: At the end, R. Feinstein adds a concluding salutation, viz. "yedidam ". [The first
installment of the responsum did not contain a concluding salutation.]
(54) Siman 45: At the beginning, R. Feinstein adds the following introduction to the responsum: "Behold
my grandson ha-Rav ha-Ga'on Moreinu ve-Rabbeinu ha-Rav R. Mordechai Tendler shlit"a forwarded to me
several questions that you asked, and even though he answered you in my name, because the matters also
affect others, I will write the responses in summary."
(55) Siman 46: At the beginning, R. Feinstein adds a title to his interlocutor, viz. Moreinu ve-Rabbeinu haRav Rabbi. [Curiously, R. Feinstein's interlocutor is not even identified by name, but evidently R. Feinstein
wished to honour his anonymous interlocutor with the additional title.]
(56) Siman 48: At the beginning, R. Feinstein adds a title to his interlocutor, viz. Moreinu ve-Rabbeinu haRav Rabbi. [In contradistinction to the previous case, here the interlocutor is identified by name.]
Also in the same responsum: Fifteen lines from the end of left column on p. 259, R. Feinstein corrects an
error from the first installment. In the first installment he referred to Bava Batra 54a. R. Feinstein now, in
the second installment, corrects this to Bava Batra 54b.
(57) Siman 61: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
Unfortunately, this revision also experiences a typographical misadventure, as the interlocutor's actual name
(R. Efraim Greenblatt) is misspelled in the second installment ("R. Efraim Gteenblatt").
(58) Siman 65: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
(59) Siman 67: At the beginning, R. Feinstein adds the date. [The first installment of the responsum did not
include the date.]
(60) Siman 69: At the beginning, R. Feinstein expands the rashei teivot of a title of honour preceding his
interlocutor. Viz., in the first installment R. Feinstein wrote hay-resh-hay-gimmel. Now, in the second
installment, R. Feinstein writes ha-Rav ha-Ga'on. Also, R. Feinstein adds the title of honour Moreinu veRabbeinu ha-Rav Rabbi to his interlocutor.
Also in this responsum: At the end, R. Feinstein revises his concluding salutation to "chotenkha ke-avikha
be-lev ve-nefesh". [In the first installment, R. Feinstein had only written "chotenkha ke-avikha ".]
(61) Siman 71: At the beginning, R. Feinstein adds a letter in the abbreviation of the title of honour
prefacing his interlocutor's name. Viz., in the first installment R. Feinstein had written Moreinu ha-Rav
Rabbi. Now, in the second installment, R. Feinstein revises this to Moreinu ve-Rabbeinu ha-Rav Rabbi.
Also in this responsum: At the end, R. Feinstein revises his concluding salutation to "yedido". [In the first
installment, R. Feinstein had written "yedido mokiro ".]

99

employed. Namely, once the righteous ladies of Israel are empowered like Rebecca our
matriarch, it is unlikely that they will ever become agunot.
Accordingly, given the uncertainty as well as the superfluity that surrounds the
prenuptial agreement attributed to R. Feinstein in Iggerot Mosheh, Even ha-Ezer IV, no.
107, it seems to this student that the dictates of prudence demand that one avoid
implementing the prenuptial agreement attributed to R. Feinstein until the matter is
further clarified. As such, this student applauds R. Bleich for refraining from codifying
(in Be-Netivot ha-Halakhah I) any mention of R. Feinsteins prenuptial agreement (-and
indeed, as mentioned, R. Bleichs printed words in Be-Netivot ha-Halakhah I, pp. 26-29
(62) Siman 73: At the end, R. Feinstein revises his concluding salutation to "ve-hineni yedidam". [In the
first installment, R. Feinstein had written "ve-hineni yedidam ve-ohavam ".
(63) Siman 74: Sixth line of left column on p. 311, R. Feinstein adds a parenthetical comment that
completely changes the outcome of this piku'ach nefesh responsum. In the parenthetical comment, R.
Feinstein reports that his grandson suggests that perhaps one cannot extrapolate from the Ran in Nedarim
40a to deny a gossess lifesaving medicine. R. Feinstein concludes "ve-yesh le-ayen be-ta'anah zu",
apparently meaning that there is at least a safek that perhaps his grandson is correct. [Since all doubts
regarding piku'ach nefesh are adjudicated to the side of life, as per the mishnah in Yoma 83a, this would
apparently change the outcome of R. Feinstein's responsum, and require saving the life of the gossess. For
further analysis of the two versions of this responsum, see the Jewish Law Annual article cited supra, note
6a.]
(64) Siman 76: At the end, R. Feinstein revises his concluding salutation to "ve-hineni yedido ". [In the first
installment, R. Feinstein had written " ve-hineni yedido mokiro ".]
(65) Siman 79: At the beginning, R. Feinstein adds the date. [The first installment of the responsum did not
include the date.]
ANALYSIS OF REVISIONS TO IGGEROT MOSHEH VOL. 7
There are exactly two hundred responsa published in Iggerot Mosheh Vol. 7. Of these two hundred
responsa, sixty-five responsa were revised for the second installment, constituting 32.5% of the responsa.
Of these sixty-fice revised responsa, it seems to this student that the revisions may be classified into four
categories:
(a) Trivial revisions: Emendations that do not change the substance of the pesak halakhah, and which are
purely of interest in the sense that kol sichat talmidei chakhamim tzerikhah talmud (as per Rashbam to
Bava Batra 73a, s.v. Amar Rabbah). Into this category fall fifty-eight of the revised responsa, viz. all those
that are not classified infra in categories (b), (c) and (d).
(b) Mild harmonious revisions: Emendations that add new information in a coherent manner, and in a
manner which does not reverse the pesak halakhah. Into this category fall three of the revised responsa, viz.
31 (where R. Feinstein now addresses all mesaderei gittin, instead of the first installment where he
addressed a single mesader gittin), 38 (where R. Feinstein adds a new ruling - not only the ba'al korei must
respect the congregation ethnic pronunciation, but even the oleh) and 54 (where R. Feinstein expands his
ruling from merely addressing R. Tendler's individual case to addressing all such cases of the public).
(c) Mild illegible revisions: Emendations that add new information and - while not reversing the pesak
halakhah - hinder the literal flow of R. Feinstein's words (due to typographical misadventure). Into this
category fall two of the revised responsa, viz. 26 and 52.
(d) Significant revisions: Emendations that potentially overturn the entire pesak halakhah. Into this
category fall two of the revised responsa, viz. 37 and 63.
101

Quite significantly, this is also the way R. Feinsteins prenuptial agreement is understood by R. David
Joseph Mescheloff, writing in Tradition 43:3 (Fall 2010). Further exploration of other dimensions of R.
Mescheloffs article will be orchestrated in Section S of this essay.

100

appear to augur against a prenuptial agreement that requires appearance before a specific
Beth Din).
Moreover, this students conclusion to eschew the prenuptial agreement in Iggerot
Mosheh, Even ha-Ezer IV, no. 107 appears to be vindicated by an entirely separate
responsum of R. Feinstein, viz. Iggerot Mosheh, Even ha-Ezer IV, no. 90. In this entirely
separate responsum (written three years after Even ha-Ezer IV, no. 107, and published
simultaneously in the same volume of Iggerot Mosheh), R. Feinstein clearly and
unambiguously encourages Ha-Rav ha-Gaon R. Moshe David Tendler to employ a
simple English translation of the actual ketubah as the ideal prenuptial agreement. In this
manner, the husband obligates himself to no more than the ketubah already obligates him;
the only novelty of this prenuptial agreement is to express the message of the ketubah in
English so that a wider audience can understand the concept of the ketubah. It is, as R.
Feinstein states, what the husband has always been obligated from generations of
generations (mi-dorei dorot). In other words, Ha-Rav ha-Gaon R. Tendler is being
requested not to introduce any novel coercion on the husband. Quite significantly, R.
Feinstein never encourages Ha-Rav ha-Gaon R. Tendler to employ the prenuptial
agreement of Iggerot Mosheh, Even ha-Ezer IV, no. 107.
And so, the present essay faithfully follows Iggerot Mosheh, Even ha-Ezer IV, no.
90, insofar as the provision of tosefet mezonot (if voluntarily assumed by the husband
immediately before the kiddushin, as explained in section Q) is itself an authentic option
to be included in a ketubah which enjoys a time-honoured precedent in Jewish history, as
102

Rashi and Siftei Chakhamim upon Numbers 35:29 explain that the instruction to arrange courts in the
Diaspora exists so long as there is a Great Sanhedrin operational in the Chamber of the Hewn Stone. The
implication - in this students opinion is that when there is no Sanhedrin operating on the Temple Mount,
there is no obligation to set up courts in the Diaspora either. If so, it emerges that both bride and groom
enjoy the right to stall for time through the zablaah process if they live in the Diaspora. Admittedly, this is
not the way the gemara in Makkot 7a is understood by R. Henkin or (yibadel le-chaim) by R. Bleich.
Nevertheless, in an oral discussion between this student and his mentor R. Joshua H. Shmidman, the latter
concurred with (le-havdil ani ha-katan) this students understanding of Rashi and Siftei Chakhamim and
specifically encouraged this student to bring it to R. Bleichs attention. [Unfortunately (or otherwise), this
student neglected to pursue the matter any further until after R. Shmidman had ascended to the Heavenly
Academy, such that it is no longer possible to independently verify this students testimony of R.
Shmidmans concurral, as per the gemara in Yevamot 77a. Be that as it may, this student believes that Rashi
and Siftei Chakhamim speak for themselves.]
See also R. Mordechai Willigs written analysis of this subject published in Beit Yitzchak XXXVI
(5764), pp. 13-17, which also seems to recognize that there is not necessarily an obligation for a litigant to
appear before any particular Beth Din, unless one lives in a society where there is a universally recognized
Beth Din to which every citizen automatically proceeds when a dispute arises. Although R. Willig does not
proceed to the next logical step (viz. to recognize that his own written analysis potentially contradicts the
prenuptial agreement which R. Willig attributes to R. Moshe Feinstein in Iggerot Mosheh, Even ha-Ezer IV,
no. 107), this student is presently identifying this next logical step, ke-talmid ha-yoshev ba-karka ve-dan
lifnei Rabbo.
And see also the analysis of R. Chaim Jachter (with R. Ezra Frazer) in his Gray Matter, Vol. II
(Yashar Books, 2006), pp. 184-192 which also seems to recognize that there is not necessarily an obligation
for a litigant to appear before any particular Beth Din, unless one lives in a society where there is a
universally recognized Beth Din to which every citizen automatically proceeds when a dispute arises.
103

Referenced supra, note 98.

104

Referenced supra, note 99.

101

per Rashi to Genesis 27:9 who comments: For such did Isaac write her [i.e. Rebecca] in
her ketubah: to take two goats on every day. Ergo, far from (chas ve-chalilah) deviating
from the wishes of R. Feinstein, the present essay actually implements the masterful
guidance of R. Feinstein, where that guidance conforms with the consensus of poskim,
viz. the guidance of Iggerot Mosheh, Even ha-Ezer IV, no. 90, (and not the rejected
guidance of Iggerot Mosheh, Even ha-Ezer IV, no. 107).
S. THE DEVICE OF THE SAGES OF SPAIN
We have seen thus far in the text of this essay that R. Bleich has proposed two
different and independent types of prenuptial agreements: one (presented in Section P of
this essay, and further refined by this student in Section Q of this essay) based on tosefet
mezonot, and one (presented in the immediately preceding Section R of this essay) based
on coercing appearance before a Beth Din. The concluding two paragraphs of Section R
of this essay explain why the latter prenuptial agreement is being eschewed by the present
essay (-and indeed R. Bleich himself does not codify the latter type of prenuptial
agreement in Be-Netivot ha-Halakhah I).
As tangentially mentioned in an earlier footnote within this essay,105 R. Bleich has
proposed a yet another (and independent) form of prenuptial agreement in Contemporary
Halakhic Problems III, pp. 329-343, based on the Device of the Sages of Spain. Namely,
the bride and groom both obligate themselves unconditionally to pay an extravagant sum
of money, unconditionally. Then, the bride and groom both grant one another a mechilah
(forgiveness) from that obligation, but the mechilah is modified by a stipulation that
mechilah will only be effective on condition that each one will cooperate in a divorce
process. The Device of the Sages of Spain, maintains R. Bleich, will validate such an
arrangement, and the resulting get will be kosher (pending fulfillment of the specific
details outlined by R. Bleich in that chapter). However, in R. Bleichs subsequently
published Be-Netivot ha-Halakhah I, R. Bleich renders no mention of a prenuptial
agreement based on the Device of the Sages of Spain.
In this students opinion, R. Bleich was correct to ultimately refrain from
codifying (in Be-Netivot ha-Halakhah I) his prenuptial agreement based on the Device of
the Sages of Spain (that he had previously published in Contemporary Halakhic
Problems III). The reason for this is an apparent oversight in the original publication in
Contemporary Halakhic Problems III. There, R. Bleich writes on p. 335:
The expedient devised by the Sages of Spain is endorsed by Rambam and is
codified by Shulhan Arukh, Choshen Mishpat 201:16 and Even ha-Ezer 50:6, and hence
must be regarded as normative.
Actually, with all due reverence manifest before R. Bleich, it would appear to (lehavdil ani ha-katan) this student that one may question whether R. Bleichs conclusion
actually follows from the passages in Shulchan Arukh that he cites. Specifically,
Shulchan Arukh Even ha-Ezer 50:6 allows fathers at the time of the shiddukhin
(engagement) between a future bride and future groom to commit themselves to a
penalty should either father (either of the putative bride or of the putative groom) decide
105

Supra, note 20.

102

to withdraw from the proposed marriage. The penalty is, of course, an asmakhta, but by
employing the Device of the Sages of Spain, the asmakhta can be validated. Rema,
however, comments that the accepted minhag that the penalty for withdrawal from the
proposed marriage is binding even without the Device of the Sages of Spain. Rema then
adds that if the putative bride herself decides that she refuses to marry the putative
groom, the putative brides father is considered to be in a state of oness (or force majeure)
and he is exempt from paying the penalty bespoken by the minhag. (I.e. a father cannot
possibly be expected to control his daughter, and thus the father is in a state of
circumstances beyond his control.)
Now, Otzar ha-Poskim on this passage (Even ha-Ezer 50:6), sec. 47, subsec. 1,
catalogues a dispute among the poskim what will the Rema rule if the Device of the Sages
of Spain was employed and then the putative bride refused to marry the putative groom;
will the father of the putative bride be obligated to pay, even though he finds himself
under force majeure? Some poskim interpret Rema to mean that indeed the father will
be liable, as the Device of the Sages of Spain is fully effective in circumventing the
problem of asmakhta. Other poskim, however, interpret Rema as exempting the father
even if the Device of the Sages of Spain was employed. Evidently, then, we see some
poskim interpret Rema as disagreeing with the Device of the Sages of Spain in cases of
force majeure. And yet other poskim rule that because the matter is doubtful, money
cannot be taken from father, seeing as the father can plead kim li. Presumably, the latter
position reflects the normative conclusion.106
Now, R. Bleichs prenuptial agreement in Contemporary Halakhic Problems III
attempts precisely to apply the Device of the Sages of Spain to a situation of force
majeure. For at the time the gentleman obligates himself to pay money to the lady, the
gentleman and lady are not yet married, and thus it is impossible for the gentleman to
deliver a kosher get to the lady. Since the gentleman is in a situation of force majeure, the
entire obligation is unactionable since the gentleman (even after subsequently marrying)
can always plead kim li.
It must be emphasized that, as elucidated by R. Bleich (op. cit., p. 343), the
Device of the Sages of the Spain cannot be drafted after the bride and groom are already
married. Once married, the opinion of R. Yaakov of Lissa in his Torat Gittin 134:4
dictates that we must fear that there is an umdena de-mukhach (a self-evident assessment)
that the sole reason the husband is obligating himself to pay a sum of money to his wife is
for purposes of financially coercing himself over a divorce. Financial self-coercion over a
divorce itself potentially disqualifies the validity of any resulting get. R. Bleich therefore
only endorses the use of the Device of the Sages of Spain before marriage. Yet, alas, we
have now discovered that even before marriage this expedient is unacceptable, due to the
106

Cf. R. Yaakov Yeshaayhu Blau, Pitchei Choshen VII, ch. 21, footnote 51, which cites Netivot haMishpat and Mishneh la-Melekh as validating the Device of the Sages of Spain to extract money even in
cases of oness. Alas, R. Blau appears to have overlooked the fact that this question is already addressed in
far greater detail by Otzar ha-Poskim (as cited in the main text of this section of the present essay), which
indeed references Netivot ha-Mishpat and Mishneh la-Melekh but on the other hand references poskim who
either oppose Netivot ha-Mishpat and Mishneh la-Melekh or who regard the matter as a safek (-and even in
the case of a safek, money cannot be extracted because of kim li). Since R. Blau has ascended to the
Heavenly Academy, it is impossible to consult with him on this question.

103

force majeure that the husband faces (-and the resulting ability of the husband to plead
kim li, as per Otzar ha-Poskim).
Accordingly, this student applauds R. Bleich for refraining to codify the Device of
the Sages of Spain as a possible prenuptial agreement in Be-Netivot ha-Halakhah I.107
Having apprised R. Bleich of the above remonstration, this student was privileged
to receive the following response by e-mail from R. Bleich on Sept. 10, 2012: I dont
understand. As soon as he marries he is no longer an anoose.
Thus, R. Bleich recognizes that although the Device of the Sages of Spain will not
work in the case of an anoose [i.e. a person under force majeure], and that a groom before
marriage is indeed anoose, the Device of the Sages of Spain will subsequently become
activated when the groom eventually marries, because at that point the force majeure
disappears.
This response of R. Bleich inspires us to embark upon the following thought
experiment. Namely, with all due reverence manifest before R. Bleich, we may
legitimately question whether the force majeure actually disappears after marriage. In
order for the force majeure to disappear, the groom must not only be married to his wife,
but he must also be capable of delivering a kosher get to her. Now, a get is only kosher if
there is no extraneous financial coercion being imposed upon the husband. Now, there is
only no extraneous financial coercion being imposed upon the husband assuming the
money which the husband is being asked to pay to the wife is independently owed to the
wife [irrespective of her desire for a divorce]. Now, the money which the husband is
being asked to pay to the wife is only independently owed to the wife assuming the
Device of the Sages of Spain actually takes effect. But the Device of the Sages of Spain
only takes effect assuming the husband is not an anoose! Thus, we are caught in an
endless cycle of unsustainable and incomplete logic, known as gito ve-yado bain keechad [based on the gemara in Gittin 77b]. The poskim say that we cannot extract money
based on gito ve-yado bain ke-echad.108 Ultimately, this means that the force majeure on
107

It should be noted that Contemporary Halakhic Problems III was published by R. Bleich in 1989,
whereas the volume of Otzar ha-Poskim to Shulchan Arukh Even ha-Ezer 50:6 was only published a year
later in 1990. Thus, the information necessary to diagnose the Device of the Sages of Spain as being
disqualified for purposes of a prenuptial agreement was unavailable in 1989. By contradistinction, BeNetivot ha-Halakhah I was subsequently published in 1996. Appropriately so, the latter volume appears
consistent with Otzar ha-Poskim and does not advocate employing the Device of the Sages of Spain as a
prenuptial agreement.
[N.B. R. Bleich does not necessarily concur with this students analysis, as at no time has R.
Bleich ever formally withdrawn his Device of the Sages of Spain as a prenuptial agreement proposal.
Nevertheless, this student believes that the facts speak for themselves, and that R. Bleich acted correctly
(even if not by express intent) to refrain from including the Device of the Sages of Spain in Be-Netivot haHalakhah I.]
108

See Yalkut Biurim of the Ha-Metivta edition of Talmud (by R. Yehoshua Leifer), Tractate Gittin Vol. 5,
pp. 71-72, with the title heading Ha-im sevarat bain ke-echad neemrah gam bi-shear kinyanei
mammon. Three different schools of thought are cited in this context, all of which arrive at the conclusion
(albeit for different reasons) that gito ve-yado bain ke-echad cannot be used to extract money, as follows:
(a) Ketzot ha-Choshen to Choshen Mishpat 200, seif katan 5.
(b) Or Gadol, no. 53.
(c) Shut Achiezer I, Even ha-Ezer no. 28; Chazon Ish, Choshen Mishpat, Likutim 8:19, and idem, Even
ha-Ezer 73:15, s.v. ve-khatav Ketzot ha-Choshen; Kehilot Yaakov, Gittin, no. 29; and Shiurei Reb Shmuel,
Kiddushin, no. 326.

104

the groom never disappears (even after marriage), and so the Device of the Sages of
Spain does not take effect to extract money from the husband. And if a secular judiciary
nevertheless charges the husband to pay the money, the resulting get will be disqualified
on account of financial coercion (since the husband does not owe any money according to
pure Torah law).
Accordingly, this student applauds R. Bleich for refraining to codify the Device of
the Sages of Spain as a possible prenuptial agreement in Be-Netivot ha-Halakhah I.
Having addressed R. Bleichs prenuptial agreement based on the Device of the
Sages of Spain, we now turn our attention to R. David Joseph Mescheloff, who writing
in Tradition 43:3 (Fall 2010) has suggested a modified form of the Device of the Sages
of Spain to be employed as a prenuptial agreement. R. Mescheloffs prenuptial agreement
specifies that if the bride and groom shall experience marital disharmony in the future,
they commit themselves to proceed to professional Orthodox Jewish marital mediation.
Enforcement to comply with the mediator is achieved through financial commitments
offered in advance of the marriage by the lady and gentleman under the guise of the
Device of the Sages of Spain. The mediator is authorized to decide if in his opinion
the marriage does not have any hope, the husband must divorce his wife (thus overriding
the will of the husband). At this point, the husband will have to pay the sum of money he
committed himself under the Device of the Sages of Spain if he does not grant a get.
Alas, the same objection that applies to R. Bleichs proposed Device of the Sages
of Spain prenuptial agreement essentially applies to R. Mescheloffs proposed agreement.
Gito ve-yado bain ke-echad prevents the Device of the Sages of Spain from taking effect
in this instance.
Thus, in this students opinion, R. Mescheloffs prenuptial agreement essentially
constitutes unauthorized financial coercion over any resulting get, thereby potentially
disqualifying the resulting get. Now, R. Mescheloff testifies (on p. 40 of his article) that
R. Joseph Shalom Eliashiv authorized this prenuptial agreement in a conversation they
shared in 1988. Yet, R. Mescheloff himself admits that his conversation with R. Eliashiv
was interrupted after fifteen minutes, such that the public has never received an official,
carefully considered pesak halakhah from R. Eliashiv in favour of R. Mescheloffs
prenuptial agreement, and certainly nothing has appeared published in writing from R.
Eliashiv that endorses R. Mescheloffs thesis. Even if we are to understand that R.
Eliashiv disputes the poskim (cited earlier)109 who rule that gito ve-yado bain ke-echad is
inadmissible as grounds to extract money, the husband (as the defendant) is vindicated by
the consideration of kim li, viz. he can legitimately rely on the earlier poskim to be
shielded from R. Eliashivs claim against him.
Thus, this writer believes that the essay written by R. Mescheloff in Tradition
43:3 to his praiseworthy credit as a tzaddik gammur serves a most valuable analytical
purpose (as explained in several earlier footnotes in this essay),110 but that R.
109

Supra, note 109.

110

Supra, notes 27 and 102. Moreover, R. Mescheloff deserves special gratitude for publicizing in Tradtion
44:1 (Spring 2011), p. 105 that major American dayanim make sure to cancel the [1993 Beth Din of
America prenuptial] agreement before implementing a get, to ensure that the get was given completely
willingly. This powerful testimony strengthens the conclusion of Section A of the present essay. [Along the
same lines, R. Mescheloff proceeds to note in his latter publication that there is evidence that R. Zalman
Nechemiah Goldberg has potentially withdrawn his support for the 1993 Beth Din of America prenuptial
agreement.] Accordingly, the merit of the public will redound to R. Mescheloffs eternal credit.

105

Mescheloffs prenuptial agreement is itself disqualified. Couples that have signed R.

Mescheloffs prenuptial agreement should sign a release form, comparable to that
presented in Section A above (releasing couples who have signed the 1993 Beth Din of
America prenuptial agreement).
T. RABBI JOSEPH ELIJAH HENKINS TRIPARTITE
PRENUPTIAL AGREEMENT
R. Joseph Elijah Henkin, Perushei Ivra, pp. 110-117, proposes a tripartite
prenuptial agreement consisting of (a) an ordinance of a Beth Din representing the entire
Jewish People to revoke kiddushin in case of an uncooperative husband [with noncooperation being arbitrarily defined by a communal enactment seeking to rescue
agunot]; (b) the delivery of a get from the husband to the wife at the time of the chuppah,
on condition that the get should take effect after the last act of cohabitation between
husband and wife, before the husband becomes uncooperative [with non-cooperation
being arbitrarily defined by a communal enactment seeking to rescue agunot]; and (c)
kiddushin on stipulation that if neither the Beth Din ordinance nor the get are successful,
and still the husband should remain uncooperative in the future [with non-cooperation
being arbitrarily defined by the attempted communal enactment seeking to rescue
agunot], then the initial kiddushin should be nullified. A major advantage to R. Henkins
tripartite prenuptial agreement is that it would free not only an agunah on account of a
recalcitrant husband, but even an agunah of an obliging husband who is incapable of
divorcing due to disappearance.111
R. Michael J. Broyde has improved R. Henkins proposal, in the latters article A
Proposed Tripartite Agreement to Solve Some of the Agunah Problems: A Solution
Without any Innovation, published in Jewish Law Association Studies XX: The
Manchester Conference Volume (2006), pp. 1-15.112 Nevertheless, despite R. Broydes
impressive contribution, it seems to this student that (with all due reverence manifest
before R. Broyde, who is a tzaddik gammur) the tripartite prenuptial agreement should
not be used.
Firstly, it may be noted that R. Henkin himself retracts his own tripartite
agreement proposal, as announced in his later book Perushei Lev Ivra (a different book
than Perushei Ivra), pp. 73-74. Standing on its own, this retraction of R. Henkin is not
necessarily a reason to question R. Broyde, since one could counter-argue that if only R.
111

Likewise, it would even free the type of agunah depicted by R. Waldenbergs responsum cited supra,
note 8, where the husband is non-communicative because he remains in a persistent vegetative state.
112

Available online at <http://www.scribd.com/doc/33122968/Broyde-Tripartite-Agunah-Proposal>. [I am

grateful to R. Yitzchok Adlerstein for bringing this valuable source to my attention. R. Adlerstein expresses
intuitive concern with the validity of this arrangement, and indeed the coming paragraphs in the main text
will vindicate R. Adlersteins concern.]
In addition to this students hakarat ha-tov to R. Broyde for the interactive guidance he provided
this student over several years during which time the present essay was composed, this student would
further express hakarat ha-tov to R. Broyde that his tripartite prenuptial agreement essay (published as it is
at the scribd.com website) indirectly influences readers to visit the present students prenuptial agreement
essay, since an automatic recommendation to that effect is posted by the scribd.com editorial board on the
margins of R. Broydes essay.

106

Henkin would see the improvements that R. Broyde renders to the proposal (published
three decades after R. Henkin ascended to the Heavenly Academy), then R. Henkin
would uphold the improved proposal of R. Broyde. Indeed, the specific reason for which
R. Henkin announces his retraction is on account of his previous lack of awareness of the
publication of the book Ein Tenai be-Nissuin, in which many poskim explain why
conditional marriages fail to resolve the agunah problem. By contradistinction, R. Broyde
builds the very same book Ein Tenai be-Nissuin into his article, formulating his proposal
in such a manner to address any possible concerns raised by the book. Thus, it is quite
possible that if R. Henkin would see R. Broydes article, he might endorse it.
Secondly, it may be noted that R. Henkins tripartite prenuptial agreement is
critiqued by R. Aharon Kotler, Shut Mishnat Rabbi Aharon, Even ha-Ezer no. 60.
Standing on its own, this attack of R. Kotler is not necessarily a reason to question R.
Broyde, since one could counter-argue that if only R. Kotler would see the improvements
that R. Broyde renders to the proposal (published four decades after R. Kotler ascended
to the Heavenly Academy), then R. Kotler would indeed uphold the improved proposal of
R. Broyde.
Ultimately, however, it seems to this student that the proposed tripartite prenuptial
agreement may not be used for (at least) the following reason: Cohabiting with a lady
whom one intends to divorce is prohibited by the gemara in Nedarim 20b, based on Ezekiel
20:38. This halakhah is codified as normative by Shulchan Arukh Orach Chaim 240:3. As the
delivery of a genuine sefer kerirut from the husband to the wife (-in R. Henkins original
proposal) or sincere authorization of the husband for others to do so on his behalf (-in R.
Broydes improved proposal) is integral to the tripartite prenuptial agreement, any groom
who employs such an agreement would be violating a prohibition based on the Prophets.
Actually, Beit Shmuel to Shulchan Arukh Even ha-Ezer 119, seif katan 1, mentions
the possibility that Ezekiel 20:38 does not represent an actual prohibition, only a declaration
that any child conceived [through the cohabitation of a husband with a wife whom he intends
to divorce] will be a spiritually defective child. However, even if one accepts this approach of
Beit Shmuel [-an approach which is apparently bypassed by a posthumously published letter
attributed to R. Moshe Feinstein 113], it would still be unethical to cause children to be born in
a spiritually defective manner. Thus, the tripartite prenuptial agreement may not be used.
On the other hand, the prenuptial agreements presented in Sections O and Q of this
essay do not involve the violation of any transgressions; throughout Jewish history it has
always been permissible for a groom contemplating marriage to a prestigious wife to offer
her an extravagant daily allowance. This, then, is clearly the optimal course of action in our
era to rescue ladies from becoming agunot.
CONCLUSION
This essay has proposed a combination of two independent and each halakhically
kosher prenuptial agreements to rescue the righteous ladies of Israel from becoming
agunot. The first, presented in section O, guarantees that the ladies will be shielded from
113

In Iggerot Mosheh, Even ha-Ezer V, no. 25 (-published in 2011, some twenty-five years after R.
Feinstein ascended to the Heavenly Academy), a letter attributed to R. Feinstein discusses this Beit Shmuel
and assumes that Ezekiel 20:38 represents an actual prohibition. [However, no mention is rendered in the
letter that one of Beit Shmuels answers is that Ezekiel 20:38 refers only to spiritual damage to the resulting
children, not an actual prohibition.]

107

problems of oness mammon (financial coercion upon the husband) in the gittin they
receive. The second, presented in section Q, guarantees that the ladies will become the
financial rulers of every marriage, thus allowing the lady to purchase a kosher get from
the already (and legitimately) improverished husband. Under such circumstances, it is
unlikely that any future bride will become an agunah.
The righteous ladies of Israel deserve to be awarded this combination of
prenuptial agreements in future marriages, for they are the true heroes of Jewish history
and Jewish destiny. Tzadkah mimeni (Genesis 38:26) she (the lady) is more
righteous than me (the gentleman) is the ethical and moral clarion call of our holy
Torah.
It is also appropriate to internalize the gemara in Bava Batra 58a, which discusses
the identity of the all-time aesthetics contest winner. Adam compared to the Shekhinah is
like a monkey compared to a human being. [Adam bifnei Shekhinah ke-kof bi-fnei
adam.] In other words, even the all-time winner of the pulchritude contest of human
civilization [-Adam-] is nothing compared to the dazzling beauty of the Shekhinah.
Experiencing a revelation of the Shekhinah is the most overwhelming and wonderful
manifestation of beauty that can be endured. And Deuteronomy 23:15 declares that the
Shekhinah visits the Jewish People when the Jewish People conducts itself with sanctity.
Thus, it fortuitously emerges as a refreshing conclusion that the implementation of a
kosher prenuptial agreement in the Jewish community, thereby championing the sanctity
of marriage within the Jewish community, will surely lead to a manifestation in its midst
of the greatest beauty the sparkling beauty of the Shekhinah.

Tam ve-Nishlam Shevach le-(K)-L Borei Olam

N.B. As acknowledged in note 1, this essay has primarily benefited from the guidance of Mori ve-Rabbi R.
J. David Bleich, Rosh Yeshiva at the RIETS. In addition to my paramount gratitude to R. Bleich, the
undertaking of this essay required the careful discussion with many talmidei chakhamim over a period of
several years, so as to rescue the present author from error. Accordingly, I express my gratitude to Mrs.
Baila Aspler (of Montreal, Canada); R. Moshe Barkany (former Kashrut Mashgiach of the Vaad Hair of
Montreal, Canada); R. Yosef Blau (Mashgiach Ruchani of the RIETS); Reb Gregory Bordan (of Montreal,
Canada); R. Michael J. Broyde (Professor of Law at Emory University; former Director and Dayan of the
Beth Din of America); R. David Cadoch (distinguished disciple in hilkhot gittin of the late R. Aryeh Leib
Baron of Montreal, Canada); Reb Saul Deitcher (Chairman of the Board, Vaad Hair of Montreal, Canada);
R. Daniel Eidensohn (of Jerusalem, Israel; author of Yad Mosheh index on Iggerot Mosheh); R. Dovid E.
Eidensohn (of Monsey, New York, USA); R. Saul Emanuel (Executive Director of the Vaad Hair of
Montreal, Canada); Rebbetzin Margie & R. Aaron Glatt, M.D. (of Long Island, New York, USA); Reb
Chaim Goldberg (of Montreal, Canada); R. Yisrael Zvi Harari (Shoel u-Meshiv at the RIETS); R.
Yochanan Herzog (of Montreal, Canada); Dr. Norma Baumel Joseph (of Montreal, Canada); Reb Joseph
Kaplan (of Teaneck, New Jersey, USA); R. Michael Kaplan (of Portland, Oregon, USA); Reb Elliot M.
Kramer (originally of Montreal, Canada); Reb Nachum Lamm (of Jerusalem, Israel); Reb Daniel
Lauchheimer (of New York, USA); Dr. Rachel Levmore (Coordinator for Matters of Iggun and GetRefusal, a joint project of the Council of Young Israel Rabbis in Israel and the Jewish Agency for Israel);
Reb Jacob Nataf (of Montreal, Canada); R. Yona Reiss (Av Beit Din at the Chicago Rabbinical Council);
Ms. Kaaron Saphir (Law Secretary at Cardozo School, of Yeshiva University); R. David Schnall (Inaugural
Dean of Azrieli Graduate School of Jewish Education, of Yeshiva University); Dr. Samuel Silverberg (of
Toronto, Canada); Achi ha-Gadol Reb Yehudah Dov (Brian) Spira (of Bronx, New York, USA); R. Chaim
Steinmetz (of Montreal, Canada); R. Gil Student (of Brooklyn, New York, USA); R. Shmuel Szilagyi (of

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Montreal, Canada); R. Jeremiah Unterman (Mentor to this student at the Azrieli Graduate School of Jewish
Education, of Yeshiva University); Dr. Mark Wainberg (of Montreal, Canada); R. Michael Whitman (of
Montreal, Canada); R. Mordechai Willig (Rosh Yeshiva at the RIETS); and Ms. Devorah Zlochower (of
Bronx, New York, USA) for offering outstanding guidance, which has been incorporated into the essay.
Any remaining errors are solely my responsibility. Moreover, I express my gratitude to the
<http://www.wepapers.com> service, which allowed me to publish the first and second editions of this
essay for free, as well as the <http://www.scribd.com> service which has allowed me to publish [the third,
fourth, fifth, sixth, seventh editions as well as] the present eighth edition of this essay for free. Acharon
acharon chaviv: I thank Ms. Carolan Halpern of the Canadian Jewish News, for inviting and encouraging
me to submit a Rabbinic Reflections column on Jan. 19, 2012, and another Rabbinic Reflections
column on Aug. 9, 2012, which facilitated my bringing this essay to publication (in both its first and second
editions). I thank her, as well, for the marvelous proofreading. May all those individuals, and their
associates, be blessed from Heaven.

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