Tamar Remarries Based upon HaGaon Reb Moshe: A Mistake
Rabbi Dovid E. Eidensohn/845-578-1917/eidensohnd@gmail.com/Chanukah 5776
Tamar’s marriage is rooted in the teaching of HaGaon HaGaon Reb Moshe
Feinstein to permit a woman to remarry who is an Agunah who cannot get a GET from
her husband who has a terrible blemish. I believe that relying on this pesak of
HaGaon Reb Moshe is completely wrong, as I will explain.
First of all, HaGaon Reb Moshe states clearly that his Heter only applies
when the husband absolutely refuses a GET, such as the case when the husband
fled and can’t be located. Tamar was not in such a situation. Her husband
Aharon clearly told me that he would certainly consider giving a GET. See
Igeres Moshe I:80 at end, “We permit this if it is impossible to get a GET.”
Also, see beginning of EH I:80 “When it is impossible to get a GET” and the end
of the teshuva there.
It is incredible to me that so many people have commented on this issue
and yet it is not clearly established that HaGaon Reb Moshe would never have
permitted Tamar to remarry without a GET. If Rabbi Greenblat is a disciple of HaGaon
Reb Moshe does he not feel responsible to study the teshuvose of HaGaon Reb
Moshe that limit remarriage to a case where there cannot be a GET and Tamar is
not such a case?
But there is more proof that Tamar should not remarry based upon HaGaon
Reb Moshe’s teshuva.
In his teshuva in EH I:79:1 HaGaon Reb Moshe says that “This question has
been discussed thoroughly by the earlier rabbis and the latter ones. And some
forbade her remarrying without a GET, and some say that technically she could
be permitted to remarry but they were not ready to permit it, and some said it
is forbidden by the rabbis but permitted by the Torah.” HaGaon Reb Moshe then proceeds
to permit it in certain very serious problems. But he makes it clear that he
has no source to permit it, other than his own findings.
HaGaon Reb Moshe quotes there two
major poskim who disagree with him, and would forbid a woman to remarry even if
she is a pure Agunah and no GET is possible. These Gedolim are Bais HaLevi, the
Rov of Brisk and the father of Reb Chaim Brisker Soloveitchik, and the Kavno
Rov. These were great Gedolim, accepted by all Torah Jews as “final word” Gedolim
who were the greatest rabbis in the world. HaGaon Reb Moshe is most likely not
as great as they were, and they lived before him some generations. If so, we
have a situation where three rabbis pasken, two forbid it and one permits it.
Do we permit it or do we forbid it? Since the majority forbid it, how can we
rely on the minority, in this case, HaGaon Reb Moshe, and permit a woman to
remarry without a GET? (See Choshen Mishpot 25:3)
In fact, there are at least double the amount of great rabbis who forbid
the woman to remarry even if she is a complete Agunah with no hope of a GET. The
Gaon Rav Henkin who was the Gadol in America before HaGaon Reb Moshe, disagreed
with HaGaon Reb Moshe, and he produced a Noda Biyehuda II:80, one of the
greatest of the poskim who also absolutely forbids a woman to remarry without a
GET, even if the husband fled the Agunah, and even if the husband converted to
a non-Jewish religion before he married her. If so, we have now four opinions
against HaGaon Reb Moshe. This should militate against Tamar remarrying based
only upon the opinion of HaGaon Reb Moshe.
Note that Rav Henkin brings the teshuva from Noda Biyehuda, but HaGaon
Reb Moshe did not bring it, meaning, that he did not know this teshuva. If HaGaon
Reb Moshe did not know the teshuva, and indeed, did not have a single person
who agrees with him to permit the woman to remarry, relying on HaGaon Reb Moshe
is a serious problem, not only because he is badly outnumbered. Because if a
Rov even a major posek rules against earlier authorities or other authorities,
and he knows about them, and he has proofs against them, then we may allow his
ruling to stand, because perhaps he has proofs that the earlier rabbis erred.
But if HaGaon Reb Moshe did not mention the Noda Biyehuda, which probably means
he did not know about it, we cannot rely on HaGaon Reb Moshe, because we say
“If he had seen the teshuva of Noda Biyehuda he perhaps would have rescinded
his own decision.”
See Shulchan Aruch Choshen Mishpot 25:2 end of Ramo there. We follow the
opinion of a latter authority because we assume that the latter rabbi saw the
opinion of the early rabbi or rabbis and rejected it because he had proofs that
it was wrong. But if the latter rabbi never saw the teshuva of the early rabbi
or rabbis, we say that if the latter rabbi had seen the teaching of the early
rabbi maybe he would have agreed and changed his own decision. And therefore,
we cannot rely on the latter rabbi.
Thus, when HaGaon Reb Moshe does not quote the Noda Biyehuda he greatly
weakens his own ability to be relied upon, because maybe if he had read the
teshuva he would have agreed with it. But there is another reason why this
weakens HaGaon Reb Moshe’s pesak. See Nesivose there Choshen Mishpot 25:2 in
Nesivose #20: He brings the Alshich that if the Moharik argues with a Tosfose
we don’t say that the law is as the latter authority, because Tosfose was a
greater sage than the Moharik. If so, HaGaon Reb Moshe was not on the level of
the Noda Biyehuda, who was one of the very greatest authorities accepted by all
Israel. I heard this from HaGaon Reb Yaacov Kaminetsky, that the Noda Biyehuda
and the Chasam Sofer are different than other poskim in that with other poskim
if a rabbi today has proofs that their leniency is wrong, he can be stringent.
But if the Noda Biyehuda and the Chasam Sofer rule to be lenient, even if
somebody today would disagree with it or have a strong question on it, he could
be lenient, because all of Jewry accepted the authority of these two. If so,
Noda Biyehuda is surely greater than HaGaon Reb Moshe, and we don’t follow HaGaon
Reb Moshe against the Noda Biyehuda.
In truth, I am not sure that HaGaon Reb Moshe could be considered greater
than the Kovno Rov who was a major Gadol HaDor accepted by everyone. HaGaon Reb
Moshe was not accepted by everyone and had many great battles about his
pesokim. I am also not sure that HaGaon Reb Moshe would be considered greater
than Rav Henkin, but perhaps they were equals. But if they were equals, we
cannot rule leniently that HaGaon Reb Moshe was right and Reb Henkin wrong,
because it is at least a doubt of a Torah sin. Thus, HaGaon Reb Moshe is
lenient, but the Noda Biyehuda, Bais HaLevi, Kovna Rov and Rav Henkin are
stringent. So we have a problem of a Torah law and how can we be lenient with
one rabbi against four especially if at least one of those rabbis was far
greater than HaGaon Reb Moshe? And probably the Kovneh Rov and Bais HaLevi were
greater than HaGaon Reb Moshe.
The Mahari ben Leib (IV:19:3)says that in his time (that of the Bais
Yosef who perhaps was his disciple) if a majority of rabbis permitted a woman
to marry or remarry and a minority forbade it, that we are stringent and forbid
the woman to remarry. This is perhaps based upon a Tosfose in Kesubose 2a סד"ה שאם היה לו .
A doubt in halacha is normally resolved leniently. But this may not apply to a
doubt about a husband and wife who may, if we are lenient and permit them to
live together, “will live together and sin all of their married life.”
If so, surely we cannot rely upon HaGaon Reb Moshe in defiance of the
majority of great rabbis, because even if they permitted it and HaGaon Reb
Moshe was one rabbi who forbade it, we should be stringent as the Mahari ben
Leib says. Surely when the majority of rabbis forbids the woman to remarry we
may not follow the minority and permit Tamar to remarry. And surely, even though
HaGaon Reb Moshe did not know it, when we know that the Noda Biyehuda strongly
disagrees with HaGaon Reb Moshe, we would pasken like the Noda Biyehuda and
forbid the woman to remarry.
Thus, we cannot rely on HaGaon Reb Moshe to permit Tamar to remarry, for
all of the above reasons.
There is, however, another reason. I once had a problem that a woman
needed a GET, but the husband while amenable to give a GET, refused to allow a
rabbi into his office. There is a teshuva from HaGaon Reb Moshe permitting this
GET. I asked a rabbi who was a prominent GET maker if he would make the GET. He
said he will perform the GET and then give the woman and husband a paper that they
are divorced in accord with the opinion of HaGaon Reb Moshe, but he will not
agree to it. I was upset at this and called HaGaon Reb Moshe. His gabei heard
the problem and said, “Just because it says in the teshuva sefer to do it, do
we do it?” I was so stunned I just hung up. I called up HaGaon Rav Avigder
Miller and he told me that HaGaon Reb Moshe wrote teshuvose for a certain time when
it was appropriate but later on changed and did not do those great leniencies.
Rav Margolin of Ezras Torah told me the same thing about Rav Henkin, that
we have no teshuvose from him because he felt that his teshuvose were written
for a time that required certain leniencies but he did not want them done later
one when the world become frumer.
If so, it is highly possible that these teshuvose of HaGaon Reb Moshe
written against the opinion of the great rabbis of Israel in earlier
generations are also the product of a different time and HaGaon Reb Moshe in
his later years would not want to do them any more. For all of the above
reasons and more, Tamar has no right to rely on HaGaon Reb Moshe to remarry.
If Tamar has a child with her new “husband” it is a mamzer, as many
rabbis have written.
