(2003/5763)
In the past two issues, we have discussed the rulings of the Beth Din of America (the Beth Din of the Rabbinical Council of America and the Orthodox Union) regarding the World Trade Center Agunot. We will continue this week to present the logic of the Beth Din’s rulings that permitted the Agunot to remarry.
When No Remains are Found
A great challenge for the Beth Din of America were those missing husbands whose remains were not found. Indeed, Chazal (Yevamot 121) are strict when a husband appeared to drown in Mayim She’ein Lahem Sof (waters which have no boundary). Chazal do not permit the wife to remarry even though most people who were lost in Mayim She’ein Lahem Sof perish, because the husband might have surfaced somewhere down the river unbeknownst to us. Tosafot (Yevamot 36b s.v. hah) note that a Mi’ut HaMa’tzui (a significant minority) of husbands might have been saved in such situations. Thus, in any situation where no remains were found and the husband was in a situation where a significant number of people were saved, the Halacha does not permit the wife to remarry. Although the Halacha normally follows the majority (see Chullin 11), Tosafot explain that in this situation the rabbis were strict due to the severity of the sin of a married woman marrying another man.
Nonetheless, there are many circumstances and possible avenues for leniency. For example, the Shulchan Aruch (E.H. 17:23) codifies the Mishna (Yevamot 122a) that records a case where people witnessed a man from afar proclaim that, “I, so-and-so, the son of so-and-so, have been bitten by a snake and am about to die.” Chazal permitted the wife to remarry even though the husband’s body was never found. Rabbi Jonas Prager records (in an essay published in the Fall 2002 issue of the Journal of Halacha and Contemporary Society) that the Beth Din of the Belzer community released a woman from the status of Agunah based on similar circumstances even though the husband’s body was not yet found. The husband called a friend on his cellular phone from a very high floor in the WTC and informed him that he was about to die and was on the phone until the moment of death. Rav Ovadia Yosef (in his responsum regarding a WTC Agunah) notes that Halacha regards voice recognition (Hakarat Tiv’ah D’Kolah) as a valid means of identification (Gittin 23a) and that many Poskim accept a woman’s telephone appointment of an agent to accept a Get (Teshuvot Beit Yitzchak E.H. 2:13, Teshuvot Shaarei De’ah 1:194, Teshuvot Mahashag 2:250, and Teshuvot Igrot Moshe E.H. 1:139).
The first step for a Beth Din to issue a lenient ruling in such a case is to establish that husband and wife were at peace with each other, in order to establish that the man did not have any apparent motivations to flee his family (see the Mishna Yevamot 114b). Rav Yechezkel Landau (Teshuvot Nodah B’Yehuda 2:E.H. 47) adds that the Beth Din should investigate whether the man established a regular pattern of returning home each day after work or a brief trip. Rav Landau explains that once this is established there are serious indications (Raglayim LaDavar) that the husband is no longer alive. Rav Landau explains that “although this is insufficient basis for which to issue a permissive ruling, nonetheless, it is point of departure from where it is appropriate to search for leniencies within the Halacha” to permit the woman to remarry.
The subsequent step for the Beth Din was to establish that a husband was in a section of the World Trade Center where very few or no people survived at the time of the terrorist attack. This was established by e-mail messages (as noted by Rav Ovadia Yosef in his responsum on the WTC Agunot), telephone calls, or eyewitnesses. Rav Ovadia Yosef addresses a relatively easy case where the husband called his wife from the WTC after the plane hit the north tower stating that he was evacuating his office in the north tower that was located above the ninety-second floor.
A harder case is when the husband called that he arrived at work before the plane hit his building, and where there is no evidence that he was in the building at the time when the plane hit the building. In one case, the husband phoned his wife that he arrived at his office in the north tower (above the ninety-second floor) at 8:20 A.M. and subsequently was not heard from. Rav Zalman Nechemia ruled that Halachic principle of Chazaka (that the status quo was maintained) applies, since there is no reason to assume that the status quo was disturbed. An analogy to a common Halachic experience is relying upon the Kashrut of an Eruv on Shabbat that was inspected before Shabbat. The Halacha permits relying upon the status quo (Chazakah) unless there is a Rei’utah (a disturbance to the Chazakah) to the status quo. We should note that the assumption that there was no disturbance to the Chazakah is valid for those who were in the northern tower, but not for those in the southern tower, as many people evacuated the southern tower after the northern tower was hit.
Rav Mendel Senderovic (the Rosh Kollel of the Milwaukee Kollel) writes in the Kol Zvi that it appears difficult to rely on Chazakah in the case of Agunot as the Halacha does not permit relying upon Rov in a Agunah situation. Indeed, since the Gemara (Kiddushin 80a) states that a majority is stronger Halachic evidence than a Rov, it appears obvious that the Halacha cannot rely upon Chazakah to permit an Agunah to remarry. Rav Mendel cites that Rav Yitzchak Elchanan (Teshuvot Ein Yitzchak 2:1) did not rely upon Chazakah alone to permit an Agunah to remarry. However, in Rav Yitzchak Elchanan’s case he ruled leniently as there was also a Rov upon which to base a leniency. Rav Yitzchak Elchanan asserts that a combination of a majority and a Chazakah may be relied upon to permit an Agunah to remarry. In the WTC situation Rav Mendel argues that in addition to the Chazakah there exists a Rov that if the missing husband actually survived he would have contacted his family.
Once it is adequately established that the husband was in the most vulnerable section of the WTC at the time of the attack, the Beth Din began exploring avenues for leniency. One possible means of leniency was suggested by Rav Gedalia Schwartz and endorsed by Rav Ovadia Yosef based on the following case in the Gemara. The Shulchan Aruch (E.H. 17:30) codifies the Gemara (Yevamot 121b) that records that if one witnessed a husband fall into a cauldron of fire, he may testify that the husband died. The Beit Shmuel (17:92) rules, though, that this leniency applies only if the fire was one where the husband would be unable to extract himself. We should note that Halacha does not concern itself with the possibility that a miracle occurred and the husband was saved unbeknownst to all (see Yevamot 121b and Tosafot Yevamot 121b s.v. Ein).
Rav Ovadia Yosef ruled that this situation applies to those caught at or above the floors where the terrorists penetrated the WTC with the planes. A huge fire erupted as the terrorists chose a very large plane that was on a cross-country flight that contained an enormous volume of fuel. Those individuals who were tragically caught at that point can be described as being trapped in a cauldron of fire. Rav Gedalia Schwartz adds that although we did not see the individual husbands being trapped in the fire, knowledge that he was located in the area constitutes sufficient evidence of his death. Rav Schwartz believes that it is analogous to the case cited in the Otzar HaPoskim (6:128-129) where a fire erupted in a ship where a husband was held prisoner in the bottom of the boat. Teshuvot B’tzeil HaKesef (2:4) ruled leniently in that case despite the fact that witnesses did not actually see the husband being engulfed by the fire because the husband was shackled in chains and had no possibility of escape.
Rav Gedalia Schwartz suggested another avenue of leniency, which Rav Ovadia Yosef also adopted. The Shulchan Aruch (E.H. 17:51) codifies the Gemara (Yevamot 114b) that rules that a wife is believed when she testifies that her husband died in a building collapse only if she also testifies that she buried him. The Gemara explains that testimony that the husband was in the building at the time of its collapse does not constitute sufficient evidence of death because we are concerned that the wife merely assumes that he died while it is entirely possible that he survived.
Nonetheless, a responsum from World War One demonstrates that there are situations where a husband’s presence in a building when it collapsed constitutes sufficient proof of his death. Rav Avraham Yitzchak HaKohen (Teshuvot Ezrat Kohen 25 cited in Otzar HaPoskim 8:83) issued a ruling regarding a case where a Jewish soldier in the British army was in a railway station that was attacked by a German artillery barrage and a mountain of dirt subsequently fell upon the building. Rav Kook ruled that only in the case described by the Gemara and Shulchan Aruch does the building collapse not constitute evidence of death because there was a possibility that the husband was not struck by the collapsing building materials. Such a situation is analogous to a Mayim Sh’ein Lahem Sof situation. However, in the case presented to Rav Kook the mound of dirt was so great that it was impossible for the husband to survive the building collapse.
Similarly, Rav Meir Arik (Teshuvot Imrei Yosher 2:24) ruled in a case where a train that was transporting troops fell off a large bridge. Since in Rav Arik’s judgment it was impossible for the passengers to survive the fall, the plunge off the bridge alone constituted sufficient proof that the husband perished. Accordingly, Rav Schwartz and Rav Ovadia Yosef argue that even if the husband somehow survived the fire on the top floors of the WTC, we may assume that he would have been inevitably killed during the collapse of the twin towers.
Moreover, the Aruch HaShulchan (E.H. 17:247) suggests that in case where after a building collapsed people dug in the rubble in a thorough search for survivors and the husband was not found, we may assume that the husband perished in the building collapse. Rav Yosef applies this ruling in the case of the WTC tragedy as an exhaustive search was conducted to search for survivors. Next week we will conclude our review of the rulings of the Beth Din of America regarding the WTC Agunot.