Last week we quoted the Chazon Ish's description of the pitfalls prevalent when using a Zabla Beit Din. We also quoted Rav Moshe Feinstein's ruling that since there is no Beit Din Kavua in New York, one may insist on Zabla. This week we will discuss possible solutions to this dilemma, which constitutes a very serious problem in the Jewish community.
Rav Feinstein's Ruling
We will begin by presenting Rav Moshe's responsum (Igrot Moshe Chosen Mishpat II:6) which provides great insight into this problem:
That which the Rema writes that if there is an established Beit Din Kavua in the area one may not refuse to submit to its jurisdiction, applies only to situations such as in the cities of the "old country" where the local community appointed the Beit Din. In the old country, the town Rav had the authority to summon people to submit to his jurisdiction. However, in New York there are no established Dayanim appointed by the Jewish community. Moreover, there are Batei Din of the many and varied rabbinic organizations (Rabbinical Council of America, Igud Harabanim, Agudat Harabanim, Hitachdut Harabanim-Satmar) so that not even all the rabbis of a particular community subscribe to the jurisdiction of a particular Beit Din. Thus, if one party requests Zabla, the other side must agree to it.
Rav J. David Bleich's Description of the Problem
Rav J. David Bleich (a leading Rosh Yeshiva at Yeshiva University) describes the problem (Contemporary Halachic Problems IV:5-6):
European communities were organized on the basis of a Kehilla system. In every town, village, and hamlet, the Jewish community designated individuals to administer communal institutions and to provide for the spiritual as well as the temporal needs of the inhabitants. A rabbinic scholar was designated to serve as chief rabbi of the city and was usually assisted by Dayanim who served as associate judges. Their primary responsibility was to rule on matters of religious law relating to individual observance and to the community as a whole and to sit as a court to adjudicate any financial or interpersonal disputes that might arise. With such a court in place, a litigant could neither plead that he preferred to appear before the court of a neighboring city nor demand the right to designate a judge of his own choice. In many communities it was customary for all house holders to affix their signatures to the formal Ketav Rabanut, a rabbinic contract, presented to a newly appointed Rabbi specifically designating him as the presiding judge of the local Beit Din. That practice was instituted in order to assure that no person might refuse to obey summons issued by the communal rabbi on the plea that he didn't recognize the rabbi's judicial authority. Thus was the commandment "Judges and officers shall you place unto yourself" fulfilled. Not so in America. The Kehillah system has not been replicated in this country. Rabbis are engaged by individual congregations rather then by the community at large. Membership in a synagogue doesn't ipso facto imply binding acceptance of the synagogue's rabbi, no matter how qualified he may be, with regard to religious or jurisprudential matters that are personal in nature. The result is that no rabbi enjoys the authority to compel a litigant to appear before him and to accept his judicial authority. Batei Din established by rabbinic organizations or by a group of neighborhood rabbis, rather than by the community as a whole, enjoy no greater authority. To be sure, a plaintiff dare not have recourse to a secular court and defendant may not simply ignore the summons of a Beit Din, but any litigant may insist on his right not to appear before the court that has summoned him. Since, in our country, no Beit Din can compel appearance, we are in violation of the commandment, 'judges and court officers shall you set unto yourself."
Rav Bleich cites the great Rav Yosef Eliyahu Henkin who states a similar point (Eidut Liyisrael p. 167):
Come and let us protest concerning the many cities and large metropolises in America that have many Torah-observant individuals but, nevertheless, they do not appoint judges and decisors.
A Practical Example
A practical example will illustrate the pandemonium that prevails in America. A friend of mine placed a bid on a house in Brooklyn approximately twenty years ago. The bid was immediately accepted, but soon after a higher bid was offered, and the homeowner informed my friend that he must match the higher bid, or he would call the original deal off. My friend sought the advice of Rav Moshe Feinstein. Rav Moshe immediately phoned the homeowner and warned him that he was in violation of /* :593, a serious ethical violation (see Bava Metzia 44a: "He who punished the generation of the flood and the generation of the Tower of Bavel, will punish those who fail to abide by their verbal commitments.") The landlord impudently responded to Rav Feinstein, "You are not my rabbi; I don't have to follow you!"
Rav Bleich's Proposed Solution
Rav Bleich (ibid, p. 16) presents the ideal solution to this problem. He believes that a national Beit Din should be organized.
By establishing a fairly large roster of Dayanim and permitting litigants to use a limited form of the Zabla system - litigants might be permitted to designate the members of the Beit Din that would hear this case but would be limited in being able to select a panel of Dayanim only from among the designated list of members of the national Beit Din.
This type of Beit Din adopts the advantages of the Zabla system, yet has the potential to control the problems with it. The national Beit Din could carefully monitor and verify the integrity of the Dayanim participating in the Zabla. Such an organization could also monitor the behavior of the )&31*. (advocates), who in the current system are essentially not monitored.
Rav Bleich writes that this approach was suggested to him by none other than the great Rav Yaakov Kaminetzky:
In urging adoption of the prenuptial agreement later published in the Ohr Hamizrach... and in the Torah Sheb'al Peh [Journal]... he recommended one modification of my draft. In order to avoid the procrastination the unfortunately develops in selecting members of a Beit Din when parties have recourse to a Zabla, and in order to establish a single Beit Din acceptable to all of the community, Rabbi Kaminetzky advised the documents provide a list of names and specify that each of the parties may select one of the Dayanim from among the named individuals.
Comments on Rav Bleich's Proposal
It seems clear that Rabbi Bleich's proposal is the appropriate solution to the chaotic system that exists today. As Rav Bleich notes, it would also help ameliorate the Aguna problem, by empowering the entire community in pressuring a recalcitrant spouse to participate in the Get ceremony.
However, a prominent Dayan said to me that even if a national Beit Din were to be formed, one still retains the right to insist on Zabla to the point of choosing a Dayan who's name does not appear on the roster. Thus, Rabbi Bleich's proposal would appear to be quite difficult to implement in practice.
However, there is a practical way to solve the problem at least in the case of Gittin. Namely, every couple marrying should sign a binding arbitration agreement assigning jurisdiction over a potential Get matter to a particular Beit Din (alternatively choosing a rabbi or list of rabbis who are assigned the task to assemble a Beit Din).
Prenuptial Agreements - Rav Mordechai Willig
Indeed, Rav Mordechai Willig writes the following about such agreements (The Prenuptial Agreement, edited by Rabbi Basil Herring Kenneth Auman p.30):
The primary obstacle to the widespread use of the prenuptial agreement appears to be the reluctance of rabbanim to introduce innovations to the institution of marriage. Thus, there is even a widespread reluctance to employ a simple arbitration agreement, referring future marital disputes to a particular Beit Din, an agreement which is Halachically non-controversial (See Igrot Moshe, Even Haezer 4:107). Such an agreement could avoid the frequent bitter battles over which Beit Din should hear a particular dispute. A legally binding arbitration agreement would also solve the problems of one party applying to the secular courts to gain an advantage over the other in marital disputes.
The precedent of (the Nachlat Shiva - Chapter 9 - who included such a document in his classic collection of Halachic legal documents, incorporated this provision into the standard Tena'im conditions entered into before marriage) centuries ago should allay the fears of rabbanim concerning innovations. In practice, the need for a prenuptial agreement is greater now, when there is no centralized Beit Din system, than it was in the Nachlat Shuva's time. Moreover, the secular courts are no longer systematically hostile to Jews and are now a practical option for unhappy couples. Finally, the roles of Beit Din is restoring Shalom Bayit to which the Nachlat Shiva also refers, should not be ignored at a time of high divorce rates.
As of this writing, Rabbi Willig's prenuptial agreements is rapidly becoming a standard features of weddings in our community. In this author's opinion it is incomprehensible why a rabbi would not insist on its implementation at every wedding. The use of this document will help reduce incidence of Igun and greatly enhance the dignity of the rabbinate and Beit Din. This statement is made in light of five years of experience as a Dayan on the Beit Din of Elizabeth and the Beit Din of America (RCA-OU). The necessity of using Rabbi Willig's agreement became even more evident when I was chased by a recalcitrant spouse after delivering a Hazmana to him and after officiating at two Gittin where the husband's compliance was secured because he signed Rabbi Willig's prenuptial agreement.