Unpacking the Iggerot: Is All Fair in Shidduchim?
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Unpacking the Iggerot: Is All Fair in Shidduchim? / Iggerot Moshe, E.H., vol. 1, #91
Summarizing the Iggerot
R. Feinstein addressed many cases related to marriage and also adjudicated many disputes within the monetary realm. In 1956, he was posed a question which straddled both areas, and which was equally amusing and disturbing: Is there such a concept as “stealing” someone’s shidduch?
R. Feinstein identifies the locus for this matter within Talmudic scenario of ani ha-mehapekh be-harara, a pauper (let’s call him Reuven) who attempts to obtain a loaf of bread. It is ethically forbidden for another party (dub him Shimon) to intentionally beat the hungry man to the loaf and doing so would constitute an act of wickedness (Kiddushin 59a). There are, however, different stages in the process of attempting to acquire an item. Certainly if Reuven already purchased and formally acquired the item, Shimon’s seizure would undoubtedly constitute a standard case of theft. If, however, Reuven was merely window shopping, it would be fair game for Shimon to seek to purchase the item for himself. What lies between these two cases is the question at hand, and R. Feinstein believes that the question of “stealing” a shidduch maps on to it. He posits that there are three stages:
(1) If the dating couple are not confident about getting engaged it is still fair game for Shimon to make his pitch.
(2) However, if the couple already decided that they would like to get married, but they have not yet taken any formal steps to make it official, then it would be contingent on the following passage in the Shulhan Arukh (H.M. 237:1):
There are those who say that if someone is coming to acquire ownerless property or receive a gift from another, and someone else gets it before him, he is not considered wicked because it is not something easily accessible in another place… There are those who say there is no distinction between the cases.
The aforementioned rulings are rooted in the varying interpretations of Rashi and Tosafot. Both agree that once the seller and potential buyer have agreed in principle it would then be forbidden for another party to insert a separate offer. However, what if the item was something unique, found by chance, and virtually unattainable elsewhere? Rashi prioritizes Reuven’s plight, while Tosafot affirm Shimon’s right to pursue an item that he could not reasonably obtain elsewhere. Extrapolating this to shidduchim, Shimon can advance a compelling claim that this woman is unique and “unattainable” anywhere else. While Rashi is unmoved by the scarcity consideration, Tosafot would view that as ample basis to justify Shimon’s late game attempt to court the not-yet engaged woman.
(3) If, however, the couple had already formalized their engagement, even without a formal act of kiddushin, Shimon’s attempt to break up the couple would be in violation of a herem. This is unrelated to ani ha-mehapekh be-harara, so even Tosafot would be forced to recognize it. Despite the fact that common practice today is to defer the tenaim until the day of the wedding, if the couple already publicized their engagement the herem would go into effect. This can likely be effectuated by hosting a “vort” or engagement party, or we might suggest, by making it “Facebook Official” or a photo of the couple appearing on “Only Simchas.” There is some extensive conceptual analysis contained within this responsum for the Talmudically courageous readers who would like to venture further down the rabbit hole (summarized in the endnote).
It should be noted that the analogizing of shidduchim and marriage to financial transactions in no way implies that either member of the couple is “merchandise.” Rather, this is the way of halakhic reasoning and analysis: seeking out conceptual precedents in one realm of Jewish law to build cases and in an otherwise unrelated area.
Connecting the Iggerot
In addition to adjudicating more contentious marital matters, there were those who, at times, called upon R. Feinstein to share his general advice for selecting a spouse. In Iggerot Moshe (Y.D., vol. 1, #90), he writes that “one should not attempt to be overly wise. For a woman who is found to have grace in her appearance and her family, and has a positive reputation of being religiously observant, one should rely on that and marry her with the trust that she has been prepared for him from Heaven.” He concludes by noting that intensive research and investigative work can be ineffective and inappropriate. This idea is echoed in Mesoret Moshe (vol. 4, p. 465), among other pearls of wisdom. For instance, while he understood the importance of the young couple’s parents to review financial arrangements, he cautioned against reducing a marriage to a monetary transaction. He further cautioned a young man against becoming overly obsessed with physical beauty, citing R. Chaim Ozer Grodzinski’s quip that “a woman is not an etrog,” rather it is her character traits, personality, and piety that are of paramount importance (ibid, p. 464).
R. Feinstein took a more critical approach to male-female interactions outside the context of marriage. In Iggerot Moshe (E.H., vol. 4, #60) he addresses “the matter of a young man whose heart had seduced him to enter into a friendship with a young woman—not for the purposes of marriage.” From R. Feinstein’s perspective, a teenager would only go out of his way to form a relationship with the opposite gender for sexual purposes. He invokes the verse “and you shall not come close to revealing nakedness” (Leviticus 18:6) to mean affectionate touching and contact, ancillary to sexual contact. He adds that this would even include engaging in lengthy conversations to derive sensual gratification from her appearance and voice. According to Rambam this would constitute a Biblical violation, while according to the Ramban it would be Rabbinical, yet still carry the potential for disciplinary lashes when there was a bona fide rabbinical court system in place. R. Feinstein further cites the verse “and you shall guard yourself from all matters of evil” (Deuteronomy 23:10) which the Sages interpreted as referring to the proscription against spilling seed.
While R. Feinstein disapproved of protracted male-female social interactions, he understood that living in Western society and traversing highly concentrated metro areas like Manhattan required a grounding in reality. He famously permitted traveling on congested buses and subways with the understanding that any incidental contact with the opposite gender was not derekh hiba, affectionate touch (E.H., vol. 2, #14). He argued that this would be true even according to the more stringent position of Beit Yosef who generally does not consider the absence of derekh hiba as a mitigating factor. R. Feinstein rules that when there is no other choice, a man may sit next to a female commuter or his wife when she is a nidda. He adds that the potential concern for illicit thoughts should not prevent him from commuting to earn a living. This is a recurring consideration in his responsa, such as his permission to remove a kippa to maintain one’s employment. (See our previous column, “Can I Keep-ah My Job?”). Rather than forfeit one’s ability to make a living, he recommends adhering to Rambam’s position which advises focusing one’s mind on Torah to combat any sexual ideations. Of course, the key distinction between the stringent ruling vis-a-vis the teenagers versus the lenient one vis-a-vis the commuter is that the former is deliberately engaging in a relationship with the opposite gender while the latter is being forced to navigate an incidental interaction.
We should note that R. Feinstein did not just issue a dispensation for inevitable contact amidst public transportation, but he expressed opposition to a certain Monsey-based bus company that incorporated a partition between men and women on their buses. What would these pious individuals do when they needed to take public transportation in Jerusalem and Bnei Brak where that is not the default option? Moreover, he contended that unless these passengers were accustomed to accepting stringent practices in other areas it seemed suspect they would incorporate a novel restrictive measure that is not on the books (see Mesoret Moshe, vol. 3, p. 310). In a similar vein, he remarked that even though it is stated in Avot (1:5) “do not converse at length with women” there is a countervailing principle of “do not be overly righteous” (Ecclesiastes 4:16). Accordingly, he dismissed the concerns of a young man who was reluctant to engage in conversation with his hostess during a meal (Mesoret Moshe, vol. 3, p. 311).
R. Feinstein’s series of responsa on co-education provides us with a further understanding of his beliefs regarding male-female interaction even from an earlier stage in life. In Iggerot Moshe (Y.D., vol. 1, #137) he begins by remarking that “the spirit of the Sages would not be pleased with” placing boys and girls together in the same school. He points to a difference of opinion that appears in the Magen Avraham (O.H. 658:8) and Mishneh Berurah (ad loc., #28) about a father educating his pre-bar mitzva age son in taking the four species on Sukkot. While an individual needs to own his four species on the first day of Sukkot (and additionally in the Diaspora, the second), the question is whether it would be sufficient for a father to merely loan his child the four species instead. This is contingent on how we conceptualize the obligation of hinukh: Are we meant to regard the child as if he is an adult, thereby necessitating fulfillment of all the halakhic nuances, such as full ownership? Or is it sufficient to merely train the child and accustom him to the general framework of mitzvot so that down the line as an adult he will perform them with the proper halakhic criteria? The latter approach produces a leniency in the case of lulav, since the father can suffice with simply giving it to his son as a loan, thereby accomplishing the goal of accustoming him to the performance of mitzvot. Ironically, this position instead produces a stringency vis-a-vis coeducation—even though these children are young enough that there would be no concern for impropriety, if the mitzva of hinukh is to train them to observe the Torah as adults then there is an argument to separate them even at an earlier stage so they can be accustomed to such a lifestyle as they come of age.
In a subsequent responsa, R. Feinstein clarifies that separation should begin as early as four or five years old (Y.D., vol. 4, #28:2), and he asserts that as a matter of minimal halakhic standards (me-dina) it would be forbidden to keep the boys and girls together by the time they reach seventh or eighth grade (Y.D., vol. 3, #78). Some will point to R. Feinstein’s dispensation for the community of Scranton, Pennsylvania, to maintain their co-ed school as an indication of equivocation on his part. Yet, R. Feinstein maintained his position that it was forbidden and only issued a narrow lenient authorization on the basis of “it is a time to act for God, they have voided your Torah” (Psalms 119:126)—an halakhic “emergency lever” that opts for the violation of one mitzva for the preservation of the rest of the Torah. If the community of Scranton did not support its one co-ed Jewish school, the alternative would have been public, secular education. This was not an acceptance of co-education, but R. Feinstein merely opting for what he believed to be a pragmatic dispensation in the absence of preferable halakhic options in the moment.
In another responsum (Y.D., vol. 2, #104) he returns to his analogy from the four species. He argues that even according to the opinion that would theoretically permit co-education for pre-pubescent children (since hinukh focuses on the current state of the child, not his future observance) the matter of coeducation would still qualify for a stringent outcome: “It is possible that here where they are studying together, it is like we are educating them to the contrary to come closer to women.” R. Feinstein argues that there is a fundamental difference from withholding hinukh versus actively mis-educating and inculcating the antithesis of Torah observance and values.
Reception to the Iggerot
Despite their deep mutual respect, R. Joseph B. Soloveitchik was often R. Feinstein’s dependable foil on matters pertaining to society and social issues, as we observed in our column “Patriotism, Pragmatism, and Particularism” which documented their differing positions on interfaith dialogue. On May 27, 1953, R. Soloveitchik wrote the following letter to R. Leonard Rosenfeld about Talmud Study for Girls in Jewish schools:
Dear Rabbi Rosenfeld: Please accept my apologies for not answering your letters sooner. The delay was due to my overcrowded schedule. As to your question with regard to a curriculum in a coeducational school, I expressed my opinion to you long ago that it would be a very regrettable oversight on our part if we were to arrange separate Hebrew courses for girls. Not only is the teaching of Torah she-be-al peh to girls permissible but it is nowadays an absolute imperative. This policy of discrimination between the sexes as to subject matter and method of instruction which is still advocated by certain groups within our Orthodox community has contributed greatly to the deterioration and downfall of traditional Judaism. Boys and girls alike should be introduced into the inner halls of Torah she-be-al peh. I hope to prepare in the near future a halakhic brief on the problem which will exhaust the various aspects of the same. In the meantime I heartily endorse a uniform program for the entire student body. With kindest personal regards, I remain Sincerely yours, Joseph Soloveitchik
Many contend that it remains ambiguous whether R. Soloveitchik was in principle supportive of co-education or whether he saw it as a pragmatic means to ensuring that young women were guaranteed the same education as their male peers. Either way, it is evident from his letter that he did not view the integration of high school boys and girls as assur me-dina, categorically forbidden, unlike R. Feinstein who viewed it essentially as a non-negotiable.
Yet, as we noted above, while R. Feinstein did not approve of unnecessary male-female relationships, he was also skeptical of those who went so far as to put gender-segregating partitions on quasi-public transportation. This is consistent with what R. Nachum Rabinovitch reports in Siah Nahum (E.H., #112): that he observed R. Feinstein comfortably sitting at a wedding meal without a partition between the men and women, a practice that has become normative for many on the right (e.g. see Teshuvot ve-Hanhagot, vol. 2, #651).
Reflecting on the Iggerot
We have noted on several occasions that in the midst of addressing a halakhic query, R. Feinstein steps into the territory of Jewish theology. At the very end of his responsum on stealing a shidduch, the inquirer poses a challenge from Moed Katan (18a), in which Shmuel permits a couple to get engaged on hol ha-moed, lest, in the interim, another man beseeches God to enable him to marry this woman instead. From the fact that God could conceivably grant such a request presupposes that this other man’s intervening would not be in violation of ani ha-mehapekh be-harara. R. Feinstein, however, rejects this proof for two reasons. Technically, he could formulate his prayer for the couple to break up by their own volition. More striking is R. Feinstein’s alternative answer that “there are instances in which a man will merit that God, or whatever reason, will grant him his prayer, even though he requested something that is inappropriate for him to request. For the ways of God are hidden from us.” Just because God might grant his request does not absolve him from transgressing the strictures of which protect poor Reuven. Shidduchim aside, this a remarkable theological assertion with implications far wider than the immediate subject of that he originally embarked on.
Endnote: See also Mesoret Moshe (vol. 4, p. 368) for another reference to R. Feinstein’s opinion on co-education. My thanks to Mr. Joseph C. Kaplan, Esq., for initially bringing R. Soloveitchik’s letter to R. Rosenfeld to my attention. We discussed this together with Mr. Michael Feldstein on Shu”T First, Ask Questions Later (ep. 19).
The initial responsum about ani ha-mehapekh be-harara goes into further depth, taking on the character of the brand of analysis emblematic of the Dibberot Moshe. As we observe time and again, R. Feinstein’s landmark rulings generally consist of a novel reading of a Talmudic passage (e.g., his responsa on Hatzalah workers returning on Shabbat or the Manhattan eruv). He did not bifurcate between theoretical Talmudic analysis and practical halakha, bucking the prevailing wisdom.
In the case of ani ha-mehapekh be-harara, Rashi granted preference to Reuven, with the understanding that he had already effectuated a preliminary pseudo-acquisition, by virtue of his efforts. While Tosafot, on the other hand, consider the situation from Shimon’s vantage point: Can Shimon obtain the same item elsewhere? If not, then he maintains his right to attempt to try his chances at obtaining this unique item for himself. R. Feinstein argues that since Tosafot are concerned with Shimon’s rights, in the case of the engaged couple where there is a herem in place, Shimon thereby loses his right to intervene, which then clears the way for the added element of ani ha-mehapekh be-harara.
R. Feinstein further develops a third approach which assesses ani ha-mehapekh be-harara from Reuven’s perspective, but as a composite of two elements: (A) The seller’s willingness to give the item coupled with (B) a symbolic exertion on Reuven’s end. In the case of an item which can be found elsewhere, yet at a more exorbitant price, Tosafot would recognize Shimon’s right to pursue the cheaper option, while this novel approach (which he attributes to Ramban) would maintain that so long as the seller expressed an interest in selling it and Reuven had already exerted some effort, it would remain forbidden for Shimon to intervene, despite the superior price.
R. Feinstein uses these competing frameworks to elucidate a subtle distinction between Rambam and Shulhan Arukh. In a scenario in which Reuven asks Shimon to betroth a woman for him, and Shimon turns around and betroths her for himself, Rambam (Ishut 9:17) classifies the individual as “a wicked person” while Shulhan Arukh (E.H. 35:9) only describes the deed as “the ways of deception.” R. Feinstein aligns Rambam with Tosafot who conceptualize the topic of ani ha-mehapekh be-harara as a question of Shimon’s rights. In a scenario in which Shimon accepts the role of Reuven’s agent to betroth a woman on his behalf, Shimon has effectively forfeited his rights to intervene, thereby making this a case of ani ha-mehapekh be-harara. On the other hand, the Shulhan Arukh would consider the seller’s willingness to be an essential factor in the equation for determining whether Reuven has achieved a preliminary acquisition. The seller in this case is the woman, and as far as we know she has not expressed any prior consent to marrying Reuven. It follows that while Shimon’s ploy is duplicitous in nature, it does not meet the criteria for constituting an infraction of ani ha-mehapekh be-harara, and therefore not qualifying for the status of “a wicked person.”
Moshe Kurtz serves as the Assistant Rabbi of Agudath Sholom in Stamford, CT, is the author of Challenging Assumptions, and hosts the Shu”T First, Ask Questions Later.