34 No. 77 JUSTICE Similar lists were assembled from survivors all over the world and eventually helped Holocaust survivors be released from their Aguna bond and remarry. Although not initially intended, they became the unpretentious forerunners of the Pages of Testimony that Yad Vashem has collected and organized since 1954. The Halachic Basis for Allowing Shoah Widows to Remarry (“Heter Agunot”) Much has been written about the problem of Shoah widows and its halachic aspects.6 Here, we will describe only briefly a few of the relevant sources of Jewish law. While Jewish law generally requires evidence based on the testimony of two male Jewish witnesses, in matters of Heter Agunot, already in the time of the Mishnah, the sages sought leniencies in cases where the likelihood of the husband being alive was extremely low. Thus, for instance, the Mishnah (Yevamot 16:7) records that Rabban Gamliel the Elder enacted a takkanah (decree) that in wartime, if a man went missing, his wife may remarry based on the testimony of a single witness to his death. Later at Yavneh, the Sages expanded this: even hearsay or testimony from ordinarily ineligible witnesses (e.g., women, slaves, relatives) could be accepted to free an Aguna. The legal explanation given for these far-reaching rules is that it is to be presumed that a person will not give false testimony on a matter likely to come to light, since the husband, if still alive, will undoubtedly eventually reappear.7 To this, rabbis in modern times have added that contemporary means of communication make the case for the husband’s death even stronger than in the time of the Talmud. For instance, in the beginning of the 19th century, Rabbi Moses Schreiber (Chatam Sofer) held that due to the existence of widely available postal services and newspapers in most countries, if the husband was alive he would have made it known that he survived and contacted his wife and his relatives.8 Following this, Rabbi Herzog wrote that in his time, when there was telegraph, radio, and newspapers, there was room for even further leniency, provided that there was some corroborating testimony, for instance, that the husband had been “sent to the left” (meaning to the gas chambers) and was never seen again.9 Hence, in view of the Talmud’s maxim “Mishum Iguna Akilu Rabbanan” [free translation: “to prevent the Aguna problem, the Rabbis were more lenient”], the Rabbis relaxed the usual rules in these cases because the severe personal plight of an Aguna justifies maximal leniency within the bounds of law. At the same time, and because a mistake could sanction an adulterous union (if the husband were still alive), the Rabbis diligently searched for any supporting evidence of a spouse’s death: lists of those transported and never seen again, Nazi records, Red Cross reports, or testimony from fellow inmates who had seen the husband either gravely ill in a doomed transport or “sent to the left.” Each case was tried on its own merits, combining evidence with the time that had passed since the presumed death and the failed efforts to find any signs of life. Coordinating Aguna Cases in Sweden The challenge of solving the problems of thousands of Agunot in a very short time was clearly beyond the resources 6. Jacob Israel Zuber, CONTRAS L’TIKUN AGUNOT (Stockholm: Self-published, 1946); this work was also reprinted in: Jacob Israel Zuber, ZICHRON YAACOV, SHE’ELOT UTSHUVOT VE’DRASHOT ch. 16 (Jerusalem, 1975); Yaakov Avigdor, TECHIAS YAAKOV 68 (New York: Self-published, 1950); Zvi Hirsch Meisels, CONTRAS TAKANAT AGUNOT (BergenBelsen, 1946); and supra note 1. 7. Talmud Bavli, Yevamot 93b; Maimonides, Mishneh Torah, Gerushin 12:15. 8. Moshe Sofer, RESPONSA ḤATAM SOFER, vol. 3, no. 58. 9. Rabbi Isaac Halevy Herzog, RESPONSA HEICHAL YITZCHAK, EVEN HAEZER ch. 24; see for instance, what Rabbi Zvi Hirsch Meisels, himself a survivor of Auschwitz, wrote in his halachic ruling about the meaning of being “sent to the left”: “It is as clear as the sun at noon that someone who reached Auschwitz and was sent to the left side, there was no possibility in the world of escaping from there and escaping to freedom after he was surrounded by electric wires several times and guards stood on each side, and if there was such a miracle that the one who was chosen for the left side escaped to the right side, he was forced to come to the labor camp together with the people who were chosen for the right side, and everyone would have seen him and known about him, for he had no other refuge but to come to the labor camp, and if they saw him being led to the left side and no longer saw him in the labor camp, it was only because he was led into the gas chambers and burned there.” Meisels, supra note 6, at § 8; also cited in Tehila (Darmon) Malka, “"Resolving Holocaust Agunot in DP Camps,” supra note 1.
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