(2013/5774)

Rav Moshe Feinstein (1894-1986) still enjoys a well-deserved reputation as a leading decider of Halachah of unparalleled brilliance and creativity. Rav Moshe’s greatness (and lasting impact) is most evident in his responsa regarding issues of personal status, undoubtedly the most sensitive area of Halachah. In these matters there is no margin of error and a mistaken ruling can prove catastrophic in either direction. In this essay we shall discuss how Rav Moshe resolved an enormously challenging situation of Igun, where there is potential for a woman to be ineligible to remarry according to Halachah.

The Case

In the case addressed by Rav Moshe in 1960, a husband who lived outside of the New York area (and thus visited a Beit Din outside of New York) ordered a Get to be written and delivered to his wife who resided in the New York area[1]. However, when the Get arrived to the Mesadeir Get (Get administrator) in New York, the Mesadeir was alert and noticed something awry with the Get – the witnesses’ signatures were written in a handwriting identical to that of the Get itself[2].

The New York Rav contacted the out-of-town Mesadeir Get to inquire as to what had occurred. The latter explained that the witnesses were unable to sign and required the Sofeir’s assistance. He related that either the scribe had held the hand of the witnesses who signed the Get or that the witnesses ordered the Sofeir to sign on their behalf. In either scenario, this constitutes a grave deviation from standard protocols and poses grave concerns as to the validity of the Get[3]. The out of town Rav could not simply ask the husband to return and order the writing, signing and delivery of a new Get, since he had disappeared and no one knew of his whereabouts or contact information.

Thus, the New York Rav was faced with a terrible quandary. On the one hand, he could not deliver an invalid Get, especially since it would lead to violation of the severe sin of Lo Tin’af (adultery) for which Halachah demands, ‘Yehareig VeAl Ya’avor’ (martyrdom). On the other hand, if a compelling argument could not be found to render the Get acceptable, the wife would remain an Agunah, Halachically ineligible to remarry, for the foreseeable future. Thus, the New York Rav sent the question to the great Rav Moshe Feinstein for adjudication. Rav Moshe presents his decision regarding this case in Teshuvot Igrot Moshe Even HaEzer 1:134.

The New York Rav’s Approach

The New York Masedeir Get did not merely present the question to Rav Moshe, but rather, in the manner of Torah scholars, submitted his thoughts to argue for the (Bedi’eved, after the fact) validity of the Get in this Makom Igun Gadol (situation in which the wife might be permanently unable to remarry). He reasoned that the Get was essentially acceptable in either of the two potential scenarios that occurred.

The Get is valid, he felt, even if the Sofeir held the hand of the Eidim and signed the Get. Magein Avraham (240:7) rules that if on Shabbat one individual held a quill and a second individual held that person’s hand and wrote, the latter has violated the Torah prohibition of writing on Shabbat, indicating that in our case it is considered as if the Sofeir signed the Get (and the Get is invalid).

However, the Tosefta (Shabbat 12:10) states[4] that if the Sofeir merely intended to assist the individual whose hand was holding the quill, then the latter is considered to have written on Shabbat. The New York Rav suggested to Rav Moshe that in a case of Igun one may assume that the Eidim intended for the Sofeir to serve merely as their assistant and thus the Eidim are considered to be the ones who signed the Get.

Regarding the possibility that the Eidim delegated the Sofeir to sign on their behalf – this issue is addressed by the Rishonim. The Haghot Oshri (Gittin 2:12) cites a dispute between Rabbeinu Simchah and Ohr Zarua about this matter. Rabbeinu Simcha argues that just as the husband may delegate his responsibility to write the Get to a Sofeir to write on his behalf, so, too, the Eidim are permitted to assign the Sofeir to carry out their task of signing the Get. Ohr Zarua vehemently rejects Rabbeinu Simcha’s view, even going so far as to say that if such a Get was presented to him he would summarily disqualify it.

The New York Mesadeir suggested to Rav Moshe that in a case of great Igun, one may rely on the opinion of Rabbeinu Simchah. He noted that Beit Shmuel (130:29) cites this dispute without issuing a ruling, implying that Rabbeinu Simchah’s opinion is not rejected by the codifiers of Halachah.

Rav Moshe’s Response to the New York Rav

Rav Moshe did not, for the most part, accept the New York rabbi’s arguments defending the validity of the Get. In terms of the possibility that the Sofeir held the hand of the Eidim holding the quill, he notes that this matter is relevant only regarding Hilchot Shabbat, but if the signatures perfectly match that of the Sofeir’s (and each other’s signature), they are not valid signatures.

Rav Moshe bases himself on Tosafot’s discussion of the Gemara’s protocol for witnesses who are unable to sign a Get (Gittin 9a s.v. Mekarin). The Gemara recommends (according to Tosafot’s understanding) making a stencil of the names of the Eidim and placing it over the place where the Eidim sign. The Eidim, in turn, fill the stencil with ink and thus their names are written.

Tosafot cite the Yerushalmi which asks how the signatures created in this manner are considered valid if they are identical to each other. Signatures by definition must be unique and their uniqueness is how they can be verified as authentic (by the signatories or by others who recognize the signatures). A signature that does not feature any individuality is by definition not considered a signature. Tosafot, in turn, cite the Yerushalmi which clarifies that the stencil letters are made very large and the Eidim do not fill the entire space with ink. The amount of space left unfilled is up to that witness’s discretion, allowing for individuality in the signatures.

Rav Moshe, on this basis, writes that the discussion regarding Hilchot Shabbat is not particularly relevant. The sole criterion is whether the Eidim holding the quill had at least a miniscule[5] impact on the appearance of the signature, so as to make the signatures appear slightly different from each other and verifiable as authentic. Rav Moshe notes that the Gemara (Gittin 36a) regards witnesses who draw a picture of a fish as their signature as valid, since it is recognizable and verifiable. The same applies to witnesses who cause even the slightest indication of their individuality when they hold the quill. Thus, Rav Moshe instructed the New York Rav to carefully reexamine the signatures and see if he could discern even the slightest difference between the two. If there is no difference, rules Rav Moshe, the signatures are not valid.

Along the same lines, Rav Moshe expresses grave concerns about the validity of Rabbeinu Simcha’s assertion that Eidim may delegate their signatures to the Sofeir. He argues that one by definition cannot appoint a substitute to sign on his behalf, since the substitute cannot create the individuality required for a signature. Moreover, Rav Moshe notes that Rabbeinu Simcha’s opinion cannot be accepted regarding a Get to be delivered by an agent (as in our case), since Rambam (Hilchot Geirushin 9:32) and Shulchan Aruch (Even HaAzer 141:12) rule that a Get delivered by a Shaliach (agent) must have valid signatures that can be authenticated, to provide the required corroboration of the Shaliach’s claim that he is delivering a genuine Get. Signatures that the Eidim did not sign themselves cannot be authenticated and thus are clearly unacceptable for a Get delivered by an agent.

Rav Moshe, however, notes that a Shaliach customarily is given an authenticated Harsha’ah (power of attorney document) signed by Eidim or a Beit Din which proves that the Shaliach was duly appointed to deliver the Get and that the Get is legitimate (Rema E.H. 141:11; the out-of-town Rav did send a Harsha’ah along with the Get). Rav Moshe, however, expresses concern to rely solely on the Harsha’ah to validate the Shaliach. He was worried that the Harsha’ot were not composed properly.

Rav Moshe’s Stunning Validation of the Get

Thus, the New York Rav’s suggested approaches are insufficient according to Rav Moshe to justify the validity of the Get. However, Rav Moshe presents a creative solution to the problem. He applies the principle of “Keivan SheHigid, Shuv Eino Chozeir Umagid,” that one cannot retract one’s testimony after it is already given (Shulchan Aruch Choshen Mishpat Perek 29). Rav Moshe notes that the Harsha’ah, signed by three Dayanim (including the out-of-town Get administrator), lists the names of the witnesses who signed the Get. Rav Moshe argues that the out-of-town Rav’s assertion that the Eidim did not sign the Get was inadmissible since he had previously signed the Harsha’ah stating that the Eidim had signed the Get (listing the names of the Eidim on the Get is a standard feature of a Harsha’ah).

Moreover, the Rav’s assertion that the Eidim did not sign the Get not only is an unacceptable withdrawal from his signing of the Harsha’ah but also runs counter to the testimony of the other two Dayanim who signed the Harsha’ah. Thus, the Rav’s words are not believed since his is only one voice against the testimony of two other people (this principle appears often in the Mishnah and Gemara; see, for example, Sotah 6:4).

Conclusion

It is typical for Rav Moshe to develop novel and creative approaches to resolve problems and help us remain both fully loyal to the demands of Hashem and Halachah as well as being sensitive to people’s needs, in this case, the need for a woman to be able to remarry and rebuild her life.

Another valuable lesson may be gleaned from this Teshuvah of Rav Moshe. The New York Rav was clearly well versed in Hilchot Gittin and offered a learned defense of the validity of the Get. Nonetheless, upon examination by a world-class Poseik, his arguments were found to be inadequate. This Teshuvah reinforces the importance for even learned individuals to consult with the most eminent Posekim, especially when dealing with matters of great Halachic import.

[1] For a full description of how a Get is conducted when husband and wife reside in different locations, see Gray Matter 4:261-265.

[2] The husband customarily delegates a scribe to write the Get (Rema E.H. 123:1).

[3] This incident involved a stunning lack of professional competence on the part of the out-of-town Mesadeir Get. The Mesadeir Get’s mandate is to oversee the administration of the Get, to insure it is conducted in rigorous conformity with Halachic requirements. In this case, not only did the Mesadeir Get not prevent a severe deviation from Get protocol, but he was also not even sufficiently alert to notice how the irregular signing was conducted on his watch. To Rav Moshe’s great credit, he does not fulminate against the out-of-town Rav, despite his outrageous malpractice. I am quite confident, though, that Rav Moshe wrote to this Rav urging him to refrain from repeating such egregious errors.

[4] According to the textual emendation of the Vilna Gaon.

[5] That is, recognizable to the naked eye (see Teshuvot Igrot Moshe Yoreh Deah 2:146).