(2015/5775)

Two weeks ago we began to present the second prong of the Halachic basis for the Tzefat Beit Din in their highly controversial ruling in 5774 permitting a woman whose husband is in a permanent vegetative state to remarry without her husband handing her a Get.  We continue this week presenting the second prong of the Tzefat Beit Din’s ruling.  We concluded that there are a variety of areas in Halachah which permit acting on behalf of someone without their consent.  This week we will present how some Posekim have applied this principle in the context of Gittin. 

Shaliach Delivering a Get without a Proper Appointment – Chatam Sofeir

The history of applying the concept of Zachin LeAdam Shelo BeFanav to act on behalf of a husband to divorce his wife, begins with a discussion of the process of permitting the remarriage of a man whose wife has become a Shotah (mentally incompetent).  The Mishnah (Yevamot 14:1) states that a man cannot divorce his wife if she has become a Shotah.  Torah law permits him to remarry an additional wife but the tenth century Cheirem DeRabbeinu Gershon forbids the husband to do so.  There is an exception, though, with a process known as a Heteir Mei’ah Rabbanim, a rare rabbinic procedure which permits a husband to marry more than one wife in extraordinary circumstances such as when the wife has become a Shotah.  The Rama (Even HaEzer 1:10) and Beit Shmuel (ad. loc number 23) set forth the accepted procedure of obtaining the consent of one hundred rabbis from at least three different countries for the man to remarry without his first wife receiving a Get.  The Beit Shmuel also records measures to protect the wife such as placing the Ketubah payment in escrow and the husband ordering the writing and signing of a Get.  After the Get is written, the husband appoints a Shaliach to deliver a Get if and when the wife will recover. 

The Mirkevet HaMishneh (Hilchot Geirushin 6:3) cites the sages of Lisa who raise an objection to the validity of the husband’s appointment of a Shaliach to deliver a Get.  They cite the Gemara (Nazir 12b) which invalidates an appointment of a Shaliach to perform a task that the Meshalei’ach (the one who appoints the Shaliach) is Halachically currently precluded from performing himself (Milta DeLo Matzi Avid Lei Hashta, Lo Mashvi Shaliach).  Thus, since the husband cannot deliver a Get to his wife while she is a Shotah, he also cannot appoint a Shaliach to deliver a Get to the wife when she recovers, since the wife is a Shotah at the time of the appointment of the Shaliach. 

The Teshuvot Chatam Sofeir (E.H. 1:11 and 2:43) defends the customary process by stating that even though the appointment of the Shaliach was invalid due to his inability to deliver a Get at that time, the individual appointed by the husband as his Shaliach may deliver the Get to the wife through the mechanism of Zachin LeAdam Shelo BeFanav.  Thus, the Shaliach confers a benefit to the husband even without his knowledge and consent.  The Shaliach in such circumstances undoubtedly benefits the husband because the husband already expressed his desire to deliver a Get.  Moreover, since the husband has remarried on the basis of the Heteir Mei’ah Rabbanim, he certainly would want the Get to be delivered so that he does not violate the Chereim DeRabbeinu Gershon.[1]

Haifa 1955: Replacement Shaliach Delivering the Get – Rav Herzog, Rav Eliashiv and Rav Waldenburg

In 1955 a crisis emerged in the Haifa Beit Din when the gentleman appointed by husbands worldwide (including from the Soviet Union from where it was exceedingly difficult to obtain a Get) as their Shaliach to deliver a Get to their wives, suddenly and unexpectedly passed away.  The question became as to whether the Beit Din could appoint an alternate Shaliach to deliver the Gittin on behalf of the husbands in cases where the husband could not be reached to appoint a replacement Shaliach. 

Rav Yitzchak Herzog, the Ashkenazic Chief Rabbi of the State of Israel at that time, addresses this issue at great length (Teshuvot Heichal Yitzchak E.H. 2:51-56) and concludes that the Beit Din may apply the principle of Zachin LeAdam Shelo BeFanav and appoint a substitute Shaliach who will deliver Gittin on behalf of the husbands who could not be contacted again.  This ruling was supported by Rav Tzvi Pesach Frank (Teshuvot Har Zvi E.H. 2:155), Dayan Yitzchak Weisz (Teshuvot Minchat Yitzchak 1:48-49), Rav Yosef Shalom Eliashiv (Kovetz Teshuvot 1:176) and Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 5:23).[2]

This ruling represents a greater leap than that of the Chatam Sofeir.  The Chatam Sofeir sanctions the man who was appointed by the husband to deliver a Get to act on behalf of the husband despite the technical flaw in the husband’s appointment.  In the Haifa Gittin, Rav Herzog and his supporters permitted an individual not appointed by the husband to act on his behalf utilizing the rule of Zachin LeAdam Shelo BeFanav.   

Rav Moshe Feinstein – Permitting a Substitute Sofeir to Write the Get

Thus far have only seen the application of the principle of Zachin to sanction a Shaliach acting on behalf of the husband without a proper appointment.  An even further leap is required to permit the writing of the Get on a husband’s behalf in light of the Mishnah (Gittin 7:2) which requires that the husband appoint the Sofeir to write the Get and witnesses to sign the Get.

Rav Moshe Feinstein (Teshuvot Igrot Moshe 1:117), in an extraordinary ruling, permits a substitute to write a Get and deliver a Get on behalf of a rabbi who was appointed by a husband as his Shaliach to write a Get and deliver a Get to his wife. The husband made his appointment before his banishment to Siberia by Soviet military authorities, but before the rabbi was able to write and deliver the Get, he passed away.  The husband could not be contacted after his banishment to appoint a new Sofeir and Shaliach.

Rav Moshe writes:

If we conclude that the Rav Yisrael who was his agent to write the divorce document was able to also have it written by another scribe and also to appoint another agent to deliver it to the woman’s possession, then she has a way forward, namely that someone is permitted to become the agent of Rav Yisrael to write the divorce, and two to sign it, and someone the agent of Rav Yisrael to deliver it to her possession.  Even though it is impossible to become the agent of the husband, since a Get is not (per se) a benefit for the husband, and even though (here) he has made his intention clear that he wishes not to make her an Agunah, nonetheless it is possible that now he would not wish it (the divorce), because he has the hope of being released soon, or perhaps he has already been released and hopes to find her, and were he to know that she had not yet been divorced, he would not divorce her now, but this relates only to the husband, but with regard to Rav Yisrael the agent, who certainly like all rabbis in the Jewish community wishes the good of Jewish women and knows the greatness of the mitzvah of releasing her from Iggun and the great prohibition of causing Iggun when one has the ability to repair the situation but does not repair it, so certainly it is a benefit for Rav Yisrael, and we (everyone) serve as witnesses (Anan Sahadi) that if he had not been distracted by his illness, and he had thought of it, he would have made anyone within hearing his agent to write the Get and sign the Get and to be a secondary agent in his place to deliver the Get to the wife.

Therefore, anyone can become the agent of Rav Yisrael for this purpose, even though Rav Yisrael has already died, since it is as if we have witnessed (Anan Sahadi) that he made anyone within hearing his agent when he was alive, before he died, and if he had actually said this, it would certainly have been effective, even though the (new) agent would find out (that he had become an agent) after his death, just like the case of an agent who appoints someone else a subagent, who is an agent even if the first agent dies before he finds out, and since Zachin LeAdam Shelo Befanav that is generated by we-are-as-if-witnesses (Anan Sahadi) lets us consider it as if he said this before his death (see Tosafot Ketubot 11a s.v. Matbilin who write likewise regarding Zachin LeAdam Shelo BeFanav if we understand it as a version of agency generally, that since it is a benefit for him we are as if witnesses that he appointed him agent) and this applies here as well to consider it as if Rav Yisrael said this before his death, so that one who wishes now to be his agent is as if he was appointed in his lifetime, just he only found out now that he can be Rav Yisrael’s agent.

This stunning ruling of Rav Moshe permitting the writing and delivering of a Get acting as the substitute of a deceased Shaliach and viewing it as if the deceased Shaliach appointed a substitute before his death is a remarkable and unprecedented innovation.  Rav Moshe did receive some criticism from Rav Shlomo David Kahane, a great Rav who served as Rav of pre-war Warsaw and the Rav in post-war Jerusalem appointed by the Chief Rabbinate to deal with the Agunot emerging from World War Two.  Rav Moshe fully responds to Rav Kahane’s questions in Teshuvot Igrot Moshe E.H. 1:118. Rav Kahane, though, ruled that anyone could act on behalf of the husband and write and deliver a Get on his behalf utilizing the mechanism of Zachin. 

Rav Kahane’s responsum on this case appears in a work entitled Karnot Tzaddik (issued in honor of the ninetieth birthday of the Lubavitcher Rebbe).  Rav Kahane cites the precedent of Rav Eliyahu Klatzkin  (Teshuvot number 44) who together with Rav Meir Arik wrote and delivered a Get on behalf of a husband who indicated that he wanted to execute a Get for his wife before he went to war.  Rav Moshe responds that that case is different since those Rabbanim wrote the Get while the war is in progress and one could assume the husband did not change his mind. However, in the case of the death of Rav Yisrael, the husband was nearing the end of his prison sentence and might no longer wish to divorce his wife.[3]

Teshuvot Chavatzelet HaSharon—Permitting a the Writing of a Substitute Get

Teshuvot Chavatzelet HaSharon[4] (3:79) was faced with a situation where a husband appointed a Sofeir to write and deliver a Get.  After the Get was written and mailed[5] by the husband’s Shaliach to the Beit Din in the wife’s locale, the Get was lost in the mail.  In conventional circumstances the husband would be approached to once again appoint a Sofeir to write a Get, witnesses to sign and an agent to deliver since the previous appointment expired (Asu Shlichutan; Shulchan Aruch E.H. 122).  However, the husband was an ardent communist who served in a government position who would never agree to meet with the rabbis again to reissue his appointments to write, sign and deliver the Get. 

Teshuvot Chavetzelet HaSharon permits[6] the writing and delivering of a new Get executed on behalf of the husband utilizing the principle of Zachin L’Adam Shelo B’Fanav.  He compares the case to Kiddushin 45b which permits a father to act, using the mechanism of Zachin, on behalf of his son and serve as his presumed agent to marry a woman the son expressed interest in marrying.  The laws of marriage and divorce are linked[7], and therefore, since the husband expressed interest to divorce, one may act on his behalf and carry out his wishes since Zachin LeAdam Shelo Befanav. The author adds that this is especially permitted in this case since the husband told the rabbis when he originally met them that he authorized them to do whatever is necessary to divorce his wife, which can be interpreted as giving broad authority to the rabbis to even write a replacement Get if necessary.  

Accordingly, we have seen that many Posekim (Chatam Sofeir, Rav Eliashiv and Rav Waldenburg) in extraordinary circumstances employ the Zachin rule and deliver a Get on behalf of a husband.  We have seen that Rav Moshe permits acting as a presumed agent of a deceased Shaliach and and rules that one may write and deliver a Get on his behalf.  Furthermore, we have presented some Posekim (Rav Meir Arik, Rav Klatzkin, Teshuvot Chavatzelet HaSharon and Rav Moshe) who, applying the Zachin principle, permit the writing and delivery of a Get on behalf of a husband who authorized the writing of a Get but did not appoint that specific individual to write that specific Get, as is done in a conventional situation.  What remains to be seen in our next issue, IYH and BN, is whether there is ever a situation where Halachah permits writing a Get on behalf of a husband who never expressed interest in divorce but the Beit Din determines that it is beneficial to act on his behalf to do so as done by the Tzefat Beit Din in 5774.

[1] Note, though, that the Aruch HaShulchan (E.H. 1:26) appears to reject the Chatam’s Sofeir’s approach.

[2] Rav Eliashiv and Rav Waldenburg required verification that delivery of the Get remained a Zechut for each of the husbands.  Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:79), though, argued against this ruling. 

It is remarkable how Rav Herzog, despite being the Chief Rabbi and having written a lengthy responsum on the matter, had the humility to consult other great contemporary rabbis, some of whom were much younger than he. 

[3] It is important to note that Rav Moshe fundamentally agrees with Rav Meir Arik and Rav Klatzkin and would permit writing and delivering a Get on behalf of a husband as long as the circumstances have remained as they were at the time of the husband’s original appointment. 

[4] A major Poseik who lived in Galicia in the early to mid-twentieth century. 

[5] This is the standard procedure for intercity Gittin, see Gray Matter 4:261-265. 

[6] He attached many caveats to his ruling – he requires consent of two other major Halachic authorities and he notes that he wrote his responsum in a locale where he was recovering from illness and had little access to Halachic works. 

[7] Kiddushin 5a “Makish Havayah LeYetzi’ah”.  See, however, Rav Hershel Schachter, BeIkvei HaTzon (30:14) who distinguishes, based in part on Pitchei Teshuvah E.H. 50:8, between the levels of consent required for Kiddushin and Gittin and asserts that the concept of Zachin cannot be applied to a husband in relation to a Get since the level of consent for a Get is greater than what is required for Kiddushin.