(2001/5761)

Reprinted with permission from the Journal of Halacha and Contemporary Society Number XXVIII

Introduction

In a conventional situation, a Get procedure involves a husband and wife both appearing before a Bait Din to execute a Get.  Even if both parties live a great distance from each other, they may each appear in Batei Din in their respective areas, and the Get may be executed through the use of an agent or agents.  It is especially important for the husband to present himself to the Bait Din, since he must directly issue orders to a scribe and two witnesses to respectively write and sign the Get.

Sometimes, though, either the husband or the wife is situated a great distance from a competent Bait Din recognized to supervise a Get proceeding.  Halachic authorities have been grappling with this problem for centuries, and various proposals have been suggested and sometimes implemented.  In this century, it has been suggested that the husband appoint a scribe and witnesses by speaking to them via telephone.  However, no consensus has emerged concerning this suggestion.  This author seeks to demonstrate that almost all decisors would agree that a Get may be executed through the means of a videoteleconference, in which the husband, the scribe, and the witnesses may speak to each other simultaneously.

This article will first survey rabbinic opinions regarding the older questions of whether a husband may appoint a scribe and witnesses in writing instead of making a verbal appointment and whether the husband may make a verbal appointment without the scribe and witnesses being present.  Subsequently, the newer question of appointing a scribe and witnesses via telephone will be discussed.  Then we will suggest evidence that in case of urgent need Halacha permits a husband to issue orders to a scribe and witnesses via videoteleconference.

Appointing a Scribe and Witnesses in Writing

The Mishna (Gittin 67b) teaches that a husband who seek to divorce his wife but cannot verbally appoint a scribe and witnesses because he cannot speak is asked whether he wishes a Get to be written on his behalf. If he responds by nodding his head in the affirmative, a scribe may write a Get on his behalf.  This Mishna yields the important insight that Halacha does not require the husband to make a verbal appointment. Tosafot (Gittin 72a s.v. Kolo) explains, “Since we know that the husband wishes to have the Get written on his behalf, we do not require that the husband’s voice be heard [by the scribe].”

The question is whether a husband’s appointment of a scribe and witnesses made in writing and not articulated verbally is Halachically acceptable. The Gemara (Gittin 71a) cites the statement of Rav Kahana in the name of Rav that a deaf-mute who is able to communicate through writing may appoint a scribe and witnesses in writing.  The Gemara, though, subsequently cites a Braita that conclusively rejects this.

Some Rishonim interpret the Gemara’s conclusion as a rejection of the option of the husband’s appointing a scribe and witnesses in writing.  Other Rishonim assert that the Gemara’s rejection of Rav Kahana’s opinion pertains exclusively to a deaf-mute, whose appointment of a scribe and witnesses is not recognized as valid due to his status as a mentally incompetent individual.1  Rambam2 adopts the second approach and rules that one who is unable to talk but is capable of hearing may issue a written appointment of a scribe and witnesses.3  Many other Rishonim adopt the first approach and rule that a husband may not appoint a scribe and witnesses in writing.4 These authorities include Rosh,5 Rashba,6 Ran,7 Mordechai,8 and Hagahot Maimoniyot.9  As proof, these authorities cite the Tosefta,10 which states:

Even if [the husband] instructs the scribe in writing to write a Get and similarly instructs witnesses to sign a Get, even though they wrote, signed, and delivered the Get to the wife, the Get is invalid until they hear verbal instructions from the husband to write and sign the Get.

Shulchan Aruch (120:5) rules in accordance with the many Rishonim who rule that a written appointment is not valid.11  Ba’er Heitev (120:10), however, cites Maharadach (23) and Haram Mitrani (2:155) as ruling that the lenient opinions may be relied upon in a situation of extremely urgent need. This is also the view of Get Pashut (120:26), an authoritative work on the laws of Gittin.

A Verbal Appointment not Issued in the Presence of a Scribe and Witnesses

In Gittin 72a, the Talmud cites a Braita that strongly implies that a husband may not issue appointments by telling a third party to appoint a scribe and witnesses.  Rishonim, in turn, disagree whether the appointments may be issued in a slightly different manner: the husband designates a scribe and witnesses, not in their presence, and requests a third party to inform the scribe and witness of the appointment.  Ra’ah and Ran12 believe that such an appointment is valid, since the husband, not an agent, appoints the scribe and witnesses.  Ramban13 disagrees and rules that even this manner of appointment is invalid.  He explains that “the scribe and witnesses cannot act as agents of the husband unless they hear [the authorization] from his mouth.”  It is important to note, though, that even Ramban concedes that this law applies only to divorce actions (Gittin), as otherwise an agent is not required to be present at the time of his appointment.

The major commentaries on Shulchan Aruch — Bait Shmuel (120:7), Chelkat Mechokek (120:12), and Pri Chadash (120:6) — cite both opinions without stating which opinion is regarded as authoritative.  Instead, by presenting both opinions without comment, these decisors are indicating that the issue is not resolved — a ספיקא דדינא.  Maharshal14 rules that one may rely on the lenient rulings of Ra’ah and Ran.

Pitchei Teshuva (120:18) cites the Maharim Mi’Brisk, who also ruled leniently in a case of very urgent need and developed a novel solution to this problem.  He suggested that a husband situated very far from a Bait Din appoint scribe and witnesses both verbally and in writing.  This approach utilizes the Halachic mechanism of ספק ספיקא, “double doubt,” in which one may rule leniently (in certain instances) if there exist two reasonable but questionable arguments that are combined into a compelling argument.  In our case, this mechanism functions as follows: a verbal appointment is made to satisfy the opinions of Ra’ah and Ran, and a written appointment is made to satisfy the opinion of those authorities who rule that a written authorization is valid.  Indeed, this may even satisfy the opinion of Ramban, who might rule that only a verbal appointment is invalid when issued without the scribe and witnesses being present, while a written appointment executed without the presence of the scribe and witnesses would be acceptable.

Almost all great Halachic authorities of the past two centuries have ruled leniently in cases where it would otherwise be impossible to obtain a Get on behalf of the wife.  Generally speaking, these authorities either adopted the approach of the Maharim Mi’Brisk or ruled that a written appointment is valid if no viable alternative exists.15

A small minority of decisors do not accept the use of this procedure even in the most dire circumstances. These include Pri Chadash (Even Haezer 120:6) and Chazon Ish (Even Haezer 85).  However, Rabbi Eliezer Waldenburg (Tzitz Eliezer 10:43) of the Bait Din Hagadol in Yerushalayim notes that “virtually all” Batei Din in Israel permit an authorization in writing in cases of very urgent need.  Rav Gedalia Schwartz, the head of both the Bait Din of the Rabbinical Council of America and the Bait Din of Chicago, reports that, generally speaking, this is also the practice of Batei Din in North America.  This author adds that this is especially true in a situation where it is highly doubtful that the couple’s marriage was Halachically valid, such as when the couple married only in a civil ceremony.

Appointing a Scribe and Witnesses via Telephone

A telephone can be useful in executing a Get in a situation where a written appointment of a scribe and witnesses cannot be obtained.  Examples of this situation include: (1) A Get must be performed in short order and there is no time for three observant Jews to go to the husband and obtain a written appointment of a scribe and witnesses.  (2) A husband is located in a remote or dangerous area where three observant Jews would be unable to enter.  (3) A husband is situated in a country that would not permit three observant Jews to enter.  (4) A husband refuses to sign a document authorizing a scribe and witnesses to write and sign a Get but will issue a verbal appointment.

Rabbinic authorities have vigorously debated this issue,16 but no consensus has emerged.17 Some Batei Din rule leniently if there is no alternative, but others do not.  The debate is focused primarily on two issues: First, does an appointment of a scribe and witnesses via telephone satisfy Ramban’s requirement that the husband appoint a scribe and witnesses directly?  Second, can the husband’s speech on a telephone be properly identified?

Rav Yitzchak Schmelkes (Bait Yitzchak, Even Haezer 2:53) rules that an appointment issued via telephone is invalid, since the scribe and witnesses have not heard the actual voice of the husband.  (Most authorities agree that Halacha does not recognize an electronically-transmitted voice as the equivalent of the actual voice of the speaker.)

Most authorities, on the other hand, do not believe that Ramban requires the scribe and witnesses to hear the actual voice of the husband.  Rather, they believe that Ramban requires direct communication between the husband and the scribe and witnesses, which is accomplished when an appointment is issued via telephone.  Generally speaking, those authorities who do not permit an authorization to be executed via telephone have not accepted Rav Schmelkes’ argument.  Instead, they rule stringently because an individual cannot be properly identified via telephone and because a fraud is relatively easy to perpetrate via telephone.

The authorities who rule leniently believe that the husband may be identified by means of voice recognition. They note that the Gemara (Gittin 23a and Chullin 96a) recognizes the viability of voice recognition.  They also cite the Halacha that in cases of very urgent need a Get may be written even if the parties have not been properly identified.18

Appointing a Scribe and Witnesses via Videoteleconference

Although no consensus has emerged regarding issuing an appointment via telephone, this author believes that it is possible that Poskim might permit the issuance of appointments of a scribe and witnesses via videoteleconference (see addendum).  Interestingly, Rav Schmelkes (Bait Yitzchak, Even Haezer 2:53) anticipated the invention of videoteleconferencing and indicated19 that if such an invention arose, it could not be used for a husband’s appointment of a scribe and witnesses.  Rav Schmelkes believes Ramban requires hearing the actual voice of the husband and not an electronically-transmitted voice. When Rav Schmelkes’ responsum was mentioned to Rav Zalman Nechemiah Goldberg of the Bait Din of Yerushalayim, the latter pointed out that Tosafot in Gittin 72a (mentioned earlier) explain why a husband who is unable to speak is able to appoint a scribe and witnesses by nodding his head: “Since we know what the husband wishes, we do not require the scribe and witnesses to hear his voice.  Tosafot’s comments appear to clearly disprove Rav Schmelkes’ contention that the scribe and witnesses must hear the actual voice of the husband.”

Rav Goldberg also pointed out that the Chazon Ish and Rav Moshe Feinstein interpret Ramban’s position very differently than Rav Schmelkes.  Chazon Ish (Even Haezer 85) writes that Ramban requires “that the will of the husband and the will of the scribe and witnesses should be unified in one moment, and that the husband should be aware of the will of the scribe, and the scribe should be aware of the will of the husband, and it all should occur simultaneously.”  This requirement seems to be fulfilled if a husband appoints the scribe and witnesses via videoteleconference.

Rav Moshe Feinstein (Igrot Moshe, Even Haezer 1:116) asserts that essentially Ramban does not require the scribe and witnesses to be present when the husband issues the order; rather, they must be absolutely convinced that it is truly the husband who has issued them the order to write and sign the Get.  Since a scribe and witnesses would hear and see the husband speaking to them during a videoteleconference, such a Get might be valid even according to Ramban.

Rav Goldberg offered the following analogy to illustrate that the scribe and witnesses are not required to hear the actual voice of the husband:20

A husband is standing a great distance from the scribe and witnesses, so when he gives his orders, they only see his lips moving but do not hear his voice.  If the scribe and witnesses are able to read the lips of the husband, they may write and sign the Get, since they are certain of the husband’s will.  The Get is valid since the husband communicated his wishes by an action of his body.  Similarly, when a husband appoints a scribe and witnesses via videoteleconference, they are aware that he appointed them by an action of his body, and the Get may be written and signed even though they have not heard the actual voice of the husband.21

Rav Waldenburg22 describes how rabbinic decisors have rejected Rav Schmelkes’ contention in the following interesting manner: According to Rav Schmelkes, an individual who uses a hearing aid to hear would not be fit to serve as a scribe to write a Get, since he cannot hear the actual voice of the husband. However, Rav Waldenburg relates that recently in Israel there was a scribe who wore a hearing aid and wrote Gittin for many years in various Batei Din without encountering an objection from any judge.

The opinions of Ra’ah and Ran, who rule that the husband may make an appointment without the presence of the scribe and witnesses, should also be considered as factors to accept an appointment made via videoteleconference. Although Halachic authorities do not accept Ra’ah and Ran’s opinions as normative, their view is not rejected and undoubtedly may serve as a “Snif L’hakel,” a consideration for a lenient ruling.

The main focus of concern of those who do not accept the use of a telephone for the purpose of a Get is fear of fraud.  This concern is obviated, though, with the advent of videoteleconferencing.  One can see (on more sophisticated models), displayed on the screen, any pieces of identification that a Bait Din normally requests from people who appear before them.

If one would counter that a fraud is still possible to be perpetrated in the use of a videoteleconference, one could reply that documents such as passports and drivers’ licenses, which can be forged, are routinely accepted as identification in Batei Din in Israel and in the United States.  Apparently, Batei Din accept documents that cannot be forged easily and are not concerned with the possibility of professional forgery (although a skillful Bait Din is required to check carefully in order to prevent incidence of fraud).

Similarly, it is not easy to perpetrate a fraud in a video-teleconference and would require a professional to do so; therefore, it might be acceptable for use in a Get proceeding.  However, since this technology is still in relative infancy, no clear Halachic consensus has as yet emerged.

Addendum for 5761

Since the time I first published my proposal regarding the use of videoteleconferencing for a Get, Poskim have had a mixed reaction.  Rav Zalman Nechemiah Goldberg, Rav Herschel Schachter, and Rav Mordechai Willig support the idea, whereas Rav Yosef Shalom Elyashiv, Rav J. David Bleich, and Rav Elazar Meir Teitz reject the proposal.  Accordingly, this proposal cannot be implemented as no rabbinical consensus has emerged regarding this issue.  Perhaps it can be relied upon in a situation where it is highly doubtful whether a Get is necessary, such as when the couple was married only in a civil ceremony and never had a Chuppah.  Those who rule strictly are concerned that the videoteleconference appointment is unacceptable according to the Ramban and still has potential for fraud.

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1. See Rabbi J. David Bleich, Contemporary Halachic Problems II 368-375, for a discussion of this topic and its current applicability.

2. Hilchot Gerushin 2:16.

3. It is unclear whether Rambam’s ruling applies to everyone or only to one who is unable to speak.  Rav Yosef Karo, in his Bait Yosef (chapter 120) is inclined to interpret the Rambam’s position as pertaining to any man.  However, in the Shulchan Aruch (120:5), Rav Karo appears to present Rambam’s ruling to be limited to a man who cannot speak.

4. The obvious question on this approach is that the Mishna’s ruling permitting a mute husband to appoint a scribe and witnesses by nodding indicates that Halacha does not require the husband to issue a verbal appointment.  Accordingly, why should a written appointment differ from appointing by nodding one’s head?  Rosh (Gittin 7:19) explains that the difference is that nodding the head is a bodily act and is therefore analogous to speech.  One may still ask, though, if writing is not also a bodily act.  Rabbi Zalman Necherniah Goldberg, Dayan in the Bait Din Hagadol in Yerushalayim, explained to this author that although writing is a bodily act, one cannot discern the writer’s intention from the act of writing itself. Nodding the head is analogous to speech, on the other hand, because one can discern the intent of the husband from his bodily action alone.

5. Gittin 7:19.

6. Ibid., 72a s.v. Kolo.

7. 33a in the pages of the Rif, s.v. Cheresh Sheyachol.

8. Gittin 417.

9. Hilchot Gerushin 2:16:200.

10. Gittin 2:10.

11. The stricter opinion is presented in Shulchan Aruch as the first opinion without attribution or comment, and the lenient opinion is presented second, as “there are those who validate” a Get authorized by the husband in writing.  Commentaries to the Shulchan Aruch agree that when Rav Yosef Karo presents two differing opinions in this manner, he is indicating that he regards the first opinion to be normative.  See Pri Megadim, introduction to Yoreh Deah, rule no. 1.

12. Gittin s.v. Vehiksha HaRamban.

13. Ibid. 66b, s.v. Amar Rav Chisda.

14. Yam Shel Shlomo, Gittin 6:15.

15. These authorities include Bait Ephraim (Even Haezer 80), Keter Kehuna (no. 76), Divrai Chaim (Even Haezer 2:86), Shoel U’meishiv (1:1:49), Tzemach Tzedek HeChadash (Even Haezer 267), Ein Yitzchak (Even Haezer 2:6), Aruch Hashulchan (Even Haezer 120:64), Maharsham (3:352 and 5:44), Ridbaz (no. 2), Avnei Neizer (Even Haezer 2:156), Chelkat Yoav (Even Haezer 30), Shaarei Deah (1:141 and 2:120), Even Yekara (Even Haezer 1:40 and 1:42), Zekan Aharon (2:114), Heichal Yitzchak (Even Haezer 2:35), Igrot Moshe (Even Haezer 1:116 and 1:119), Minchat Shlomo (no. 78), and Tzitz Eliezer (10:47).

In his responsum, Rav Moshe Feinstein posits a somewhat different solution to the problem and presents a step-by-step guide how to execute his suggested approach.  Some Rabbinic Courts have adopted Rav Moshe’s suggestion in practice.

16. For discussions of this issue see Bait Yitzchak (Even Haezer 2:53), Shaarei Deah (1:194), Maharshag (2:250), Tzitz Eliezer (10:47), Bait Avi (1:155), Pri Yehoshua (no. 22), Rabbi Yosef Teumim (HaPardes 5704), Rabbi Gedalia Felder (Nachlat Tzvi pp. 213-216), and Rabbi Moshe Steinberg (HaDarom, Nissan 5727).  Rav Elimelech Schachter, in Sefer Kevod HaRav (pp. 268-272), writes that both Rav Yosef Dov Soloveitchik and Rav Moshe Feinstein told him that a husband may appoint a scribe and witnesses via telephone.  In an essay entitled ‘Kabalat Eidut Al Iska Shenestah Beteliphon’ (Techumin 12:300-306), Rav Chaim David Halevi discusses whether hearing a telephone conversation constitutes admissible evidence in a Bait Din proceeding concerning a monetary dispute.

Rav Ezra Basri of the Bait Din of Yerushalayim informed this author that his Bait Din occasionally executes a Get where the husband issued his appointments both via telephone and in writing.

17. For discussion of this topic, see Minchat Shlomo, no. 9; Yechave Daat 3:54; and Rabbi J. David Bleich, Contemporary Halachic Problems, p. 231.

18. Shulchan Aruch 120:3, Taz 120:13, and Pitchei Teshuva 120:26, but see Noda Biyehuda II:Even Haezer 123 and Rav Melech Schachter, Sefer Kevod HaRav pp. 268-272.

19. He writes that a videoteleconference may be used for a wife to appoint an agent to accept a Get on her behalf.  The clear implication, as noted by Rav Waldenburg (Tzitz Eliezer 10:47), is that a husband would not be permitted to do so.  Ramban’s stringent ruling applies only to the husband’s appointment of a scribe and witnesses and not to the wife’s appointment of an agent.  A wife may appoint an agent even if the latter is not present.

20. It is worthwhile to note that utilizing this type of analogy as a component of a Halachic analysis is characteristic of the Halachic approach of Rav Goldberg’s eminent father-in-law, Rabbi Shlomo Zalman Auerbach; for example, see Minchat Shlomo p. 61, p. 95, and p. 110.

21. One should also note that a careful examination of Ramban’s words (and the citations of the Ramban by Bait Shmuel 120:7 and Chelkat Mechokeik 120:12) seems to reveal that Ramban does not specifically require the husband to be physically present before the scribe and witnesses.  Rather, he specifically requires that there be direct contact between the husband and the scribe and witnesses.  In addition, it seems from the words of the Chazon Ish and Rav Moshe that they do not believe that Ramban requires the husband to be physically present before the scribe and witnesses when he issues his orders to them.

22. Tzitz Eliezer 10:47.