Rabbi Jachter's Halacha Files
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Parshiot Bereishit & Noach          26 Tishrei-3 Marcheshvan 5766             October 29-November 5, 2005             Vol.15 No.7


Ascertaining the Wife’s Consent at a Get Procedure - Part One
by Rabbi Chaim Jachter

Many Rabbanim in this country who are Mesadrei Gittin (Get officiants) attempt to be especially sensitive when they administer Gittin for non-Orthodox couples. These Rabbanim recognize the importance of reaching out to all Jews and ensuring that if a Jewish couple divorce they receive a proper and universally recognized Get. We seek to create a situation where it is accepted throughout the Jewish community that every divorced Jewish couple should receive an Orthodox Get regardless of whether the couple is affiliated with the Orthodox community or not. One of the challenges involved in being sensitive to such couples is the non-egalitarian nature of the Get procedure.
We should note that it is vitally important for Mesadrei Gittin to be especially sensitive at any Get proceeding, as very delicate emotions are involved. However, non-Orthodox Jews have somewhat different needs as they are not accustomed to participating in Jewish ceremonies that abide by Orthodox standards. Thus, we must be sensitive to the fact that non-Orthodox clients are unaccustomed to the non-egalitarian nature of many Orthodox ceremonies. Of course, in doing so we must not compromise the integrity of the Halacha or even the spirit of the Halacha.

Posing Questions to Ascertain the Wife’s Consent
A number of Mesadrei Gittin, such as Rav Melech Schachter (a Rosh Yeshiva at Yeshiva University who is the father of Rav Hershel Schachter), have attempted to partially address this issue by asking the wife a series of brief questions to ensure that she consents to receive the Get of her own free will and unconditionally. This practice is rooted in a ruling of the Rama (Even HaEzer 154:23 and 154 Seder HaGet #81) and the Kav Naki pp.74-75 (the Kav Naki is a Sefer commonly used as a protocol guide for Mesadrei Gittin). Although most Rabbanim do not follow this practice (based on the Pitchei Teshuva, E.H. 154 Seder HaGet #34, and Aruch Hashulchan E.H. 154 Seder HaGet HaTemidi #19), Rav Melech asks these questions to allow the women to feel that they “have a say in the matter.” Indeed, they do have a say in the matter, since Rabbeinu Gershom instituted that a woman may not be coerced to receive a Get against her will (Rama E.H. 119:6). Thus, these questions are entirely in keeping with both the spirit and letter of Halacha, and also concretely express the rabbis’ recognition of the need for the wife’s consent to receive the Get in the “post- Rabbeinu Gershom era.”
Sensitivity to the needs of the non-observant is not unique to Rabbanim who reside in the United States. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 11:88) justifies the practice in State of Israel Rabbinic Courts to forego the practice of having ten people present during the time of the delivery of a Get (see Shulchan Aruch E. H. 133:3), as it would make non-observant couples uncomfortable. Similarly, he writes that we should not burden couples with the requirement to bring witnesses to attest to their identity, as long as they bring adequate identification and documents. We should note that Rav Waldenberg administered Gittin in the Batei Din of the State of Israel for many decades (I witnessed him administer Gittin in Jerusalem in July 1993 for a non-observant couple, and I recall his sensitivity and kindness to the couple).
I was told that Rabbanim who do not ask the wife questions regarding her willingness to accept the Get rely on the fact that she has not voiced any objections to receiving the Get as sufficient evidence of her consent. Many Rabbanim adopt a compromise approach – they ask the woman a brief question to ascertain her consent but do not probe further as they do with respect to the husband. I should note that asking the woman the lengthier questions serves the additional purpose of proving that she is mentally competent (see Pitchei Teshuva E.H. 121:2); a woman who is mentally incompetent cannot receive a Get (Shulchan Aruch E.H. 119:6).
The husband is asked three sets of questions to ensure that he is giving the Get of his own free will. First, he is asked directly if he agrees to give the Get of his own free will and unconditionally. Second, the Beit Din annuls any Neder or Shevuah (vow or oath) that he may have made to give the Get or not to give the Get in order to further ensure his free will in giving the Get (this process is known as Hatarat Nedarim). Third, the husband cancels before two witnesses any disclaimers he may have made about his willingness to give the Get (“Bittul Modaot”).
The Kav Naki states that the woman also should be asked similar questions. However, his protocol for the questions posed to the wife is far less extensive than the questions posed to the husband, which clearly indicates that the questions posed to the wife are of less importance than that of the husband. This is because the husband’s consent to the Get procedure is required biblically (see Rambam Hilchot Geirushin 1:1-2), while the wife’s consent is required only as a result of Rabbeinu Gershom’s tenth-century enactment. The question is whether it is permissible to formulate a text in which the Hatarat Nedarim and Bittul Modaot of the wife would be parallel in length to the Hatarat Nedarim and Bittul Modaot of the husband in order to create a sense of parity. An ideal way to achieve this end would be to make the questions posed to the wife parallel in length to the questions posed to the husband.

The Prohibition to Treat Torah Law, Rabbinic Law, and Customs Equally
Although being as sensitive as possible to the feelings of our non-Orthodox brothers and sisters is a top priority, it seems to be either prohibited or at least inappropriate to create such parity. It seems that the Kav Naki deliberately abbreviated the woman’s questions in order to distinguish between questions that we pose to address a Biblical level concern (the husband’s consent) and questions that concern Rabbeinu Gershom’s enactment (the wife’s consent). Although Rabbeinu Gershom’s enactment is treated with great seriousness, it is not treated with the same severity as a Biblical requirement.
Moreover, it might even be forbidden to treat such an enactment as severely as a Torah law. This possible prohibition stems from Rav Chaim Soloveitchik’s understanding (cited by Rav Yosef Dov Soloveitchik, quoted in Rav Hershel Schachter’s Nefesh HaRav 177-178) of the Rambam in Hilchot Mamrim 2:9. The Rambam asks why Rabbanim are permitted to create enactments – do these enactments not violate the prohibition to add to the Torah (Bal Tosif)? The Rambam explains that Chazal would violate Bal Tosif if they labeled one of their enactments as a Torah law and not a rabbinic law. Thus, if they announce that lighting Neirot Chanukah, for example, constitutes a Biblical obligation, they would be guilty of Bal Tosif.
Rav Chaim adds that according to this Rambam, one who treats rabbinic law on par with Torah law would be guilty of Bal Tosif. Thus, Rav Chaim told an assembly of Rabbanim who were addressing the question of permitting Kitniyot on Pesach during a year of famine that it is forbidden to rule strictly on this matter. (Avoiding Kitniyot in such circumstances would impose a great hardship but would not constitute a danger to life) He argued that if we were to be as strict with the Ashkenazic custom to refrain from consuming Kitniyot on Pesach as we are with avoiding Chametz on Pesach, we would be guilty of violating Bal Tosif. For further discussion of permitting Kitniyot in case of extraordinary need see Mishna Berurah (453:7), Aruch Hashulchan (O.C. 453:5), and Gray Matter (1:243-244).
It seems that in our situation as well, it would be forbidden to treat the Cheirem DeRabbeinu Gershom prohibition to coerce a woman to receive a Get with the same severity as the Torah law requiring a husband’s consent to give a Get. This appears to be the reason why the Kav Naki abbreviated the questions posed to the wife. We should also note that Rav Peretz Steinberg (a veteran Mesader Gittin who lives in Queens) relates that Rav Moshe Feinstein ruled that even if no questions are posed to the wife, the Get is Kosher. Rav Moshe held that as long as there is no evidence that she does not consent, the Get is valid.

Support for Rav Chaim’s Assertion
It seems that we can marshal support for Rav Chaim’s assertion (or a variation thereof) from a wide variety of sources. Even if we do not prove that it is prohibited to treat Biblical and Rabbinic law equally, we can conclusively demonstrate that Chazal believed that it is inappropriate to do so. First, we may draw support from the discussion of the obligation to abide by rabbinic laws. The Rambam (Hilchot Mamrim 1:2) believes that the Pasuk (Devarim 17:11) that forbids deviating from the words of the judges (Lo Tassur) obligates us to abide by all Rabbinic enactments. The Ramban poses a celebrated question on this assertion of the Rambam, noting that according to the Rambam there is a Biblical obligation to observe rabbinic laws. Accordingly, asks the Ramban, how can we be lenient regarding a doubtful situation of Rabbinic Law (Safeik DeRabbanan Lekula), such as not requiring one who is unsure whether he lit Neirot Chanukah to light? How is this possible if in reality every rabbinic law is de facto a Torah obligation, with which we are required to be strict in case of doubt (Safeik DeOraita Lechumra)?
The Maharit (cited in the Lechem Mishneh to Hilchot Mamrim 1:2) answers that when the rabbis created their laws they included a proviso that permits us to act leniently in case of doubt regarding implementation of their enactments. One may ask why the rabbis made such a leniency if in reality we are Biblically obligated to follow their decrees. An answer might be that Chazal wished to treat their laws differently than we treat Torah laws. Therefore, they decreed that one may be lenient regarding a rabbinical law in order to differentiate between a Biblically mandated law and a law mandated by the rabbis. According to Rav Chaim, they did this because otherwise they would violate the prohibition of Bal Tosif.
A second proof to Rav Chaim may be drawn from a seemingly puzzling statement of Ameimar (Menachot 66a). The Gemara records that Ameimar counted only the days of the Omer and not the weeks of the Omer (unlike our practice to count both). He explained his practice based on the fact that counting the Omer today is only rabbinically mandated as a Zeicher LeMikdash, a commemoration of the practices in the Beit HaMikdash.
One might ask why Ameimar felt compelled to omit part of the counting of the Omer simply because there is no Biblical obligation to count the Omer. An answer might be that he believes that one must distinguish between a Torah obligation and a rabbinic obligation. Rav Chaim would argue that failure to do so violates Bal Tosif. Even we who do not accept Ameimar’s view recite a brief prayer for the rebuilding of the Beit HaMikdash- HaRachaman Hu Yachazir Lanu Et Beit Hamikdash- after we count the Omer, in order to indicate that our counting fulfills only a rabbinic obligation (see Tosafot Megillah 20b s.v. Kol Halaila). We ask for the rebuilding of the Beit HaMikdash because absent the offering of the Korban HaOmer, Sefirat HaOmer is only a rabbinic obligation (according to most Rishonim). We seek the rebuilding of the Mikdash when the Mitzva of counting the Omer will be restored to its status of a Torah level obligation.
A third proof may be drawn from the practice in many shuls for the Shliach Tzibbur to lead Kabbalat Shabbat in the Bimmah in the middle of the Shul and then lead Maariv. In this manner, we show that there is a difference between Kabbalat Shabbat, which constitutes a custom dating only to the sixteenth century, and Maariv that is mentioned in the Gemara.
A fourth proof might be drawn from an assertion made by Tosafot (Megillah 23a s.v. Keivan). Tosafot claim that the Bracha of Baruch Hashem Leolam was introduced in order to demonstrate that Maariv was originally instituted as an optional prayer. One may ask why there is a need to demonstrate this fact. We might answer that Chazal believe in the value of differentiating between the different levels of Halachic obligations. For an alternative explanation of this assertion of Tosafot, see Rav Yosef Dov Soloveitchik’s Shiurim LeZeicher Abba Mari Z”L (2:53-56).
A fifth proof might be drawn from a puzzling practice most Jews observe at the Seder (which is discussed in an article available at www.koltorah.org). The Shulchan Aruch (Orach Chaim 475:1) states that we should refrain from conversation from the time we recite the Berachot on the Matza until the time we have finished consuming the Korech. Yet most have the practice to recite Zeicher LeMikdash KeHillel before eating the Korech. We may answer based on the Bach (O.C. 475 s.v. V’achar Kach Noteil) who asserts that eating Korech today constitutes only a Minhag. Hence, we announce that the Korech is merely a Zeicher LeMikdash KeHillel in order to distinguish between a Minhag and the Torah and rabbinically mandated eating of Matza and Maror. Thus, the recitation of Zeicher LeMikdash is an integral component of the Minhag of Korech and is a justified interruption between the Berachot recited on Matza (see Rav Dov Brisman’s Teshuvot Shalmei Chovah 1:255-256; I based much of this point from Rav Brisman’s responsum).
A sixth proof may be drawn from a puzzling episode recorded in Taanit 28b. The Gemara records that when Rav arrived in Bavel, he found them reciting Hallel on Rosh Chodesh. Rav at first wanted to stop them, since Rosh Chodesh is not one of the days when Hallel is recited (as explained on Taanit 28b and Arachin 10). He noticed, though, that they skipped some of the sections of Hallel and realized that they were simply following a local communal Minhag.
It is not clear how Rav concluded that they were following a local custom from the fact that they skipped some sections of the Hallel. In addition, it is not clear why the fact that they skipped some sections convinced Rav that there was no need to protest this practice. What is the significance of skipping the sections (that we practice until this very day)?
It is possible to suggest that Rav thought at first that the community was violating Bal Tosif by adding a new day for Hallel. However, when he saw that they demonstrate that they are not adding a new day to recite Hallel on par with the recitation of the days that we are obligated to recite Hallel, he was satisfied with the fact that they were observing a Minhag and were not in violation of Bal Tosif. The distinction drawn between the recitation of Hallel on Rosh Chodesh and its recitation on days when we are obligated to recite it was an indication of a properly instituted Minhag.
A seventh proof may be derived based on the Raavad’s critique of the Rambam’s ruling (Hilchot Shabbat 29:10) that the Shabbat morning Kiddush should be recited in the place where he will eat a meal (Kiddush BeMakom Seudah) and that it is forbidden to eat before reciting this Kiddush. The Gemara does not state these Halachot, but the Rambam believes that the Halachot that apply to the Friday evening Kiddush should apply as well to the Shabbat morning Kiddush.
In a somewhat cryptic comment, the Raavad severely criticizes this ruling of the Rambam. He insists that it is wrong based on the fact that the Shabbat morning Kiddush is only a rabbinic obligation. The Raavad seems to indicate that he believes that the Rambam formulated these rulings based on the mistaken assumption that there is a Biblical obligation to recite the Shabbat morning Kiddush.
The difficulty in Raavad’s critique is that it is not clear why he feels that the fact that the Shabbat morning Kiddush constitutes merely a rabbinic obligation forces us to conclude that the rules of the Friday night Kiddush do not apply. An answer might be that the Raavad believes (see the passage cited earlier from Nefesh HaRav where Rav Chaim is cited as arguing that the Raavad agrees with the premise that one violates Bal Tosif by failing to distinguish between Torah law, Rabbinic law, and custom) that since we must distinguish between Torah law obligations such as the Friday evening Kiddush and Rabbinic obligations such as the Shabbat morning Kiddush, it is forbidden to apply the rules of the Biblical obligation to the Rabbinic obligation. For further analysis of this dispute between the Rambam and the Raavad, see Rav Yosef Dov Soloveitchik’s Shiurim LeZeicher Abba Mori Z”L (2:105-137).
An eighth proof might be derived from Tosafot (Sukkah 29b s.v. Be’Inan). Tosafot attempt to understand why certain rules for the Arba Minim apply all seven days of Sukkot (such as the disqualification of any of the four Minim that are completely dry) and others (such as the requirement to own the Arba Minim) apply only on the first day of Sukkot. We should clarify that we are Biblically required to take the Arba Minim only on the first day and it is only a rabbinic obligation to take Arba Minim on the last six days, in commemoration (Zeicher LeMikdash) of the Biblical requirement to take the Arba Minim all seven days in the Beit HaMikdash. Tosafot answer that Chazal patterned only certain rules regarding the Arba Minim after the Biblical rules that apply on the first day (Ke’ein DeOraita).
My Talmid Binyamin Farzanfar observes that Tosafot do not explain why Chazal did not pattern all the rules regarding taking the Arba Minim on the last six days of Sukkot. We may answer that when Chazal enact Mitzvot, their objective is to strike a delicate balance between two competing principles. On the one hand, “Kol DeTikkun Rabbanan Ke’ein DeOraita Tikkun”, rabbinic laws must be patterned after Torah laws. On the other hand, they may not formulate the rabbinic laws that completely parallel the Torah laws due to concern for Bal Tosif. Accordingly, Chazal decreed that some Halachot that apply on the first day apply on the last six days of Sukkot in order to parallel Torah law. On the other hand, Chazal could not apply all of the Halachot of the first day to the last six days, lest they violate Bal Tosif by treating a rabbinic law on par with a Torah law. Indeed, many Rishonim (such as the Rambam Hilchot Mamrim 2:9 and the Sefer HaKuzari 3:40-41) ask why Chazal are not in violation of the prohibition to add to the Torah (Bal Tosif) in any enactments that they issue. Rav Chaim’s approach serves as an answer to the classic problem. The fact that Chazal distinguish between their enactments and Torah laws avoids their violating the prohibition of Bal Tosif.

Conclusion
Next week we shall examine four more proofs to Rav Chaim’s assertion or a variation thereof and explain why it is either forbidden or inappropriate to present questions of equal length to the husband and wife at a Get.

 

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