Rabbi Jachter's Halacha Files
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Parshat Lech Lecha          10 Cheshvan 5766             November 12, 2005             Vol.15 No.8


<<Part 1<<

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

Introduction
Last week we discussed the importance for Mesadrei Gittin (Get administrators) to show special sensitivity to non-Orthodox couples who are not accustomed to Orthodox ceremonies that are non-egalitarian. We noted the practice of Rav Melech Schachter and some other Rabbanim (based on the Rama and Kav Naki) to pose questions to the wife to ascertain that she is receiving the Get of her own free will, thereby giving the wife a significant “speaking role” during the Get procedure.
However, we noted that the Kav Naki abbreviated the questions asked of the wife, leaving a significant disparity between the length of the questions posed to the husband and the wife. We explored the possibility of presenting parallel questions to both husband and wife, unlike the Kav Naki, to eliminate the disparity. We concluded, though, that it is inappropriate and perhaps even forbidden to do so because it is forbidden or inappropriate to treat the Torah law requiring a husband’s consent on par with Rabbeinu Gershom’s tenth century enactment requiring the wife’s consent.
We also noted that Rav Chaim Soloveitchik went as far as to say that one who treats a custom (Minhag) on par with a rabbinic law or a rabbinic law on par with a Torah law, violates the prohibition of Bal Tosif (the prohibition to add on to the Torah’s body of law). We mentioned that we can marshal twelve sources to prove that failing to differentiate between Torah law, Rabbinic law and Minhag violates the spirit of the Halacha and perhaps even the Torah prohibition of Bal Tosif. We cited eight proofs last week, and will present another four this week.

Further Support for Rav Chaim’s Assertion
A ninth proof to Rav Chaim’s position may be derived from the Gemara (Berachot 45b) that teaches that sometimes it is inappropriate to recite Amen after one’s own Berachah and sometimes it is appropriate to do so. The Gemara states that it is proper to answer Amen after one has recited the Berachah after Boneih Yerushalayim, the third Berachah of Birkat Hamazon, but it is improper to recite Amen after one has recited any other Berachah. Tosafot (ad. loc. s.v. Ha BeBoneih) cite the Behag and Rabbeinu Chananel who believe that one should recite Amen after the completion of any series of Berachot that is similar to Boneih Yerushalayim, the conclusion of the series of three Biblically mandated Berachot of Birkat Hamazon. Sephardic Jews follow this approach (see Shulchan Aruch O.C. 215:1) and recite Amen after they complete Yishtabach, Hashkiveinu, and Yehallelucha (the concluding Berachah of Hallel). Tosafot note that Ashkenazic Jews, though, recite Amen only after the Berachah of Boneih Yerushalayim, and the Rama (ibid.) codifies this practice.
One might ask what is unique about the Berachah of Boneih Yerushalayim. The answer is that the self-answered Amen to Boneih Yerushalayim serves to distinguish between the first three Brachot of Birkat HaMazon that are of Biblical origin and the fourth Berachah, which is of rabbinic origin (Mishnah Berurah 215:4). We see once again the importance of distinguishing between different levels of obligation. Rav Chaim would argue that failure to make such a distinction violates Bal Tosif.
A tenth proof might be derived from an interesting Halacha regarding our observance of the second day of Yom Tov in Chutz Laaretz. Chazal seek to protect the integrity of this Yom Tov Sheini Shel Galiyot and to avoid degrading its importance (see Pesachim 52a and Shulchan Aruch O.C. 496:1). Thus, Chazal try to treat the second day of Yom Tov with the same seriousness as the first day (Rambam Hilchot Chanukah 3:5 and Shulchan Aruch O.C. 496:1 and 2).
Nonetheless, the Halacha (ibid.) permits anyone to consume medicine (which is ordinarily forbidden on Shabbat and Yom Tov) on the second day of Yom Tov. One could argue that this is permitted because Chazal wished to make at least one distinction between the first day of Yom Tov, whose observance is Biblically mandated, and the second day of Yom Tov, which is only rabbinically mandated. Rav Chaim would argue that this is necessary to avoid Bal Tosif, despite the need to fortify the observance of Yom Tov Sheini.
An eleventh proof may be drawn from a practice of Chassidim (and those of Chassidic background) who refrain from Gebrukhts on Pesach. Although these Jews will avoid Gebrukhts for the first seven days of Pesach, they permit consumption of Gebrukhts on the eighth day of Pesach in Chutz Laaretz (Shulchan Aruch HaRav 5: Teshuvot number 6). A non-Kabbalistic reason for this might be to distinguish between the Biblical obligation to avoid Chametz on the first seven days of Pesach and the rabbinic obligation to abstain from Chametz on the eighth day in Chutz Laaretz.
Finally, a twelfth proof might be the practice to continue reciting LeDavid Hashem Ori (Tehillim 27) on Shmini Atzeret and to stop reciting it on Simchat Torah (Mishnah Brurah 581:2). One possible purpose for this practice is to distinguish between the Torah obligation to observe Shmini Atzeret and the rabbinic obligation to observe Simchat Torah.

Variations on Rav Chaim’s Approach
These twelve points demonstrate that Chazal, Rishonim, and Acharonim share an agenda to distinguish between Torah law, rabbinic law, and customs. Rav Chaim would explain this phenomenon based on the prohibition of Bal Tosif. An alternative approach is to say that even though it does not constitute, technically speaking, the prohibition of Bal Tosif, failure to distinguish between the levels of obligation violates the spirit of the law of Bal Tosif.
In addition, one could suggest that failure to make such distinctions constitutes a “Ziyuf HaTorah,” a falsification of Torah. Chazal make great efforts to avoid creating incorrect impressions of Torah (see comments of the Maharshal in his Yam Shel Shlomo, Bava Kama 4:9). Failing to distinguish between the levels of obligations creates a false impression that, for example, a Minhag is a Torah law or that a rabbinic obligation is really a Torah obligation.
An example of the effort Chazal made to avoid creating an incorrect impression is the enactment requiring everyone who is called to the Torah to recite a Berachah both before and after the reading of his portion (see Megillah 21b). Originally, only the first and last individuals called to the Torah would recite a Berachah. The first person called would recite the Berachah before the reading and the last person called would recite the Berachah after the reading. Chazal instituted, though, that each individual called to the Torah should recite a Berachah both before and after the reading. The Gemara explains that the change was made so that those who arrived late for the Torah reading would not think that there is no Berachah is recited before the Torah reading and also so that those who left before the completion of the Keriat HaTorah would not think that there no Berachah is recited after the Torah reading.
Another example is that the Kohen Gadol must clarify during the reading of the Torah on Yom Kippur in the Beit Mikdash that “more than I have read to you is written here” (see Yoma 68b). The Torah reading on Yom Kippur in the Beit HaMikdash included three sections. The third section was read from memory and not from a Sefer Torah to avoid the need for the assembled crowds to linger while the Torah was rolled from place to place. The Kohen Gadol, though, made the above statement so that it would be understood that what he was reciting from memory was included in the Sefer Torah (see similar though not identical concerns on Megillah 32a).
We see from these two examples how Chazal made efforts to avoid creating false impressions regarding Halacha. Similarly, one could argue that posing questions of equal length to the husband and wife creates an incorrect impression and thus is either completely forbidden or at least inappropriate.
Notwithstanding which approach one adopts, one must distinguish between Torah obligations, rabbinic obligations, and Minhagim. Therefore, it is either forbidden or inappropriate to create parity between the questions posed to the husband and wife at a Get procedure since there is a disparity in the sources requiring the consent of the husband and wife.

Conclusion
It is vitally important for Mesadrei Gittin to be sensitive to the needs of the couples for whom they administer Gittin. Thus, it seems appropriate (and this is my practice) to follow in the footsteps of the Rama, Kav Naki, and Rav Melech Schachter to pose somewhat extensive questions to the wife to ascertain her consent to receive the Get. We cannot, however, expand on Kav Naki’s protocol for the wife’s questions to equate it with the husband’s questions. Treating Rabbeinu Gershom’s tenth-century enactment with the same severity as a Biblical law undoubtedly violates the spirit of the Halacha and, according to Rav Chaim Soloveitchik, seems to violate the Torah prohibition of Bal Tosif.
Furthermore, Teshuvot Beit Yitzchak (number 33) and Teshuvot Chelkat Yaakov (Even HaEzer 103 in the new edition) present a very fundamental principle regarding Gittin, namely that we should not introduce new practices. The consequences of an improperly conducted Get are horrific, prompting Halachic authorities to seek to maintain essentially uniform standards so that the validity of Gittin should be beyond any doubt. Accordingly, we should follow the time-honored protocols and avoid innovation if at all possible. Thus, we may follow the precedent of the Rama and Kav Naki, but it is inappropriate to deviate from the existing protocols.

 

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