Avodah Mailing List

Volume 10 : Number 111

Monday, February 24 2003

• Yissachar-Zevulun
• Re: Toward a Jewish Aesthetic
• Re: Rambam and Yisachar Zevulun
• Re: Rambam and Yisachar Zevulun
• Edah conf. - agunot panel
• VaYoel Moshe & HaTekufah HaGedolah
• Re: apikorsus
• Re: Self Evident Apikorsus
• Self Evident Apikorsus - answer key/corrigendum
• Re: apikorsus
• Re: Rambam and Yisachar Zevulun
• Sefer Divrei Torah by the Minchas Elozor z'l
• Fw: Nice vort from the Chebinner Rov z'l
• Agunah session at Edah Conference
• Re: Edah conf. - agunot panel
• Minui Shaliach over the phone

My dispute with RMG seems to have split into two problems. I think they
share the same issue in parshanuth, but I'll deal with them seperately
and then summarize:

1. Here is my (free) translation of H. Talmud Torah 3:10

    Anyone who decides to study Torah, to refrain from renumerative
    work, and to support himself from charity has desecrated God's name,
    despised the Torah, extinguished the light of the religion, caused
    evil to himself, and removed himself from the world to come, because
    it is prohibited to benefit from words of Torah in this world. The
    sages said "Anyone who benefits from words of Torah removes his
    life from the world" and they commanded "Do not make them a Crown to
    glorify ones' self or a shovel to dig with" and they commanded "love
    manual labor and hate position (rabbanuth)". Any Torah unaccompanied
    by manual labor is ultimately for naught, and the person who does
    this will become a thief.

RMG postulates that the Rambam believes there are three possibilities:
working and learning (praiseworthy), being paid a salary to learn
(permitted based on H. Shekalim), and taking charity to learn (assur).
The problem is that here, in H. Talmud Torah, which is where that law
belongs, the Rambam gives no hint that the second option is available.
  So I have a problem and RMG has a problem. I have to explain why
the Rambam doesn't explicitly say schar battalah rather than schar in H.
Shekalim, and RMG has to explain why the Rambam doesn't explicitly permit
being paid a salary in H. Talmud Torah.
  My response is that the Rambam's general tendency is to specify
details of the laws in the one central place, and merely to translate
Talmudic terminology elsewhere, and that is what he did in H. Shekalim.

2. RMG postulates that the Rambam believes that schar mitzva gets one a
place in Olam HaBa. I objected that, in fact, the Rambam believed that
one gets Olam HaBa through a natural process, and that natural process
involves knowledge rather than behavior. Again, I have a problem and RMG
has a problem. I have to explain why the Rambam uses the terminology of
"schar mitzva", and RMG has to describe something the Rambam would accept
as a natural process through which schar mitzva leads to Olam HaBa.
  I can solve my problem just as I did before: the Rambam defines how
to get to Olam HaBa in the proper place (H. Ysodei haTorah 4:9), defines
the relationship between mitzvoth and knowledge in H. Deoth 3:1-3 (more
detail in Shmonah Perakim, chapter 8 and MN III:27). Elsewhere he retains
the Rabbinic term "schar mitzva" even though he expects us to understand
the indirect relationship between kiyum mitzvoth and Olam HaBa.

But RMG has to answer two questions:

1. Why does the Rambam not mention the option of Talmud Torah for schar
in H. Talmud Torah (and why is schar not included in the prohibition of
neheneh baolam hazeh)?

2. By what mechanism does kiyum mitzvoth lead to Olam HaBa?

David Riceman

In a message dated 2/20/03 11:56:35 AM EST, micha@aishdas.org [forwarded
from Daf Hashavua]:
> In an interview with the Jewish Chronicle, Rav Kook reminisced how
> he would take regular trips to the National Gallery simply to see the
> masterpieces of Rembrandt whom he considered to be a saint with a deep
> understanding of divine light.
> 
> I find Rav Kook's teaching inspirational, not only because it reminds me
> of the importance of appreciating the world around us, but also because
> it reminds me how important it is to value everyone for the different
> contributions that they make to the world. As our Rabbis put it: Who is
> wise? Someone who can learn from everyone (Avot IV:1)

Something akin to a "Grand unified theory", i.e. everything can and should
fit into a plan of Avodas Hashem. Hermann Hesse wrote a book, "The Glass
Bead Game", named for an advanced team of fictional philosophers that
works at unifying all knowledge. E.g. This scientific theory matches
this painting which matches this concerto which matches this line in
the Bible....

This can always lead to positive results when the view to unify is
paramount.

I think the reason Limudei Chol have so often had such a bad reputaition
over the centuries is that the independent beauty of the limudim is
often so beautiful that the B'chol D'rachecha Dei'eihu is forgotten.

(I don't know if this makes any sense to anyone. It is an idea that
has been sitting in my brain for a long time unexpressed...)

Raffy

On Fri, Feb 21, 2003 at 10:11:09AM -0500, Joelirich@aol.com wrote:
:> I have no doubt that sociological influence effects psak -- just look
:> at the halachot dealing with non-Jews,

: Does how widespread a practice is considered a sociological influence? For
: example, I'm told that just before he was niftar R'SZA regretted not
: knowing how widespread crockpot use was or he might not have issued his
: negative psak when shortly before that someone showed one to him.

How does this raise an issue of sociological influence? Are you arguing
that historical or social forces or influences modified or influenced
RSZA's pesaq?

Here it sounds like a claim that he held it was assur until he saw
that he was a da'as yachid. And even if not, it's at most a puq
chazi. My difficulty is with the claim that valid pesaq can involve
choosing whatever tzad fits the values of the zeitgeist. (And possibly
reinterpreting texts to do so, if I understood RRW correctly.)

:-)88!!
-mi

-- 
Micha Berger                 "Fortunate indeed, is the man who takes exactly
micha@aishdas.org            the right measure of himself,  and holds a just
http://www.aishdas.org       balance between what he can acquire and what he
Fax: (413) 403-9905          can use."              - Peter Mere Latham

On 21 Feb 2003 at 10:11, Joelirich@aol.com wrote:
> RAA:
> > I have no doubt that sociological influence effects psak -- just
> > look at the halachot dealing with non-Jews,
> 
> Does how widespread a practice is considered a sociological influence?
> For example, I'm told that just before he was niftar R'SZA regretted
> not knowing how widespread crockpot use was or he might not have
> issued his negative psak when shortly before that someone showed one
> to him.

I don't know where you heard that. The crockpot psak was issued about 
four weeks before Rav Shlomo Zalman was niftar (maybe less). It is 
true that there were American poskim who tried to talk RSZA out of 
issuing the psak, but that had nothing to do with how widespread 
crockpot use was - it was because they told him that Rav Moshe and 
Rav Yaakov had seen crockpots and approved of them. But RSZA knew 
that Rav Moshe and Rav Yaakov were matir (or at least did not object) 
before he issued the psak. 

-- Carl
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

David Cohen posted the following after attending the panel discussion
on agunot at the recent Edah conf.:
> R' Riskin, from what I understood, was endorsing the methodology of R'
> Rackman's beit din, hafka'at kiddushin (see Yevamot 90b, 110a; Ketubot 3a;
> Gittin 33a, 73a; Bava Batra 48b). Basically, when we say that kiddushin
> is done "kedat Mosheh veYisrael," it requires the implicit approval of
> the "rabbinic establishment" to be valid....

> My overall reaction to the panel discussion was one of surprise that
> nobody challenged the contention of R' Rackman that there is no excuse for
> any beit din to not employ his methodology. Had I not already known that
> the vast majority of poskim, in both the "RW" and "MO" worlds, consider
> it invalid, I would not have learned that from this panel discussion....

It is hard to believe reading the above comments about Rav Riskin's
alleged views on hafka'ot kiddushin that he and I attended the same
session. Perhaps David was mislead by R' Riskin's lack of overt attack on
Rabbi Rackman into thinking that he agreed with him and his methodology.
Rav Shlomo Riskin spent much of his time explaining the basis for the
idea of retroactive revokation of a marriage. He never said, nor should
anyone imagine that he believes that any self-constituted bet din has the
authority to do hafka'ot kiddushin. In fact, he specifically said that
he believes that such a bet din can only be constituted in Israel by the
official Rabbanut, under current conditions. Rav Broyde was pessimistic
about the establishment of an accepted bet-din for hafka'ot anywhere at
this time. Rabbi Rackman, who merely offered comments on the discussion,
maintained that his bet-din and others to be constituted in all major
cities had such power.

Perhaps R' Riskin's comment about the very limited opportunity for
hafka'ot kiddushin - namely in a Rabbanut court, came after David
had left. In any case, it was clear to me that both Rabbis Riskin and
Broyde opposed Rabbi Rackman's bet-din.

Rav Broyde in his discussion of kiddushei ta'ot mentioned the severe
restrictions that limit this principle to the resolution of failed
marriages. Thus, neither Rabbi Riskin and certainly not Rabbi Broyde
gave any support to Rabbi Rackman's bet-din and its methods.

In case you wonder at the absence of direct attack against Rabbi Rackman
and his sttempted solutions of the agunot problem, let me inform the olam
that the Rabbi is a quite elderly and frail-looking gentlemen. No one,
I am sure, would want the responsibility of provoking him and possibly
causing a health crisis. In addition, there is a reservoir of emotional
support of Rabbi Rackman's goal among many of the conference attendess.
In past conferences, the head of Edah, Rav Saul Berman, has proclaimed
support of Rabbi Rackman's honor and goal (the resolution of aguna
problems) while expressing disagreement with his methods.

Yitzchok Zlochower 

I wrote:
>>Name one rishon that brings the
>>gimmel shevuos *lehalachah*.

SBA wrote:
>See the Hakdomo to VM page 10 [dh 'Vehinei ro'isi']
>where the SR discusses this.

Where he acknowledges this and tries to explain it away.

>Aderaba, please give me a cite where he genuinely
>disproves the VM.  (But only where you - Reb Gil -
>have also seen that section of VM and agree with
>the HH's conclusions).

**Can There Be Geulah Without Teshuvah?**

The Satmar Rav discusses this in VaYoel Moshe, Ma'amar Gimmel Shevuos ch.
40-42 (in the Ashkenazi 5760 edition, pp. 51-57). The VM points out
an apparent stirah in the Rambam and that the Rambam seems to pasken
according to R' Eliezer against R' Yehoshua (that geulah requires
teshuvah) even though according to all the kellalim of pesak the halachah
should be according to R' Yehoshua [I would argue that the kellalim do
not apply here because it is not le-ma'aseh]. The VM is ma'arich and
brilliantly answers that the whole machlokes in the Gemara is whether
we will need to do teshuvah before Moshiach comes. But everyone agrees
that the actual geulah cannot take place (even after Moshiach comes)
until we do teshuvah. Thus, no stirah and the Rambam paskens like the
unspoken unanimous opinion. A brilliant yishuv, although very difficult
because of the language of the Gemara is strictly about geulah and not
about Moshiach - something the VM does not really address. The VM is so
convinced of the truth of his peshat that he goes so far as to say that
anyone who would suggest that the geulah can happen without teshuvah is
a kofer (ch. 42, p. 56)!

R' Menachem Kasher argues with this in HaTekufah HaGedolah ch. 6, pp.
95-115. He brings rishonim who disagreed with the Rambam - the Ramban,
his talmid Rabbeinu David (Bonfil), Radak, and the Ramah (who is
not really a proof according to the VM's explanation of the Gemara).
RMK comes to a similar conclusion as the VM on peshat in the Rambam but
says that it is tentative and adds a statement from the Rambam's son that
is crucial for this entire discussion. According to RMK none of this is
relevant if one assumes that kibbutz goluyos can occur before Moshiach
comes (as is his shitah). If that is the case, then even according to
the Rambam the current situation is not a problem. When Moshiach comes
he will cause everyone to do teshuvah, as the VM holds also. He finds
a hint to this in R' Avraham ben HaRambam's words (not so strong) but
the argument stands on its own.

The VM's claim that anyone who holds there can be geulah without teshuvah
is a kofer is shver because that implies that the Ramban, Rabbeinu David,
and Radak were kofrim. RMK further brings from the Gra and the Chofetz
Chaim that geulah can be without teshuvah. Thus, according to the VM
they were also kofrim. [Interestingly, RMK (p. 104 n. 28) seems to
bring an exact quote from VM which, while accurate in its description
of the VM's view, is a paraphrase and not a direct quote.]

RMK also brings a Midrash Ha-Ne'elam that says that teshuvah only has
to be done by the tzadikim of the generation and not by everyone (this
leads to a tangent of tinok she-nishbah, which is worthy of note even
though being irrelevant to the issue). This is also implied by the Radak.
RMK then makes an interesting comparison to yetzi'as mitzrayim and notes
the same idea in midrashim. A nice tzushtell, even though not muchrach.

RMK then tries to make a case that HKBH will bring the geulah in the
zechus of rejecting avodah zarah. Surprisingly, he does not bring
the Gemara at the beginning of Chullin that "kol ha-kofer bah ke-modeh
be-chol ha-Torah kulah". However, he brings enough mekoros to make an
interesting case, even if not muchrach.

Be-kitzur, the VM's argument is shredded to pieces for the following
reasons:

1. Le-shitas RMK, kibbutz goluyos can happen before bi'as Moshiach and
even the VM agrees that teshuvah does not need to happen before bi'as
Moshiach.
2. The VM based his argument on the Rambam. Other rishonim and acharonim
disagree.
3. Teshuvah can refer to tzadikim.
4. Teshvuah can refer to rejecting avodah zarah.

Gil Student

R' M. Levin wrote:
> Issues of belief are different from other issues for the following
> reasons:

> They are much more important than issues of chumra If you on the wrong
> side, you are out, ...eternally?

While I would certainly agree that issues of belief are quite different
from other issues, my reason for saying this is different from RML's.
One could advocate being machmir in one's actions in certain situations
in order to avoid the possibility of a severe transgression.

How, though, does one force a certain set of beliefs upon oneself?
If one is actually intellectually convinced of the truth of a certain
position, but when questioned, says that he believes in a different,
"more machmir" position, is he then okay? What if he chooses a sort of
cognitive dissonance, and tells himself that while my intellect tells
me "x," I nonetheless have blind faith in the truth of "y?" Can this
really be called a belief? If this is what will get him into Olam HaBa,
just Whom does he think he is fooling?

If we are to understand the ikarim of the Rambam in the context of his
position as stated elsewhere, he is not advocating blind faith in the
truth of these postulates regardless of the dictates of one's intellect.
  Rather, he maintains that these statements can all be objectively
proved to be true, and that one who denies them must not have been
engaged in an honest intellectual pursuit of the truth. While one who has
come to believe that one of the ikarim is not true might be obligated,
according to the Rambam, to continue exploration of the topic until he
can GENUINELY believe, in an intellectually honest fashion, that it is
true, this is not, as RML's post seems to suggest, as easy as choosing
a machmir position in hilkhot Shabbat or kashrut.

This is why I think that issues of belief are so different. Unlike one's
actions, one simply cannot genuinely change one's actual beliefs on
demand.

> These days, many follow minority opinions because of inability to believe,
> due to exposure to academic views. Following these views allows them to
> remain, in their eyes, within the fold and even to feel superior to the
> less enlightened folks.

> But,
> is the reason for picking these views in the desire to serve G-d better
> or in a desperate attempt to retain a personal emotional connection with
> the Judaism of one's youth?

It should be evident from what I wrote above that I disagree with the
whole premise of this question, that one can actually "pick one's
views" and then "follow them." However, I will attempt to give my
opinion anyway. Consider the following two hypothetical people, Reuven
and Shimon, both of whom have learned in the course of their academic
studies that the text of the Torah as we have it now is not word-for-word
exactly the same as what the Tannaim had. (I'm sticking to issues of
lower criticism for now to keep things simple.)

Reuven accepts the conclusions of this research, but still believes
100% that he is obligated to observe the Torah as devar Hashem, and
that chaza"l were the authentic ba'alei hamesorah. He points out that
some rishonim had views similar to his, and also maintained, of course,
that this didn't take take one iota from the authority of the Torah.

Shimon understands the evidence, but, having a certain understanding
of the Rambam's ikarim, thinks that if he were to actually admit to
himself taking this evidence to its logical conclusions, he would be
"outside the fold." Thus, he compartmentalizes his mind. In the part
of his mind that can't help but accept what he's seen to be true, he
thinks that since the Rambam says that this is a fundamental principle
of Judaism, he must not be really be obligated to observe Torah at all.
However, he cannot bear to deal with the emotional and social consequences
of such a conslusion, so in the other part of his mind, he maintains a
half-hearted allegiance to the Rambam's ikarim.

Which one of them is engaged in a more genuine, "better" service of God?
I would argue that it's definitely Reuven. RML, though, would seem to
suggest that one who finds himself in this position should take the path
of Shimon. What does everybody else think?

--D.C.

In a message dated 2/19/2003 3:54:34 PM EST, Mlevinmd@aol.com writes:
> Now what do we do with Torah Codes, gmatiras, and other remazim? if we
> do not have a 100% accurate picture of hte Sinaitic Torah, what good is
> all of our drashos based upon an even slightly altered text?

I answered this as follows:
You can always aregue that at some level the "error" that crept into
the text was 'bashert"

I'm sure we have hard stories like the Tefillin was passul davka because
it was missing a given word or letter

Or the Noda bihuda saying soemthing liek Hamachmitz Aravim instead of
Hama'ariv Aravaim as a signal min shamayim that something was amiss.
This does NOT negate that at another level the text is in error. In case
of the Noda bihuda BOTH are true. The text was mis-pronounced but the
mis-pronounciation was to give a valid message from HKBH.

In the world of Kabbalha, etc. we dont' think so linearly or in either/or
dichotomies. Rather we have paradoxes.

Such a paradox concerns the name Haman. By having a Minhag to eradicate
Haman we actually encourage our youth to viginalntly SEEK the name Haman
as often as possible. Hardly a method of eradication of Zecher Haman.
Such paradoxes abound in spiritual logic.

Kol Tuv - Best Regards
Richard Wolpoe <RabbiRichWolpoe@aol.com>

> But what is more important
> perhaps is that certainly others have also read rashi in the way I've
> suggested. BTW one of these was R. Moshe Feinstein who was so incredulous
> that he simply rejected the notion that rashi could have penned it and
> insists that its a forgery. Can check it out somewhere in IM.

The above confuses two statements 1) the Rashi (Bereishis 18:22)
concerning tikun sofrim and 2) Avos D'Rav Nossan(34:4) describing Ezra
putting dots over certain letters in the Torah. The latter was described
by Rav Moshe (Igros Moshe YD III #114 page 358) as a forgery while the
former was not discussed in the Igros Moshe. Itur Sofrim is discussed
OH IV #24 page 39

For those who are interested in a scholarly discussion of the issues
should read "Fixing G-d's Torah" by Prof Barry Levy. Oxford Press 2001

                                                        Daniel Eidensohn

Mlevinmd@aol.com wrote:
> I suggest another subtext: are we speaking as private individuals,
> as rabbis and leaders of the community or as educators.

Some people on this list are in none of the latter categories.

> They are much more important than issues of chumra If you on the wrong
> side, you are out, ...eternally?
> I think that we should be machmir to the utmost on the issues that affect
> our eligibility to be a 100% bona-fide Jewish believer

Now I'm confused (I think for one of RMS's reasons). If issues of
emunah are so important shouldn't we do our utmost to be correct?
Surely a chumra is as liable to be wrong as a kulah.

> although we do
> not need to be machmir ( but we should try) in almost all other areas of
> halakha and machsovo.

I'm puzzled by this as well. According to the Rambam it's as wrong to be
machmir as to be meikal (in mitzvos). Shouldn't you, by your own logic,
be machmir l'shitas harambam and refrain from chumros?

> the bottom line is, disagreement about other matters does not threaten
> one's status but disagreement about the divine origin of the torah
> does. Why would one want to threaten his standing in olam habbo by
> selecting to follow obscure, unclear and parenthetical views and not
> widely accepted, eplicit views. The issue of motivation is legitimate
> in this context.

I suggest you review the chapter in the MN about the meaning of "belief".
The Rambam thought that all his principles could be proven. You seem
to think that a person can chose whether or not to belive them.

David Riceman

In a message dated 02/23/2003 5:26:38 PM EST, sherer@actcom.co.il writes:
> I don't know where you heard that. The crockpot psak was issued about 
> four weeks before Rav Shlomo Zalman was niftar (maybe less). It is 
> true that there were American poskim who tried to talk RSZA out of 
> issuing the psak, but that had nothing to do with how widespread 
> crockpot use was - it was because they told him that Rav Moshe and 
> Rav Yaakov had seen crockpots and approved of them. But RSZA knew 
> that Rav Moshe and Rav Yaakov were matir (or at least did not object) 
> before he issued the psak. 
 
 From a tape of a hilchot shabbat shiur given in a Yeshivat Hesder - I will
contact someone there B"N to get permission to disclose the exact source.

KT
Joel RIch

IIRC, some time ago someone (maybe RMB?) asked about something in the
tefila 'Keil Odoyn'.

In some editions of the Munkatcher Rov's sefer Divrei Torah (which is made
up of 9 mahadura's) there is a separate section called "Maamar Adon Kol"
which explains 'Keil Odoyn' almost word by word - al pi kabolo and drush.
Those people who are into this may be interested to have a look.

[BTW an interesting note...
In the large single-volume edition of the Divrei Torah (which does not
include the above Maamar), there is an index (not by the mechaber). When
looking under 'Agudas Yisroel' - it says - ayen 'Tsionim'. Go to 'Tsionim
[vede'imei]' - and you get - ayen 'Reshoim, v'Ikvese Meshicha...']

But I don't want to frighten anyone away from this amazing chibbur -
which are the jottings of one of the gedolei yisroel, the baal Minchas
Elozor and includes Toros, maasiytos, mussar, halocho, minhogim and...some
real sharp stuff as well.
All written in user friendly LHK, in small (often 1/4 or 1/2 page),
separate bite-size segments. Anyone with the slightest interest in
chassidus should get a copy.

SBA

<http://www.hydepark.co.il/hydepark/topic.asp?topic_id=324599>

Nice vort from the Chebinner Rov z'l on Parshas Shekolim. Machtzis
Hashekel and the Yotzer...

> Having been at this panel discussion at the Edah conference, my impression
> is more that it was R' Riskin and R' Rackman on the one hand, and R'
> Broyde on a totally unrelated hand.

> R' Riskin, from what I understood, was endorsing the methodology of R'
> Rackman's beit din, hafka'at kiddushin (see Yevamot 90b, 110a; Ketubot 3a;
> Gittin 33a, 73a; Bava Batra 48b)...

I attended this session, too. While Rabbi Riskin did endorse the idea
of being able to anull marriages in certain cases, he never directly
endorsed Rabbi Rackman's beis din and his specific methodology. I think
that out of respect to Rabbi Rackman, he did not want to criticize him
at this session--but I think it would be a pretty big leap to say that
Rabbi Riskin agrees with R. Rackman on his method of freeing agunot,
at least from what I heard.

Michael Feldstein
Stamford, CT

In a message dated 2/23/2003 7:26:32 PM EST, zlochoia@bellatlantic.net writes:
> In case you wonder at the absence of direct attack against Rabbi Rackman
> and his sttempted solutions of the agunot problem, let me inform the olam
> that the Rabbi is a quite elderly and frail-looking gentlemen. No one,
> I am sure, would want the responsibility of provoking him and possibly
> causing a health crisis. In addition, there is a reservoir of emotional
> support of Rabbi Rackman's goal among many of the conference attendess.
> In past conferences, the head of Edah, Rav Saul Berman, has proclaimed
> support of Rabbi Rackman's honor and goal (the resolution of aguna
> problems) while expressing disagreement with his methods.

I believe Mohandus Gandhi said:
Take Care of the Means and the Ends will take care of themselves or
something to that effect. IOW:
Take care of the Methods and the Goals will take care of themselves
Sometimes people try to force a worthy goal down the throats of the
people, and are not too fussy how they acomplish their means.

I have no doubt that Rabbi Rackman's intentions are honorable.
And as Lincoln has said, the road to H__l is paved with good intentions.

OTOH, we see that it is quite possible to reject R. Rackmans; methods
w/o attacking him personally.

Kol Tuv - Best Regards
Richard Wolpoe <RabbiRichWolpoe@aol.com>

Note from me:

I do not understand why the presence of two kosher witnesses at the site
from whence the husband is calling would not eliminate the problem. Since
REMT is cited below as one of the machmirim, perhaps he might respond
if that would alleviate his objection.

YGB 


Parshat Beshalach Vol.10 No.19 
Date of issue: 17 Shevat 5761 -- February 10, 2001 

The Use Of A Videoteleconference For A Get Procedure 
by Rabbi Howard Jachter 

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] Rambam [2] 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 Ran [12]
believe that such an appointment is valid, since the husband, not an
agent, appoints the scribe and witnesses. Ramban [13] 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 "Sefeika DeDina". Maharshal [14] 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 "Safek Sfeika", "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 indicated [19] 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 Waldenburg [22] 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.

__________________ 
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), Divrei 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. 

**********************


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