Adapted from the writings of Dayan Yitzhak Grossman May 16, 2024 The Guardian reports: Kristi…
Double Agent: May a Proxy Also Serve as a Witness?
Adapted from the writings of Dayan Yitzhak Grossman
May 9, 2024
VIN News reports:
In a heroic and complex operation, the shaliach (emissary) of the Tel Aviv rabbinical court traveled all the way to a maximum-security jail in Bangladesh, where he passed a get (divorce document) through the bars in order to enable a jailed woman to be divorced.
The woman, a member of the Bnei Menashe community, got involved in drug trafficking and was sentenced to twenty years in the Kolosiv prison in Bangladesh. Her husband, who lives in Israel, submitted a request for a divorce by consent.
Rabbi Eyal Yosef, a member of the court, wrote up the special emissary’s get based on a ruling by Rabbi Ovadia Yosef. The court appointed Rabbi Eli Birnbaum, who has wide experience traveling to far-flung communities, to be the emissary. He traveled first to Dubai, then to New Delhi, and on a third flight to Calcutta. From there he hired a jeep and traveled for seven hours through the dangerous mountains and jungles of northern India.
When he reached the jail he was told that no visits are allowed. After covert diplomatic efforts, Rabbi Birnbaum and a local Chabad emissary who served as a witness were allowed to enter the jail. The get was passed to the woman through the prison bars.
72 hours later Rabbi Birnbaum returned to the court to testify that the get had been given in a kosher manner.
Rabbi Eli Ben-Dahan, head of the rabbinical courts, praised Rabbi Yosef and Rabbi Birnbaum for their efforts to secure the get and said that the rabbinic system would do all it could to continue releasing chained men and women in whatever places they might be located.[1]
The article implies that Rabbi Birnbaum gave the get in the presence of only one witness (the local Chabad emissary). A get must generally be given in the presence of two witnesses, so Rabbi Birnbaum (the husband’s agent) was presumably himself acting in the capacity of the second witness. In this article, we consider the halachic background for this practice.
The Gemara records a debate about whether an agent can become a witness (shaliach na’asah eid), and concludes that he can:
It was stated: Rav said that an agent sent to carry out a transaction may also become a witness to that transaction. Those of the yeshiva of R’ Shila say the agent cannot become a witness…
Rav said that an agent may become a witness, because it strengthens the testimony of a witness when he himself executed the transaction he testifies about. But those of the yeshiva of R’ Shila said an agent cannot become a witness, for since the master said that that a person’s agent is considered like himself, the agent is like the person who sent him in that he cannot bear witness to the transaction…
(The Gemara concludes:) And the halacha is that an agent can become a witness.
Rava said in the name of Rav Nachman: If a man said to two people, “Go and marry for me this woman,” those people can function as both his agents and his witnesses. And the same applies to divorce…[2]
The Yerushalmi, however, appears to give the opposite ruling:
If the husband appointed an agent to deliver the get, the agent has to deliver it in the presence of two witnesses; the agent is not counted as one of the two (ve’ein hashaliach oleh lo mishum shnayim).[3]
This translation of the Yerushalmi, that the agent is not counted as even one of the two, seems to be the understanding of the Rosh, who codifies the ruling of the Yerushalmi and explains that the reason the agent is not oleh lo mishum shnayim is because “he stands in lieu of the husband.”[4] The Rosh’s son the Tur infers that his father understands the Yerushalmi to mean that the agent is not counted as even one of the two. But the Tur himself proceeds to argue that the Yerushalmi really means that the agent is not counted as two witnesses, only as one. Because the established halacha (based on the above discussion in the Bavli) is that if a man said to two people, ‘Divorce my wife,’ his agents are also his witnesses, so, too, can a single appointed agent serve as one of the required two witnesses.[5]
How does the Rosh reconcile the Yerushalmi with the Bavli? The Acharonim explain that he distinguishes between two appointed agents—who do count as witnesses—and one appointed agent, who does not count as even one witness. (The rationales for this distinction are beyond the scope of this article.)[6]
As a matter of normative halacha, R’ Yoel Sirkes (the Bach) strongly endorses the stringent position of the Rosh, and concludes that “chalilah to be lenient” in accordance with the Tur.[7] R’ Yechiel Michel Epstein (the Aruch Hashulchan) writes that although most authorities disagree with the Rosh, and it is possible that even according to the Rosh, the rule of the Yerushalmi is only a stringency mideRabanan, nevertheless, “chalilah to transgress against his position in practice.”[8] But R’ Aryeh Leib Tzintz asserts that all agree that after the fact (bedieved) even a single agent counts as one of the two witnesses.[9]
There is actually another basis for leniency in the case of a get given by a husband or his agent in the absence of two valid witnesses: The Rambam rules (contrary to the opinion of “one of the Geonim”) that a get signed by two witnesses, but not given in the presence of two witnesses, is valid ex post facto, whether given by the husband or his agent:
Ten items are fundamental min haTorah to a get…(one of which is) that he give it to her before witnesses…[10]
When two witnesses sign the get, and the husband transgresses and gives the get to his wife in private, or if it is discovered that the witnesses to the transfer of the get were invalid, the get is valid, for the witnesses who signed it are valid and the get is in the woman‘s possession. But one of the Geonim ruled that it is invalid.[11]
An agent who brings a get, when he gives it to her, he must give it to her before two witnesses, and those two must read it, and it must then be given to her before them. For the law of the agent and the woman is like the law of her husband with her, for the agent stands in his place…[12]
If the agent transgressed and gave the woman the get in private, he should take it back from her and give it to her again before two witnesses. If he died (before doing so), then because the get is in her hand, verified with its signers, it is a valid get.[13]
The Rambam’s lenient ruling follows that of the Rif,[14] but the Rosh[15] and the Tur[16] endorse the stringent view of the cited Gaon. The Rama cites both opinions and does not decide between them.[17] The Rambam only allows such a get after it has been given and after the death of the husband, but where it cannot be given again (in the presence of witnesses), perhaps he would even allow giving it initially without witnesses if arranging their presence would be impossible or extremely difficult.
Accordingly, we have two possible justifications for Rabbi Birnbaum’s giving of the (presumably signed) get in the presence of only one other witness: the position of the Rif and the Rambam that a signed get can be valid even if given in the absence of any witnesses, and the position of the Tur (which the Aruch Hashulchan asserts is that of most authorities) that an agent may serve as one of the required two witnesses.
It should be noted that in this case, the immediate goal of the get was to permit the husband to remarry, in which context there is greater tolerance for leniency than in the typical context of a get intended to permit the wife (as well as the husband) to remarry, because here we are only dealing with a non-de’Oreisa issur or minhag prohibiting polygamy, as opposed to the more stringent Torah prohibition against adultery that applies to a married woman remarrying without a proper get.[18]
[1]Yehuda Dov. TA Rabbinical Court Emissary Transfers Get To Woman Jailed In High-Security Bangladesh Prison. VINNews. https://vinnews.com/2024/04/04/ta-rabbinical-court-emissary-transfers-get-to-woman-jailed-in-high-security-bangladesh-prison/.
This episode was widely reported in Hebrew-language media, and this article appears to be a translation of one or more of such reports: Arutz Sheva; COL; Mivzak Live; News1; Kikar HaShabbat; ynet; Rotter.net; Walla!; Hamechadesh.
[4]Piskei HaRosh Gittin perek 4 siman 2.
[5]Tur E.H. siman 141. Cf. Bais Yosef ibid.
[6]Drishah ibid. end of s.k. 24; Bach ibid.; Aruch Hashulchan ibid. se’ipim 19-21.
The Aruch Hashulchan asserts that the Bach considers the rule of the Yerushalmi (as understood by the Rosh) to be only a stringency mideRabanan, and he apparently understands the Bach to be resolving the contradiction between the Bavli and Yerushalmi by explaining that the former is setting forth the basic halacha, while the latter is discussing a deRabanan stringency. But while the Bach does explicitly describe the rule of the Yerushalmi this way, I do not see him invoking this fact in order to reconcile the Bavli with the Yerushalmi; on the contrary, he appears to reconcile them in a similar manner to that of the Aruch Hashulchan himself, by distinguishing (on a deRabanan level) between two shluchim and one shaliach.
[7]Bach ibid.
[8]Aruch Hashulchan ibid. se’if 22.
[9]Get Mekushar (Tzintz), Seder Get Sheini end of os 1. I am indebted to my friend and chavrusa R’ Yisroel Rottenberg for reading a draft of this article and bringing this source to my attention.
[14]Rif Gittin 47b-48a in Rif pagination.
[15]Rosh ibid. perek 9 siman 7.
[16]Tur ibid. simanim 133 and 141.
[17]Shulchan Aruch ibid. 141:13.
[18]I am again indebted to Rav Rottenberg for articulating this point.
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