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Wednesday, April 08, 2020
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An Issue Raised in 1990 and 2020

Many halachic issues have been raised during the current crisis. In one highly sensitive situation that faced our Beit Din (the Israeli Rabbinate recognized Beth Din of Elizabeth), a request was made for the husband to appoint a scribe, witnesses and agent via videoconferencing.

I responded that I raised the issue thirty years ago while learning in Yeshiva University’s Yadin Yadin Kollel. I wrote articles in both Hebrew and English arguing that it is acceptable. However, due to the lack of a rabbinic consensus supporting this proposal, even I do not conduct a Get in this manner.

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.

I wrote 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.

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.

Twentieth rabbinic authorities debated this issue but no consensus has emerged. A few Batei Din rule leniently if there is no alternative, but most 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 on a telephone be properly identified?

Rav Yitzchak Schmelkes (Teshuvot Bet 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.

Appointing a Scribe and Witnesses via Videoteleconference

Although in practice Batei Din do not permit issuing an appointment via telephone, I thought all would permit the issuance of appointments of a scribe and witnesses via videoteleconferencing. Interestingly, Rav Schmelkes (Bait Yitzchak, Even Haezer 2:53) anticipated the invention of videoteleconferencing and indicated 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 I mentioned Rav Schmelkes’ responsum to Jerusalem sage Rav Zalman Nechemia Goldberg, he latter pointed out that Tosafot in Gittin 72a 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 seems to 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.

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.

Rav Waldenburg describes how Posekim 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 in mid and late twentieth century 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 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 displayed on the screen, any pieces of identification that a Bait Din normally requests from people who appear before them.

The Reaction of Contemporary Posekim

Since my articles were published in 1990, poskim have had a mixed reaction. Rav Zalman Nechemiah Goldberg, Rav Herschel Schachter, and Rav Mordechai Willig support my idea, whereas Rav Yosef Shalom Elyashiv, Rav J. David Bleich, and Rav Elazar Meir Teitz reject it. Those who rule strictly are concerned that the videoteleconference appointment is unacceptable according to the Ramban and still has potential for fraud. Accordingly, this proposal cannot be implemented since no rabbinical consensus has emerged regarding this issue. In addition, I deeply regret not having raised this issue in 1990 with the great Sephardic sages Rav Ovadia Yosef and Rav Shalom Messas.

A Bet Din might rely upon in a situation where there is significant doubt as to whether a Get is necessary, such as when the couple was married only in a civil or non-Orthodox ceremony or if there is considerable doubt as to the Jewish identity of either spouse.

Conclusion

Regarding the situation faced by our Bet Din during the current crisis, we did not conduct the Get by videoconference especially since Rav Teitz, our Av Beit Din, does not regard it as acceptable. With Hashem’s help we found a safe and Halachically sound to conduct this very necessary Get.

Even though I am the one who promoted the acceptability of a Get via videoteleconference, in practice I defer to older and wiser Rabbanim. This is the way of Torah and our people.

Rabbi Haim Jachter is the spiritual leader of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck. He also serves as a rebbe at Torah Academy of Bergen County and a dayan on the Beth Din of Elizabeth.

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