The Get from Tzfat

Background

Although this is an old story, it has now resurfaced in the form of an appeal to the Beis Din HaGadol. Virtually all the publicity has centred on the politics associated with the case and not on halacha, once again leaving the impression that halacha is not really a factor. My main purpose here is not to state my view, but to help the issues be understood.

The case involves a man who has been in a vegetative state for a number of years, leaving his wife as an aguna. The Beis Din of Tzfat, led by a distinguished dayan, R’ Uriel Lavi, ruled that in such a case a divorce may be performed on behalf of the husband.[1] In an attempt to quash the controversy that this could cause, he requested approval from a number of leading authorities and indeed received approval from at least one of them.[2] However, due to various considerations no public endorsement was given, leaving the floodgates wide open.[3]

‘Zachin’- acting on behalf of another

R’ Lavi’s ruling was mainly based on the principle of ‘zachin’, that one has the right to act in the interests of someone in his absence. For example, if one wants to give a present to someone else, he can give it to a third party who legally acquires it on behalf of the recipient.[4]

The principle is not limited to monetary matters. Theoretically, if it is completely clear that is in the interests of a woman to get divorced, a get may be given to someone else on her behalf.[5]

The argument made was that in the case in question, it is clearly in the interests of the husband to free his wife to remarry. No-one has ever recovered from being in a vegetative state for so long, so there is no chance that he will be able to live any kind of married life. His medical needs are also guaranteed, irrespective of whether or not he remains married.[6] By his wife being divorced on his behalf, he will surely only gain spiritual reward for easing her sorrow.

The halachic status of the mentally incapacitated

The main issue that has to be clarified here is whether the principle of ‘zachin’ can be applied to a person with little or no mental capability (in halachic terms a shoteh).

The potential source in the gemara to learn from here is in Gittin 70b. Here there is a dispute regarding one who gave instructions to divorce his wife, and subsequently fell into a kind of trance, an illness called ‘kordaykus’ (perhaps epilepsy). All agree that this kind of mental incapacity renders any decisions made at the time invalid, the question involves whether we can carry out previous instructions.

R’ Yochanan says that as we are not able to immediately wake the man from his trance, he is akin to a shoteh and therefore the get cannot be given. Reish Lakish argues that since he will recover after time, his state is more similar to sleep and we can proceed with the divorce.

All the poskim are in agreement that the halacha is that the get may not be given, based on a general rule to follow R’ Yochanan against Reish Lakish.[7] There is however a dispute as to what the status of the get is if it was given to the wife. The Rambam writes that is invalid only rabbinically,[8] whereas the Tur says that even Biblically it is worthless.[9]

The assumption of the Ktzos HaChoshen (188:2) is that the Rambam’s ruling is not limited to a case of ‘kordaykus’, but that even the agent of someone who became a shoteh can on a Biblical level carry out the instructions given to him while he was sane. Only rabbinically he cannot do so, in order to prevent a misconception that a shoteh can divorce.

This assumption is far from straightforward, as we would usually expect the Rambam to tell us when his rulings apply to a shoteh.[10] The Kesef Mishne (R’ Yosef Karo’s commentary on the Rambam) takes it as a given that nothing can be done on behalf of a shoteh, to the extent that he limits the ruling of the Rambam to one who we are able to wake from his trance.[11]

R’ Lavi accepts the position of the Ktzos HaChoshen, but even this is not enough to explain how the get can be given in our case. Firstly, even according to the Rambam the get is invalid rabbinically. Secondly, he is not willing to permit potential adultery based on the view of the Rambam when the Tur argues.

R’ Lavi claims that in this case neither one of these problems exist. He cites various acharonim who explain that the Tur invalidates the get because the instructions were given by someone who is now a shoteh. Here, where no instructions were given, this problem does not exist.[12]

When it comes to the rabbinical invalidation out of fear for the misconception that a shoteh can divorce, R’ Lavi explains that this fear only exists when there is a possibility that the same person may come to give the get himself.[13] Here, when the husband has been in a coma for such a long time, this possibility can be discounted.

Opposition

Unfortunately, most of those who attacked the ruling of the Tzfat Beis Din chose not to explain their arguments. They decried the decision as a perversion of halacha and personally accused the dayanim of acting without the due reverence for such a decision. To refute these kind of arguments it is only necessary to read a little of what R’ Lavi has written in the past.[14]

One of those who did explain their opposition in a serious and respectful way was R’ Binyamin Be’eri, formerly the head of the Beis Din of Ashkelon and a member of the Beis Din Hagadol.[15] In short, his arguments are:

1) It is not necessarily in the interests of the husband to divorce his wife. We do not know for sure that a person in this state has no feelings, his wife may help ensure he has the right medical care, and there is also a small chance that he may recover.

2) According to some, even if it is in his interests the principle of ‘zachin’ does not apply when we are taking something away from the person in question (zachin me’adam).[16]

3) ‘Zachin’ according to many is based on acting as the agent of the person involved, and cannot apply to someone incapable of doing the act himself. Although in monetary matters there is a concept of ‘zachin’ for a child, and according to the ruling of the Shulchan Aruch this applies also to a shoteh, this is a rabbinic institution and cannot apply to divorce.[17]

4) The writing of a get requires explicit instruction from the husband, unlike other actions.[18]

What do we take from this?

It is beyond the scope of this article to attempt to prove any of the points in question above, in either direction. But from the whole episode there are many things to learn (apart from the obvious point that disagreements between talmidei chachamim are acceptable as long as there is mutual respect).

Firstly, there a few points to remember when dealing with halachic decisions that affect people in distress.[19] No stone should be unturned in the attempt to help, and creative solutions should not be ruled out because of fear of what others will say. But we must also remember that halacha has its limits, and if no solution can be found we cannot engineer one falsely.[20]

Even when we think that the halacha is on our side, careful judgement must be taken over how to make rulings like this in a way that will actually help. In this case it is yet to be seen whether the woman in question will be allowed to remarry. If the appeal is upheld, she will only suffer more.

I would also like to add an argument that will be more controversial. I contend that halachic questions like this (even when the stakes are not as high) will usually remain inconclusive as long as the accepted style of halachic decision making continues. When the case is dependent on issues that have been dealt with hundreds of times previously, it is almost always possible to quote poskim supporting one view or another. Even calculating the majority view is often difficult, as so much depends on the weight attached to different authorities.

In “How does halacha work?” I pointed out an alternative style, where anything written after the gemara is used only as a guide. The final decision is made based on a personal honest reading of the gemara (and sometimes earlier sources), and extrapolating where necessary.

This method will not resolve all disputes (this will be possible only when the Sanhderin is restored). But I believe that the added responsibility that it would place on the dayan or posek involved would greatly increase the chances of the truth coming out.

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[1] The full text of the ruling (in Hebrew) can be seen here (the link sends to the beginning of the extremely lengthy ruling. The continuation can be found from following the links on the website). The ruling starts with the possibility that no get is needed at all, as the woman would never have agreed to marry had she known that the husband would end up in a coma like this (based on a previous ruling of R’ Tzvi Pesach Frank in Responsa Har Tzvi, Even Haezer siman 133). Due to a desire to keep relatively brief, I have not discussed this part of the ruling here.

[2] I personally witnessed the person involved being questioned over the issue (by people who disagreed for halachic reasons), and he remained steadfast. Although he himself may not have given this ruling, he defended its legitimacy strongly.

[3] He believed that it was not appropriate to make rulings like this public. Unfortunately he also came under a lot of mafia style pressure not to endorse the decision.

[4] See Gitin 14a-b

[5] The gemara in Yevamos 118b discusses whether this may be done by a dying husband in order to free his wife from the need to do yibum (levirate marriage) after his death, or (by even a healthy husband) in a case of marital strife. The only question is whether it is clear enough that this in her interests.

[6] This was not the case in the past, explaining why this solution was not used previously in cases of husbands in similar mental states.

[7] See Bava Basra 129b

[8] Geirushin 2:15

[9] Even Haezer siman 121

[10] He writes many laws of a shoteh within Hilchos Geirushin, see for example 6:6-8

[11] He even rules like this distinction in Shulchan Aruch, Even Haezer 121:2.  However, the Chelkas Mechokek and Beis Shmuel there reject this distinction, and maintain that according to the Rambam the divorce can be carried out even on behalf of a shoteh.

[12] Seemingly, according to this the concept of ‘zachin’ circumvents the normal rules. This novel idea clearly requires proof, but R’ Lavi believes that he has proof from the comments of the acharonim.

[13] The proof he brings for this is also from the comments of the acharonim.

[14] See for example R’ Shlomo Amar’s endorsement of the sefer ‘Ateres Devora’, R’ Lavi’s collection of rulings. He criticises R’ Lavi for being overly stringent and rejecting some of the lenient rulings of R’ Ovadya Yosef.

[15] A collection of the words of many of those opposed to the ruling of R’ Lavi, including R’ Beeri (but also including the comments of those who wrote with less respect), can be seen here.

[16] This is the view of the Ktzos HaChoshen, 243:8. However this is a minority opinion, and R’ Lavi claims that we need not be concerned about it when it comes to the plight of an aguna.

[17] This issue is a dispute between the rishonim, perhaps the most crucial point of the argument. It hinges on the text of the gemara in Bava Metsia 71a. R’ Lavi claims that the majority of poskim are of the view that ‘zachin’ is not based on shlichus, and that in a case where the act is 100% in the interests of the person involved all will agree to this.

[18] Based on Gitin 66b.

[19] My firm belief is that both sides of the argument here will agree to these points.

[20] And because the physical world by definition is not perfect, sometimes people will suffer. See Moreh Nevuchim 3:10.