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Shabbat Parashat Vayeitzei 5772

P'ninat Mishpat: An Agent for a Get Who is Not Torah Observant

(condensed from Shurat Hadin, vol. V, pp. 213-215)

Case:   A woman living in Israel needed a get from her husband living abroad. The Chief Rabbinate sent a private investigator to find him, which he did. The head of the closest beit din wrote a get, which was sent back to Israel with the investigator being the shaliach (agent) for its delivery. Can the get be given in a valid manner considering that this shaliach is not observant? There were also other problems with the get including the fact that one of the names of the wife that was supposed to be in the get was missing.

 

Ruling:   The Rambam (Geirushin 6:7) says that one who is invalid on a Torah level to be a witness is not valid to be an agent to bring the get from the husband to the wife. The Ra’avad (ad loc.) argues since the gemara only says that a non-Jew is disqualified to be an agent, and that is because the laws of gittin do not apply to him, a non-observant Jew, to whom those laws do apply, must be valid. The Maggid Mishneh suggests that the Rambam is discussing a case where we have to rely on the shaliach to know the validity of the get, which is not so in our case. There are different textual versions regarding the Rambam’s opinion on the matter in his Commentary to the Mishnayot. It appears that the Rambam does invalidate such a shaliach even when there is independent confirmation of the get’s validity. However, most Rishonim disagree with the Rambam and validate the get (see language of Shulchan Aruch, Even Haezer 141:33).That is the opinion we follow in a case where stringency will cause an aguna situation (Pitchei Teshuva 141:31). In our case, the husband avoided giving a get for five years, and, therefore, the issue with the shaliach should not invalidate the get.

As far as validating the get is concerned, the beit din sent a shtar harasha’a, a document that accompanies the agency and refers to the get. Although the Rivash says that this cannot count as a replacement for testimony on the signatures in the get, the Beit Shmuel (141:44) says that this is an unnecessary stringency, and the latter’s view is accepted (see Noda B’Yehuda II, EH 128; Pitchei Teshuva, EH 142:5).

Since several questionable matters were found regarding the get, one can raise the question whether this is a sign that the local rabbi is not proficient in the laws of gittin, thus casting aspersions on the get as a whole. However, the Pitchei Teshuva (EH 142:17) says that this is a problem only in regard to mistakes on standard matters that any rabbi involved in gittin should know about, which is not so in this case. Regarding his choice of the investigator as a shaliach, it is possible that he thought that since the Chief Rabbinate send the investigator to take care of the get, they must have approved of him serving as a shaliach. Our recommendation is to accept the get, but the matter should be decided finally by the Chief Rabbi.

 

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