by R. Gidon Rothstein
29 Tammuz: Two Teshuvot on Gittin
The laws of divorce are technically challenging, so I don’t generally find opportunities to present them in a venue like this. I usually avoid overly detailed or legalistic responsa, because of my limitations in how to present such material in a way that will interest readers. At the same time, those requirements can often be the reason bills of divorce, gittin, are not given in as timely a fashion as we would hope. While this can seem like a lack of sensitivity to the plight of a woman awaiting her get, it can equally be a problem of grappling with the technicalities of the law.
For the 29th of Tammuz, I found two responsa that remind us of the legal side of divorce issues without bogging us down in too many details.
A New Respondent—Ba”ch!
One of the limiting factors on accessing teshuvot in the ways I’ve been doing it is that they have to have a date, and many respondents simply didn’t date their teshuvot. That’s why I was excited to find that my search in the Bar-Ilan treasure trove turned up a responsum of Ba”ch, R. Yoel Sirkes (1561-1640), well-known for his authoritiative Bayit Chadash (acronym, Ba”ch) on Tur. In his old Responsa, number 90, from 29 Tammuz 5391 (1631), he answered a man complaining about his local rabbi (that never happens).
This rabbi was asked to write a get in the town now known as Tykocin (on which, see here), but was known in Yiddish as Tiktin. The rabbi had checked and found no earlier gittin written there; since there were two names for the town, non-Jews calling it Tykocin, he wrote both names in the get (Tiktin, which is known as Tykocin). The complainant held that the non-Jews’ use of the name was insignificant for get purposes, and he should have written only Tiktin.
Bills of divorce are identified by the city in which it occurs as well as the nearby river. This rabbi had included two rivers, the Narew and the Strushka (I haven’t been able to identify that second river—the Narew is a braided tributary of the Vistula; perhaps one of the other braids in the town had another name); the Strushka ran behind people’s homes, where townspeople had their horses and other animals drink, where they did their laundry and retrieved water for cooking during the winter (when, I think, it was too cold to go to the town well). The complainant felt that only the Narew should have been named.
Finally, the get said the town used both well water and spring water, and the complainant felt most of the town’s water usage was well-water, so spring water should not have been mentioned.
Naming a Town
Ba”ch is unimpressed with the claims against this rabbi, and rejects each in turn, after which he’ll be able to criticize the man who had sent him the question (it’s one matter to see a local rabbi make an error and appeal to a greater rabbi to rectify it. Here, the complainant was stirring up needless trouble).
First, if there had never been prior gittin, including two names can’t hurt and is therefore the choice that any group of rabbis would make if they were starting new. While many authorities allow writing only one name, perhaps with the addition of writing “and any other form of name this town has,” the general custom, Ba”ch says, is to write all known names.
Had there been a tradition to write only one name, we would continue so as not to cast aspersions on earlier gittin. Given that there were no earlier gittin, and that either name would have been valid if it were used alone, it’s best to include both names.
This rabbi’s choice does have the important consequence that from now on, gittin in Tiktin have to replicate his phrasing, so that later gittin not raise questions about the validity of this one.
Rivers and Springs
Ba”ch dispenses with the next two claims more quickly. The complaint about naming an extra river is senseless, since the river does flow through town in a way that the townspeople use it, so obviously it can be included in the get. For the question of writing about springs or wells, Ba”ch notes that Rema makes it sound like one writes only wells when those are the central source of water, and that Shulchan Aruch Even haEzer 128 sounds like we write springs even when those are secondary source.
Ba”ch suggests that that’s because people dig wells on their own, so they are less permanent identifiers of a city than springs, which are natural and cannot be easily moved or removed by human initiative. Besides, most wells are fed by springs, so that we only write “wells” in a get when that’s the sole water source for the town.
All the more so that if the rabbi wrote both, he was fine.
The man who complained, however, is not fine, according to Ba”ch. He will be judged harshly by God, since his actions will teach the masses to cast aspersions on gittin (which then raises suspicions about whether a woman is really divorced, whether her second marriage is valid, her children legitimate, and so on). To forestall such a problem, Rabbenu Tam was known to have promulgated a ban of excommunication on anyone who questions a get; Ba”ch invokes that now, saying the punishment Rabbenu Tam called for should happen to this person. Unless he repents, and repairs that which he had done wrong, in which case he should be blessed.
For this first teshuvah, we are reminded that part of producing a valid get is meeting certain halachic requirements, including the clear identification of where the get is given, and that itself can get messy, even when there are no interpersonal complications in the process. On those technical grounds alone, others can decide we have not hadnled it right; in those situations, we can only hope to be as fortunate as this rabbi, to have someone of Ba”ch’s stature to back us up.
Coercion of a Get
Today, the technical issues of how to write a get are close to the least of our problems in this area. More common—and thornier to deal with—is when the husband refuses to give a get. On the 29th of Tammuz 5713 (1953), R. Meshullam Rath, Shu”t Kol Mevaser 1;83, was asked his view of a law establishing a prison term for get refusal. The idea was that refusing to give a get would be categorized as a criminal offense, punishable by jail time.
R. Rath is leery, despite Ein Yitzchak (R. Yitzchak Elchanan Spector, highly authoritative) having previously allowed it. First, R. Spector allowed coercion only after the fact—meaning, if the husband had been coerced, he found the get to be valid. But making a regular practice of it created a questionable situation; coercion leads to valid gittin only when the coercion is properly applied. Because of worries about whether we know the definition of “properly,” many authorities, not only R. Rath, apply force with the utmost caution.
To justify his stance, R. Rath notes that even according to Rambam, who sees the problem in an improperly coerced get as “only” Rabbinic—so that we might have thought we can tolerate such a situation, in order to secure the get—Gra to Yoreh Deah 11 already showed that we are not allowed to knowingly create a situation where a Rabbinic decree might be violated. Even were the religious court to call for the imprisonment, so that the government would be following the ruling of a valid religious court, the concern over an an improperly coerced, and therefore invalid, get loomed too large for R. Rath.
Imprisonment Isn’t an Halachic Solution
R. Rath then notes that traditional halachah doesn’t have the concept of imprisonment as punishment. Ketubbot 33 tells us that if a man hits another, we imprison the assailant, but that’s only so we have him at hand until we find out whether the victim dies of his wounds; Yerushalmi Sanhedrin 7;8 thinks we imprison defendants for the course of their trial, but that again is to be sure they’re around for us to enact whatever verdict is announced.
Exile to a city of refuge is a longer-term punishment, a sort of imprisonment, but that’s only for unwitting murderers, and is set up by Hashem, not determined by us. The extraordinary punishment of kippah, which R. Rath believes is only for a murderer who was not warned by the witnesses, is an halachah le-Moshe mi-Sinai, again not a human-determined imprisonment. Sum total, there is no general idea of fixed periods of imprisonment in halachah.
I find it interesting, noteworthy, and a matter that should be of some pause to traditional Jews that the central strategy for dealing with criminals in the United States (and, to a lesser extent, other nations) is not halachah’s preferred strategy. Many today would see it as better or more humane than the halachic option of floggings wherever financial punishments do not suffice.
But it implies a system that sees punishment and how we deal with criminals very differently. It’s not quite enough our topic to expand further, but I did want to call attention to it, to spark your thinking on the issue.
Bargaining for Chalitzah
The proposed law also envisioned three years’ imprisonment for a the brother of a man who passed away without children, who attempted to receive money or other compensation for performing the chalitzah the widow needs to be allowed to marry other men.
Once again, the fear of a coerced ceremony bothers R. Rath. Supporting his caution, Shulchan Aruch Even HaEzer 165 reports a custom to give the brother whatever cash her deceased husband left her, to avoid the possibility that he will leave her stranded. Other examples, Talmudic, Geonic, and beyond tell R. Rath that appeasing the levir, as distasteful as it might be, is a better move than innovating a period of imprisonment.
We should recall that we have seen other responsa of R. Rath’s where he was very prepared to adapt to new conditions of modernity. His very traditional position here, rejecting the use of imprisonment to secure a desired outcome, cannot and should not be dismissed as evidence of an unwillingness to accommodate new realities.
There are many ways to react, but that’s not my goal in these essays — I’m here to report, minimizing my editorializing. I will allow myself to wonder whether watching a burgeoning problem of husbands and levirs extorting money would have changed his mind. We’ll never know, one more question of history that must remain unanswered.
Between the two teshuvot, however, we’ve seen some of the purely legal concerns that have to be addressed in ending a marriage by divorce or chalitzah. There’s getting the names right, of the people and of the place. And there’s figuring out how to get the ceremony to occur when the husband is recalcitrant.