Postscript to a Tale of Rabbinic Wisdom
Quite a number of readers voiced surprise at my earlier piece that that a get could be valid despite the husband’s obvious expectation of a payoff that never came. (Because they overlapped, we only published one or two of those comments.) I responded to one earlier by stating that halacha (and other legal systems) often demand that conditions need to be explicitly stipulated, rather than left to be assumed. Halacha provides a mechanism for stipulating conditions to an agreement, and that mechanism is expected to be used. While sometimes a person’s mindset is so clear that it can be widely assumed by others and attain legal standing, this is not usually so. Even where it is, part of the procedure in writing a get is having the husband renounce any and all conditions he may have stipulated.
I thought that the matter ended there, until I received a comment from an important talmid chacham, Rabbi Shmuel Chaim Gurwitz, a dayan of the Bais Yosef beis din in Brooklyn. He pointed to a dispute between the Chochmas Adam (Sha’ar Beis HaNashim #32, cited by Pischei Teshuva YD 134:1) and Shut Ayn Yitzchok (R. Yitzchok Elchonon Spector) vol.2 #40. It is quite possible that my explanation was insufficient, and that the mesader haget in the story was aware of other factors that allowed for the use of the subterfuge.
Rav Yitzchok Elchonon essentially argues that all my reasoning is insufficient, because monies offered to a husband unwilling to write a get amount to the purchase price of the commodity. It is clear from a mishnah in Kiddushin 8A that if a woman is handed an envelope and told “Here is $100 as your kiddushin,” that the kiddushin is invalid if the contents of the envelope amount to less than $100. We do not treat the kiddushin as valid and make the husband pay off the shortfall. The kiddushin is entirely contingent upon receiving the payment that was promised. R Yitzchok Elchonon claims that this is similar to what applies to typical purchases. The expectation of the agreed upon payment is crucial to the da’as of the seller. Without it, there is no sale. The same reasoning applies to a husband who is reluctant to write a get, whose willingness has to be “purchased” for an agreed upon sum. Moreover, it is understood that when the husband agrees to renounce all conditions, etc. that he may have attached to the granting of the get (this is part of the standard procedure in any get), that he does so only because the mesader tells him that such renunciation is part of the get procedure, and going along with it is also part of the “purchase.” His da’as is on the payment; absent full payment, and there is no daas. No daas, no get.
There are several ways to account for our story. The mesader may simply have disagreed with R Yitzchok Elchonon, and held like the Chochmas Adam. (It should be pointed out that the Chochmas Adam himself is lenient only after the fact, as a bedieved. Common, accepted practice is to insure that no room is left for even a spurious claim of unfulfilled contingency. See Ramo Even Ha-Ezer 154:81.) Alternatively, even R Yitzchok Elchonon holds that the equation changes when a husband is legally obligated to give the get and could be forced to give one by a beis din. The mesader in our story may have held like Rabbenu Yerucham, R Chaim Pelagi and others, that once a husband freely admits that he has no further interest in maintaining the marriage, he is fully obligated to give a get, and can even be forced to do so. (There is a full literature showing that this approach is used in the rabbinic courts in Israel. On the other hand, having raised this as a possibility, R Yitzchok Elchonon at the end of the teshuvah is inclined to reject it.)
Then again, there may have been some other factor altogether that we do not know about, and that is lost to history.
Rabbi Gurwitz’s point is well taken in any event. Rabbi Berman z”l knew what he was doing, but others should not try this at home. The strategy should not be implemented by others without spending some quality time examining the sugya. A get given with shaky halachic basis can be more troublesome than no get at all.