Tuesday, July 15, 2008

Gittin 5b - Eid Na'aseh Dayan

The halacha follows R. Yochanan who says that the sheliach who is delivering the get can become one of the dayanim, therefore we only need 2 others present. However, the Rama (E.H. 142:4) writes that some suggest being machmir to have 3 people besides the sheliach, to prevent giving the gett in the presence of only 2 when the sheliach is in fact related to either him or her or the other dayanim, in which case he can't be a dayan. Based on this the minhag is l'chatchila that whenever a get is given through a shliach so that he must declare that it was written and signed in his presence, it should be given in the presence of 3 dayanim (not including himself). But, if only 2 are available, it can be delivered with only 2 others since the sheliach so long as he is a kasher eid (not a woman) and not related to anyone, he can become a dayan.
It would seem that if the gett is being given in the presence of 3 dayanim, there wouldn't be any problem if the shliach is related to one of the 3 dayanim (or him/her) because there is no need for the shliach to combine as one of the dayanim, so he should not have to be kasher. However, the Rama (141:33) writes that l'chatchila the shliach should not be related to one of the dayanim. Presumably the chumra is that a dayan should not be related to the witness, and since the shliach is acting as a witness, he shouldn't be related to the dayan. I recently had this situation when I was a shliach and wanted to use my brother, R. Aryeh Lebowitz Shlit"a Moreh d'asrah of Beis Haknesses of North Woodmere (and the best daf yomi shiur for miles in all directions!) as one of the dayanim and was told by R. Greenblatt that I should find 3 who I am not related to.
I just found in the Aruch Hashulchan (141:69) that a shliach is not considered an eid and therefore we only passul for shlichus a person who is not able to be a shliach i.e. kattan, goy. Therefore, m'ikar hadin, a shliach can be related to the dayanim.
The Aruch Hashulchan writes:
ורבינו הרמ"א כתב בסל"ג וז"ל ויש מי שכתב שבמקום שאפשר לכתחלה לא יהא השליח קרוב לאיש ולא לאשה ולא לדיינים שנותנים הגט לפניהם עכ"ל, ואין נוהגים עתה ליזהר בזה לפי שיש בזה לפעמים תקנת עגונות כשאינה יכולה ליתן שכר שליחות כראוי, מתנדב אחד מקרוביה להיות שליח כאשר כן אירע כמה פעמים, אבל במקום שאין עיכוב מטעם דררא דממונא ודאי מצוה לשמוע דברי רבינו הרמ"א אם אפשר בכך


aryeh lebowitz said...

Rav Nota shlit"a seems to have been correct even according to the Aruch Hashulchan, who recommends following the Rema unless the situation is pressing.

Avi Lebowitz said...

yes, i can read hebrew.

aryeh lebowitz said...

what I meant to say was that the previous paragraph in English implies that the Hebrew passage you are about to cite supports your hava amina and NOT Rav Greenblatt's maskana.