Sunday, May 16, 2010

The Shavuos Get

On Shavuos 1831, a man in Brody, Galicia lay deathly ill. R. Eliezer Landau, grandson of the famous Noda Bi-Yehudah and author of the Yad Ha-Melekh commentary on the Rambam, had an idea that would save this childless man's impoverished soon-to-be widow from being unable to remarry unless she made the improbable journey to Rome in order to perform chalitzah with her soon-to-be deceased husband's only brother. R. Landau advocated writing a get on the second day of Shavuos, which would free the wife from an inevitable life of solitude.

I. The Reasons to Allow Writing the Get

Reportedly, his reasoning was as follows. The Gemara (Beitzah 6a) permits burial on the second day of Yom Tov because "in regard to the deceased, the rabbis made [the second day of Yom Tov] like a weekday." Since in a situation of a levirate marriage the soul of the deceased hovers over his wife until the situation is remedied through either chalitzah or marriage, preventing this situation is a benefit to the deceased. Therefore, the second day of Yom Tov should be abrogated in order to benefit the soul of the deceased.

Additionally, the Peri Chadash (Orach Chaim 596; cf. Bi'ur Halakhah 614 sv. assur) permits on the second day of Yom Tov the (otherwise) rabbinic prohibition of putting out a fire that threatens financial loss (even though there is no threat to life). If a large financial loss is sufficient to permit putting out a fire, then the mitzvah of resolving an agunah case can certainly permit the similarly (otherwise) biblically prohibited writing of a get.

II. Forbidding the Writing of the Get

When R. Shlomo Kluger, the rabbi of Brody, learned about the effort to write a get on the second day of Shavuos, he put an immediate stop to it. Despite the enormous human tragedy, he could not allow the writing of a get on Yom Tov. When the man died and the widow was left unable to remarry, The man survived Yom Tov and died on the next day (link - PDF), but nevertheless a good deal of criticism was lobbed against R. Kluger. To settle the issue and absolve himself from criticism, he wrote to R. Moshe Sofer, the Chasam Sofer, to offer his opinion on the matter and, hopefully, confirm R. Kluger's position.

Writing from a health spa in Piscani, Romania, where Jews still travel to this day to recuperate, the elderly and infirm R. Sofer (who would not live through the decade) wrote a strong confirmation of R. Kluger's position that ends with a surprising insight into the second day of Shavuos (Responsa Chasam Sofer 1:145).

III. Reasons to Forbid Writing the Get

R. Sofer begins by stating the reasons to permit. He then notes the custom to circumcise stillborns based on the midrash that this protects sinners from suffering in the afterlife (see Shulchan Arukh, Yoreh De'ah 263:5). This is not done on the second day of Yom Tov (Shulchan Arukh, ibid. and Orach Chaim 526:10). Why not?, asks the Chasam Sofer, isn't this a need for the deceased sinners? He answers that the Sages only permitted on the second day of Yom Tov the physical needs of the deceased and not the spiritual needs.

He also says that we cannot permit an (otherwise) biblical prohibition. We see from the case of burial that it is not permitted because there is a biblical obligation to bury a corpse. Rather, the Sages made a special exception for a corpse. If so, we see that even biblical obligations do not override the second day of Yom Tov and therefore the need to free an agunah is insufficient to override the day.

Furthermore, the permission to put out a fire (which itself is not followed -- see the Bi'ur Halakhah cited above and the prior entry) is of a technical nature. It fits into the general pattern of permitted labors on Yom Tov that relate to cooking. Even though we are strict about it on the first day on Yom Tov, there is room to be lenient of the second day in extraordinary circumstances. Writing has no connection to this technical leniency.

The Chasam Sofer suggests a third reason to permit writing this get -- to calm the mind of the dying man. We allow violating rabbinic prohibitions on Shabbos to calm the mind of a dying man, so maybe we can allow the writing of a get on the second day of Yom Tov also. He responds that, if so, we would also allow the writing of a will for a man dying on the second day of Yom Tov. People die on the second day of Yom Tov frequently, as they do on every day of the year, but we have never heard of anyone permitting the writing of a will. On this, he says explicitly, the lack of evidence is considered proof (lo ra'inu ra'ayah).

IV. The Second Day of Shavuos

The Chasam Sofer adds that the second day of Shavuos is stricter than other second days of Yom Tov (except Rosh Hashanah). The reason for the institution of the second day of Yom Tov is to continue the practice from the time when the court in Jerusalem would sanctify the month based on witnesses who saw the new moon. There was always a doubt whether the prior month would be 29 or 30 days, and therefore which day of the next month would be Yom Tov. If the court's messengers reached your city in time, then you knew on which day to observe Yom Tov. If not, you had to observe two days. We still keep that second day of Yom Tov in continuation of that practice.

However, there was never any doubt about Shavuos. Messengers about Nissan had over two months to get to cities, and then Shavuos falls out 50 days after the second day of Pesach. People always knew when Shavuos was. However, the Rambam (Mishneh Torah, Hilkhos Kiddush Ha-Chodesh 3:12) explains, so as not differentiate between holidays, the Sages decreed a second day for Shavuos as well. The Chasam Sofer understands this to mean that for most holidays, the second day of Yom Tov was established based on a doubt. But the second day of Shavuos was established as a certainty. Therefore, the rules are even stricter than on the second day of other holidays.

This is quite an original interpretation, one that I find counterintuitive and difficult to understand. Nevertheless, according the index in the Frankel Rambam, R. Yosef Shaul Nathanson arrived at a similar conclusion about the second day of Shavuos (Responsa Sho'el U-Meshiv first series, vol. 1 no. 150; second series, vol. 2 no. 85).

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