Gittin Chapter 9 - 84b: What should he do? Take it from her

 

 

 

Part 1: What should he do? Take it from her (84b)

 

 

            According to the Rabbanan, a get with a shiyur (exclusion) is invalid. The mishna (82a) asks “what should he do?” The mishna answers: “Take it away from her and give it to her again, and say to her: ‘You are permitted to everyone.’”

 

            This ruling is parallel to the opinion of R. Shimon be Elazar on daf 78a, in the case in which the husband said “Take possession of this ,” and only afterward she discovers that it is a get. This act of giving the wife a get is invalid, and a dispute is cited in the gemara there. Rebbe holds it is sufficient to tell her, while the get is in her hands “this is your get,” and the woman is divorced from the time of the corrected statement. R. Shimon ben Elazar disagrees and holds that it is necessary to take the get from her and give it to her again, together with saying “this is your get.” In our gemara, Chizkia comes to the conclusion that our mishna follows the opinion of R. Shimon ben Elazar. R. Yochanan says that in our case, Rebbe also would agree that it is necessary to take the get from her [and give it to her again]. The distinction between the case on daf 78a and that of our mishna is that here, “she acquired it [the get] in regards to disqualifying her from marrying a kohen.” This statement is obscure and require explanation.

 

            In general, Rebbe’s opinion needs to be clarified. If there is a deficiency in an undifferentiated giving of the get, and an explicit statement that it is for the purpose of divorce is necessary, how can saying so after the get has been given be effective? If the document was given as a , how can this be corrected retroactively? We perforce must say that the act of giving the get is not finished, as least as long as the get is still in her hand, and therefore his corrective statement may still define the act of giving the get to the woman.

 

            How can we say that even after the get left the husband’s hand and reached that of the wife, the act of giving the get is not yet complete? The answer to this is that there are two components to giving a get – the husband’s giving of the get, and the wife’s receiving it. Even though a woman may be divorced against her will, nevertheless an act of receipt on her part (which in itself may be against her will) is required. This act of receipt must be that of receiving a get, that is to say, that she must be aware that the document being given to her is a get by which she is divorced. Therefore, if the husband says “take possession of this ,” and in fact it is not a but rather a get, even though the get is in her hands, there was not an act on her part of receiving a get. Thus, the giving of the get was not completed, and thus it follows that according to Rebbe, the husband can then say to her “this is your get,” and then the act of receiving the get is performed by the woman, and the entire act of giving the get is then concluded.

 

            According to this, our gemara here is well-explained. In the case where the husband says “you are permitted to everyone but Ploni,” the Rabbanan hold that this is not kritut, and therefore the get is invalid. However, they agree that the gzeirat hakatuv cited in daf 82b, that the wife is nevertheless prohibited from marrying a kohen in this case, is valid (according to most Rishonim, as is implied by the simple reading of the gemara there, this disqualification is d’oraita). “They [the kohanim] may not marry a woman divorced from her husband” – even if she is divorced from her husband alone [and not permitted to marry any other man], kohanim may not marry her. This is the “rei'ach ha-get” which disqualifies a woman from marrying a kohen. The definition of rei'ach ha-get is an act of giving the get (maase) without a resulting gerushin (challot). The Torah says that a woman who participated in an act of giving a get is disqualified from marrying a kohen even if there was no challot of gerushin. Thus, the gemara proves from this that giving a get with an exclusion is an act of giving a get (otherwise she would not thereby be disqualified from marrying a kohen), and therefor R. Yochanan concludes that it is impossible to correct, by way of a later statement, the lack of kritut. The complete action of giving the get was for the sake of only a partial kritut, and therefore cannot effect full kritut, that is to say, to create a challot of gerushin.

 

            Chizkia, as we said, did not accept this distinction, and claims that Rebbe would disagree in our mishna as well. It is possible that Chizkia holds that the act of receipt never ends, because in contrast to giving the get, which is a positive action, receiving is a passive action. It is more similar to a “state” that an action. Therefore, so long as the document is in the woman’s hand, there is an “extended receipt" (kabala arichta) and therefore according to Rebbe, the husband can always correct his statement. Alternately, Chizkia holds that since the giving of the get is against her will, we should not consider receipt of the get in her hand as an act of receipt of hers unless it has a result (challot). Only a challot of gerushin completes the action. (This is of course the opposite of the usual order. In general, we require an action, and subsequently this action causes a challot, as a cause and effect relationship).

 

             In any event, R. Yochanan disagrees and holds as we explained above, that the deficiency in “this is your get” is a deficiency in the act of receipt, and therefore in the act of giving the get, and a lack of kritut is a deficiency in challot alone. According to this, the expression in the gemara “she acquired it” does not mean that she gained monetary ownership of the get, but rather that she took possession of the get insofar as she received it, and this completed the act of giving the get.

 

 

            The Rashba asked a question on this position (which is our version of the gemara, according to Rashi). If we say that she took possession of the get insofar as disqualifying her from marrying a kohen is concerned, and therefore we need a new act of giving the get, then, on the contrary, we should require writing a completely new get, in keeping with the principle that one get cannot be used twice. Precisely because the get already succeeded in disqualifying the woman from marrying a kohen, it is not reusable in order to make her permitted to remarry. Therefore, it is not sufficient to merely take the get from her and to give it to her again, but it should be necessary to write a new get, and give it to her and say “you are permitted to marry anyone.”

 

            This principle that the Rashba mentions, that a woman cannot be divorced twice with the same get, does not appear explicitly in the gemara in regards to gittin. The gemara in Baba Metzia determines, regarding a financial document, that if the document was used once, “batel shiabudo,” its lien has lapsed, and it can’t have any further effect. A bill of acquisition has tremendous power, and it is similar to a single-fire weapon which has been loaded – once it is fired, it can’t be fired again (without loading it again – that is to say, writing a new bill. The Ramban (82b in the “Milchamot”) extended this principle to gittin as well, and the Rashba based himself on the Ramban.

 

            According to our explanation, the Rashba's question is easily dismissed. The fact that a woman become disqualified from marrying into the kehuna on the basis of “the scent of a get” is not a challot of the get, but a result of the action of giving the get. The get did not create any challot at all (in terms of the metaphor, the get didn’t “fire” at all). The woman was not prohibited from marrying a kohen by the activation of the get. Rather, there is a gzeirat hakatuv that a woman who has received a get, even though the get was not chal at all, and the woman is not megureshet at all, is prohibited from marrying a kohen. This is the result of an action, and not the result of power and baalut. This is stated explicitly in Tosfot above (82b s.v. afilu), who wrote that a woman divorced from her husband only is not divorced at all, but is only prohibited from marrying a kohen, for “prohibitions of the kohanim are different.” (Indeed the Rosh there disputes this determination of Tosfot, but not because the prohibition to marry a kohen constituted a partial challot of gerushin, but because he maintains that a woman’s being divorced from her husband without permitted to anyone constitutes a partial gerushin. If a get is partially chal (such as according to R. Eliezer “except for Ploni,” since this is chal on everyone except for Ploni) it cannot be used to release the woman again (according to R. Eliezer, the husband cannot take the get back, and give it to her again and permit her to that Ploni). However, rei'ach ha-get is not one that has half the effect of a regular get, and not even one percent. The get did nothing; it did not use any of its power at all. The Torah makes this woman prohibited to a kohen after an act of gerushin alone, the same way it prohibits a zona and challala from marrying a kohen. The husband did not make the woman prohibited, but rather the act she participated in. Therefore, she is prohibited to marry a kohen, and therefore, according to Rebbe, he cannot release her without a new giving of the get [i.e., after taking it back], because the original act of giving the get has ended, but the get itself did not “fire” even once [and therefore still can be used].

 

             The Rashba does not just ask on Rashi, but rather he rejects his explanation explicitly. The language of his question is “For this get was already chal partially, and through it gerushin took effect, to disqualify [the wife from marrying a kohen] ... and yet a woman cannot be divorced twice with one get.” The Rashba calls a disqualification from marrying into the kehuna “challot,” and writes that the woman was already “divorced” through the get once. The answer to the Rashba’s question is that according to Rashi, the woman was not divorced at all. Even though she is indeed prohibited from marrying a kohen, since a get was given to her, nevertheless, [since she was not divorced,] there is nothing to prevent using the get again – in reality for the first time – to divorce her.

 

 

            The Rashba cites, as an alternative commentary to Rashi, the version of the text and the commentary of Rabbeinu Hananel, which is the opposite of that of Rashi. The gemara says “it is different there [“accept this promissory note”], since she acquired it...” The Rashba explains that “she acquired it” means that the lack of his saying “this is your get” is not a deficiency in the actual giving of the get, since a get may be given against the wife’s will. There is no need for the wife’s acquiescence in the course of giving a get, so therefore there is no requirement to tell her that the document is a get in order to perform an act of giving a get. The law of saying “this is your get” is an additional law (which the Rashba here does not explain – see his statements in daf 78a), and therefore need not come before the conclusion of the giving of the get. A person may give a get and then say “this is your get,” and thus the divorce is valid (according to Rebbe). But “excluding Ploni” is a deficiency in the get itself, and therefore a new giving of the get for the sake of kritut is required,. The Rashba asked many questions on this explanation of the gemara. The crucial point is explaining the gemara’s requirement to say “this is your get,” which is a separate issue in the previous chapter of Gittin, so we will not expand on it now.

 

Part 2: All conditions disqualify a get

 

             This sugya is very complicated halakha l’maaseh, since it includes several level of rabbinic injunctions (gzeirat d’rabbanan) with many shittot among the amoraim, the exact relation between which is not clear. We will concentrate on the d'oraita laws which arise from the sugya.

 

             Rav Safra and Rava disagree regarding the case which the gemara calls “al peh” (verbally), that is, at the time that the get is written, the husband said to the witnesses that he wishes to divorce his wife except for Ploni [who is to remain forbidden to marry her]. The condition or shiyur (exclusion) was not written in the get, but the witnesses know that this is the intention of the husband – to divorce his wife on this condition. Rav Safra says that the get is valid in this case, and Rava says it is invalid. Tosfot (s.v. mahu) explains that the one who says that the get is invalid holds that “the get was written on this condition, and this is not kritut.” Furthermore, Tosfot write that R. Safra agrees with the logic of this argument for invalidation, but he holds that the scribe in actuality does not write the get with this condition in mind, but rather “on the condition the husband states at the end.” That is to say, no one disputes that if the scribe in fact wrote the get in order that the husband divorce his wife excluding someone (shiyur), the get is invalid “for this is not kritut.” Thus it turns out that the intention of the scribe is embodied in the get, as if he wrote the condition explicitly.

 

            From this we may conclude that kritut is the essential power of the get to effect divorce, which is imbued into the get by the intent with which it is written. That is to say, the capability of the get to effect kritut is in accordance with the power which the writer injected into it. Therefore, if the get was written with intent of shiyur, even though the text is unconditioned and the giving of the get is unconditioned, the get is incapable of effecting kritut beyond that of “to everyone except Ploni,” and therefore it is invalid, since (according to Rabbanan who disagree with R. Eliezer) this is not kritut. According to this, in this case, according to R. Eliezer, even if the get was written unconditionally and given unconditionally, the get will take effect with the exclusion of Ploni.

 

            On the face of it, this law is connected to the law of lishma. The get must be written for the intended purpose of gerushin, aside from being written for the intended use of the husband and wife. It seems that this is not merely a technical requirement, that a certain intent be present at the time that the get is written, but rather, the content of the get and the power of the get to effect divorce are dependent on the intent of the one who writes it. The get must be written for the sake of gerushin, for otherwise it does not have the power to effect divorce. The intent of lishma is the “loading” we spoke about previously (in regards to the fact that person may not divorce his wife twice with one get). Therefore, if the lishma is with exclusion, the power of the get is limited by that exclusion, and thus it is not possible to divorce with it at all, because the get does not include “kritut,” that means to say, the power to separate the husband and the wife.

 

            Further on in the gemara, a braita is cited: “All conditions invalidate a get, so says Rebbe” (the Chakhamim disagree). Rashi explains according to the simple meaning: no condition may be written in a get, not even a condition unconnected to shiyur, such as “on condition that you give me 200 zuz.” [If a condition is written in the get] the get is invalid, even if the condition is fulfilled. However, if the husband gave the get with a condition, the condition takes effect, and the get takes effect if the condition is fulfilled.

 

            What is the reason for this invalidation? Tosfot (s.v. kol) assumes that this must be a d’rabbanan, an enactment lest he write a condition of exclusion (shiyur) in the get, which is invalid on the basis of [lack of] kritut. Nevertheless, Tosfot disagrees with Rashi, because even d’rabbanan it is difficult to understand how and why the Rabbanan made an enactment against all conditions because of their similarity to the condition of “except for” [Ploni]. Therefore, Tosfot explains the gemara differently. We are speaking of a regular condition which is written in the get, and then the husband changed his mind and erased the condition, and gave the get unconditionally. Rebbe’s position is that the erasure does not have any effect, and therefore if the condition is not fulfilled, the get would not take effect [because of non-fulfillment of the condition, even though it was erased]. In short, erasing a condition from the get does not have any effect (and this is parallel to the mishna, which says that erasure does not have any effect regarding a condition of “except for” [Ploni]). It turns out from Tosfot that this invalidation is also mi-d’rabbanan, because of its similarity to a condition of “except for” [Ploni]) for which erasure does not have any effect, “since the get was not written for the sake of kritut.” Regarding a condition of “except for” [Ploni], erasure does not have effect d’oraita, for the reason that we explained above. If the get was written with the intent of exclusion, and all the more so if this condition was written in the get, the very kritut of the get, its power to effect divorce, is from the outset limited by this writing. According to the Rabbanan, this get does not have the power to separate the couple and effect divorce. Erasure of the limiting words cannot add kritut power to a get which lacks it, and therefore the erasure has no effect mi-d’oraita.

 

             However, Tosfot hold that a regular condition does not limit kritut – as proof, we can cite the fact that one can give a get and make a condition when doing so. In the language of the Rishonim, “a condition is something else” [an external factor], it is not a type of kritut, but an external stipulation regarding full kritut. Even if the condition is written in the get, the get has full kritut power; it’s fully loaded, but an external condition is linked to it. Erasing the condition erases the external limitation, and leaves the original get with full kritut power. Rav who is stringent, if so, is stringent only mi-derabanan, because of the similarity to erasing an “except for [exclusion]” condition.

 

             The Ramban (in Milchamot) cites a svara (which he attributes to the Yerushalmi) according to which Rashi’s shitta can be mi-d’oraita. If a condition is written in the get, the ability of the get to effect divorce is made doubtful. It could be that even if the get is given entirely according to the law, nevertheless, if the woman does not fulfill the condition, for example if she does not give him 200 zuz, the get will not take effect, and the woman will not be separated from her husband [divorced]. If so, Rebbe holds, the get does not have the full power of kritut, the woman is not “krut gitta” [divorced by virtue of the get]. The very existence of this doubt constitutes a deficiency in the power of the get.

 

            It seems to me that the Ramban does not disagree with the idea that a condition is a “milta achrita,” an external limiting factor. Rather, the Ramban suggests that the Torah requirement of "sefer kritut" demands actual kritut in practice. The get is not measured by its theoretical power alone, but by the fact that through giving it to the woman she is thereby divorced (kruta) from her husband. This is the meaning of the expression the Ramban uses – “krut gitta.” The moment the challot of the get is dependent in actuality on another factor, the get cannot in actuality effect the divorce, cannot remove all connections between the husband and the wife. Thus, this condition comes back and invalidates the get itself, because we need a sefer kritut.

 

            It would be possible to distinguish between the approach of Rashi and that of Tosfot in regard to this position. There are two assumptions in the Ramban’s approach: a) that a doubt in the challot of the gerushin constitutes a deficiency in “kritut” and b) that this deficiency is imbued in the get itself and limits its power. It is possible to dispute the first assumption. A condition is a milta achrita, an external factor, and therefore a conditional get is considered to have full kritut power, and if so, there is no reason to invalidate the get if the condition is fulfilled. However, we may say that erasure of the condition has no effect mi-d’oraita. The doubt regarding the challot of the get is imbued in the power of the get itself. This is not a deficiency in kritut, but nevertheless the power of the get itself is dependent on fulfillment of the condition. In the terms of the metaphor, the get is loaded with full power – but it is loaded with that power on condition. Erasure of the condition cannot add what is lacking. The lishma of the get is “for the sake of conditional gerushin” which is full kritut. However, even if we erase the condition, the lishma remains “for the sake of conditional gerushin,” and the get can take effect only conditionally. This is similar to what was claimed above, that according to R. Eliezer, a get which was written with the intention of shiyur (excluding someone), (without the shiyur being written explicitly in the get), and then given stam (without exclusion) will take effect with that exclusion. There is no problem of a lack of kritut (for R. Eliezer is not concerned with a lack of kritut [in a get with shiyur]), but nevertheless the exclusion has an effect on the essential power of the get. If so, it is possible that according to the Rabbanan, if the condition is not one of “except for” (exclusion) there is no problem of kritut, but nevertheless the condition is chal on the essential power of the get to effect gerushin.

 

            Tosfot indeed reject this distinction. It seems that Tosfot think that if the limitation of the condition is imbued in the essential power of the get to effect gerushin, we must again say that the power of the get is limited, and this would be a problem of a lack of kritut (according to the Rabbanan).

 

           As stated above, we will not discuss the gzeirot d’rabbanan at the conclusion of the sugya, and the disputes of the Rishonim halakha l’maaseh.

 

[Sources for the next shiur will be sent separately.]