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Gitin, 5

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1) THE REQUIREMENT TO SAY "B'FANAI NICHTAV" AFTER EVERYONE HAS LEARNED THAT A GET MUST BE WRITTEN "LISHMAH"

QUESTION: The Gemara concludes that according to Rava, the enactment requiring the Shali'ach who delivers a Get to say "b'Fanai Nichtav uv'Fanai Nechtam" was instituted simply in order to be Mekayem the Get, while according to Rabah, it was instituted in order to both be Mekayem the Get (so that the husband cannot claim that it is forged), and to ensure that it was written Lishmah, since the Chachamim were concerned for the possibility that the Get was not written Lishmah. The Gemara challenges Rabah's opinion from the Mishnah later (9a) that teaches that if a Shali'ach delivers a Get and loses the ability to speak before he can say "b'Fanai Nichtav...," witnesses must be brought to authenticate the signatures in the Get in place of the Shali'ach saying "b'Fanai Nichtav...." This implies that saying "b'Fanai Nichtav..." serves only to be Mekayem the Get, and not to ensure that it was written Lishmah.

The Gemara answers that according to Rabah, this Mishnah was written after the people in Chutz la'Aretz learned that a Get must be written Lishmah, and thus we are no longer concerned with proving that the Get was written Lishmah. It would seem that since it is no longer necessary to prove that the Get was written Lishmah, Rabah's opinion for why "b'Fanai Nichtav..." is said should now be identical to Rava's. The Gemara asks, though, that if Rabah maintains that the Mishnah of Cheresh (9a) was written after the people in Chutz la'Aretz learned the Halachos of writing a Get Lishmah, then even when a person is *able* to say "b'Fanai Nichtav..." it should not be necessary to say it, but it should be enough just to be Mekayem the Get with witnesses. That is the Gemara's question on Rabah.

Why does the Gemara ask this question on Rabah and not on Rava? The same question applies equally to Rava's opinion; a Shali'ach -- even if he can talk -- should never need to say "b'Fanai Nichtav..." when he brings a Get from Medinas ha'Yam, and it should suffice to have witnesses be Mekayem it!

The answer is that the Gemara does not ask this question on Rava's opinion for one of two reasons. The first possible reason is because Rava indeed does not require saying "b'Fanai Nichtav..." if witnesses are Mekayem the Get (to the contrary -- "b'Fanai Nichtav..." was instituted only to make it easier to be Mekayem the Get, by enabling a single person to testify to its authenticity). This is the approach of TOSFOS (2b, DH Mai Beinaihu). The second possible reason is that the Chachamim required saying "b'Fanai Nichtav..." even when the Get has already been authenticated (Mekuyam) because of "Lo Plug" (that is, they applied their enactment in all situations, even in a situation where the reason does not exist, in order to ensure that it is upheld in a situation where the reason does exist). In the case of a Shali'ach who suddenly became a Cheresh, though, the enactment does not apply, because such a case is a very unusual situation (a "Milsa d'Lo Shechicha") and therefore the Chachamim did not apply the "Lo Plug," like the Gemara concludes. This would be the approach of Rashi who disagrees with Tosfos (2b; see Insights there).

However, if these are the reasons why the Gemara does not ask its question on Rava, then the Gemara should give the same answers when it asks this question on Rabah's opinion! After the people learned the Halachos of writing a Get Lishmah, either a Get that is already Mekuyam is always valid without saying "b'Fanai Nichtav..." (Tosfos), or it is not normally valid because of the "Lo Plug" (Rashi), and therefore one who is able to speak must say "b'Fanai Nichtav...," even when there are witnesses to be Mekayem the Get.

What, then, is the Gemara's question?

ANSWERS: TOSFOS (DH Iy Hachi) lists a number of possible approaches to the Gemara's question.

(a) Tosfos and other Rishonim write that RASHI in his original manuscript wrote that this Sugya is following the Havah Amina, the initial assumption of the Gemara that Rabah is only concerned for Lishmah, and not for Kiyum of the Get. Therefore, after the people in Chutz la'Aretz became familiar with the laws of writing a Get Lishmah, "b'Fanai Nichtav..." should no longer have been necessary altogether, even for Kiyum! The Gemara answers that the Chachamim instituted to say "b'Fanai Nichtav..." because the people of Chutz la'Aretz might once again forget about the Halachos of Lishmah.

This answer, though, is problematic. Why should the Gemara attempt to defend the initial assumption, if we have already proven that Rabah agrees with the reason of Rava? In addition, the TOSFOS HA'ROSH asks that if Rabah does not require saying "b'Fanai Nichtav..." in order to be Mekayem the Get, then why does the Mishnah say that when a Cheresh gives a Get, the Get needs witnesses to be Mekayem it? Since Rabah does not require a Shali'ach to be Mekayem the Get when handing it to the woman, why does the Mishnah say that when a Cheresh gives a Get, we are not concerned with the Get not being Lishmah but we need witnesses to be Mekayem it? It should not be necessary to be Mekayem it altogether!

(Rashi apparently learns that the Mishnah (9a) means that if the husband challenges the validity of the Get, only *then* witnesses should be brought to be Mekayem it. We can infer from this interpretation that Rashi holds that when a Shali'ach does say "b'Fanai Nichtav..." -- even though he is only saying "b'Fanai Nichtav..." to prove that the Get was written Lishmah (according to Rabah in the Havah Amina) -- nevertheless, his testimony also serves to be Mekayem the Get. Therefore, the Mishnah must say that in the case of a Cheresh when the Shali'ach did not say "b'Fanai Nichtav...," it becomes necessary to be Mekayem the Get with witnesses when the husband challenges the Get. Perhaps Rashi retracted this explanation because he changed his mind about this point, and he maintains that saying "b'Fanai Nichtav..." cannot help to be Mekayem the Get according to Rabah in the Havah Amina. The Shali'ach is believed, as a single witness, to testify about the Get only when there is no challenge to the validity of the Get. Alternatively, Rashi means that when a Shali'ach says "b'Fanai Nichtav...," the husband is not believed if he later claims that the Get was not written Lishmah (Rashi 3a, DH me'Ikara). In contrast, in the case of a Cheresh who does not say "b'Fanai Nichtav...," the husband would be believed (even after the people became learned in the Halachos of Lishmah) to say that the Get was not written Lishmah but that it was written for someone by the same name who then gave it to him. Although we normally are not afraid that a Get was not written Lishmah after the laws of Lishmah became well-known, the husband would be believed with a "Migu" that he could have said that the Get is completely forged. Therefore, the Mishnah says that witnesses must be Mekayem the Get in order to take away the husband's Migu, so that he will not be believed if he claims that the Get was not written Lishmah.)

(b) RABEINU TAM explains that according to Rava, the decree of saying "b'Fanai Nichtav..." was instituted as a Kula, in order to avoid the necessity to be Mekayem the Get. Therefore, it is understood that every Mishnah which discusses the laws of a Shali'ach saying "b'Fanai Nichtav..." means that *if* there is no Kiyum and one wants to avoid having to do Kiyum, then the Shali'ach should say "b'Fanai Nichtav...." However, according to Rabah, the Chachamim required saying "b'Fanai Nichtav..." as a *Chumra*, because they suspected that the Get might not have been written Lishmah. Therefore, the Mishnah at the beginning of the Perek -- which is referring to the time *before* people learned the Halachos of Lishmah -- means that even if the Get is already Mekuyam, the Shali'ach still must say "b'Fanai Nichtav..." because of the Chumra which the Chachamim instituted. According to this, the Mishnah later (9a) that discusses a Cheresh who brings a Get must be referring to the Halachah of "b'Fanai Nichtav..." in the same context, and it is saying that even if there are witnesses to be Mekayem the Get, it is still necessary to say "b'Fanai Nichtav...." That is why the Gemara asks specifically according to Rabah that "b'Fanai Nichtav..." should not be necessary for a Get that is Mekuyam, after the people learned the Halachos of Lishmah!

This approach can only be used according to Tosfos, who says that Rava indeed is lenient and does not require saying "b'Fanai Nichtav..." in the case of a Get that is Mekuyam. However, according to Rashi (see Rashi 16b, DH Kasher, and Insights to 2b), Rava is stringent and requires "b'Fanai Nichtav..." even in the case of a Get Mekuyam, because of "Lo Plug." Hence, according to Rabah as well, the decree of saying "b'Fanai Nichtav..." will be a Chumra both before and after they learned the Halachos of Lishmah, since Kiyum will not help because of the "Lo Plug."

(c) The RI suggests that the Gemara's question was based on the assumption that Rabah and Rava have a practical argument, and not just a theoretical argument. They are not just arguing over when "b'Fanai Nichtav..." *used* to be said, but they are arguing about when "b'Fanai Nichtav..." must be said even today. When the Gemara asks "Mai Beinaihu," what is the practical difference between Rabah and Rava, it is asking what is the practical difference between them *even today*, after people have learned the Halachos of writing a Get Lishmah.

Tosfos proves this by asserting that if the Mishnah (9a) discussing a Cheresh is referring to *after* people have learned the laws of Lishmah ("l'Achar she'Lamdu"), then presumably all of the other Mishnayos in the Perek are also referring to "l'Achar she'Lamdu" as well, and yet Rabah and Rava still argue about the reason of the Mishnah for why "b'Fanai Nichtav..." is said! The Gemara's question, then, is why does Rabah require "b'Fanai Nichtav..." even within a single country in Medinas ha'Yam, after they learned the Halachos of Lishmah? Since they became expert in the Halachos of Lishmah, and Kiyum is not necessary because they are in the same country, Rava should have agreed to Rabah that in the same country in Medinas ha'Yam it is not necessary to say "b'Fanai Nichtav...!" The Gemara answers that the Chachamim made a Gezeirah that "b'Fanai Nichtav..." be said lest the situation return to the original state of unlearnedness ("Gezeirah Shema Yachzor Davar l'Kilkulo"). (The words "Hacha b'Mai Askinan," though, imply that only *that* Mishnah (on 9a) is discussing the time of "l'Achar she'Lamdu.")

(d) TOSFOS suggests a simple approach to the Gemara, which he subsequently rejects. He suggests that the Gemara is not asking why "b'Fanai Nichtav uv'Fanai Nechtam" is necessary and Kiyum does not suffice. Kiyum *would* suffice (or, according to Rashi, Kiyum would not suffice even according to Rava). The Gemara, rather, is asking why saying "b'Fanai *Nichtav*" is necessary. According to Rava, BF *Nichtav* is necessary in order to prevent people from thinking that a single witness can serve to be Mekayem a normal Shtar, other than a Get (like the Gemara says on 3a). According to Rabah, on the other hand, people will know that this Kiyum is different than a normal Kiyum, because they see that saying "Yadanu" does not help for Kiyum of a Get -- the Shali'ach (or Sheluchim, according to Tosfos 3a, DH Hacha; see Maharsha there) must say only the text of "b'Fanai Nichtav uv'Fanai Nechtam" (while in the case of Kiyum of a normal Shtar, the witnesses may say "Yadanu"). Therefore, the Gemara is asking that according to Rabah, when it is no longer necessary to say BF *Nichtav* because of the concern for Lishmah, it should not be necessary to say it even for the concern of preventing confusion with other Shtaros! The Gemara answers that Rabah requires BF *Nichtav* only because of the Gezeirah Shema Yachzor Davar l'Kilkulo. According to this, the Gemara's question is straightforward.

Tosfos rejects this explanation, because he proves from the Gemara later (16b) that even after people learned the laws of Lishmah, Rabah still requires saying BF *Nichtav* not only because of Shema Yachzor Davar l'Kilkulo, but even because of the fear that people will confuse this Kiyum with Kiyum of normal Shtaros. (Although the Chachamim would not have instituted BF *Nichtav* *only* because of that fear alone, once they instituted it for the concern of Lishmah, they intended that it also be said in order to prevent confusion with other Shtaros.)

The proof of Tosfos is from the Gemara later (16b) which records a Machlokes Amora'im whether two people who bring a Get need to say "b'Fanai Nichtav...." Tosfos asserts that the Machlokes there applies only according to Rabah's opinion (and l'Achar she'Lamdu). According to Rava, who maintains that the entire purpose of saying "b'Fanai Nichtav..." is for Kiyum, everyone must agree that two people who bring a Get do not have to say "b'Fanai Nichtav...," since they are Mekayem it by merely saying that they are Sheluchim (see Insights to 2b). Rebbi Yochanan (16b) says that when two Sheluchim bring a Get together and one says "b'Fanai *Nichtav*" and the other says "b'Fanai *Nechtam*," the Get is valid. The Gemara proves from Rebbi Yochanan's statement that he holds that two people who bring a Get do not have to say "b'Fanai Nichtav uv'Fanai Nechtam."

How does the Gemara prove from Rebbi Yochanan's statement that he holds that two Sheluchim do not have to say "b'Fanai Nichtav uv'Fanai Nechtam?" Perhaps Rebbi Yochanan says that the Get is valid only because "b'Fanai Nichtav uv'Fanai Nechtam" *was* said -- one Shali'ach said "b'Fanai *Nichtav*" and the other Shali'ach said "b'Fanai *Nechtam*!" Why does the Gemara assume that the same Shali'ach who says "b'Fanai *Nechtam*" must be the same one who says "b'Fanai *Nichtav*" if "b'Fanai Nichtav uv'Fanai Nechtam" is required when two Sheluchim bring a Get? If the only reason for saying "b'Fanai *Nichtav*" (l'Achar she'Lamdu) is because of Shema Yachzor Davar l'Kilkulo, then it should suffice for the second Shali'ach to say "b'Fanai *Nichtav*" and prove that the Kesivah was done Lishmah!

Tosfos (16b, DH Alma) points out that we see from the Gemara there after people learned the laws of Lishmah, Rabah requires "b'Fanai *Nichtav*" in order to prevent confusion with the Kiyum of other Shtaros. Therefore, the same Shali'ach who says "b'Fanai *Nechtam*" must also say "b'Fanai *Nichtav*," so that we do not confuse his Kiyum with the Kiyum of a normal Shtar.

Although Tosfos rejects this explanation, it could well be that Rashi *does* explain the Gemara this way. Rashi learns the Gemara later (16b) differently, in such a way that Tosfos' proof from there is not valid. Rashi explains that the Gemara -- which discusses two Sheluchim who bring a Get and debates whether or not they have to say "b'Fanai Nichtav uv'Fanai Nechtam" -- is following the opinion of *Rava*, who is always concerned that people will confuse this Kiyum with the Kiyum of other Shtaros. That is why the Shali'ach who says "b'Fanai *Nechtam*" also is required to say "b'Fanai *Nichtav*." Accordingly, our Gemara -- which is discussing the opinion of *Rabah*, who is not concerned that people will confuse this Kiyum with the Kiyum of other Shtaros (because "Yadanu" does not work for a Get) -- is justified in saying that "b'Fanai *Nichtav*" is necessary l'Achar she'Lamdu only because of the Gezeirah of Shema Yachzor Davar l'Kilkulo.

How, though, does Rashi explain the Gemara there (16b) according to Rava? Why should two Sheluchim need to say "b'Fanai Nichtav uv'Fanai Nechtam" according to Rava? Since the entire purpose of saying "b'Fanai Nichtav uv'Fanai Nechtam" is for Kiyum, it should be clear that when two people bring a Get that no further Kiyum is necessary (like the Gemara says on 2b)!

Rashi (16b, DH Kasher) answers this question by suggesting that according to the opinion that two Sheluchim do have to say "b'Fanai Nichtav uv'Fanai Nechtam" according to Rava, the reason is because of "Lo Plug."

This opinion of Rashi -- that, because of "Lo Plug," Rava requires "b'Fanai Nichtav uv'Fanai Nechtam" even when the Get is already Mekuyam -- answers the question of Tosfos earlier (4b, DH Rabah). Tosfos asks why Rabah requires saying "b'Fanai *Nichtav*" when a Shali'ach brings a Get from one township to another within Eretz Yisrael -- there should be no concern for Lishmah and no concern for confusing the Kiyum with other Shtaros (since Rabah holds there is no concern for this, like the Gemara says on 3a). (Tosfos' answer there is consistent with his opinion here.) Rashi might answer that Rabah requires saying "b'Fanai *Nichtav*" when bringing a Get from township to township because of "Lo Plug."

This also explains why Rashi rejects the explanation of Tosfos earlier (3a). The Gemara there says that according to Rava, Sheluchim who bring a Get may say "Yadanu" in place of "b'Fanai Nichtav uv'Fanai Nechtam." Tosfos explains that the Gemara is referring to a *pair* of Sheluchim who bring a Get together (Tosfos 3a, DH Hacha and DH Atu; 5a, DH Bei Trei). That is why the Gemara writes "Yad'inan" (in the plural form) and not "Yadana" (or "Yadati," in the singular form). Rashi, however, explains that the Gemara does not mean to limit the Halachah to two Sheluchim, but even a single Shali'ach who brings a Get, according to Rava, may say "Yadati" in place of "b'Fanai *Nechtam*." Why does Rashi not explain the Gemara literally? Moreover, as Tosfos points out, according to Rashi's explanation all of the Mishnayos that discuss a Shali'ach saying "b'Fanai Nechtam" are Lav Davka, because if he wants he could say "Yadati" instead! The answer is that Rashi is following his own view, that according to one opinion (on 16b), whatever wording is required of a single Shali'ach is required of two Sheluchim as well because of "Lo Plug." Therefore, if a single Shali'ach may not say "Yadati," then we would not permit two Sheluchim to say "Yadanu" because of "Lo Plug." It must be that Rava holds that even a single Shali'ach may say Yadati.


5b

2) WITNESSES TESTIFYING FROM THE MOUTH OF OTHER WITNESSES
QUESTION: The Gemara cites a Machlokes between Amora'im whether the Shali'ach must hand over the Get to the woman in front of two people or in front of three people. The Gemara first suggests that the Machlokes revolves around the reason why the Shali'ach says "b'Fanai Nichtav:" if he says "b'Fanai Nichtav" in order to be Mekayem the Get (like Rava), then he must say it in front of *three* people, who qualify as a Beis Din, since the testimony of Kiyum must be done in front of a Beis Din. If the reason for saying "b'Fanai Nichtav" is in order to ensure that the Get was written Lishmah (like Rabah), then it suffices to say it in front of two witnesses and it is not necessary to say it in front of a Beis Din. It suffices to have two witnesses who heard him say that the Get was written Lishmah.

Why should it suffice to say "b'Fanai Nichtav" in front of two witnesses, even if the reason for saying "b'Fanai Nichtav" is to prove that the Get was written Lishmah? There is a rule that any testimony must be presented directly in front of the Beis Din. If it is presented in front of another pair of witnesses, the second pair of witnesses may not testify in front of a Beis Din what they heard from the first pair of witnesses, because "Ed mi'Pi Ed" is not a valid form of testimony! The Shali'ach, then, should have to hand over the Get in front of a Beis Din of three people, even if the reason for saying "b'Fanai Nichtav" is to testify that the Get was written Lishmah, so that the Beis Din will hear the testimony directly from him! (PNEI YEHOSHUA)

ANSWERS: The Rishonim discuss this question and suggest two different approaches.

(a) RABEINU KRESKAS explains that the rule that "Ed mi'Pi Ed" is not valid testimony applies only where the testimony of two valid witnesses is required, such as in cases of Dinei Mamonos (monetary matters), or Davar she'b'Ervah. However, when the testimony of a single witness is sufficient (such as in cases of Isurim), where even a woman is able to testify, even "Ed mi'Pi Ed" is accepted (Bechoros 36a). Although the testimony concerning the validity of the Get is actually considered a Davar she'b'Ervah and should require two witnesses, we find that the Chachamim were lenient with regard to the testimony of Lishmah, which is only required in the first place mid'Rabanan, and they ruled that the testimony of the single Shali'ach suffices. This means that the Chachamim gave the testimony of Lishmah a status of testimony for Isurim, and not a status of Davar she'b'Ervah. Therefore, "Ed mi'Pi Ed" would also be valid testimony for Lishmah, and the Shali'ach may hand over the Get in front of any two witnesses. (The reason we require the Shali'ach to be "Meidak Dayek" (3a) is only to prevent the husband from challenging the Get later, and it is not in order to validate the testimony of the Shali'ach.) The Pnei Yehoshua gives the same answer.

(b) The ME'IRI cites the "Chachmei ha'Har" who answer that when witnesses tell the court that they saw the Shali'ach say "b'Fanai Nichtav," it is not considered "Ed mi'Pi Ed." Rather, it is considered an original testimony. When the Shali'ach says "b'Fanai Nichtav," he is not doing so as a witness giving testimony. Rather, he is considered a Ba'al Davar, a participant in the procedure of the divorce, through whose actions it can be proven that the Get was written Lishmah. Thus, when the two witnesses testify that they saw him say "b'Fanai Nichtav," they are testifying to part of the procedure of the divorce, and they are not testifying about what another witness said.

(It appears, according to the Chachmei ha'Har, that the Shali'ach is believed only because he is "Meidak Dayek," since, otherwise, a single witness would not be believed in a case of divorce. The proof that it was written Lishmah, therefore, is not from the words of the Shali'ach alone, but rather from the circumstances that surround his delivery of the Get. We have an "Umdena" that the Shali'ach is "Meidak Dayek" and would not falsify such testimony. That is why what he says is not considered testimony, or "Edus.")

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