QUESTION: The Mishnah teaches that when an elderly man sends a Get to his
wife via a Shali'ach, the Shali'ach may give the Get to his wife. We assume
that the husband is still alive when the Get reaches his wife, and we do not
fear that the husband died in the interim.
RASHI (DH Nosno) explains that we assume that the husband is still alive
because of a Chazakah. We are not afraid that the husband died, causing the
Shelichus that he made to become annulled.
We see from Rashi that if the husband would have died, the reason why the
Get would be invalid is because the Shelichus would have been annulled. Why
does Rashi not write that the Get will be invalid simply because a Get
cannot be given after death ("Ein Get l'Achar Misah"), like the TOSFOS RID
and ME'IRI write? In fact, Rashi himself gives the reason of "Ein Get
l'Achar Misah" in Kesuvos (2b) regarding a person who wrote in a Get that he
wants the Get to take effect only after twelve months, and then he died
within the twelve months. Rashi there (DH Mes) explains that such a Get is
not valid because a dead man cannot divorce his wife! This, moreover, is the
way the Gemara there itself explains -- a Get that is supposed to take
effect only after the husband dies is not valid because "Ein Get l'Achar
Misah!" (HAGAHOS CHAVOS YA'IR #5 on the Rif)
In addition, why does the Tosfos Rid here and the Gemara in Kesuvos write
that the reason the Get is not valid after death is because a dead person
cannot give a divorce? Even if a dead person could give a divorce, the Get
should not be valid since a woman is Konah herself through the death of her
husband and she is no longer in her husband's domain! It is like giving a
Get to a woman who is not married! In fact, Rashi uses this argument to
explain why a Get Shichrur is not valid in the case of an owner of an Eved
who sends a Get to his Eved with a Shali'ach, and the owner dies before the
Get reaches the Eved. The reason the Get Shichrur is not valid is because
the Eved no longer belongs to him; the Eved now belongs to the master's
heirs (Rashi to Gitin 9b and 13a, DH Lo Yitnu)!
ANSWER: The DIBROS MOSHE explains the words
of Rashi as follows. TOSFOS (13a, DH Lo Yitnu) asks why the Mishnah there
needs to teach that when a man sends a Get to his wife and dies before it
reaches her, the Get is not valid? Another Mishnah (72a) already teaches
that a Get cannot take effect after the husband's death!
Tosfos answers that the Mishnah (13a) wants to teach that even if the
husband appointed a Shali'ach to divorce his wife, the Shali'ach cannot give
the Get after the husband dies. Had the Mishnah not taught this, we might
have thought that if a man writes a Get to take effect after twelve months
and he dies within twelve months, the Get is not valid because the husband
cannot divorce his wife after he is dead. However, if he appointed a
Shali'ach to give the Get to his wife, then since a Shali'ach is in the
place of the husband with regard to the Get, and the Shali'ach is still
alive, then perhaps he may give the Get as though the husband were still
alive! The Mishnah therefore teaches that even a Shali'ach may not give a
Get after the death of the sender.
Why is it that the Shali'ach cannot give the Get after the husband dies? Is
it because the Shali'ach is considered to be like the husband only with
regard to the ability to make the Kinyan, and not with regard to any other
matter (see OR SAME'ACH, Hilchos Gerushin 2:15, and LEKACH TOV #1)? Or is it
because the Shelichus automatically becomes annulled after the death of the
husband, and the Shali'ach is therefore no longer the Shali'ach of the
husband?
Tosfos Rid (and perhaps Tosfos on 13a) takes the first approach. Rashi here
is teaching that the second approach is correct: the reason why the Get is
not valid is because after the death of the husband, the Shali'ach is no
longer considered to be a Shali'ach. Had he been a Shali'ach, the Get would
have been valid even after the death of the husband.
Rashi's source for this explanation may be found in the Gemara later (29b)
where the words of Mar bar Rav Ashi imply that the death of the husband
causes an annulment of the Shelichus (see Hagahos Chavos Ya'ir, ibid.).
The Gemara in Kesuvos (2b), on the other hand, is discussing a Get that is
supposed to take effect after twelve months, and the husband died before
that time arrived. Since there is no Shali'ach involved in that case, the
reason the Get does not take effect is simply because of "Ein Get l'Achar
Misah," a dead person cannot divorce his wife.
Why does the Gemara and Rashi need to explain that a dead person cannot
divorce his wife? Let them say that after his death, the woman is no longer
his wife and a Get cannot take effect! The KETZOS HA'CHOSHEN (188:2) and OR
SAME'ACH (loc. cit.) explain that when a man dies childless, the Kidushin of
the dead husband still remains in effect insofar that it causes his wife to
be obligated to perform Yibum or Chalitzah with his brother. Thus, after his
death, his wife is *not* a "Penuyah" (a completely unmarried woman), but
rather some of the Kidushin remains, and, consequently, the Get would still
be able to take effect had it not been for the principle that a dead person
cannot divorce his wife.
(The Dibros Moshe suggests that perhaps even when there is no Yavam, such as
when the husband does not die childless, there still is some remnant of the
Ishus and Kidushin after the husband's death. See also SHA'AREI YOSHER.
However, the Mishnah in Kidushin (2a) says that the woman is Konah herself
after her husband's death, and thus it is not clear that a Get is able to
affect whatever Ishus remains after the husband's death.)
What remains to be explained is why Rashi writes (on 13a) that when a person
sends a Get Shichrur to his Eved with a Shali'ach, the Shichrur is not valid
because the Eved has already left the owner's domain. Why does Rashi not
explain there like he explains here -- that after the owner dies, the
Shali'ach is no longer a Shali'ach? Consequently, he cannot give the Get to
the Eved because he is not the owner's Shali'ach!
The Dibros Moshe suggests that perhaps the Shelichus would remain after the
owner of the Eved dies, because we assume that the children of the owner
probably wanted to continue the appointment of the Shali'ach to free their
father's Eved, as their father wished. However, if this is true, then even
what Rashi writes would not explain why the Get Shichrur does not take
effect; even if the heirs now own the Eved, the Shichrur should take effect
because they are freeing the Eved! If, on the other hand, it cannot take
effect because the Get Shichrur says in it that the *father* (and not his
heir) is freeing the slave, then even if the heirs want to re-appoint the
Shelichus, it would not help to make the Get Shichrur take effect!
Perhaps Rashi wants to give the stronger of the two reasons to explain why
the Get Shichrur does not take effect. Rashi writes that the Eved has left
the domain of the owner, because this reasoning will explain not only why
the Shtar Shichrur cannot take effect when the owner dies, but even when he
sells the Eved before the Shichrur reaches the Eved, the Shichrur cannot
take effect, even though the Shelichus of the Shali'ach still remains. The
other reason that Rashi gives (in our Sugya) -- that the Shelichus becomes
annulled -- applies only when the sender dies and under no other
circumstances (in contrast, a [living] sender's willful retraction of the
Shelichus constitutes an entirely different reason why the Get does not take
effect).
QUESTION: The Mishnah teaches that if a Kohen travels abroad, his wife may
continue to eat Terumah, and we are not afraid that her husband died and
that she may no longer eat Terumah. The Gemara asks that our Mishnah seems
to contradict a Beraisa that teaches that when a person gives a Get to his
wife on condition that it take effect a moment before his death, if he is a
Kohen and his wife is a Bas Yisrael, she may no longer eat Terumah out of
concern that her husband might die the next moment (and the Get will have
taken effect the previous moment). Rava answers that we are not afraid that
a person *died*, but we are afraid that a person *will* die. Since we are
afraid that he will die the next moment, the woman married to a Kohen may
not eat Terumah since we are afraid that her husband might die the next
moment. In contrast, the woman receiving a Get from the Shali'ach may rely
on the Get and is fully divorced, because we are not afraid that the husband
died.
RASHI explains that Rava's logic is that the husband's Chezkas Chayim can
clarify the Safek regarding whether or not the husband is presently alive.
Since until now he was alive, we assume that right now he is also alive. In
contrast, the Chezkas Chayim cannot prove to us that he *will* be alive in
the future (in the following moment), since the Chazakah can only determine
for us a present status, and not a future one. Therefore, we must suspect
that the husband might die in the following moment, and if the husband
stipulated that the Get should take effect the moment before he dies, we
must suspect that she is divorced at the present moment.
Why is it so obvious to Rashi that a Chazakah cannot determine a future
status (that is, whether the husband is *going* to die, and, consequently,
whether the woman is divorced at present)? Although the Chezkas Chayim of
the husband might not apply, there are other Chazakos that exist that should
apply to determine the present status of the woman! She should be permitted
to eat Terumah because of her Chezkas Eshes Ish, which tells us that until
now she was married, and thus we should assume that she still is married! In
addition, she has a Chezkas Muteres l'Terumah, which tells us that until now
she was permitted to eat Terumah, and thus we should assume that she is
still permitted to eat Terumah! Since these Chazakos affect the present
status of the woman, they should be applicable even in the case where we do
not know if the husband is going to die the next moment, and she should be
permitted to eat Terumah. (SHA'AREI YOSHER 2:9; KOVETZ HE'OROS, Hosafos to
Yevamos 69b.)
ANSWERS:
(a) The PNEI YEHOSHUA (28a, with regard to a different question) explains
that when a person writes a Get to his wife with a condition that it should
take effect the moment before he dies, the Chezkas Eshes Ish and the Chezkas
Muteres b'Terumah lose their power to determine her status with regard to
eating Terumah, because the Chazakos have been "weakened" by the fact that
the husband definitely wrote and gave a Get to his wife. Although we are not
certain whether the Get took effect, nevertheless a Get *was* given, and
therefore we have clear reason to suspect that she is no longer married
(weakening the Chezkas Eshes Ish), and that she is no longer Muteres
b'Terumah (weakening the Chezkas Muteres b'Terumah). The husband's Chezkas
Chayim, in contrast, is not weakened by the fact that the husband is
eventually going to die, since he might not die during his wife's lifetime
(as the Gemara says on 28a).
(b) The SHA'AREI YOSHER argues that the fact that the husband gave a Get to
his wife is not enough to weaken the Chezkas Eshes Ish on a d'Oraisa level.
He suggests, therefore, that a Chazakah can determine what happened only
when what happened is directly influenced by that Chazakah. For example, in
our case, the Chezkas Chayim can prove that the husband is not dead, since
the fact that until now he was alive has direct bearing on whether he is now
dead.
In contrast, the Chazakos that a woman is married, and that she is permitted
to eat Terumah, do not have direct bearing on whether the husband is going
to die the next moment. The only reason they are related to the question of
how long he will live in this case is because the husband made a
stipulation, making a Get that he gave to his wife dependent upon the length
of his life. Since this connection is only incidental, the Chazakah that she
is his wife cannot address the question of whether or not he will continue
to live.