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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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