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Gitin, 23

1) A GET WRITTEN BY A "CHERESH, SHOTEH, V'KATAN"

QUESTION: The Mishnah (22b) teaches that a Get written by a Cheresh, Shoteh, or Katan is valid. The Gemara cites a Beraisa which states that a Get written by a Nochri is not valid. The Gemara wants to know what is the difference between a Cheresh, Shoteh, and Katan who have no Da'as and thus cannot write a Get, and a Nochri who -- even though he has Da'as -- has no connection to the concept of Kerisus? One who has either a lack of "Da'as" or a lack of connection to Kerisus should not be able to write a Get!

Rav Huna (see Chart) explains that the Mishnah is discussing a situation where there is an adult Jew who is standing over ("Gadol Omed Al Gabav") the Cheresh, Shoteh, or Katan and is instructing him to write it Lishmah. This suffices to make the writing of the Get considered Lishmah when a Cheresh, Shoteh, or Katan writes the Get, because they can have Kavanah to write it Lishmah when someone instructs them how to do so. However, a Nochri does not accept instructions from another person watching him, and he writes the Get without intentions of Lishmah, and thus the Get is Pasul.

Rav Nachman (see Chart) argues and explains the Mishnah differently. He says that the Mishnah is following the opinion of Rebbi Meir, who does not require Kesivah Lishmah, and the Mishnah thus permits even a Nochri to write a Get. The Beraisa that invalidates a Get written by a Nochri is following the opinion of Rebbi Elazar who requires Kesivah Lishmah. Therefore, a Nochri may not write a Get (even if there is a Gadol Omed Al Gabav), while a Cheresh, Shoteh, or Katan *could* write a Get when there is a Gadol Omed Al Gabav (Rashi, DH v'Ha Vadai).

The Gemara then cites a third explanation for the Mishnah which permits a Get written by a Cheresh, Shoteh, or Katan. Rav Yehudah in the name of Shmuel says that the Mishnah follows the opinion of Rebbi Elazar who requires Kesivah Lishmah. Nevertheless, a Cheresh, Shoteh, or Katan is permitted to write a Get when he only writes the *Tofes* of the Get (the standard text, and not the Toref, the specific details).

According to Rav Yehudah in the name of Shmuel, why does the Beraisa say that a Nochri may not write the Get? Since writing the Tofes of the Get does not have any special requirements of Lishmah or being a "Bar Kerisus," it should be permitted even for a Nochri to write the Tofes of the Get! One might suggest that the Beraisa is discussing the writing of the Toref, and when it disqualifies a Nochri, it means that a Cheresh, Shoteh, and Katan also may not write that part of the Get, while the Mishnah is discussing the Tofes and permits not only a Cheresh, Shoteh, and Katan, but also a Nochri to write a Get.

However, this does not seem to be a viable option, since the Gemara seems to take for granted that the Beraisa is permitting *only* a Nochri to write a Get, and not a Cheresh, Shoteh, or Katan. This is evident from the fact that the Gemara asks according to Rav Huna why a Nochri may not write a Get while a Cheresh, Shoteh, or Katan may write a Get, and the Gemara does not answer that the Beraisa disqualifies a Nochri when there is no Gadol Omed Al Gabav, and the Mishnah allows a Cheresh, Shoteh, or Katan or Nochri when there *is* a Gadol Omed Al Gabav. Obviously, then, the Gemara understands that the Beraisa is distinguishing between a Cheresh, Shoteh, and Katan, and a Nochri. How, then, will Rav Yehudah in the name of Shmuel -- who explains that the Mishnah is discussing the Tofes -- explain the Beraisa that does not permit a Nochri to write a Get? (MAHARSHA, PNEI YEHOSHUA)

ANSWERS:

(a) The Beraisa might be referring to a Nochri who is writing the *Toref* with a Gadol Omed Al Gabav. The writing of a Nochri is not valid because he does not accept instructions from another person. In contrast, when a Cheresh, Shoteh, or Katan writes the Toref with a Gadol Omed Al Gabav, it is valid. That is, even Rav Yehudah in the name of Shmuel, who explains that the Mishnah is discussing the writing of the Tofes, agrees that there is another instance where a Get written by a Cheresh, Shoteh, or Katan is valid, and that is when he is writing the Toref with a Gadol Omed Al Gabav. (PNEI YEHOSHUA)

Why, though, does Rav Yehudah in the name of Shmuel explain that the Mishnah is discussing the writing of the *Tofes*? He should have said, like Rav Huna, that the Mishnah is discussing the writing of the *Toref* with a Gadol Omed Al Gabav!

Perhaps Rav Yehudah in the name of Shmuel considered that to be a forced answer, since the Mishnah does not specify any additional conditions necessary (such as Gadol Omed Al Gabav) for the Get to be acceptable when written by a Cheresh, Shoteh, or Katan. If a Gadol Omed Al Gabav is necessary, then the Mishnah would have to make mention of it, so that we not mistakenly permit a Cheresh, Shoteh, or Katan to write a Get without a Gadol Omed Al Gabav.

The Beraisa, on the other hand, which discusses a Nochri, is discussing the *prohibition* of a Nochri to write a Get. Therefore, the Beraisa might mean to say that *even* with a Gadol Omed Al Gabav, a Nochri cannot write the Get; he cannot write a Get under *any* conditions. The Beraisa is referring to the Toref as well as the Tofes. A Cheresh, Shoteh, and Katan, however, are permitted to write the Toref under certain circumstances (such as Gadol Omed Al Gabav).

However, this answer will depend on a Machlokes Rishonim regarding whether or not Rav Yehudah in the name of Shmuel agrees with Rav Huna's ruling. This answer is appropriate only according to the way the RAN explains the RIF (which might also be the opinion of RASHI DH Makom ha'Toref, as the PNEI YEHOSHUA suggests; see, however, BEIS YOSEF EH 123:1), who holds that Rav Yehudah in the name of Shmuel *agrees* that Gadol Omed Al Gabav also helps even for writing the Toref.

(b) A similar answer to our question can be offered according to the view of the RAMBAM (Hilchos Gerushin 3:15) and the RIF (according to the straightforward reading of his words, see Ran ibid.). They rule that according to Rav Yehudah in the name of Shmuel, a Cheresh, Shoteh, or Katan may write the Tofes *only with* a Gadol Omed Al Gabav (i.e. they require both conditions: a Gadol Omed Al Gabav, and that the Cheresh, Shoteh, or Katan is writing only the Tofes). Accordingly, the Beraisa that says that a Nochri may not write a Get might indeed be referring to the Tofes, and it disqualifies a Nochri since even the Tofes requires a Gadol Omed Al Gabav and a Nochri does not follow the instructions of a Gadol Omed Al Gabav.

(c) However, the RAN himself prefers the view that Rav Yehudah in the name of Shmuel permits *only* the writing of the Tofes by a Cheresh, Shoteh, or Katan, even without Gadol Omed Al Gabav, and he does not permit a Cheresh, Shoteh, or Katan to write the Toref even *with* Gadol Omed Al Gabav. (Rav Huna, in direct contrast, permits a Cheresh, Shoteh, or Katan to write only with Gadol Omed Al Gabav, but does not permit them to write -- even the Tofes -- without Gadol Omed Al Gabav.) According to this opinion, why does the Beraisa prohibit a Nochri to write a Get, and permit a Cheresh, Shoteh, and Katan, according to Rav Yehudah in the name of Shmuel?

The answer to this might be that Rav Yehudah in the name of Shmuel maintains that even *Rebbi Meir* requires that the Kesivah be done Lishmah, mid'Rabanan (see TOSFOS 22b, DH v'Ha Lav). He argues with Rav Nachman who maintains that Rebbi Meir permits l'Chatchilah even a Get that was found in the garbage. The Beraisa that permits a Nochri to write a Get might be following the view of Rebbi Meir, who holds that the Toref must be written Lishmah only mid'Rabanan. Since the requirement is only mid'Rabanan, having a Gadol Omed Al Gabav suffices to make it Lishmah. However, the Mishnah does not permit a Cheresh, Shoteh, and Katan to write the Toref even with Gadol Omed Al Gabav, because it is following the opinion of Rebbi Elazar who holds that the Toref must be written Lishmah *mid'Oraisa*, and thus Gadol Omed Al Gabav does not suffice. (Rav Yehudah in the name of Shmuel does not explain that the Mishnah is discussing the Toref and permits a Cheresh, Shoteh, and Katan with Gadol Omed Al Gabav according to Rebbi Meir, because the Halachah follows Rebbi Elazar.) (M. Kornfeld)

QUESTION: The Mishnah says that a blind person cannot be a Shali'ach to bring a Get, since he is unable to see the writing of the Get and thus he cannot say "b'Fanai Nichtav, uv'Fanai Nechtam."

However, the Gemara earlier (6a) says that even if a person hears the sound of the quill writing the Get Lishmah, he may say "b'Fanai Nichtav...." Why, then, should a blind person not be able to say "b'Fanai Nichtav..." when he heard the Get being written Lishmah? (TOSFOS 6a, DH Afilu)

ANSWERS:

(a) The ROSH (1:3) answers that even if the blind person hears them writing the Get Lishmah, he cannot know that the Get that was given over is the same Get that he heard them writing, since he cannot see it. Therefore, a blind person cannot say "b'Fanai Nichtav."

(b) The Rosh in the name of TOSFOS says that a blind person cannot say "b'Fanai Nichtav" because it looks like he is lying, since his words imply that he actually saw the writing of the Get. He also cannot say, "I *heard* the Get being written and signed Lishmah," since the enactment of the Chachamim requires that the Shali'ach say specifically the words "b'Fanai Nichtav, uv'Fanai Nechtam." (However, we are not concerned that the Get that was delivered is not the same one that was prepared Lishmah, since we know that the husband intended to send a Get that was written Lishmah, so we have no reason to assume that he discarded the one that was written Lishmah and sent one that was not written Lishmah.)

23b

QUESTION: The Gemara says that when an Eved receives a Get Shichrur in which it is written that the master is freeing half of the Eved, the moment he receives it, half of him becomes free. Similarly, when a master gives to a Shifchah (a maidservant) a Get Shichrur for the freedom of the fetus she is carrying, specifying that he is freeing only the fetus and not the Shifchah, the moment she receives the Get Shichrur, the fetus becomes free.

Normally, when an Eved receives a Get Shichrur, he only acquires the document through the mechanism of "Gito v'Yado Ba'im k'Echad" (Kidushin 23a). That is, an Eved is not able to be Koneh anything (even his Get Shichrur) while he is an Eved. However, when he is Koneh the Get Shichrur and becomes free, that gives him the right to be Koneh thing. We therefore view the Shichrur and the ability to be Koneh something to be happening simultaneously -- "Gito v'Yado Ba'im k'Echad."

However, if a master frees only the fetus of a Shifchah without freeing the Shifchah herself, then the hand that receives the Get (the Shifchah's hand) will not become free even after the Get is received! We cannot say "Gito v'Yado Ba'im k'Echad" in such a case! Why, then, does the fetus obtain its freedom? (TOSFOS, DH v'Na'aseh)

ANSWERS:

(a) RASHI (DH Aval Lo) explains that the concept of "Gito v'Yado Ba'im k'Echad" means that since the Get involves the Eved's emancipation, we can apply the concept of "Gito v'Yado Ba'im k'Echad." Perhaps Rashi means to say that even though the Get Shichrur does not bring the Shichrur of this particular hand, nevertheless if it brings the Shichrur of any part of the body, then the hand is able to be Koneh the Shichrur for that part of the body, since the hand serves not only itself, but it serves every part of the body. In the case of the fetus, the hand of the Shifchah serves also in the capacity of a hand for the fetus, and as such the hand becomes free at the moment that the fetus itself becomes free. This also seems to be the intention of the RAMBAN and RAN.

(b) The TOSFOS HA'ROSH cites the Yerushalmi that maintains that when one frees half of his Eved, he may do so only by giving the Get Shichrur to *another person* to be Zocheh it on behalf of the Eved (since the hand of the Eved will not be completely free upon receiving the Shichrur). The Tosfos ha'Rosh explains that this is also the intention of the Gemara that says that if the master gives a Shichrur for the fetus, the mother is Zocheh on behalf of the fetus. She is not Zocheh the Get Shichrur itself, for it must be given to another person, but she is Zocheh in the *freedom* for the fetus once the Get Shichrur is given to someone else. (The fetus is considered a part of her that has come into the world, and not a separate individual that is "Lo Ba le'Olam" and that cannot yet be freed.)

The Gemara in Temurah (25b) argues with the Yerushalmi and writes that when a master frees half of his Eved, half of the Eved goes free because of "Gito v'Yado Ba'im k'Echad," even without having someone else be Koneh the Get Shichrur on behalf of the Eved. The Rosh, though, is suggesting that with regard to a fetus, where we cannot say "Gito v'Yado Ba'im k'Echad" (because no part of the hand that receives the Get Shichrur is freed), the Bavli would agree to the Yerushalmi that the fetus would go free only through someone else being Koneh the Get Shichrur on its behalf.