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Gitin, 27

27b

OPINIONS: The Mishnah teaches that if a Shali'ach loses a Get and then finds it, the Get is valid only when he finds it immediately after losing it. Rabah states that the Mishnah is discussing a place where there are "Shayaros Metzuyos," and thus if the Get was not found immediately, we must suspect that the Get that was found is not the Get that was lost. The Gemara adds that the Mishnah is also referring to a place where it is "Huchzeku Shnei Yosef ben Shimon" -- it is known for certain that there are two people with the same name in that city. If, however, only one of the two conditions would be present, we would not be afraid that someone else, with the same name, lost an identical Get.

Rav Zeira, according to one version, says the same as Rabah -- that both conditions, "Shayaros Metzuyos" and "Huchzeku" are necessary. According to a different version, Rav Zeira says that if there is only the condition of "Shayaros Metzuyos," we are afraid that another person lost it, even though it is not "Huchzeku Shnei Yosef ben Shimon" in that place.

Rabah and Rav Zeira were forced to say this to explain why in the case of the Mishnah in Bava Metzia (which the Gemara here cites), where a person loses a Get, we are not concerned that the Get that is found belongs to someone else.

Rebbi Yirmiyah and Rav Ashi, though, offer alternative answers for why, in the case in Bava Metzia, we are not concerned that the lost Get belongs to someone else. They explain that the Mishnah is referring to specific circumstances (for example, the witnesses on the Get testify that they signed on only one such Get, or there is a Siman Muvhak on the Get).

What is the Halachah? Are we concerned that the Get that was found is not the Get that was lost, even when it is not "Huchzeku," or only when it is "Huchzeku?" It is clear that if neither conditions are present -- there are no "Shayaros Metzuyos" and it is not "Huchzeku," then the Get may be returned to the person who lost it. This is learned from the Mishnah in Bava Metzia that our Gemara quotes which says that every "Ma'aseh Beis Din" (a deed or document of Beis Din) may be returned to the person who claims to have lost it (even though a significant amount of time passed from the time that it was lost), as TOSFOS (DH Kol) explains based on the Gemara in Bava Metzia. However, is the presence of "Shayaros Metzuyos" alone enough to prevent us from returning the document, or is the presence of both conditions necessary to prevent returning the Get?

(b) In addition, the Gemara continues and explains what is considered to be "l'Alter" ("immediately"). The Mishnah says that when the Get is found "immediately" we do not have to worry that it is a different Get under any circumstances. Rav Yehudah in the name of Shmuel (28a) says that in order to permit giving back the Get, the Get must have been found before anyone walked where the Get was found and tarried there. Rav Yitzchak bar Shmuel says that the Halachah is that the Get must be found before another person passes in that place, even without tarrying.

What is the Halachah with regard to what is considered "immediately?"

(a) The Rishonim differ with regard to the Halachah of when a Get that was lost may be returned.

1. The RAN cites the BEHAG and RABEINU CHANANEL who rule leniently and say that we are concerned that the Get that was found is a different Get that was lost only when there are "Shayaros Metzuyos" and it is "Huchzeku." Their reasoning is, first, that "Ma'aseh Rav" -- the fact that the Gemara says that Rabah acted, in practice, in accordance with his ruling that both conditions are necessary, shows that the Halachah follows this opinion. Second, Rebbi Yirmiyah and Rav Ashi -- who give other reasons to explain why, according to the Mishnah in Bava Metzia, the Get may be returned even after a long time passes -- do not necessarily argue with Rabah and say that "Shayaros Metzuyos" alone prevents giving back the Get. They might be suggesting just other scenarios in which the Get may be returned (other than a situation in which it is not "Huchzeku").

2. However, the RIF in Bava Metzia (18b) rules stringently, that even when there are "Shayaros Metzuyos" and the place is not "Huchzeku," we do not return the Get. He infers from the words of Rebbi Yirmiyah and Rav Ashi that they argue with Rabah, and they hold that even if there exists the condition of "Shayaros Metzuyos" alone, without "Huchzeku," we do not return the Get.

The ROSH maintains that if we are stringent in a case where there are "Shayaros Metzuyos" but there is not "Huchzeku," then certainly we should be stringent in a case where there is "Huchzeku" alone without "Shayaros Metzuyos." However, the RAN raises the possibility that perhaps the presence of "Huchzeku" without "Shayaros Metzuyos" is *less* severe, and is less of a reason to prevent giving back the Get; hence, we will be more lenient and will not be afraid that the Get belongs to someone else. The Ran's opinion seems to be the opinion of the RAMBAM (Hilchos Gerushin 3:9) as well.

3. The RIF in Yevamos (115b) seems to rule *leniently*, that we are *not* concerned that there are two people with the same names in a place where it is not "Huchzeku." The Rif there rules that in a case where witnesses testify that a man with a certain name from a certain town passed away, we are not afraid that there are two people with that name in that place and that the witnesses are testifying about the other man, but, rather, we may permit the man's wife to remarry based on such testimony.

The ROSH (end of 3:3) explains that the Rif is lenient in the case in Yevamos, where witnesses testify about the death of a woman's husband, in order to prevent the woman from becoming an Agunah; we find that the Chachamim were lenient in a number of ways with regard to testimony about the death of a woman's husband. However, with regard to a Get that was lost, the Rif is not lenient, because the husband can simply write a second Get for his wife.

(b) The Rishonim also differ with regard to the amount of time that must past after the Get was lost in order to be afraid that the Get that was found is not the same Get that was lost.

1. The RIF, according to the explanation of the ROSH, rules stringently and writes that even if someone passed through the place where the Get was dropped, we must be afraid that the Get that was found is a different Get.

2. The RAMBAM (according to the MAGID MISHNAH) also rules that we must be afraid that it is a different Get if a person passed there, but only if there are both "Shayaros Metzuyos" and "Huchzeku Shnei Yosef ben Shimon." However, if there are "Shayaros Metzuyos" and it is not "Huchzeku," then we permit the Get when a person passed there but did not stop there, but not when a person passed there and stopped there -- in which case we are afraid that the Get that was found belongs to a different person.

The RAN suggests that this might also be the intention of the RIF.

HALACHAH: The BEIS YOSEF (EH 132:4) rules that even when there are "Shayaros Metzuyos" without "Huchzeku," we still must be afraid that the Get that was found is not the Get that was lost. Regarding a case where the Get was found in a place where there are not "Shayaros Metzuyos" but where there is known to be two men with the same name, the Beis Yosef cites both opinions, that of the Ran (that we may return the Get) and that of the Rosh (that we may not return the Get).

With regard to the amount of time that must pass, the Beis Yosef cites both the opinion of the Rambam -- that we are Machmir only if a person passed there and did not stop there, when there are "Shayaros Metzuyos" and it is "Huchzeku," and the opinion of the Rosh -- that we are Machmir when a person passed there and did not stop, if even one condition is present, either "Shayaros Metzuyos" or "Huchzeku."

The TUR, cited by the TAZ, quotes the ruling of the Rosh -- that with regard to witnesses who testify about the death of a woman's husband, we are not afraid that there are two men by that name, because of Igun.