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Gitin, 64

1) THE REQUIREMENT FOR TWO PEOPLE TO WITNESS THE APPOINTMENT OF A SHALI'ACH FOR A GET

OPINIONS: The Mishnah states that when a woman appoints someone to be a Shali'ach to receive her Get, she must have a pair of witnesses who see her appoint the Shali'ach, as well as witnesses who see that the Shali'ach receives the Get from the husband.

We see from here that there is a requirement to have witnesses not only for the actual giving of the Get, but also for the woman's appointment of the Shali'ach who will receive the Get for her.

This requirement applies when the woman appoints a Shali'ach to receive her Get. When the *husband* appoints a Shali'ach to deliver the Get, does he also have to appoint his Shali'ach in front of witnesses?

(a) The RAMBAM (Hilchos Ishus 3:16) rules that the husband does not have to appoint his Shali'ach in front of witnesses. There is proof to this from the first Mishnah in Gitin, which says that the Shali'ach of the husband who comes from overseas and says that the Get was written properly is believed, and the Get is considered valid based on his testimony. The Gemara there explains why the Shali'ach is believed to say that the Get was written properly, but it does *not* explain why we believe the Shali'ach to say that he was actually sent by the husband. We see from there that there is no need for testimony of witnesses that he was appointed.

Regarding why the Shali'ach is believed to say that he was appointed as a Shali'ach to bring the Get (while the woman's Shali'ach to receive the Get needs witnesses to prove that he was appointed), the RAMBAM and RA'AVAD disagree. The Rambam learns that there is an essential difference between the Shali'ach who is giving the Get and the one who receives it. The one who gives the Get is not the final address, so to speak, of the Get. The finality of the Get occurs not when he gives the Get, but rather when the woman receives it. In contrast, a Shali'ach to receive a Get performs the final stage of the Get. When he receives it, it takes effect. Witnesses are necessary for the appointment of a Shali'ach only when the Shali'ach's mission involves an act that is a "Davar she'b'Ervah." Since a divorce is a "Davar she'b'Ervah," the word of the wife or husband is not sufficient; witnesses are necessary in order for the act to take effect ("Edei Kiyum"). The only Shali'ach whose act involves a "Davar she'b'Ervah" and who needs "Edei Kiyum" (see Kidushin 65b) is the final link that effects the Gerushin. The Shali'ach of the husband is not a "Davar she'b'Ervah" since the actual Gerushin takes effect only after it has left his hands. That is why only the Shali'ach who is appointed to receive the Get needs witnesses but the Shali'ach who is sending the Get does not require witnesses that he was appointed. Based on this, the RAMBAM learns that not only in the case of a Get, but also in the case of a Shali'ach to perform Kidushin (marriage), does the Shali'ach of the husband not need witnesses to testify that he was appointed as a Shali'ach.

The RA'AVAD disagrees and understands that only in the case of a Get do we say that there is no need for witnesses, since the Shali'ach is holding the document of the Get. In such a case we say that the fact that the document is in his hands is testimony that it was given to him by the husband (when a signed document serves as testimony, it includes testimony that the document was transferred properly). Regarding Kidushin, when the husband just gives money to the Shali'ach to deliver to the woman, we have no proof that the money was given to the Shali'ach by the husband (since there is no document involved), and thus it is necessary for witnesses to testify that he is an appointed Shali'ach. (See CHIDUSHEI RABEINU CHAIM HA'LEVI, Hilchos Gerushin 6:9, for a discussion of this issue.)

(b) The ROSH and RASHBA (in the beginning of the fourth Perek) quote a Yerushalmi that says that there indeed is a requirement for witnesses to see the appointment of the husband's Shali'ach to deliver the Get. The ROSH (beginning of Gitin) writes that the fact that the Shali'ach who comes from overseas to deliver a Get is believed to say that he was appointed by the husband even though he has no witnesses, is part of the rabbinical enactment to believe the Shali'ach. That is, the Rabanan enacted that the Shali'ach is not only believed to say that the Get was written properly, but that he is also believed to say that the husband appointed him as his Shali'ach.

QUESTION: The Gemara discusses a case in which a Shali'ach (a "Shalish," or third party) says that he received the Get for the sake of divorcing a man's wife. The husband says that he gave it to the Shalish as a deposit to watch for him but he did not intend that it should be given to the wife for divorce. Rav Huna says the husband is believed. Rav Chisda says that the Shalish is believed.

The Rishonim ask that if the husband's word is believed over the Shali'ach's word, then this completely undermines the enactment of the Rabanan discussed in the beginning of Maseches Gitin! The Rabanan enacted that the Shali'ach is believed to say that the Get was written properly. But if the husband is believed when he says that he did not give the Get to the Shali'ach in order to give it to his wife, then the Takanah of the Rabanan is meaningless!

ANSWERS:

(a) TOSFOS answers that Rav Huna holds that the husband is believed only when both the husband and wife are in the same town. In such a case, it is logical to say that if the husband would have wanted to divorce his wife, then he would have given the Get to her directly, without the use of a Shali'ach. Therefore, we believe the husband when he says that he did not intend to give the Get to the Shalish for the sake of divorcing his wife. In contrast, the Mishnah at the beginning of Maseches Gitin is referring to a case where the husband and wife are in two different cities. In such a case, it is more logical to say that the reason the husband gave the Get to the Shali'ach was because he wanted to give it to his wife (since the husband lives in a different city), and therefore we believe the Shali'ach.

(b) The RAN answers that our Gemara is discussing a case where the husband gave the Get to a Shali'ach *l'Kabalah* (a Shali'ach appointed to receive the Get on behalf of the wife). Only in such a case is there reason to believe the husband when he says that he did not give it for the sake of divorcing the woman, because, if he had intended to divorce her, he would have given it directly to the wife. The Mishnah in the beginning of Gitin is discussing a case of a Shali'ach l'Holachah (a Shali'ach appointed to deliver the Get to the woman). In such a case the above-mentioned reason not to believe the Shali'ach does not apply, since the husband might have wanted to give it specifically to the Shali'ach and not to his wife, because he did not want the divorce to take effect immediately.

(c) The RAN offers an alternate answer. It is possible to suggest that Rav Huna holds that the husband is believed only in a case where the Get is still in the hands of the Shali'ach and was not yet delivered to the wife. In such a case, it is logical to say that the Get was not given to the Shali'ach for the sake of divorcing the woman, and that is why the Get is still in his hands and has not yet been delivered. Once the wife has received the Get, though, from the Shali'ach, the husband is not believed anymore to say that he did not give the Get to the Shali'ach with intention that it should be used to divorce his wife. Therefore, in the Mishnah in the beginning of Gitin there is no concern that the husband will be believed, since the Get is immediately handed over to the wife, and once the Get is given to the wife the husband is not believed.

QUESTION: Rebbi Yitzchak rules that in the case of a man who appointed a Shali'ach to go and betroth a woman to him, and the Shali'ach died before he could return and tell the sender the identity of the woman whom he betrothed, the man is prohibited from marrying any woman in the world (lest the woman be a close relative to the woman whom the Shali'ach betrothed to him).

The fact that Rebbi Yitzchak rules that the man is prohibited from marrying any other woman in the world implies that only the man has such a prohibition, and we do *not* prohibit every *woman* in the world from getting married as a result of the doubt. However, if we prohibit the man from marrying and we do *not* rely on the fact that the majority of women in the world are permitted to him, then why do we permit any woman in the world to marry? We should be concerned that perhaps she is the woman who was married to the Shali'ach's sender!

ANSWERS:

(a) TOSFOS says that if the woman is an adult, then there is no concern that she is already married to a different man, because if she already accepted the Kidushin from the Shali'ach then she would not marry another man afterwards. Tosfos asks that we should still prohibit all women who were minors at the time the Shali'ach went to betroth someone to his sender, because a minor would not know whether or not her father accepted Kidushin on her behalf, and perhaps she is the one who is married to the sender of the Shali'ach!

Tosfos answers that, actually, according to the strict letter of the law, even the sender of the Shali'ach should be permitted to marry, since it is not certain that his Shali'ach actually carried out his assignment and betrothed a woman to him, and even if the Shali'ach did carry out his assignment, mid'Oraisa we should follow the majority and permit him to marry since a majority of the women in the world are permitted to him. The sender of the Shali'ach is prohibited to marry only as a result of a penalty decreed by the Rabanan for his negligence in sending a Shali'ach to betroth to him any woman whom the Shali'ach wants.

(b) The RAMBAN disagrees with Tosfos and says that there is no reason to assume that the Shali'ach did not carry out his assignment. The Ramban seems to understand that the rule of "Kavu'a" applies here. He explains that the reason why all women are permitted to marry is because every woman has a Chazakah that she was (at one time) not married, and thus we rely on this Chazakah and say that any woman who comes to get married is presumably not married. This Chazakah, though, only works to permit the women to marry; it does not permit the man who sent the Shali'ach to get married. He is prohibited from marrying any woman, because the reason why any given woman might be prohibited to him is not because she might already be married, but because her close relative might be married to him, and therefore she is prohibited to him. The Ramban explains that in such a case we cannot apply the rule of Chazakah, since there is a doubt about the marriage of the woman's relatives, while, on the other hand, those relatives are not the subject of the presenting question (but rather, the man who wants to get married, and the woman whom he wants to marry, are the subjects of the question). A Chazakah is not a logical proof to determine the truth about a situation ("Birur"), but rather it is a way of dealing with situations of doubt ("Hanhagah"). Hence, we can apply the concept of Chazakah only when we are actually dealing with the Halachic status of that which is in doubt. In this case, though, there is no Halachic discussion concerning the status of this woman's relatives, but only concerning the status of the woman herself.

64b