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Gitin, 66

1) A GIFT AND A GET AFTER DEATH

QUESTION: The Gemara compares the Get that a man gives to his wife when he is deathly ill to a gift that he gives under the same circumstances. Rebbi Aba asks that if we compare the laws of his Get to the laws of his gift, then we should also rule that just like his gift takes effect after his death, so, too, his Get should take effect after his death. The Gemara answers that it is impossible to compare the two with regard to taking effect after death, since a gift *can* take effect after one's death, while a Get cannot (with regard to other matters, though, we do compare the two).

What does the Gemara mean when it says that a gift can take effect after the benefactor's death? Once the benefactor is dead, he cannot give a gift, just like he cannot give his wife a divorce!

ANSWERS:

(a) REBBI AKIVA EIGER explains that although a gift cannot take effect after one's death, in this case the Rabanan made an enactment that it should take effect after his death. The Rabanan have the power to do so because of the rule, "Hefker Beis Din Hefker." In contrast, with regard to giving a Get after death, the Rabanan do not have the power to change a status of Isur (i.e. the woman's status of Eshes Ish, of being a married woman), and therefore they cannot create a Get that will take effect after the husband's death. Rebbi Akiva Eiger remains, though, with the question that although this is a clear distinction between a gift and a Get, the simple reading of the Gemara does not imply that it is making such a distinction.

(b) RASHI stresses that a Get cannot take effect after death since, when the husband dies, the wife is required to do Yibum (if they have no children) at the time of his death, at which time it is too late to divorce. The MAHARSHA explains that immediately at the time of the husband's death, the Yibum relationship (Zikah) takes place and there is no opportunity for the Get to take effect. In contrast, the acquisition of a gift can take effect immediately after the benefactor's death. According to this, then, there is a clear distinction between the ability of a gift to take effect after one's death and the ability of a Get to take effect.

However, the Acharonim ask that once a person dies, his heirs automatically inherit his possessions, right away. Why, then, can the gift take effect after death? As soon as a person dies, the item of the gift belongs to his heirs!

The answer might be that there is a basic difference between the Zikah of Yibum, which takes effect immediately at the time of the man's death, and the transfer of ownership of the man's inheritance to its heirs. When one dies, his possessions undergo a change of ownership. Under normal circumstances, his possessions are automatically transferred to his descendants. The enactment of the gift of a Shechiv Mera treats this gift like an inheritance for the recipient (see Bava Basra 149b, where the Gemara says that the Rabanan treat this gift like a Yerushah, and thus it does not work for a Ger, who has no Halachah of Yerushah). The Rabanan enacted that when one gives a Matnas Shechiv Mera, the recipient of the gift is treated like an heir, and thus the Yerushah process transfers the item to the recipient of the gift instead of to the other heirs.

With regard to Yibum, the law is that if one dies without children his marriage has never fully been terminated and she remains partly married to the brother of her deceased husband (see Rashi in Kedushin 4b, DH she'Chen). In such a case there is no opportunity for a Get to take effect after the husband's death (even if the Rabanan did have the power to change the status of an Isur), since the marriage automatically continues with the Yavam at the time of the husband's death, before the Get can come and create the divorce.

66b

QUESTION: The Gemara says that if a man sends a Shali'ach to sign a Get, the Shali'ach may not appoint someone else to sign it for him, because "words" ("Mili") cannot be transferred to another Shali'ach. RASHI and the RAN explain that words cannot be transferred by the first Shali'ach to a second Shali'ach, meaning that the Shali'ach cannot appoint another Shali'ach to sign the Get. In such a case, the Shali'ach is transferring the command that he received, which is just a transfer of words.

This implies that the first Shali'ach *can* be appointed as a Shali'ach for "words" as long as he does not transfer the task to another Shali'ach.

This, however seems to contradict the comments of RASHI later (71b, DH d'Omar) who says that the question of making a Shali'ach for "Mili," words, is whether a Shali'ach can be appointed at all to perform a mission which involves only words or speaking. Rashi implies that the question of making a Shali'ach for "Mili" applies even to the first Shali'ach! How does Rashi there understand our Gemara?

ANSWER: The CHESHEK SHLOMO answers that there are two issues in our Gemara. The first issue is whether "Mili" can be transferred to a Shali'ach. This involves a case in which one Shali'ach was appointed to sign a Get and afterwards he wants to transfer the command that he received to a second Shali'ach.

Second, there is the issue of "Omer Imru," where the sender appoints a Shali'ach to appoint witnesses who will sign the Get. In such a case the Shali'ach is not transferring *his* mission to a second party, but rather he is carrying out his mission! In this case, there is still a discussion whether such a Shelichus can take effect, since the entire mission of the Shelichus is nothing more than "Mili," words (to tell others to sign the Get). In other words, the issue of "Mili" involves whether or not words can be transferred from one Shali'ach to another, while the issue of "Omer Imru" involves whether a person can be appointed as a Shali'ach to carry out a mission which involves only words.

Based on this, the Cheshek Shlomo answers that Rashi later is explaining the Gemara according to the opinion that holds that "Omer Imru" is not an acceptable way of appointing a Shali'ach, and therefore the issue is whether one can become a Shali'ach at all for "Mili," whereas Rashi in our Gemara is explaining the discussion of "Mili" which is an issue of a Shali'ach transferring his Shelichus to a second party.

QUESTION: The Gemara says that a Shali'ach who was sent to write and sign a Get cannot appoint someone else in his place to carry out his mission, because he is a Shali'ach for a mission of "Mili," words, and "Mili" cannot be transferred to another Shali'ach. The Gemara in the beginning of the second Perek of Kidushin derives from verses that a person who was appointed to be a Shali'ach to bring or to receive a Get *may* appoint another Shali'ach in his place. Why is the case of our Gemara considered "Mili" and not the case of delivering a Get?

ANSWERS:

(a) RASHI here says that appointing a Shali'ach to deliver a Get in not considered "Mili" because the Shali'ach physically receives the Get from the husband and therefore he can transfer the Get to a second Shali'ach. In contrast, a Shali'ach appointed to write or sign a Get does not have anything tangible in his hands to transfer to the second Shali'ach.

(b) The TOSFOS RID in Kidushin says that a Shali'ach appointed to deliver a Get is not a Shali'ach for "Mili" because he is holding the actual document of the husband that must be delivered directly to the wife. In contrast to Rashi's view, according to the Tosfos Rid's logic, it is not enough for the Shali'ach to be holding any object that was given to him by the sender. Rather, he must be holding the object that will be used to create the transaction for the sender. (According to Rashi, appointing a Shali'ach to deliver money for Kidushin is not considered "Mili," while but according to the Tosfos Rid, it *is* considered "Mili" since the Shali'ach does not have to give to the bride the actual money that he received from the man, for he can give other coins (of the same value) and the Kidushin will still take place.)

(c) The KADOSH M'RADUSH quoted by the MORDECHAI in Kidushin says that as long as the Shali'ach does not have the power to complete the transaction, his appointment is considered "Mili." According to his logic, only a Shali'ach to deliver a Get is not "Mili" since the Shali'ach can deliver the Get even without the wife's consent, but a Shali'ach for Kidushin, who needs the bride's consent in order to give her the money, and a Shali'ach to write a Get, who does not have the power to create the divorce but merely to write the document of divorce, *are* considered appointments of "Mili."

(d) The RASHBA in Kidushin says that the Gemara in Kidushin is referring to a case in which the wife told the Shali'ach to appoint another Shali'ach for her. Such a case is not "Mili" but rather it is a case of "Omer Imru" (see previous Insight), and therefore the Shelichus is valid. (According to Rashi and the Tosfos Rid, we must say that the Gemara in Kidushin which says that a Shali'ach can appoint another Shali'ach is referring only to a Shali'ach appointed to *deliver* a Get. A Shali'ach appointed to *receive* a Get may *not* appoint another Shali'ach, since receiving the Get is considered "Mili.") (See also MORDECHAI to our Gemara.)