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Gitin, 73

73b

QUESTIONS: The Gemara cites a Beraisa which teaches that when a man divorces his wife and then is found living together with her, "we are afraid that Z'nus occurred, and we are not afraid that Kidushin occurred."

RASHI asks what problem would be created through Z'nus for which the Beraisa must say that "we are *afraid* that Z'nus occurred?" With regard to marrying a Kohen, her act of Z'nus will not prohibit her to a Kohen because she is already prohibited to marry a Kohen because of her status as a Gerushah, a divorcee. With regard to eating Terumah if she is the daughter of a Kohen, Z'nus will not prohibit her from eating Terumah, because the daughter of a Kohen becomes prohibited from eating Terumah only if she had forbidden relations (such as with a Mamzer), but here she had relations with a single man who was not prohibited to her.

Rashi answers that when the Beraisa says that we suspect Z'nus, it does not mean that there are problems created because of the Z'nus. Rather, it means that we suspect that there was Z'nus and *not* that Kidushin took place (see RASHASH).

If Rashi maintains that a woman can only become a Zonah through forbidden relations, then why does he have to explain that Z'nus does not prohibit her to a Kohen because she is a Gerushah? He should have said that Z'nus cannot prohibit her to a Kohen because this act is not an act that is forbidden and thus it does not make her a Zonah! (REBBI AKIVA EIGER)

(b) Second, why does Rashi insist that a woman becomes a Zonah only through forbidden relations? The Gemara in a number of places mentions the opinion of Rebbi Elazar (Yevamos 63b) that even when a unmarried man has relations with an unmarried woman ("Panuy ha'Ba Al ha'Penuyah she'Lo l'Shem Ishus"), this makes the woman a Zonah! (Ibid.)

ANSWER: REBBI AKIVA EIGER suggests that one question answers the other. Rashi holds like TOSFOS in Yevamos (69a, DH Lo) who explains that even Rebbi Elazar only considers a "Panuy ha'Ba Al ha'Penuyah" to be a Zonah regarding her ability to marry a Kohen afterwards, but not with regard to her ability to eat Terumah; she is still permitted to eat Terumah. Therefore, Rashi must explain that she is already prohibited to marry a Kohen because she is a Gerushah, for otherwise the Beraisa might be making her a Zonah because of her act of Bi'ah with a Panuy. However, with regard to eating Terumah, Bi'as Penuyah cannot make her a Zonah.

QUESTIONS: The Mishnah earlier (72a) explains that if a man divorces his wife with the condition that the Get should take effect from today, retroactively, if he dies as a result of the illness from which he is suffering, then the Get takes effect retroactively if he dies due to that illness. The next Mishnah (73a) continues and says that Rebbi Yehudah and Rebbi Yosi argue about the status of the woman before the husband dies. Rebbi Yehudah says that she has the status of a full-fledged Eshes Ish until the husband dies, and Rebbi Yosi says that she is "divorced and not divorced."

RASHI (DH k'Eshes Ish, and DH u'Meshani) explains that the second Mishnah is discussing a different situation than the first Mishnah. In the case of the second Mishnah, the husband did not stipulate that the Get should take effect retroactively from the moment that it was given, but rather that it should take effect retroactively from the moment before the man dies. Rebbi Yehudah maintains "Yesh Bereirah" -- that such a Tenai is valid even though the man did not know whether, or when, he would die; the condition is still valid and the Get can take effect retroactively based on future circumstances. Rebbi Yosi, though, maintains "Ein Bereirah," and since at the time the Get was given it was unknown whether the husband would die the next minute, the Get will take effect out of doubt from that moment onward. Even though the man did not die afterwards, we cannot conclude that the Get certainly did not take effect at the present moment based on a future event (the fact that the man did not die), because "Ein Bereirah."

A Beraisa adds that even according to Rebbi Yosi, the Get is only a Safek Get if the man actually dies due to his illness. If he recovers from the illness, then even Rebbi Yosi agrees that the Get does not take effect at all. TOSFOS (DH Tana) and all the other Rishonim ask a number of very strong questions on Rashi's explanation.

1. RASHI is teaching that those who maintain "Ein Bereirah" will rule that when a Get is made conditional upon a future event, the Get takes effect out of doubt and the woman is considered to be Safek Megureshes, doubtfully divorced. Why is that? According to the opinion that maintains "Ein Bereirah," the woman should not be Megureshes at all! Since it is impossible to know at the time the Get was given whether or not it will take effect, we should rule that it does *not* take effect, as the Gemara implies in Eruvin (37b)! The Gemara there teaches that according to the opinions that rule "Ein Bereirah," if a person places an Eruv Techumin two-thousand Amos away from his house and says, "Any Shabbos during which I decide to use the Eruv, I want this to be an Eruv Techumin retroactively from the beginning of that Shabbos," the Eruv is not valid. If "Ein Bereirah" means that we are not sure whether or not the Kinyan took effect, as Rashi here says, then the Gemara there should have taught that if the person decides, on Shabbos, that he wants the Erev to be his Eruv, it should be a *Safek* Eruv (and, consequently, he should not be able to walk in the opposite direction of the Eruv, nor past the point of the Eruv)!

2. If Rebbi Yosi maintains "Ein Bereirah," then even if the husband recovers from the illness, it should still be a Safek Get, because at the time that the Get was given it was impossible to know whether or not he would recover. Why, then, does the Beraisa teach that if he recovers, everyone agrees that it is not a Get?

3. Rebbi Yosi does not argue with the Tana in the earlier Mishnah, regarding the case of a man who divorces his wife with a condition such that the Get will take effect retroactively from the day that the Get was given ("me'ha'Yom..."). He only discusses the ruling of the second Mishnah, regarding one who divorces his wife retroactively from the time immediately before his death. If Rebbi Yosi maintains "Ein Bereirah," as Rashi asserts, then the Get should not take effect even if he says "from today," because the Gemara (on 25b) says explicitly that in the case of "me'ha'Yom Im Mesi" the Get is valid only because of Bereirah! (See RASHI there, DH Mah Hi, and DH u'l'Chi Mayis.)

4. TOSFOS (DH Tana) explains Rebbi Yosi's Safek differently. Rebbi Yosi maintains "*Yesh* Bereirah." However, Rebbi Yosi is uncertain whether the words "me'Es she'Ani ba'Olam" ("from the time that I am still alive") mean that the Get should take effect retroactively from the time that it was given, or retroactively from a moment before the husband's death. Therefore, during the period between when it was given and when the husband dies, the woman will be Safek Megureshes.

Rashi himself (74a, DH Be'ilasah Teluyah) agrees that there is a Tana who maintains that "from the time that I am still alive" refers to the time when the Get was given. Why, then, does Rashi not explain here like Tosfos, that Rebbi Yosi is uncertain whether that Tana is correct or whether Rebbi Yehudah is correct, and that is the cause of his Safek? (CHIDUSHEI HA'RAN)

ANSWERS:

(a) The TOSFOS HA'ROSH suggests a different reading of Rashi which answers all of the questions. When Rashi says that according to Rebbi Yosi the Get takes effect mi'Safek, out of doubt, because of "Ein Bereirah," he is not referring to the normal situation of Bereirah that the Gemara discusses earlier (25b) and in other places. Rebbi Yosi holds that Bereirah, in the normal sense, does work, and "Yesh Bereirah." Rather, Rashi means that if the woman has relations with another man before her husband dies, then she must bring a Korban Ashum Taluy (and not just a Korban Chatas (which is brought for a definite transgression), which is less expensive than an Asham Taluy), just like a person who did a Safek Aveirah, an act that might have been an Aveirah, even if her husband ends up dying later (not at the next moment) and retroactively she was not divorced.

He explains that Rebbi Yosi's logic is that if a person eats a piece of fat, the status of which is in doubt, and he does not know whether it is Kosher fat or whether it is non-Kosher fat, and then -- before he brings a Korban Asham Taluy -- he discovers that it was actually non-Kosher fat, then he is exempt from bringing an Asham Taluy (and it suffices to bring a Chatas), because the non-kosher fat never had an opportunity to become Kosher; it was unequivocally prohibited, and there was no possibility that it could have been Kosher. However, when another man lives with this woman, at that moment it is possible that the act indeed will not be a sin, based on the future circumstances. For such an act, an Asham Taluy must be brought even though Bereirah reveals that the woman was *not* divorced at the time of the act, since -- at the time that he did the act -- the act could have become permissible, retroactively. (The Tosfos ha'Rosh might mean that the Torah deals more stringently with a Safek Aveirah than with a Vadai Aveirah; see TALMIDEI RABEINU YONAH, beginning of Berachos. Consequently, if the Aveirah can be viewed as a Safek, a Chatas does not suffice. Alternatively, the Tosfos ha'Rosh might mean that since we view this as a Safek Aveirah, she must bring *both* a Chatas *and* an Asham Taluy, since it has elements of Safek Aveirah and of Vadai Aveirah; see TOSFOS HA'ROSH, DH Tana.)

This answers all of the questions on Rashi. Rashi is not discussing Bereirah at all, and therefore this Sugya does not contradict any of the other Sugyos of Bereirah.

Why, though, does the woman not bring an Asham Taluy if the husband does not die from the illness? Even if he does not die, the possibility existed that he might die the next moment and therefore it should be a Safek Aveirah and not a Vadai Aveirah! The Tosfos ha'Rosh answers that if the husband does not die, then the stipulation he made was not fulfilled, and the Get does not take effect in the first place, and therefore the Tenai can be ignored; it is as if he never gave a Get in the first place.

(b) If, however, we take Rashi's words literally and understand that he is referring to the normal case of Bereirah (see also RASHI in Chulin 14a, DH Osrin, who says that those who hold "Ein Bereirah" hold that the Kinyan takes effect mi'Safek), then Rashi's approach seems to be as follows: Rashi holds that even if we rule "Ein Bereirah," the Kinyan still takes effect, but the details which were dependent upon the outcome of the future event remain in doubt. For example, in a case where a person had two fruits in front of him and he said, "If it rains tomorrow, the one on the right will be Terumah, and if it does not rain tomorrow, the one on the left will be Terumah," most Rishonim say that neither fruit is Terumah, because "Ein Bereirah" dictates that a present Kinyan cannot be made dependent on a future event. Rashi, however, says that one of the fruits is Terumah, but it remains in doubt which one is Terumah. The change of status is effected, but the details which were dependent upon the future event remains in doubt, even when the future event occurs.

Hence, Rashi holds that when a Kinyan is made dependent on a future event, it is not really dependent on what actually happens in the future (since the Kinyan must take place *right now*). Rather, it is dependent on what *is destined to happen* in the future, at this point in time. Therefore, even if it does rain tomorrow in the above example, according to Rashi those who rule "Ein Bereirah" maintain that we cannot know on the previous day -- when the condition was made -- that *it was destined* to rain tomorrow or not. (TOSFOS Eruvin 37b, DH Ela, cites a similar ruling in the name of MAHARI. This is also the opinion of the YAM SHEL SHLOMO in Bava Kama, Perek 5, section dealing with Bereirah. See also CHIDUSHEI REBBI AKIVA EIGER in Ma'arachah #4, on Eruvin 38a, DH v'Nir'eh d'Vein; we discussed this further in our Insights to Eruvin 37:1:c.)

Why, in the case in Eruvin, do we say that the Eruv does *not* take effect when the person decides on Shabbos to use it? It should take effect mi'Safek! The KEHILOS YAKOV (19:1) quotes the KESONES PASIM who explains that even Rashi only considers it a Safek if a person makes a condition that leaves a number of different possibilities for how the Kinyan should take effect. For example, in the case of our Mishnah, the Get could take effect at this moment, or at the next moment, or at the next moment. Therefore, we say that it takes effect mi'Safek from the first minute onward. In contrast, in the case of the Eruv, where the person makes only a single Eruv and says that either it will or will not take effect based on what he decides later on Shabbos, the Erev does *not* take effect mi'Safek.

Logically, though, the difference between these cases is difficult to reconcile. Perhaps he is referring to the reasoning that the Gemara proposes that "a person does not put himself into a situation of Safek" by making ambiguous statements that can be interpreted in more than one way (see Nedarim 61a and Background there (#4)), which means that a person would not accept an obligation in the first place if he knew that he would only create a questionable, Safek obligation. Because of this principle, if a person makes an Eruv conditional on his decision to use it during Shabbos, then if we hold "Ein Bereirah," we may assume that he did not intend that the Eruv take effect at all in order to avoid having a Safek Eruv.

However, if a person separates Terumah and he leaves it up to Bereirah to determine which of the fruits will be Terumah and which will be Chulin, then if the Terumah takes effect on one of the fruits, it is not a Safek Terumah, but rather it is a Vadai Terumah, and it permits the fruits to be eaten by a Kohen. Since the separating of the Terumah accomplishes the goal of the person who separated it (by removing the Isur of Tevel from the fruits), therefore the person who separated the Terumah is not bothered by the fact that he does not know exactly which fruit is Terumah. It is still better than having Tevel. The same applies when a person divorces his wife in order to exempt her from Chalitzah, but we are unsure of the moment at which the divorces takes effect.

(According to this, even if a person makes an Eruv Techumin in both the east and the west, and he leaves it up to Bereirah to determine whether his Eruv will be in the east or in the west, then even though there are two different possibilities for where the Eruv will take effect, we will not say that the Eruv takes effect mi'Safek. If it were to take effect mi'Safek, it would not accomplish anything for the one who made it, other than limiting -- because of the Safek where it is -- the distance that he was already permitted to travel.)

An important question on the assumption of the Kesonos Pasim is that he is assuming that in our Mishnah, the person certainly wanted the Get to take effect but left up to Bereirah the moment at which the Get will take effect. However, from the Gemara that says "u'Vilvad she'Yamus" (as long as he dies) and from Rashi here (beginning of 73b) who mentions that "me'Es she'Ani ba'Olam *Im Mesi*," it would appear that the person did not give the Get with intention that it definitely take effect, but he left open the possibility that if he recovers from the illness, the Get will not take effect at all. Accordingly, the case of our Gemara should be similar to the case in Eruvin, where the possibilities are that the Eruv will either take effect or will not take effect and we rule that it does not take effect even mi'Safek.!

Perhaps, then, we may answer this question of Tosfos by simply saying that according to Rashi, when the Beraisa in Eruvin says that according to the Chachamim (who maintain Ein Bereirah) the Eruv is not valid, it only means that the Eruv is not a *Vadai* Eruv. It is, however, a *Safek* Eruv, just like the Get in our Sugya is a Safek Get according to those who maintain Ein Bereirah.

How will we answer the third question though: why does Rebbi Yosi not argue with the Tana Kama with regard to the Halachah of "me'ha'Yom Im Mesi?" Even if, as the Kesones Pasim suggested, he does not rule that the Get takes effect *mi'Safek* in that case (since the Get has only one time at which it can take effect, and not a number of different possibilities), he should argue with the Tana of the Mishnah and rule that the Get does not take effect *at all*!

The answer to this question seems to be that according to Rashi in our Sugya, any Tenai in which there are only two choices (i.e. the Kinyan either *will*, or *will not*, take effect), is *not* dependent on Bereirah. Bereirah means that we are not sure *how* the Kinyan will take effect; e.g. will [the Terumah] take effect on this object or another, will [the Get] take effect at this time or another. That is why Rebbi Yosi, who holds Ein Bereirah, only argues with Rebbi Yehudah in the case of the Seifa, since we are not sure *when* the Get takes effect -- it may take effect on any one of the days between the day it was originally given and the day the husband actually dies. In the Reisha, though, Rebbi Yosi agrees that the Get is valid if the husband dies. Since the Get must either take effect at the time it was given or not at all, the rule of Ein Bereirah is not invoked and the Tenai is a valid one.

TOSFOS (25b DH ul'Chi) in fact mentions this logical distinction between a yes/no Tenai and Bereirah, but he rejects it (based on the Sugya on 25b). However the RAMBAN and ME'IRI (ibid.) do make this distinction, and it is possible to suggest that Rashi in our Sugya does as well.

What about the Beraisa in Eruvin, in which the Chachamim argue with Rebbi Shimon regarding a person who allows himself to choose, in the middle of Shabbos, whether the Eruv Techumim he put aside before Shabbos *is* valid, or *is not* valid? Since the question is one of "yes" or "no," it should not depend on Bereirah. The answer is that Eruv Techumim is different from other Kinyanim (such as the giving of a Get). The "Kinyan" of the Eruv is not the simple fact that it gives its owner permission to walk another 2000 Amos. The Eruv accomplishes a "Kinyan Shevisah," i.e. it "acquires" for its owner a "place of residence," or "home base," from which he may walk 2000 Amos in any direction. But if there is *no* Eruv Techumim, the owner *still* acquires a "place of residence"; a Kinyan Shevisah. His Kinyan Shevisah is in the place that he finds himself Bein ha'Shemashos. When we look at it this way, it becomes evident that the rules of Bereirah *should* apply to Eruv Techumim, since the question we are trying to determine is whether the Shevisah is *here* (in his house) or *there* (where the Eruv Techumim is resting).

And what of the Gemara on 25b, which clearly concludes that even a simple yes/no Tenai is considered Bereirah (see Rashi and Tosfos there DH ul'Chi Mayis)? (See how the Ramban there answers this question, cited in the Insights to 25:2:b. The Me'iri suggests that the Sugya did not seriously mean what it said.) The answer is that according to Rashi, the view of the Gemara on 25b is *not* agreed upon by all. Rashi understood that the Gemara here argues with the Gemara on 25b over this point!

How does that help us? Even the Sugya on 25b will have to explain the words of our Mishnah in some manner! Why, according to that Sugya, did Rav Yosi only argue with the Seifa of the Mishnah, and not with the Reisha (i.e., "this shall be a get *from now* if I die from this illness)?

Rashi on Daf 25b (DH Mah Hi; see Tosfos DH ul'Chi) answers this question by suggesting that the Gemara there understood the Mishnah of "Mah Hi b'Osan ha'Yamim" differently that our Gemara understood it. The Gemara was apparently no aware of the Beraisa that says the argument between Rebbi Yosi and Rebbi Yehudah applied to a situation in which the husband indeed died from his illness. Instead, the Gemara understood that the argument applied to a situation in which the husband *is still alive*, and we have yet to find out whether he will die or recover. Rebbi Yehudah holds that the rules of Chazakah allow us to treat his wife as a full-fledged Eshes Ish. Rebbi Yosi argues that she is looked at as Safek married, Safek divorced (since an action was done to effect divorce; see Insights to 28:2:a). Both Rebbi Yehudah *and* Rebbi Yosi, then, hold Yesh Bereirah, according to the way the Gemara on 25b learns our Mishnah. Our Gemara, though (based on the Beraisa which insists that the husband *already* died), understands the argument between Rebbi Yehudah and Rebbi Yosi differently.

How will we answer the second question according to Rashi: why is the Get not a Safek Get if the person recovers (according to Rebbi Yosi)? Since Rebbi Yosi maintains "Ein Bereirah," the Get should remain in doubt, regardless of what happens in the future! To answer this question, we may point out that it seems from Rashi here and from Rashi earlier (26a, DH Lo Ratzah) that "Ein Bereirah" only creates a Safek regarding the Kinyan if the Tanei is *fulfilled*. However, if the condition is not fulfilled, then even if we maintain "Ein Bereira," the Kinyan is certainly not valid and we have no doubt that the Kinyan might have taken effect. The reason for this seems to be that the Torah teaches that a Tenai stipulated in a Kinyan has the abuility to retroactively annul a Kinyan that was made. Therefore, at the time that the condition is not fulfilled, any Safek Kinyan is retroactively removed from that point on! Since the circumstance which caused the stipulation not to be fulfilled has already occurred, Bereirah does not have to be invoked in order to positively remove the Kinyan.

This also explains why a Tenai that the person is able to fulfill and intends to fulfill is not considered Bereirah (Rashi 25b, DH u'l'Chi Mayis). Since the person intends to fulfill the Tenai we assume that he wants the Kinyan to take place for certain. It is not questionable whether or not he wanted the Kinyan to tak place, and therefore Bereirah is not necessary. Later, when he does not fulfill the condition, then the Tanai can retroactively revoke the Kinyan.

(According to what we have said in the previous few paragraphs, this is even more clear; our Sugya holds that a Tenai can bind a Kinyan to a future event, as long as it is only making or breaking the Kinyan.)

The reason why Rashi does not explain like Tosfos and say that Rebbi Yosi is not sure whether "me'Es she'Ani ba'Olam" means the moment before his death, or it means the present moment (when he makes that statement), is because of the Beraisa that teaches that Rebbi Yosi only considers a Get to be a Safek Get if the husband dies. According to Tosfos, the Beraisa should not have to teach this Halachah, for it is obvious that if the husband does not die the Tenai was not fulfilled, and thus how could the Get take effect either "me'ha'Yom" (from the day he makes his condition) or from the moment before he dies? Tosfos maintains that Rebbi Yosi rules "*Yesh* Bereirah," and thus the Get can *only* take effect if the husband dies, for his death clarifies that the Get was indeed a valid Get! (See TOSFOS HA'ROSH, who is bothered by this question).

Rashi therefore explains that Rebbi Yosi maintains "Ein Beteirah," and thus the Beraisa is teaching an important Chidush. It is showing that even those who maintain "Ein Berirah" agree that the Get will not be a Safek Get if the husband remains alive, for the reason that we explained above -- that a Tenai can retroactively remove a Kinyan. (M. Kornfeld)