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Gitin, 76

1) ON CONDITION THAT YOU NURSE MY CHILD

QUESTIONS: The Gemara poses a contradiction between our Mishnah and a Beraisa. Our Mishnah teaches that when a man stipulates that the Get he is giving to his wife should take effect only if his wife nurses his baby, she must nurse the baby for two years (for that is the normal time that a child nurses). The Beraisa, though, teaches that it is sufficient for the wife to nurse the child one day in order to fulfill the condition.

Rava answers that in the case of our Mishnah, the husband did not specify a duration of time. The Beraisa, on the other hand, is discussing a case in which the husband specifically said that his wife must nurse the child for at least one day in order for the Get to take effect.

Rav Ashi answers that the Mishnah and Beraisa are referring to the same case. Even if the husband did not specify a duration of time, the wife is obligated to nurse the child only for one day. When the Mishnah says that she must nurse the child for two years, it merely means that the one day that she nurses the child must be during the first two years of the child's life (for that time is the period during which a child nurses).

The Gemara questions Rav Ashi's answer from the Mishnah, which teaches that when the husband did not stipulate that the wife should nurse the child "for two years" but just that she should nurse the child (without mentioning any amount of time), if the child dies within two years, the Get is valid. Conversely, when the husband did stipulate that the wife should nurse the child "for two years," if the child dies within two years, then the Get is *not* valid.

According to Rava, the difference between these two cases is clear. According to Rav Ashi, though, why should the Halachah in the Reisha differ from the Halachah in the Seifa? What difference does it make whether the husband specified "for two years" or not? This is the Gemara's question on Rav Ashi.

Why is the Mishnah understandable according to Rava, and in what way does it refute the opinion of Rav Ashi?

RASHI explains that according to Rava, in the second case of the Mishnah, the husband must have intended to make a more stringent condition, because he added extra words (i.e. the words "for two years") which were not necessary, since she must nurse the child for two years in any case. We therefore assume that he meant that the Get should *only* take effect if the wife actually nurses the child for two years.

However, according to Rav Ashi, when the first case in the Mishnah says that when the child dies the Get is valid, it must be referring to a situation in which the mother did not nurse the child even for a single day (for otherwise, the Get would be valid, since the mother nursed the child for a day). Why, then, is the Get valid? Since the wife did not nurse the child at all, there is no reason to consider the condition fulfilled! This is the Gemara's question on the view of Rav Ashi.

The RASHBA asks a number of questions on the explanation of Rashi.

(a) According to the way Rashi explains the Gemara, the question on Rav Ashi is from the first part of the Mishnah (the Reisha), and it has nothing to do with the second part of the Mishnah (the Seifa). The Gemara, though, asks why does the Halachah in the Reisha differ from that of the Seifa, implying that the question on Rav Ashi is from the contradiction between the Reisha and Seifa! (See also MAHARAM SHIF, and MAHARSHA in Mahadura Basra.)

(b) Why must we assume that the Mishnah is referring to a situation in which the child died before the mother nursed him at all? Perhaps the Mishnah means that the child died before the mother nursed him for a full day; she did, though, nurse him for part of a day. Since she nursed the child for part of a day, we consider the condition to have been fulfilled!

ANSWERS:

(a) According to Rashi, the question is indeed from the second case of the Mishnah, from the contradiction between the Reisha and the Seifa. Had the Mishnah not recorded in the Seifa that the Get does not take effect if the child died before the mother started to nurse him, then it would have been possible to suggest that even if the mother does not nurse the child at all, the condition is considered to be fulfilled. This is because the main purpose of the condition was so that the father should not have to hire a nurse-maid for his child. Once the child dies, though, the father no longer needs someone to nurse the child. Therefore, it is as if he said in his condition that his wife has to nurse the child only if the child is alive. (This is the view of TOSFOS on 75b, DH Mes ha'Ben.) However, now that the Seifa teaches that this is not the case, and that we assume that the husband specifically wanted the wife to do something for him and to work for him before the Get takes effect, then the same should be true in the Reisha! This is the question on Rav Ashi. (Maharam Shif)

Why does Rav Ashi not learn like Rava, that since the husband added extra words in the Seifa, he meant to make the condition more stringent, and that is why the Get is not valid in the Seifa in the child dies, while in the Reisha, though, the Get should be valid?

The answer is that when the husband adds the words "for two years," he is being more stringent with regard to the amount of time that the wife must nurse the child. Since, in the Reisha, the wife must nurse the child only one day out of the two years, when the husband adds the words "two years," it must be that he is adding that she must nurse for the entire two years. However, there is no reason to assume that in addition to that requirement, the husband wants to add that the wife must actually nurse and not just be *ready* and *available* to nurse (such as in a case where the child dies and does not need the services of the mother). Therefore, with regard to the death of the child, the Reisha and the Seifa of the Mishnah should be identical.

(b) Rashi understands that when the Beraisa says that a wife must nurse the child for one day, it does not mean that she must nurse him for an entire day. Rather, it means that the wife must nurse the child for a part of one day, for any amount of time, even if it is less than one day. (TOSFOS 75b, DH u'Reminhu)

76b

QUESTIONS: The Gemara introduces a concern that should prevent us from allowing a Get to be delivered by a Shali'ach. This concern is referred to as "Shema Piyes" -- perhaps the husband appeased his wife (and no longer wants to divorce her). Because of this concern, the Gemara writes that when a man gives his wife a Get which includes a stipulation that it should not take effect until after twelve months have passed, the Get may not be used unless we have a way of knowing for certain that the husband did not appease his wife. (According to one opinion in our Sugya, this is necessary only if the husband was seen in the city of the wife sometime during the twelve months.) One way to know for certain that the husband did not appease his wife is by ensuring that the husband originally stipulated that he trusts his wife to testify whether or not he appeased her.

RASHI explains that the problem with the Get in a case where the husband might have appeased the wife is that he might have had relations with her before the time at which the Get took effect, and this will make the Get into a "Get Yashan." The Gemara earlier (25b) explains that the reason why the Chachamim invalidated a Get Yashan is because the date on the Get might predate the conception of a child born before the divorce took effect, and this will cause people to say that the child was born out of wedlock when he really is a completely legitimate child.

TOSFOS earlier (18b, DH Shema Piyes) asks a number of questions on Rashi's explanation.

(a) The Beraisa here teaches that in a case of a Get that takes effect after thirty days, where the husband was not together with his wife during that time, we are not afraid that the Get is a Get Yashan. The Gemara asks that we should still be concerned that "Shema Piyes," perhaps he appeased her.

However, since the Beraisa just said that there is no reason to be concerned that the Get is a Get Yashan, why is the Gemara concerned that he appeased her? It seems clear from the Gemara there that the concern for Get Yashan and for "Shema Piyes" are two completely different Halachos!

(b) According to Rashi, who explains that when the husband appeases the wife we are afraid that the Get might be a Get Yashan and the date of the Get might precede the date of the child's conception, why are we permitted to deliver the Get when the husband announces that he trusts his wife's testimony to say whether or not he appeased her? Even if he trusts her, *Beis Din* cannot trust her, and therefore Beis Din should be concerned for the welfare of a child who was conceived after the date written in the Get, despite the woman's testimony.

(c) If the problem of "Shema Piyes" is that the husband might have lived with his wife before the Get took effect, then how can this concern be applied in a case where the husband gives a Get stipulating that it should take effect in twelve months if he does not return before the twelve months have passed? If the husband was together with his wife, then the Gemara should be concerned not that the Get is a Get Yashan, but that it is annulled altogether, since by returning to his wife before twelve months have passed, the condition that he stipulated was not fulfilled and the Get cannot take effect at all!

ANSWERS:

(a) As Tosfos (ibid.) points out, Rashi here (DH Shema Piyes) answers this question by explaining that Beis Din certainly has no reason to be concerned that the husband clandestinely secluded himself with his wife and that the date in the Get will predate the conception of their child. However, we should be concerned that the husband -- in an attempt to frustrate his wife -- will come at a later date and try to invalidate the Get by *claiming* that he secluded himself with her and that the Get is a Get Yashan! Just like the Chachamim took precautions to prevent the husband from saying that the Get he gave is forged when he sends it from Medinas ha'Yam, they were also concerned that the husband should not be able to say that it is a Get Yashan.

(b) Tosfos continues and says that this answers the second question as well. We have no need to be concerned when the husband announces that he trusts his wife's testimony; since he gives her the power to override whatever he says, we are no longer concerned that he will claim that the Get is a Get Yashan (because he would be embarrassed to do so).

(Although there is an opinion in the Gemara on 79b that if the husband already divorced his wife with a Get Yashan, she is permitted to marry someone else l'Chatchilah on the basis of that Get, nevertheless Rashi there (DH Im Nisgarshah) explains that she may only get married on the basis of the Get when her husband has left to Medinas ha'Yam and she cannot get another Get from him. Our concern here is that the husband might claim that the Get is a Get Yashan and prevent her from marrying as long as he is in town. See also TOSFOS in Yevamos 14b, DH b'Get Yashan.)

(c) Tosfos explains that according to Rashi, when the husband makes a condition stating that the Get will take effect only "if I do not return within twelve months," his condition means that the Get will take effect only if he does not return *permanently* within twelve months. Coming back to visit during that time is *not* a contradiction to his condition and does *not* annul the ability for the Get to take effect after twelve months! Hence, the Get can take effect after twelve months if not for the problem of Get Yashan.

(RABEINU TAM in Tosfos (18b) suggests another approach to the Sugya of "Shema Piyes" because of these questions.)

QUESTION: The Mishnah says that when a man gives a Get on condition that it take effect retroactively if he does not return home within twelve months, and then he dies within those twelve months, the Get is valid. In the Gemara, Rebbi Elazar suggests that perhaps the Mishnah means that when the husband dies, the Get is valid but the wife may not remarry until twelve months have passed.

Since the Get takes effect retroactively, why should she not be able to remarry immediately? It is clear that the husband will not return, and therefore she retroactively will be divorced!

ANSWERS:

(a) TOSFOS (DH d'Ha) suggests that the requirement that the woman wait until twelve months have passed before she remarries is *mid'Rabanan*. The Rabanan were concerned that people who are not aware that her husband died will misunderstand why she married someone else within the twelve months. Therefore, the Rabanan instituted that she must wait until the twelve months have passed.

(b) The Yerushalmi here suggests that the logic is that we are afraid that a miracle will happen and the husband will come back to life. (The intention of the Yerushalmi may be that even if it seems clear to all that the husband is dead, we take into account the minute possibility that a mistake was made concerning the husband's state.)

Why, though, should we be more concerned that the husband will "come back to life" when he gives a Get with a condition, than when he dies without having given a Get to his wife (and he has children, or no brothers, and thus there is no need for Yibum)? Why do we let the woman remarry in such a case? Perhaps the husband will "come back to life!" Conversely, if, in a normal case of a woman whose husband dies, we rely on two witnesses who testify about the husband's death in order to remove the prohibition (Isur Kares) of Eshes Ish, then we should rely on them in the case of a Get given on condition as well!

The answer appears to be that the stipulation which the husband makes in the Get is dependent upon what the husband had in mind when he made the stipulation. Since the husband is only divorcing his wife in this case in order to release her from the obligation of Chalitzah, he would not want the Get to take effect if there exists a remote possibility that he is still alive. Therefore, he intends for the Get to take effect only after the twelve months pass, in order to ensure that he actually died.

(c) The RAMBAM (Hilchos Gerushin 9:11) writes that if the husband dies, the wife must wait until the twelve months pass "and the condition is fulfilled." The Rambam writes earlier (Hilchos Gerushin 8:21-22) that if the husband stipulates that the Get should take effect only on condition that his wife give him 200 Zuz before 30 days pass, and then the husband dies within those 30 days, then if there is a Yavam, the wife must wait until the 30 days pass before she may perform Chalitzah. If, however, the husband gives a Get with such a condition but does not stipulate a time limit during which the money must be paid, then the wife must perform Chalitzah (and she may not perform Yibum, since the Get is considered to be a Safek Get).

The logic that we mentioned to explain the Yerushalmi would not seem to explain the words of the Rambam regarding a Get that was given on condition that the wife give 200 Zuz to the husband within 30 days. The MAGID MISHNAH explains that the Rambam understands that every Get that is given with a condition is considered to be a Safek Get from the moment that the Get is given. In order for the Get to take effect or to be annulled, the condition that is written in the Get must either be fulfilled or annulled, respectively. It is only from the point at which the condition has been either fulfilled or annulled that we are able to have the Get take effect or become annulled retroactively. This is the Rambam's understanding of the concept of how a condition works. The Magid Mishnah praises the Rambam highly for this understanding of the concept of Tenai.

RAV GUSTMAN zt'l explained that the Magid Mishnah's view of the concept of Tenai, according to the Rambam, is an example of a Kinyan taking place "mi'Kan u'l'ha'Ba l'Mafrei'a." ("Mi'Kan u'l'ha'Ba l'Mafrei'a" means that at the time that the condition is fulfilled, the Get takes effect from then on, and although until that point the Get was not actually in effect, it is viewed from now on as if -- back then (between the time the Get was given and the time that the condition was fulfilled) -- the woman was divorced. That is, until the time the condition is fulfilled, the woman certainly was married. When the condition is fulfilled and the Get takes effect, the Get takes effect *as if* it had been in effect from the time that it was given. See Insights to Nedarim 52a.) This means that since the event that causes the Get to take effect or to become annulled retroactively happens at a later time (after 30 days, or after twelve months), we cannot consider the retroactive effectiveness, or annulment, of the Get until that event actually occurs. Only then, when the event occurs, does the Get take effect (albeit retroactively).