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Gitin, 78

1) THROWING A GET INTO THE WIFE'S BASKET WHILE SHE IS IN THE HUSBAND'S HOME

QUESTION: The Mishnah says that when a man throws a Get to his wife while she is standing in his home, she is not divorced, even if he is with her in bed. The Gemara infers that this applies only if it is his bed; if he throws the Get into her bed (or basket), then the Get is valid and she is divorced.

The Gemara asks why the wife's bed should be able to acquire the Get for her while she is in her husband's house. The Gemara in Bava Basra (85b) discusses the issue whether utensils of the buyer can acquire an item for the buyer when they are resting in the property of the seller. If the Mishnah here is saying that the woman *does* acquire her Get, then we should prove from here that the utensils of the buyer *do* acquire the items for the buyer, even when they are resting in the seller's domain.

The Gemara answers that the reason the bed is Koneh the Get for the woman is because the bed itself -- being more than ten Tefachim from the ground -- is a separate domain unto itself. Only the legs of the bed are occupying space in the husband's property below ten Tefachim, and the husband does not care about the legs of his wife's bed.

Regarding how the wife's basket is Koneh the Get for her while in the husband's domain, the Gemara gives several answers. One answer is that the Get is thrown into the basket while the basket is resting between her feet. Another answer is that the husband is a basket salesman who is Makneh the property upon which the baskets which he sells are resting.

RASHI (DH Bein Yarchoseha) explains that what all of these answers accomplish is that the husband does not mind the fact that the wife's bed or basket is resting on his property, and therefore he is Makneh that property to the wife. As a result, it is the *wife's* property on which her basket is resting, and not the husband's property, and that is why her basket can be Koneh the Get for her. Apparently, Rashi learns this from the wording of Rebbi Yochanan's answer, that "Makom Kalsah Kanuy Lah," the place where the wife's basket rests is *Kanuy* ("acquired") to her.

How, though, does the woman acquire the property beneath the basket? Even if the husband does not mind that she uses that property, his lack of opposition still does not grant her the *ownership* of the property. She must do a formal act of Kinyan (such as a Chazakah) in order to be Koneh the property as her own! (TOSFOS, Bava Basra 85b, DH Kegon)

In addition, if it is possible to be Makneh the property to the wife without an act of Kinyan, then why should we ever rule that the utensils of the buyer that are resting in the domain of the seller should not be Koneh for the buyer? Since the seller intends for the buyer to acquire the item that is being sold, the seller is obviously lending to the buyer the area underneath the buyer's utensil. Property that is loaned is considered like a person's own Chatzer with regard to Kinyanim (see Tosfos 77b, DH Mah she'Kansah)! Accordingly, the utensils of the buyer resting on the property of the seller should be Makneh the items to him!

ANSWERS:

(a) RABEINU GERSHOM and the Rishonim in Bava Basra answer that when the basket rests between the woman's feet, it is as if it is resting upon her body. Her body certainly is considered like her Chatzer, an independent and separate domain from the property of the person's domain in which she is standing.

With regard to the basket seller, Rabeinu Gershom explains that the Gemara means that the husband just sold a basket to his wife. Because she gave her husband the pleasure of purchasing the basket from him, the husband in return is Makneh to her the property upon which the basket is resting ("b'ha'Hi Hana'ah...").

Rabeinu Gershom seems to be referring to a Kinyan similar to a Kinyan Chalifin, in which one person who receives something from another person can be Makneh something else in return without doing any further action of Kinyan. (See Bava Metzia 47a, and Kidushin 7a.) Apparently, according to Rabeinu Gershom, the same would apply anytime a person buys a basket (or other item) that is resting on the floor of the seller's store (or home).

It is not clear, though, how Rabeinu Gershom explains the Gemara's answer with regard to the legs of the bed; how is the woman Konah the area underneath the legs of the bed?

(b) The RIVA, cited by Tosfos in Bava Basra, answers that even if the woman does not own the area underneath the legs of the bed, as long as the seller does not object, the utensils of the buyer can be Koneh. The reason the utensils of the buyer cannot be Koneh when the owner objects is because the utensils are Batel to the ground on which they are resting, and that ground belongs to the seller. However, when the seller does not mind, then the utensils are not Batel and they can be Koneh the item inside them for the buyer.

According to the Riva, what would be considered a case in which the seller is Makpid (objects)? Is it not obvious that when the seller is trying to sell something to the buyer, he gives permission to the buyer to put his utensils in his property?

The answer is that according to the Riva, the utensils of the buyer are Batel to the domain of the seller, unless the seller gives *unconditional permission* to the buyer to keep his item on the seller's property *any time* that he wants, and not just in order to accomplish the Kinyan. The momentary permission that the seller gives in order for the buyer to make a Kinyan does not suffice.

According to the Riva, when the Gemara states according to Rebbi Yochanan that "Makom Kalsah Kanuy Lah," it does not mean that the place where the basket is resting literally belongs to the wife. Rather, it means that a husband never minds when his wife keeps baskets on his property.

This may be the intention of Rashi as well. Even though Rashi writes that the area where a woman sits ("Bein Yarchoseha") is Kanuy to her, he might simply be using the wording of the Gemara, and he does not mean that the wife literally owns the property there. When Rashi adds that "until now (meaning when the Get was given), the area that was between her feet was Kanuy to her," he is emphasizing the point that we made above; that a utensil of the buyer can only be Koneh for him if the seller unconditionally allows the utensils to remain there, and not if he allows them to remain there only for the moment of the Kinyan itself.

(c) The KETZOS HA'CHOSHEN (189:1) writes (with regard to another point) that in order to acquire land through borrowing, through "She'eilah," it suffices to use the land for the purpose for which it was borrowed. It is not necessary to make a Chazakah of locking it up (like we saw on 77b). According to the Ketzos, the Gemara may simply mean that if a husband allows his wife to place her basket or bed on his property, then the moment that she places it there, she is Konah the area beneath it, b'She'eilah (through borrowing it), by using it as a place upon which to rest her basket or her bed.

(This clearly contradicts the explanation of Rabeinu Gershom and the Riva, who imply that the woman must make an actual Kinyan of Chazakah or Chalifin in order to gain true ownership of the land beneath the basket (as we saw in the previous two answers).)

According to the Ketzos, though, why should it be necessary for the Gemara to teach that the husband does not mind his wife's bed or basket resting on his property, and, as a result, she acquires the area from the moment that she puts her bed or basket there? Why do we not simply say that the husband wants his wife to be Konah the Get, and therefore the moment he throws the Get there, she is using the land as a place on which to rest her basket in order to receive the Get?

One answer might be that the Mishnah implies that the husband can even divorce his wife *against her will* by throwing the Get into her basket or her bed. If the woman did not own the land underneath the basket until the time that the Get was thrown, then if she says that she does not want to receive the Get, she is not acquiring the land underneath the basket! (See CHIDUSHEI RABEINU MEIR SIMCHAH in Bava Basra.) Therefore, the Gemara explains that the woman was Konah the area underneath the basket or bed at the moment that the basket or bed was placed there. Since she already owns that area, when the husband throws the Get there, she is Konah it against her will.

However, this answer will not suffice to explain the Gemara's question regarding whether the utensils of the buyer in the domain of the seller are Koneh on behalf of the buyer, because the Gemara is referring to a person who is purchasing a product willingly. Why do we not assume that when the seller sells something to the buyer, he gives the buyer permission to borrow the land underneath his utensil, and by filling up his utensil the buyer (who is borrowing the land of the seller) is making a Kinyan on the land through She'eilah (borrowing)? Likewise, the Gemara earlier (77b), in the case of the Shechiv Mera, required the woman to make a Kinyan Chazakah on the property underneath the Get, even though, as the RI explains, the husband only *lent* her the land underneath the Get. Why should she not be Konah the land by simply having her Get rest on it?

Perhaps we may answer that even according to the Ketzos, the borrower must do an *action* that shows he is using the land. Simply by leaving his utensil, or her Get, on the land is not sufficient because no action is being done. Therefore, the borrower can only be Koneh the land at the moment that he places his utensil there. At that moment, though, the seller was not yet Makneh to him the land b'She'eilah (if the buyer, however, picks up his utensil and then places it down again with intention to make a Kinyan She'eilah on the land, then his utensil *would* be Koneh the area for him).

This might also be the intention of Rashi, if Rashi means literally that the land is "Kanuy" to the woman.

QUESTION: The Mishnah teaches that a Get is valid if a woman finds it fastened to her husband's back and she takes it from there, as long as the husband afterward tells her, "Have your Get." The Gemara asks why does it help to say, "Have your Get?" It is comparable to a man who tells his wife to take the Get that is resting on the ground ("Teli Gitech m'Al Gabei Karka") which Rava teaches is not valid.

The Gemara answers that the wife pulled the Get from upon her husband's back. The Gemara asks that this fails to fulfill the requirement of "v'Nasan b'Yadah" (Devarim 24:1), since *she* is *taking* it and he is not giving it to her.

The Gemara answers that the husband first bent himself ("Arak Lei Chartzei") with the Get in the direction of his wife, and then the wife took the Get. Since he started the action of giving it over, it is considered as though he gave it and not that she took it.

Why does the Gemara change its wording in the second question? If the Gemara did not know that the husband moved himself closer to his wife, it should have asked that the original question remains, that it is still a case of "Teli Gitech m'Al Gabei Karka!" While it is true that the reason why the Get in a case of "Teli Gitech..." is invalid is because the Torah says "v'Nasan b'Yadah" as Rashi says, nevertheless, if the Gemara had to quote Rava to ask its first question, then it obviously did not assume that we would have learned this Halachah from "v'Nasan" had Rava not taught it. Hence, the Gemara should have again quoted Rava and asked that nothing has been gained by saying that the wife pulled out the Get!

In addition, since the Gemara seems to learn that "v'Nasan b'Yadah" is an obvious Derashah that needs no source, why did Rava have to teach that "Teli Gitech m'Al Gabei Karka" is not valid?

ANSWER: Without Rava's teaching, we might have thought that the requirement of "v'Nasan b'Yadah" means only that the wife cannot take the Get on her own, without asking the husband, even if the husband wants her to become divorced. If, however, the husband initiates the divorce by *telling* his wife to pick up the Get, then we might have thought that his statement alone satisfies the requirement of "v'Nasan." Rava therefore teaches that "v'Nasan" requires the husband to do an action of giving, and not just to tell the wife to pick up the Get.

If this is true, then the Gemara is very clear, as follows: Initially, the Gemara assumes that in our Mishnah, the giving, the act of "Nesinah," is accomplished by the husband saying, "Have your Get," and not by the wife taking the Get from her husband's back. The Gemara then asks on this understanding from Rava, who teaches that the husband's statement alone does not satisfy the requirement of "v'Nasan."

The Gemara then changes course and says that, indeed, a statement alone does not qualify as "Nesinah." The "Nesinah" occurs at the time that the Get is physically transferred to the wife. Saying "Have your Get" is necessary only in order to ensure that the wife realizes that she is divorced (as TOSFOS says in DH Eino Get), because if the wife does not realize that she is divorced, the Get is not valid.

To this, the Gemara asks that the *wife* is the only one who did an action, and not the husband, and therefore even without Rava's teaching it should be clear that the Get is not valid, because there is no act of "Nesinah" on the part of the husband!

The Gemara answers that the husband *does* do an act of physically delivering the Get to his wife -- this act is his act of bringing his body closer to the wife before she draws the Get from upon his body.

HALACHAH: It seems from our Gemara that the husband does not have to deliver the Get to the wife completely by himself, by physically handing it over to her completely. Rather, as long as he brings it closer to his wife, his wife could then take it from his hands.

The ROSH, however, cites RABEINU CHANANEL who explains that "Arak Lei Chartzei" does not mean just that the husband moved his body closer to the wife, but that the husband made the Get looser by withdrawing his stomach so that it would be easier for her to remove it from his belt. The Rosh writes that it may be inferred from Rabeinu Chananel that the husband must not only bring the Get closer to his wife, but he must also do an action of releasing the Get before his wife takes it. For example, the husband must stretch out his hand, and then open up his fingers, and then the wife may take the Get from his hand.

TOSFOS (78b, DH Im) raises another problem. If the wife takes hold of one side of the Get while the husband is holding the first side, then perhaps it will be considered a lack of Kerisus, just like when the husband is holding the end of a string that is tied to the Get in such a way that he could pull it out of his wife's hands. Even if his wife pulls the Get out of his hand, the Get will not be valid because *she* took it and *he* did not give it, for his act of bringing the Get closer was meaningless all the while that his hand was closed.

In practice, the Beis Din asks a woman to close her hand, and the husband folds up the Get and pushes it into the wife's closed hand so that she is holding the Get tightly, entirely through the action of the husband.

QUESTIONS: The Mishnah teaches that when the wife and husband are standing in a public domain and the husband throws a Get to his wife, if it lands closer to her she, she is divorced, and if it lands closer to him, she is not divorced. If it is halfway between them ("Machtzeh Al Machtzeh"), she is "Safek Megureshes" (only doubtfully divorced).

Rav explains that "Karov Lah," closer to her, means that the Get is within the wife's four Amos, and "Karov Lo" means that it is within the husband's four Amos. "Machtzeh Al Machtzeh" means that they are both standing within the same four Amos. The Gemara asks that the first person to have entered those four Amos should be Koneh! How can they both have the same four Amos? We cannot say that they arrived there at the exact same moment, because there is a principle, "Iy Efshar l'Tzamtzem," it is impossible for the two events to have happened simultaneously.

Rav Kahana answers that when the Mishnah says "Machtzeh Al Machtzeh," it means that the husband and wife are standing exactly eight Amos apart, and the Get is resting halfway between the two of them.

There are a number of questions on this Gemara.

(a) First, why does the Mishnah need to mention the four Amos of the husband altogether? His four Amos would seem to be no different than the same as anyone else's four Amos, or any area outside of the woman's four Amos! The Mishnah should say that if the Get is far from her (i.e. outside of her four Amos), then she is not divorced, and if it is half in her four Amos and half outside ("Machtzeh Al Machtzeh"), then she is Safek Megureshes, whether or not the husband is standing there! (RASHBA; see also MAHARAM SHIF)

(b) RASHI writes that according to Rav Kahana, when the Mishnah says that the Get is "Machtzeh Al Machtzeh," it means that the husband and wife are exactly eight Amos apart, not more and not less. This is indeed the implication of the words of the Gemara (beginning of 78b) which says that the Get "leaves his four Amos and enters her four Amos."

It is clear that when Rashi says "not more [than eight Amos apart]," he means that if the man and woman would be standing more than eight Amos apart (plus the width of the Get), the Get could not be resting in both his set of four Amos and in her set of four Amos at the same time. However, why can they not be standing *less* than eight Amos apart? For example, if they are six Amos apart, and the woman arrived there first, then when the Get rests four Amos away from her and two Amos away from him, it is half in his four Amos and half in her four Amos, even though they standing are less than eight Amos apart from each other!

(c) How can a woman acquire her Get through the Kinyan of "Arba Amos?" The Kinyan of Arba Amos is only a Kinyan mid'Rabanan, and hence mid'Oraisa a Get acquired through Arba Amos should not be valid! (We may ask the same question regarding Rebbi Yochanan's answer, who says that the wife is Konah the Get as long as she is able to protect it, even if it is a hundred Amos away from her. Since no other item can be acquired in such a manner, how can a woman be Konah a Get in such a manner?)

ANSWERS:

(a) The RASHBA and TOSFOS HA'ROSH explain that the Mishnah is teaching a new Halachah by telling us that when the Get falls in the husband's four Amos the woman is not divorced. It is teaching that when the husband arrived there first and the woman arrived afterwards, and now they are both standing in the same four Amos, if the husband throws the Get next to the wife, she is not divorced, because the four Amos are his. (This also seems to be the intention of the RAMBAM in Hilchos Gerushin 5:9.)

The TIFERES YAKOV suggests that the Mishnah is teaching an additional Halachah. The Mishnah is teaching that even when the Get falls in the husband's four Amos (that is, where the husband arrived first, as the Rashba explains), and then he leaves those four Amos and they become her domain (because she remains standing there), the Get is still not valid. We might have thought that the Get is valid just like the Get of the Shechiv Mera (77b), since it is transferred directly from the husband's domain to the wife's domain. The Mishnah teaches that the Get is not valid, since the husband is not *giving* the domain to his wife, but rather he is exiting the domain, making it like Hefker, and then she takes it for herself by remaining in those four Amos (and his permission is not necessary).

Regarding the Mishnah's case of "Machtzeh Al Machtzeh," the Tiferes Yakov and CHAZON ISH (147:1) write that the reason why the end of the Mishnah tells us that the other half of the Get was in the husband's domain is because if the other half of the Get was in Reshus ha'Rabim, the woman would indeed be divorced, just like the woman is divorced when she takes hold of one end of the Get and the other end is not in her hands.

This is problematic, though, because the Gemara in Bava Metzia (8a) implies that if part of an object (such as an item of Hefker) is resting on the ground and the other part is in one's hand, he is *not* Koneh the object. Hence, the woman should not be divorced when the Get is resting on the ground of Reshus ha'Rabim! This is what the Tosfos ha'Rosh writes here. Why, then, does the Gemara say that when the Get is half in his domain, it is not valid because it is "Agid Gabei," attached to him? The Gemara should have said that it is not valid because it is not entirely in her domain, and it makes no difference in whose domain the other half is resting! The Tosfos ha'Rosh writes that the Gemara indeed means not that the Get is in the husband's domain, but that the Get is not entirely in the wife's domain. This is also the implication of RASHI (DH v'Ha Agid Gabei).

Accordingly, when the Mishnah says that when the Get is "Machtzeh Al Machtzeh" she is not divorced, it really does not have to mention the husband's four Amos, because as long as the Get is partially outside of the woman's four Amos she is not divorced, no matter in whose four Amos the other half of the Get is resting. Apparently, the Mishnah discusses the Get being half in the husband's Reshus only because it mentions it being in his Reshus in the first case of the Mishnah.

(b) The reason why there must be exactly eight Amos and not less between the man and the woman is -- according to the TIFERES YAKOV -- because if there would be less than eight Amos between them, then the husband would not have a full four Amos for himself (if the wife preceded him there; nor would she have four Amos if he preceded her). Since he has less than four Amos, it is not considered a significant area (Makom Chashuv) and it becomes Batel to Reshus ha'Rabim. Therefore, the wife or the husband (whoever has less than four Amos) cannot be Koneh the Get. (This is based on the Chidush that the Tiferes Yakov says earlier, that if the husband does not retain ownership of the other half of the Get, but it is just resting in Reshus ha'Rabim, then the Get takes effect and the woman is divorced.)

Another possibility is that the same Halachah would indeed apply if they were closer than eight Amos from each other. However, the Gemara is looking for a case where both the wife and the husband each have a full four Amos, so that it will be similar to the case in the beginning of the Mishnah, and so that the words "Machtzeh Al Machtzeh" (half and half) will apply (since each one has half of the area between them).

(c) Regarding why the Kinyan d'Rabanan of Arba Amos, or the fact that the woman is able to guard the Get from a hundred Amos away, is sufficient for the Kinyan of a Get, TOSFOS in Bava Metzia (10a, DH Arba Amos) and the ROSH here write that the Rabanan instituted that a woman is Konah a Get with her Arba Amos in Reshus ha'Rabim "Mishum Iguna," because the husband might disappear and she will not be able to get another Get from him. Tosfos adds that the Takanah of Kinyan Arba Amos was made only to be Koneh a Metzi'ah (an item that was found), so that people not fight over it, and to be Koneh a Get "Mishum Iguna," because of the concern of Iguna. In all other situations, Arba Amos is not Koneh.

It seems from Tosfos that once the Rabanan were Makneh to the woman the four Amos around her, that area becomes like her Chatzer, mid'Oraisa, and therefore she can become divorced mid'Oraisa through the Kinyan that the Chatzer effects.

However, this does not apply to the situation where the woman acquires the Get if she is able to guard the Get even when it is one hundred Amos away. In that situation, the Rabanan did not say that the area that the woman could guard is considered her Chatzer. The ROSH here writes that this was a special Takanah d'Rabanan that we apply, saying "Afka'inhu Rabanan l'Kidushin," when the Get is resting in a place where she can guard it, because of Iguna, according to Rebbi Yochanan. The RAN adds that the Takanah was made "b'She'as ha'Shemad," when the Nochrim made a Gezeirah not to give one's wife a Get.

The PNEI YEHOSHUA suggests that just like "v'Nasan" teaches us that the Get does not have to literally fall into the wife's hand (as in the Gemara on 77a), it teaches that it does not have to fall literally into her Chatzer. Any area in which she can guard the Get satisfies the requirement of "v'Nasan," even though it cannot be Koneh the Get for her. (According to this, the same should apply to a thief; he should be Koneh the item if it is in a place that he can protect, even though that place does not belong to him. Moreover, according to this explanation, the Halachos of Get are apparently *not* the source of Kinyan Chatzer.)

78b