QUESTION: The Mishnah says that a Chacham who made a woman prohibited to her
husband by not annulling her Neder is not permitted to marry that woman, out
of fear that he had improper motives when he prohibited her to her husband.
However, if a woman did Mi'un or Chalitzah in front of the Chacham, then he
may marry her, because Mi'un and Chalitzah may be done only in front of Beis
Din of three Dayanim, and therefore there is no fear that all three Dayanim
had improper motives when they permitted the woman to marry others.
Why does the Mishnah omit the most obvious case -- the case of a Get? The
Mishnah should include the case of divorce together with Mi'un and Chalitzah
and say that if a woman received her Get in front of a Chacham, she may
marry him, because it was done only in front of a Beis Din, and an entire
Beis Din is not suspected of having improper motives!
ANSWER: The PERISHAH (Even ha'Ezer 12:8) says that we see from this Mishnah
that a Get does *not* have to be done in front of a Beis Din. It needs only
be given in front of two witnesses. Since the Chacham contributes nothing to
the efficacy of the Get, for it would take effect without him, the Mishnah
has no need to include it in the cases in which it is the Chacham (or Beis
Din) who causes the woman to become permitted to marry others.
Whether or not the procedure of a divorce must be executed in the presence
of a Beis Din or not is the subject of considerable discussion among the
Acharonim. Most notably, the NODA B'YEHUDAH (Even ha'Ezer 2:105, 114, 118)
issues a novel ruling that a Get must be given over in front of a Beis Din.
His ruling is based on several proofs. First, the OR ZARU'A rules that a Get
may not be given at night. The Noda b'Yehudah asserts that the reason for
this is because giving a Get requires a Beis Din, and since Beis Din does
not convene at night, a Get cannot be given at night, but only during the
day.
Second, he adduces support from the words of RASHI in Sanhedrin (2a, DH
Mi'unin), who says that the reason Mi'un must be done in front of a Beis Din
is because every Takanah enacted by the Rabanan was made with the same laws
and conditions as the Halachah d'Oraisa upon which their Takanah was based.
That is, when the Rabanan enacted the Takanah of Mi'un, they made it similar
to the Halachah d'Oraisa of Get. Hence, Rashi is saying that Mi'un must be
done in front of a Beis Din because a *Get* must be given over in front of
Beis Din.
Third, others (see URIM V'TUMIM 9:2) cite the TARGUM YONASAN on the verse,
"v'Kasav Lah Sefer Kerisus" -- "he shall write for her a deed of separation"
(Devarim 24:1), who interprets the verse to says that "he shall write the
Get *in front of Beis Din*."
These sources indicate that a divorce requires a Beis Din in order to take
effect. However, the Acharonim point out that it does not seem to make sense
that a Get should require a Beis Din, because there is an entire Masechta
(Gitin) dealing with the topic of divorce, as well as many chapters on the
topic in the Shulchan Aruch, and yet no one before the Noda b'Yehudah
mentions that a Get needs to be done in Beis Din! On the contrary, the
Gemara in a number of places makes the statement, "D you think that everyone
who divorces his wife does so in front of Beis Din?" (Bava Basra 174b,
Erchin 23a).
While the Noda b'Yehudah addresses these questions, the Acharonim reject his
proofs that a Get should be done in front of Beis Din. First, they write
that the reason a Get may not be given at night has nothing to do with the
requirement of convening a Beis Din only during the daytime, but is due to
other reasons (see BEIS SHMUEL EH 123).
Second, the PISCHEI TESHUVAH suggests that when Rashi in Sanhedrin says that
Mi'un must be done in front of Beis Din because "k'Ein d'Oraisa Tikun," he
does not mean that the Takanah of Mi'un is like the Halachah d'Oraisa of
Get, but rather that it is like the Halachah d'Oraisa of a *Get Me'usah" --
a forced Get which the husband gives against his will. Such a Get must be
given in front of Beis Din in order to be effective, as the Gemara in Gitin
(88b) states. Alternatively, the MAHARAM SHIF in Sanhedrin there explains
that Rashi means that the Takanah of Mi'un is like the Halachah d'Oraisa of
*Chalitzah*, which requires a Beis Din. Mi'un, he says, more closely
resembles Chalitzah than it does a Get, because it requires an action on the
part of the woman, just like Chalitzah does, while in the process of the
giving of a Get the woman is passive.
Third, the proof from the Targum Yonasan is not valid, the Acharonim point
out, because the Targum does not mean that the Get must be given over in
front of Beis Din. The Targum says only that the Get must be written in Beis
Din. He means that a husband may not write any text of a deed of separation
that he wants. Rather, he must write the exact text as prescribed by the
Chachamim, and in order to do so accurately he must write the Get in Beis
Din in order to receive instruction how to write it correctly..
HALACHAH: The Poskim discuss the ruling of the Noda b'Yehudah at length, but
they reject it because his ruling is not mentioned in any of the earlier
Poskim. Nevertheless, the practice is to be stringent and to require that a
Get be done in front of Beis Din. This is in order to be stringent like the
ruling of the Noda b'Yehudah, and, second, because there are so many
complicated Halachos involved with the writing and giving over of a Get that
it is important to do it in the presence of Beis Din in order to make sure
that it is done properly.
(A full discussion of this topic and the many authorities that deal with it
can be found in PISCHEI TESHUVAH at the beginning of Seder ha'Get, #8, which
is printed in the Shulchan Aruch after Hilchos Gitin, EH 154.)