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GITIN 22 (6 Adar) - dedicated by the Feldman family in memory of their
father, the Tzadik Harav Yisrael Azriel ben Harav Chaim (Feldman) of
Milwaukee, on the day of his Yahrzeit.
1) A GET WRITTEN ON ERASABLE PAPER
QUESTIONS: The Tana Kama of the Mishnah (21b) states that one may not write
a Get on erasable paper ("Neyar Machuk," or paper from which words have
already been erased), or on other items from which the writing may easily be
erased without leaving evidence to any erasure. The Chachamim argue and
permit such a Get. The Gemara explains that the Machlokes in the Mishnah is
the familiar Machlokes between Rebbi Meir and Rebbi Elazar regarding which
set of witnesses on a Get is the primary set, the set which makes the Get
effective. The Tana Kama holds like Rebbi Meir who says that it is the Edei
Chasimah, the witnesses who sign the Get, who make the Get effective, and
therefore a Get written on erasable paper is Pasul. The Chachamim, who
permit such a Get, hold like Rebbi Elazar who says that the main witnesses
are the Edei Mesirah, those who see the Get being given over.
How, though, does this Machlokes between Rebbi Meir and Rebbi Elazar apply
to the Halachah of the Mishnah?
RASHI explains that according to Rebbi Elazar, every Get must have Edei
Mesirah, and any woman who wants to get remarried based on a Get that she
received from her previous husband must bring the Edei Mesirah to prove that
it is a valid Get. Since the Edei Mesirah read the Get at the time it was
given, the woman will not be able to change what was written in it without
them noticing the change. In contrast, according to Rebbi Meir, when a woman
want to remarry, she validates her Get through authenticating the signatures
of the Edei Chasimah (either by comparing the signatures with the same
signatures on other documents, or by bringing witnesses who recognize the
signatures, without necessarily bringing the signatories themselves). Hence,
according to Rebbi Meir, a Get written on erasable paper is not acceptable
because the woman might erase a conditional clause in the Get, leaving the
signatures of the Edei Chasimah.
Rashi's explanation is difficult to understand for a number of reasons.
(a) How can Rashi write that, according to Rebbi Elazar, a woman may not
remarry unless she brings the Edei Mesirah? The Mishnah (86a), cited by the
Gemara earlier (3b), writes that it is clear that according to Rebbi Elazar
witnesses sign the Get "because of Tikun ha'Olam." The Gemara (36a) explains
that this means that the Rabanan instituted that Edei Chasimah sign a Get so
that in case the Edei Mesirah die or move abroad and are unavailable, the
woman will be able to get married based on the Edei Chasimah. Hence, we see
that it *is* permitted for a woman to be Mekayem the Get through the Edei
Chasimah, even according to Rebbi Elazar!
TOSFOS (22a, DH Man) explains that Rashi must mean that when a Get is
written on a paper that is erasable and is able to be forged, Rebbi Elazar
will require Edei Mesirah (because she must bring people who actually saw
the Get to prove that she did not erase anything in it), but not in the case
of a normal Get.
However, this does not seem to be what Rashi is saying. First, why does
Rashi say that, "according to the opinion who holds Edei Mesirah," when the
woman wants to remarry [with such a Get] she must bring the Edei Mesirah?
The same should be true according to the opinion that says Edei Chasimah
Karti -- she should not be able to get married without bringing the Edei
Mesirah (if there were any) or the actual Edei Chasimah who saw the Get!
Second, why should Rebbi Meir prohibit such a Get more than Rebbi Elazar?
Just like Rebbi Elazar permits it by requiring personal testimony about the
contents of the Get, Rebbi Meir can permit it by requiring personal
testimony about the contents of the Get, by bringing the Edei Chasimah
themselves! (TIFERES YAKOV, TORAS GITIN EH 124:2, DIBROS MOSHE)
It therefore seems that Rashi is saying that Rebbi Elazar *always* requires
the woman to bring Edei Mesirah in order to remarry. It is assumed that a
Get written on erasable paper will be treated like any other Get, and thus
Rebbi Elazar is not concerned that the woman will erase something (since she
must bring Edei Mesirah). Rebbi Meir, though, invalidates the Get, lest the
Beis Din accept the normal manner of Kiyum for the Get -- *without* the
testimony of the Edei Chasimah themselves. However, as we mentioned, this
seems to contradict the Mishnah (86a) which says that Rebbi Elazar permits
the Kiyum of the Get through the Edei Chasimah!
(b) Rashi explains that the reason why such a Get is Pasul according to
Rebbi Meir is because the woman might erase a conditional clause (a Tenai)
that was written in the Get. Rashi says the same thing elsewhere as well
(such as on the Mishnah, 21b, DH Neyar Machuk, and on 20b, DH l'Hizdayef,
regarding a Get written on the hand of an Eved, which is also an erasable
Why is Rashi concerned only that the woman will erase a clause in the Get?
Perhaps a woman or her husband will lose a Get, and another woman will find
it and erase all of the details in it and write in her own details instead
(see the Gemara on 24b where the Gemara presents such a concern when two
couples in the same city have the same names)!
In fact, if the Rabanan would permit a Get written on erasable paper, how
would we know that the witnesses who signed it actually signed a Get in the
first place? Perhaps they signed on another type of Shtar, such as a Shtar
Milveh (loan) or a Shtar Mechirah (sale), which someone gave to this woman,
and she erased the entire Shtar and wrote a Get in its place! Rashi should
say that Rebbi Meir prohibits a Get written on erasable paper because the
woman might erase an entire Shtar, and not just because she might erase a
single clause in the Get! (In fact, when the BARTENURA explains the Mishnah,
he says that she might erase the Get "and write what she wants," i.e. she
may rewrite the Get with the names she wishes.)
(c) The Mishnah (2a) teaches that when a woman presents a Get in Eretz
Yisrael, we do not doubt the authenticity of the Get unless the husband
challenges it. (See Tosfos 2a, beginning of DH v'Im Yesh, who writes that
this was a Takanah d'Rabanan enacted because of Agunos.) It is clear that
this Halachah applies even according to Rebbi Elazar (since Rebbi Elazar
also requires b'Fanai Nichtav everywhere but in Eretz Yisrael).
How, then, can Rebbi Elazar permit a Get written on erasable paper? Perhaps
the woman will erase a clause in the Get and then remarry based on the Get
*without* bringing Edei Mesirah, because her husband did not contest the Get
(since he did not know that she altered it)!
(a) The DIBROS MOSHE explains that Rashi maintains that, according to Rebbi
Elazar, even after the Takanah was enacted that witnesses sign the Get, we
still require, l'Chatchilah, the Edei Mesirah themselves to be Mekayem the
Get. It is only after the Edei Mesirah have died (or are unavailable for
other reasons) that we accept the Edei Chasimah to be Mekayem the Get.
Still, though, how can Rebbi Elazar accept a Get written on erasable paper?
Perhaps the woman will wait for the Edei Mesirah to die, and then erase a
clause in the Get, and the Beis Din will be Mekayem the Get through
recognition of the signatures without bringing in the Edei Chasimah
themselves to testify!
Perhaps under such circumstances, when the Edei Mesirah die, Beis Din will
not accept a Get written on erasable paper (without witnesses who saw the
original Get). This might be what Tosfos means when he says that Rashi only
requires the testimony of the Edei Mesirah when the Get is written on
erasable paper; in the case of a normal Get, the Edei Chasimah are used to
validate the Get if the Edei Mesirah have died. According to Rebbi Meir, we
do not rely on forcing the woman to bring the Edei Mesirah or Edei Chasimah
themselves to validate a Get written on erasable paper, since Rebbi Meir
*never* requires bringing the witnesses themselves in the case of a normal
Get, and we might confuse this Get with a normal Get. According to Rebbi
Elazar, though, a normal Get requires bringing the Edei Mesirah themselves,
just like a Get written on erasable paper. The only difference between the
two is when the Edei Mesirah have died; since that is a relatively unusual
case, Rebbi Elazar holds that there is no Gezeirah that we might confuse a
Get written on erasable paper where the Edei Mesirah died with a normal Get.
(b) Perhaps we are not afraid that a Get written on erasable paper was once
a Shtar Milveh or a Shtar Mechirah Shtar that was erased and rewritten,
because a normal Shtar may not be written on erasable paper. As such, there
could be no Shtar written on erasable paper with the signatures of witnesses
other than a Get. (Even though TOSFOS on 22a, DH Lo, and other Rishonim cite
the Gemara in Bava Basra (164a) which permits collecting money with a Shtar
written on erasable paper since there is a noticeable difference between
paper that has been erased once and paper that has been erased twice,
nevertheless Rashi here clearly argues. Rashi writes that if the woman
erases a clause it will not be recognizable that anything was erased.
Perhaps Rashi learns that the "Neyar Machuk" of the Mishnah is a different
type of erasable paper, on which it cannot be discerned whether or not the
contents have been erased an extra time (for example, the writing on the
paper was erased already multiple times, such that one cannot tell a
difference between the third and fourth times). On such a paper, one may not
write any Shtar, other than a Get. As the Acharonim point out, Rashi might
have explained the way he did in order to avoid the questions REBBI AKIVA
EIGER (in the Mishnayos) raises on Tosfos' explanation)
The reason we are not afraid that the Get was written for somebody else,
lost, and then found by this woman who erased it and wrote what she wanted,
might be because it was written on paper that was clearly her husband's
(such as his stationery), similar to the erasable Get written on the hand of
the husband's Eved (on 20b), which clearly came from the husband. (If he has
more than one wife, she would have to bring testimony that this document was
indeed given to her and not to her co-wife.)
Therefore, the only concern is that although the Get was given to this wife,
perhaps she erased a clause that was written in it.
(c) Even though the woman does not have to bring Edei Mesirah to validate
the Get before the husband challenges its authenticity, we are not concerned
that she will erase a clause in the Get and get married before the husband
challenges the Get, because she will be afraid that the husband will later
challenge the Get and successfully invalidate it, making her Asur to both
men and making her children from the second marriage into Mamzerim. (M.