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Gitin, 26

GITIN 26 - dedicated by Larry and Marsha Wachsman l'Iluy Nishmas their aunt, the late Mrs. Rachel Potack (bas Rav Moshe) Z"L -- a true "Eshes Chayil" and "Ba'alas Midos" -- who passed away b'Seivah Tovah in Yerushalayim on 2 Kislev 5761.


QUESTIONS: The Mishnah teaches that even a Get written for an Arusah must have a proper date, and not a date that precedes the date on which the Get actually takes effect.

The Gemara asks why the Get of an Arusah needs an accurate date. According to Rebbi Yochanan -- who says that the date is written in a Get in order to prevent a man from saving his wife from capital punishment if she committed adultery by writing a Get and claiming that it was delivered earlier than the true date of the divorce -- the Get of an Arusah is Pasul if it is predated for the same reason that the Get of a Nesu'ah is Pasul. However, according to Reish Lakish -- who says a predated Get is invalid in order to prevent the wife from collecting the Peros that the husband sold during the marriage by claiming that her husband sold it after the divorce -- why should a Get of an *Arusah* that is predated be invalid? The husband does not have the right to use or sell the Peros of the property of an Arusah in any case!

The Gemara answers that the reason a predated Get is invalid in this case is because of "Takanas ha'Velad." As RASHI explains, this means that we are afraid that a husband will write a Get during Erusin, writing in it a date from the Erusin, and he will only give it to his wife after the Nesu'in and after they conceive a child. People will think that the child was born out of wedlock, because the day that they figure the child was conceived will be *after* the date that is written in the Get, when, actually, the child was conceived before the divorce took effect.

There are a number of questions on the Gemara's answer.

(a) If a concern for such a rumor exists, then why does Reish Lakish not say that *every* predated Get (Get Mukdam) is invalid because of the concern that people will think that the child was born out of wedlock, and not just because of the Peros swindle?

(b) The Gemara's conclusion seems to be that in the case of an Arusah, we are concerned that the husband will write a date in the Get during Erusin and only give her the Get after Nesu'in. If so, we should not only be concerned with what people will say about the child; we should be concerned about the wife stealing Peros as well, since she will be able to collect any Peros the husband rightfully sold *after they were married* (with Nesu'in) based on the false (predated) date written in the Get!

(a) Regarding the first question, the RAMBAN explains that the Rabanan would not invalidate a Get (b'Di'eved) that is predated just because people might spread rumors about the child's legitimacy, as the Gemara says later (86a). This logic is only a reason to require a proper date in the Get l'Chatchilah. In contrast, the concern that the wife might unlawfully collect Peros from the buyers due to a predated Get is a reason for the Rabanan to invalidate the Get even b'Di'eved.

(b) The Rishonim offer a number of answers to the second question.

1. TOSFOS (DH Hacha Nami) explains that the Get of an Arusah specifies in it that the wife is only an Arusah. If the woman receives the Get only after she is married (with Nesu'in), then people know that the time written in the Get must not be the date on which it was given, since it is common knowledge that she was divorced from Nesu'in, and not during Erusin. Therefore, if the wife tries to collect Peros -- on the basis of the early date written in the Get -- from those who bought them from the husband, the buyers will probably be informed that the date cannot be correct. They will therefore easily foil her intentions and bring testimony that she was married with Nesu'in before the Get was given.

However, with regard to the legitimacy of the child, we do not take chances. People do not have a personal interest in legitimizing the child, and perhaps they will not be aware of the "common knowledge" that the woman was once married, and that the date written in the Get is not the date on which the Get was given.

Tosfos asks, however, that if this is correct, then a Get Mukdam of an Arusah effectively contains no proof of the date on which it was actually given. Consequently, Reish Lakish should invalidate it because the *husband* might unlawfully sell the Peros even after the signing of the Get (at which time, by law, he loses the rights to the Peros; see Gemara 17b), and the wife will not be able to prove that he is a thief, since the date of the Chasimah is not written in the Get. Tosfos leaves this question unanswered.

The TOSFOS HA'ROSH answers that in this case, the husband does not lose Peros even according to Reish Lakish until the time that he *gives* the Get (and not form the time the Get is signed). Since the Get was delivered after the date written in the Get, the witnesses (Edei Mesirah) will spread the word that the date is not reliable, and the woman will not be able to unlawfully collect Peros from the buyers based on the date written in the Get. (See Tosfos 17b, DH Ad, regarding the opinion of Rebbi Yochanan.)

The Rosh does not explain clearly why the husband retains the Peros until the giving (Nesinah) of the Get in this case, in contrast to a normal Get. The TAZ (EH 132:1) suggests that the reason the man normally loses Peros from the time of the Chasimah according to Reish Lakish is because the husband has made a decision to divorce her (see end of 18a, according to Rebbi Shimon), and from that point on he loses his rights to the Peros. In this case, since the husband married her after writing the Get, he obviously did not decide to divorce her at the time of the writing, and therefore he does not lose the Peros until he actually utilizes the Get.

Alternatively, perhaps the Rosh has a different intention. The Rosh means that the husband loses the Peros from the time of the Nesinah because the day of the Nesinah of this Get probably was the very same day as the day of its Chasimah. We may assume that the husband had the Get signed on the same day that it was delivered since "a person does not hasten his grief" ("Lo Makdim Inish Puranusa l'Nafshei") by having a Get signed before he plans on giving it (Gitin 18a). Therefore, the wife could bring the Get to Beis Din as soon as she receives it in order to prove what day the Chasimah and Nesinah took place, which was the point in time at which the husband lost his rights to the Peros (as Tosfos writes on 17b DH Ad She'as).

The obvious question on this logic is, why, then, does Reish Lakish require the date to be written in *any* Get? We should always assume that the Get was signed at the same time that the Get was delivered, and the date of the Get's delivery can be confirmed even without writing a date in the Get (since she can bring the Get to Beis Din on the day of its delivery to prove that all future Peros are hers)!

The Rosh might hold that Reish Lakish requires the date to be written in the Get because there are times at which a husband sends a Get to his wife with a Shali'ach and it takes time for the Get to arrive in the woman's hands even though the husband *sent* it on the day it was signed. Therefore, in order to prove on what day the Get was signed, the husband must write in the Get the date on which it was signed. Because of this, the Rabanan required the date to be written in all Gitin.

However, in the case of our Gemara, the husband who wrote a Get for his wife while she was an Arusah was obviously together with his wife at the time that he had the Get written. If he wanted to divorce her after the Nesu'in, he would not have to send the Get with a Shali'ach; he would simply have the Get, which was already written, signed by two witnesses and he would then deliver it in person.

(Tosfos might not have accepted this approach because he maintains that Reish Lakish argues with Rebbi Yochanan and holds that we *do* suspect that a person will keep a Get after the Chasimah and not deliver it until later. Therefore we cannot assume that the day of this Get's Nesinah was also the day on which it was written.)

2. The RASHBA answers that we are not concerned that the husband will give this Get to his wife after the Nesu'in (and after he sells Peros), because no witnesses would agree to sign a Get for a Nesu'ah that says in it that the wife is an Arusah. (Even if a witness might not notice that the date is early, he will certainly notice that the Get says that she is an Arusah when she really is a Nesu'ah.)

The Rashba does not explain why, according to this, the Gemara does not permit writing an early date in an Arusah's Get because of the problem of the date in the Get preceding the conception of her child ("Gitah Kodem li'Vnah"). If the Get will not be signed after the Nesu'in (but only during Erusin), then she certainly should not be pregnant! The Acharonim (HE'OROS B'MASECHES GITIN and others) explain that the Rashba means that the Chachamim take more precautions to prevent rumors about the legitimacy of the child than they take to protect the people who purchase the Peros. Therefore, only with regard to preventing rumors about the legitimacy of her child are we concerned that witnesses signed the Get even after the Nesu'in. (See below.)

3. The RAMBAN explains, like the Rashba, that witnesses certainly will not agree to sign a Get for a Nesu'ah which says in it that the woman is an Arusah. However, we *are* concerned that witnesses might sign the Get on the *day* of the Nesu'in, since they will think that doing so will not cause anyone to lose the Peros, since, even if it the Get has an earlier date in it, it will not prevent the husband from selling the Peros later on the same day (after the divorce), since he could claim that he sold the Peros before the Get was given without being contradicted by the date written therein. However, there *will* be a concern that the Get precedes the conception of the child, since he might have had relations with her, and the date written in the Get will be during Erusin -- long before the beginning of the pregnancy.

The Ramban adds that even if witnesses will not agree to sign the Get of an Arusah after the Nesu'in, they might sign it on the *day* of the Nesu'in but *before* the Nesu'in takes place (the date written in the Get, however, is a much earlier date). The husband might then present it to her later that day, after he has married her with Nesu'in and had relations with her. This seems to be the intention of RABEINU KRESKAS as well, and this might also be the intention of the Rashba (above, #2, unlike the interpretation of the Acharonim cited above).

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