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Gitin, 63

GITIN 63 (18 Nisan) - Dedicated l'Iluy Nishmas: Dov Ber ben Moshe Mordechai z'l -- Mr. Bernie Slotin, of Savannah, Georgia -- who passed away on Chol ha'Moed Pesach 5759 (18 Nisan - April 4, 1999), by his grandson, Rabbi Yisroel Shaw and family.


QUESTION: The Gemara quotes a Tosefta which discusses a case where the husband told his wife's Shali'ach, "Holech v'Ten Lah" ("take it and give it to her"). Rebbi Nasan says that the husband may change his mind and recall the Get until the woman receives it from the Shali'ach, because he holds that "Holech v'Ten Lah" does not mean "accept it" (be "Zocheh" it) for her. Rebbi holds that once the Shali'ach receives the Get, the husband cannot change his mind.

Does Rebbi mean to say that the Get takes effect when the Shali'ach receives it and there is no need for the woman to receive the Get afterwards, since the divorce was consummated when the Shali'ach received it, or does the wife have to eventually receive the Get in order for the divorce to actually be effective?


(a) The RASHBA is in doubt whether or not the woman needs to receive the Get herself in order for the divorce to be valid. Although the Shali'ach acquired the Get for her, it could be that since the man said, "... v'Ten Lah" ("give it to her"), this might imply that he is stipulating that he wants the Get to take effect only on condition that she eventually receive it herself.

(b) The RE'AH (quoted by the KETZOS HA'CHOSHEN 125:3) understands that there is an implicit condition that the husband is making, saying that the Get will take effect only if it is eventually received by the woman.

The TORAS GITIN (140:7) points out that only when the man gives a Get in such a fashion is there room to say that he is making a condition that she should eventually receive the Get, since there is no other explanation for why he added the term "v'Ten Lah." The woman has no use for the actual document itself, so it must be that he said "v'Ten Lah" as a condition for the divorce to take effect. In contrast, if a person gives a gift to a Shali'ach and says to him to "take it and give it" to so-and-so -- "Holech v'Ten" -- then everyone agrees that the fact that he said "v'Ten" ("give it") is not for the sake of making a condition that the gift will not be consummated unless it is eventually delivered, but rather he just means to say that he should acquire the gift on behalf of the recipient so that he will have it for his own personal use.


OPINIONS: The Gemara discusses a case in which a husband sends a Shali'ach to deliver the Get to his wife, and when the Shali'ach arrives at the home of the wife, she tells him to be *her* Shali'ach to receive the Get on her behalf. The Amora'im remain in doubt whether the Get takes effect in such a case, because of the problem that "Lo Chazrah Shelichus Etzel ha'Ba'al" (literally, "the Shelichus did not return to the sender (the husband)").

There are various ways of understanding how this principle prevents the Get from being valid in this case.

(a) RASHI explains that since the husband's Shali'ach now has become the wife's Shali'ach *before* he has carried out the Shelichus of the husband, this negates his power to serve as a Shali'ach for the husband, because a Shali'ach must be able to return to his sender, while he still represents the sender, and tell him that he carried out the mission that he was sent to do. Here, though, he has become the wife's Shali'ach before he has completed his Shelichus for the husband.

(b) The MISHNEH L'MELECH (Hilchos Gerushin 6:9) says that when this principle establishes that a Shali'ach cannot accept a new mission before he completes the first one for which he was appointed, the reason why the Get does not take effect is because there is no second Shali'ach (Shali'ach l'Kabalah) to receive the Get. According to Rashi, on the other hand, the problem is that the Shelichus of the first Shali'ach has been annulled whereas according to Rashi the problem is that the first Shaliach has been negated (see Avnei Milu'im ibid.).

(c) The RITVA (24a) says that there is a specific problem in the giving a Get in this case. When giving a Get, that must be an act of transferring the Get directly from the hands of the husband (or his representative) to the hands of the wife (or her representative). When the wife makes the Shali'ach that the husband sent into her own Shali'ach to receive the Get, there is no such act of delivery. (See SHACH and NESIVOS in Choshen Mishpat 185:1, who disagree whether this concept is a problem only in the case of giving a Get or it applies in the case of all documents.)

QUESTION: Why are the Amora'im in doubt about this principle? The Gemara earlier (24a) unequivocally states that such a Shali'ach does not have the power to be a Shali'ach!

ANSWER: The Acharonim (AVNEI MILU'IM 141:1, CHASAM SOFER to Gitin 24a) answer that in the case of the Gemara earlier (24a), the woman herself was sent as a Shali'ach to bring the Get to herself (see there, and Insights to 24a). In such a case, where the Shali'ach happens to be one of the parties involved in the transaction, everyone agrees that the person cannot be a Shali'ach since it is impossible for him or her to remain as a Shali'ach at the moment of the consummation of the transaction (since, at that moment, he cannot represent the sender, but must represent himself then). Therefore, it is clear to the Gemara there that the woman cannot be a Shali'ach for her husband. In our Gemara, on the other hand, a third party was appointed as Shali'ach by the husband to bring the Get to his wife, but when the Shali'ach arrived, the wife decided that she wanted him to act as her Shali'ach also. Since the Shali'ach is an outside party and can potentially represent the husband at the consummation of the transaction, there is room to doubt that perhaps he remains a valid Shali'ach even though the wife asked him to represent her, as well, in receiving the Get for her.

This is why Rashi earlier (24a; see DH v'Chi Matis, and DH v'Ha Lo) stresses that the wife who is being sent to bring the Get to herself is not a third party, but is one of the parties involved in the transaction, and therefore she is unfit to be a Shali'ach.

QUESTION: The Gemara introduces a principle called "Asu Edim Shelichusan." This principle states that once witnesses, who were told to sign a document, have fulfilled their mission and signed the document, they cannot sign another document for the person since they already completed their mission (Shelichus) and are not empowered to sign as witnesses again (until specifically appointed to do so). The Gemara concludes that if the first document had an error in it that rendered it invalid and unfit for use, the witnesses *may* sign a second document that will replace the first one, since they have not successfully fulfilled their mission until they sign a valid document.

TOSFOS (DH Kosvim) learns from this Gemara that if the Get was written and signed, and then it was found to have a problem that creates a doubt in its validity, the witnesses should not write another Get, because there is a possibility that the first Get was valid and the witnesses already carried out their mission and are not fit for signing a second Get.

Why can they not write another Get, out of doubt, and give *both* of them? By giving both Gitin, we can be sure that at least one of them is valid and that the woman is divorced!


(a) The RITVA (Mosad ha'Rav Kook) answers that if the witnesses have already carried out their Shelichus, it would be considered false testimony to sign another Get, since by signing the Get they are in essence testifying that the husband requested them to sign that document.

(b) The RASHBA (quoted by the REMA in Even ha'Ezer 122:1) disagrees and holds that if there is a doubt in the validity of the first Get, the witnesses *mat* sign another Get and give both. The BEIS YOSEF there says that even Tosfos agrees to this. When Tosfos writes that they should not write another Get in such a case, Tosfos means that it is better for the husband to say that he wants them to sign the Get in a manner in which there will be not doubts, so that they will avoid a situation which would require them to deliver two Gitin simultaneously to the woman.

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