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Gitin, 71

GITIN 71 (26 Nissan)- has been dedicated by Mr. Avi Berger (of Queens, N.Y.) in memory of his mother, Leah bas Michel Mordechai on the day of her Yahrzeit.


QUESTION: Rav Kahana says in the name of Rav that we may give a Get on behalf of a man who is a deaf mute who wrote that he wants a Get to be written and given to his wife. Rav Yosef questions what Rav Kahana is teaching us, since we can derive this Halachah from the Mishnah that says that if the husband became mute, we can test his desire to give the Get by asking him questions and seeing how he nods his head.

Rebbi Zeira rejects the question and says that we *cannot* learn Rav Kahana's Halachah from our Mishnah, because our Mishnah is referring to one who is mute but can hear, and thus he is Halachically considered an intelligent person, whereas Rav Kahana is referring to a mute who is deaf and cannot hear, who Halachically is considered like a Shoteh.

Rav Yosef's question implies that writing is an equal or stronger expression of one's desire to divorce than that which is expressed by nodding one's head (and, therefore, we can learn from the Mishnah that relies on nodding that writing is also a valid expression of one's desire). On the other hand, the Gemara later (72a) concludes that we do not rely on writing as a valid form of expression of one's desire to give a Get, even though no one disagrees with our Mishnah that we rely on nodding as a valid expression of one's desire to give a Get!

ANSWER: The RASHBA (see also TOSFOS 72a, DH Kolo) says that Rav Yosef understands that writing is a better proof of one's desire than the nodding of one's head. The Gemara later, though, disagrees with this, and therefore we rely on nodding but not on writing.

There are two different explanations for why the Gemara disagrees with Rav Yosef's assumption. The ROSH (6:19) writes that even the Gemara there (72a) agrees that writing one's intent is no less of a proof of his intent than the nodding of one's head; the reason why the Gemara does not accept the Halachah of Rav Kahana is because he says that even one who is deaf *and* mute may write down his command to give a Get to his wife. The Gemara disagrees with this, since it holds that one who is a deaf mute is Halachically unable to give any commands to carry out transactions, and the fact that he can write does not give him the status of one who can speak (this is based on Rebbi Zeira's rejection of Rav Yosef's question).

The Rosh and other Rishonim also cite the opinion of RABEINU TAM, who quotes a Tosefta that implies that the scribe who writes the Get must actually "*hear*" the command to write it, and even if the husband writes to him a command to write the Get, the scribe may not write it. Based on this, Rabeinu Tam maintains that even a person who is not a deaf mute may *not* write a command to give a Get, because, as the Tosefta says, the scribe must *hear* the command spoken.

The Rosh explains that this is not a contradiction to our Mishnah which permits giving a Get based on the nodding of the husband's head, since the nodding of the head is a stronger form of command, since he is showing his will with physical expressions of his body. The Rosh also answers that the Mishnah is not a contradiction to the Tosefta since the Mishnah is talking about one who is mute and in such a case the Rabanan were lenient to rely on the nodding of the husband's head so that the woman will not remain an Agunah. (The second answer must hold that nodding one's head is not better than writing, and it must differentiate between a deaf mute who writes and one who is only mute, as the Rosh writes earlier.)

HALACHAH: The SHULCHAN ARUCH (EH 120:5) quotes the opinion that no one can give a written command to have a Get written for his wife. He then writes that there are those who hold that one who is mute may give such a command in writing.

QUESTION: The Gemara says that a witness must give an oral testimony, and he may not write his testimony and send it to Beis Din. This is derived from the verse that says, "Al Pi Shenayim Edim" -- "By the mouth of two witnesses" (Devarim 17:6), which implies that the testimony must be said by the mouths of the witnesses.

RASHI points out that use of documents signed by witnesses is considered an acceptable form of proof and a way of creating transactions. Why is this an acceptable form of testimony? It is a written testimony which should not be accepted!

ANSWER: RASHI answers that a document is different from normal testimony, because the document was signed at the time of the transaction and that is the normal way of effecting the transaction.

It is unclear, though, how Rashi's answer resolves the question. After all, the verse still implies that the testimony of witnesses must be spoken and not written!

The CHIDSHEI HA'RIM (Teshuvos, YD 14) explains that Rashi learns that the reason why the Torah disqualifies written testimony is because it is not the normal way of testifying. This only applies to testimony in court at the time of the hearing; such testimony is made *after* the act took place. In contrast, a document which is signed at the time of the transaction for the sake of remaining as a record and proof of the transaction is specifically done in writing for that very purpose: so that it should remain as a proof for a long period of time. Since this is the accepted way this type of proof is made, it is an acceptable form of testimony.


QUESTION: The Mishnah states that if one told someone to write a Get, and that person told others to write and sign the Get, the Get is invalid, until the husband directly tells the scribe and the witnesses to write and sign the Get. The BEIS SHMUEL (EH 123:1) asks that the Mishnah says that both the writing and the signing of the Get must be done as a result of the command of the husband. This does not seem to be compatible with any existing opinion. According to Rebbi Meir, who holds that the witnesses who sign the Get make the Get valid ("Edei Chasimah Kartei"), it is enough to appoint the witnesses and there is no need to have the Get written as a result of the husband's command (because the requirement of "v'Kasav" refers to the signatures and not to the document). According to Rebbi Eliezer, who holds that the witnesses who see the giving of the Get are the ones who make it valid ("Edei Mesirah Kartei"), it is enough to write the Get as a result of the husband's command but it is not necessary for the witnesses to sign the Get as a result of his command. Why, then, does the Mishnah require that the writing and signing of the Get be done only as a result of the husband's command?


(a) The BEIS SHMUEL answers that the Mishnah is following the opinion of Rebbi Yehuda (21b) who requires the husband's command for both the writing and signing of the Get.

(b) Perhaps we can suggest another answer based on the view of the RIF and RAMBAM who hold that Rebbi Eliezer agrees that when there are signatures on the Get, it is not necessary to have witnesses at the time of the delivery of the Get. In such a case, Rebbi Eliezer would agree that both the writing and signing of the Get must be as a result of the husband's command.

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