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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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.



(a) A Cheresh who married when he was ...
1. ... a Cheresh - can divorce his wife with hints (in the same way as he married her).
2. ... a Pike'ach - cannot.
(b) Rav Kahana Amar Rav permits a Cheresh who married when he was a Pike'ach to give a Get - provided he is sufficiently clever to write instructions on a piece of paper to do smart enough to issue instructions to appoint the witnesses by name.

(c) Rav Yosef asked that, in light of our Mishnah, which permits someone who became dumb to give a Get provided he is able to answer the various questions that one asks him, Rav Kahana does not seem to be teaching us anything - to which Rebbi Zeira replied by drawing a distinction between someone who is merely dumb (who is generally considered sane), and someone who is a Cheresh (who is not).

(a) The Tana learns from the Pasuk "va'Ani ke'Cheresh Lo Eshma, u'che'Ileim Lo Yiftach Piv" - that someone who can hear but not speak is called a 'Cheresh', and someone who is able to speak but not hear, an 'Ileim'.

(b) What they have in common is - the fact that both are considered one hundred percent sane.

(c) 'Ileim' is the acronym of 'Ishtakel Milulei' (his speech has not been removed).

(d) Based on what we just learned about a dumb person, Rebbi Zeira asks on the Beraisa (regarding a Korban Oleh ve'Yored) "Im Lo Yagid", 'P'rat le'Ileim she'Eino Yachol Lehagid', why, according to what we just learned, the Tana cannot say there too, that a dumb man who he is able to write his testimony, is subject to bring a Korban Oleh ve'Yored. Abaye solves Rebbi Zeira's problem - by pointing out that Eidus is different, because the Torah specifically writes there ("Al Pi Sh'nei Eidim"), teaching us the principle "mi'Pihem", 've'Lo mi'Pi Kesavam' (and not because he is considered like a Shoteh).

(a) The Tana of the Beraisa writes 'ke'Shem she'Bodkin Oso le'Gitin, Kach Bodkin Oso le'Masa'os u'le'Matanos, le'Iduyos ve'li'Yerushos'. 'Kach Bodkin Oso ... le'Iduyos' appears to clash with our previous statement (regarding Eidus). Rav Yosef bar Minyumi Amar Rav Sheishes reconciles the two - by establishing le'Iduyos by the testimony permitting a woman to get married, where the Rabbanan were lenient (in certain respects), to prevent the woman from becoming an Agunah.

(b) To reconcile 've'li'Yerushos' with the previous statement, Rebbi Avahu establishes it by 'Yerushas B'no ha'Bechor' - by which he means that he merely testified that his first-born son should inherit his property just like each of the other brothers (see Tosfos DH 'Yerushas'), something that he has the authority to do anyway.

(c) And we establish 'Masa'os u'Matanos', so as not to clash with that statement - by his own business affairs, and not the business deals of others that require his testimony.

(d) The Beraisa which legalizes a Cheresh's transactions performed by way of signs, but specifically precludes Get from this rule, clearly clashes with Rav Kahana Amar Rav. We reconcile Rav Kahana Amar Rav with this Beraisa - by quoting what appears to be the Seifa of this Beraisa, establishing a Machlokes Tana'im, and Rav Kahana Amar Rav holds like Raban Shimon ben Gamliel in the Seifa.

(a) The problem we have with the statement of Raban Shimon ben Gamliel, who precludes specifically a Cheresh she'Nischaresh from the Tana Kama's words, is - with the inference (that if he had married her when he was a Cheresh, then he would not preclude that from the Tana Kama's words, and he would not be able to divorce her). But why not, seeing as he married her with hints, why should he not divorce her with hints?

(b) So we establish Raban Shimon ben Gamliel's words by a Yavam, declining to establish it when she fell to the Yavam from his brother who was also a Cheresh - because then there would be no reason to forbid the Yavam to give her a Get by means of hints, after performing Yibum with her, since that is the way his brother married her.

(c) What he must therefore mean is - that she fell to the Yavam Cheresh from a brother who was a Pike'ach.

(d) We nevertheless attempt to establish Raban Shimon ben Gamliel's words even when she fell to the Yavam from his brother who was a Cheresh - because we decree on account of when he fell from a brother who was a Pike'ach.

5) We do not also decree by the case of Rav Kahana Amar Rav (when the man became a Cheresh after he married her), on account of when she fell to the Yavam who was a Cheresh - because whereas people might confuse one case of Yevamah with the other, nobody will confuse a *wife* with a Yevamah.




(a) The Mishnah in Yevamos says that two brothers Charashin who married two sisters Pikchos or vice-versa, are Patur from both Chalitzah and Yibum (because in each case, the Yevamah is considered Achos Ishto).

(b) If, in any one of the above cases, one of the brothers or sisters, is a Cheresh and the other, a Pike'ach - the Din is exactly the same.

(c) A Cheresh cannot perform Chalitzah (because he cannot say "Lo Chafatzti Lekachtah").

(d) Consequently, the only option open to the Yavam, should he not want his Yevamah as a wife is - to perform Yibum with her and then divorce her.

(a) The latter case in the Mishnah proves - that we do not decree a Pike'ach because of a Cheresh?

(b) So, with regard to the Beraisa of 'Cheresh Lo Halchu Bah Achar Remizosav ... ' - we discard the second answer (that the Yevamah fell to the Yavam Cheresh from his brother who was also a Cheresh), and remain with the first one (that she fell to him from his brother who was a Pike'ach).

(a) We just cited a Beraisa where Raban Shimon ben Gamliel argues with the Tana Kama. It might also have possible to explain the Beraisa unanimously - by establishing Raban Shimon as coming to qualify the Tana Kama, rather than to argue with him.

(b) Rebbi Yochanan states categorically - that Raban Shimon ben Gamliel comes to argue with the Tana Kama.

(c) From the Mishnah in Yevamos, which concludes with regard to the latter case 'Nischaresh Hu O Nishtateh, Lo Yotzi Olamis' - Abaye proves Rebbi Yochanan's statement (that the Rabbanan argue with Raban Shimon), because 'Olamis' implies even though he is able to 'speak' by means of writing.

(a) Rav Papa says that, if not for Rebbi Yochanan's statement, we might have interpreted Raban Shimon ben Gamliel as coming to qualify the words of the Tana Kama (as we explained a little earlier). We would then have refuted Abaye's proof from the Mishnah in Yevamos in one of two ways, one of them, by explaining that 'Olamis' comes to preclude a case where the Yavam was sharp - meaning that it is there that the Tana still forbids a Cheresh to divorce his wife, but in the case of someone who is able to speak by writing, he will concede to Raban Shimon ben Gamliel (that the Get will be effective).

(b) Or we might have established the Mishnah like Rebbi Yitzchak, who says - that ...

1. ... min ha'Torah - a man may divorce his wife who is a Shotah.
2. ... mi'de'Rabbanan - he may not, because, seeing as she does not know how to protect herself, she will be subject to abuse.
(c) This explains the Seifa of the Mishnah, which begins 'Nishtatis, Lo Yotzi' (in a way that refutes our previous proof that the Tana there argues with Raban Shimon ben Gamliel) - by establishing the word 'Olamis' to imply nothing more that the Seifa de'Seifa ('Nishtateh ... Lo Yotzi Olamis') is d'Oraysa (since the Get requires his Da'as [as opposed to the Reisha de'Seifa 'Nishtatis Lo Yotzi', which is only mi'de'Rabbanan]).
(a) The Tana of our Mishnah says that if they asked someone whether they should write a Get for his wife (in order to exempt her from Yibum upon his death, and he replied 'Write', should they go on to instruct the Sofer to write the Get and the witnesses to sign - the Get is invalid.

(b) We can infer that, if he were to say 'T'nu' instead of 'Kesuvu' - then we do write the Get and hand it over to his wife.

(c) The husband was speaking - to three people, whom he appointed as a Beis-Din.

(d) The author of the Reisha must then be Rebbi Meir - who holds 'Mili Mimseri li'Sheli'ach' (as we learned earlier in the Perek).

(a) The author of the Seifa of the Mishnah 'ad she'Yomar le'Sofer K'sov, u'le'Eidim Chasumu' - is Rebbi Yossi, who holds 'Mili Lo Mimseri li'Sheli'ach'.

(b) We reject the suggestion that the author of the entire Mishnah is Rebbi Meir, and the Seifa too, speaks ...

1. ... when he did not say 'T'nu' - because then, the Tana should have said in the Seifa 'Harei ha'Get Batel ad she'Yomar le'Sofer T'nu'.
2. ... when he said it to two people and not three - because then, the Tana should have said - ' ... ad she'Yomar li'Sheloshah K'suvu'.
(c) So we try to establish the entire Mishnah like Rebbi Yossi, and the Reisha speaks when he did not say 'Imru' to the Sheluchim. We refute this on the same grounds as we refuted the suggestion that the entire Mishnah goes like Rebbi Meir (because then the Tana should have said 'ad she'Yomar Imru!'). Besides - we have already proved that Rebbi Yossi holds 'Mili Lo Mimseri li'Sheli'ach' even if the husband said 'Imru'.

(d) Consequently, we establish the Reisha of our Mishnah like Rebbi Meir, and the Seifa like Rebbi Yossi (like we did in the first answer).

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