THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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YEVAMOS 31 - has been dedicated towards a Refu'ah Shelemah to Yakov ben
Chana, by the Tavin family.
1) WRITING THE "ZMAN" IN A GET
QUESTION: The Gemara explains why the Chachamim enacted that the date be
written in a Get, while they did not enact that the date be written in a
contract of Kidushin. One reason that the Gemara gives is because one might
be married to his niece, and in a case where she committed adultery while
married to him (and is thus Chayav Misah), he will want to save her from the
punishment of Misah. In order to do so, he will give her a Get with which
she will claim that she was divorced before her sin. By enacting that the
date be written in every Get, the Chachamim ensured that we will know
exactly when the Get was given, so that a woman who committed adultery as an
Eshes Ish will receive her due punishment.
RASHI (DH l'Hatzalah) explains that even if she erases the Zman from the
Get, it will not help her avoid punishment; on the contrary, she will just
be incriminating herself. When Beis Din sees a Get missing a date, Beis Din
will assume that she was divorced at a later date (after she sinned), for
she has a Chazakah that she was an Eshes Ish until the moment that she
sinned. With regard to a contract of Kidushin, on the other hand, the
Chachamim saw that it would not help to require that the date be written in
the contract, because she could simply erase the date and claim that she was
married *after* her sin. In such a case, the Chazakah that she was not
married until that point will *support* her claim, since Beis Din will have
to assume that she was not married at the time of the sin.
RASHI (DH l'Hatzalah) asks that if we assume -- based on the Chezkas Eshes
Ish -- that the woman who was divorced received her Get later (after her
sin), then why do we need the Zman to be written in the Get? Even if there
is no Rabbinic institution to write a Zman in the Get we will assume that a
dateless Get was given after she sinned. If so, without a Zman we can
execute her based on the Chazakah that she was married when she sinned! Why
was it necessary to enact that the Zman be written in the Get in order to
incriminate the woman?
Rashi answers that before the enactment that the Zman must be written in a
Get, Beis Din would not kill a woman based on the Chazakah. We would be in
doubt whether her sin occurred before the divorce or after the divorce, and
the woman would be spared. However, once the Chachamim enacted that the Zman
be written in a Get, Beis Din is able to rely on the Chazakah and kill her.
What does Rashi mean? If there is a Chazakah that she is an Eshes Ish, then
even before the Takanah of writing the Zman in a Get, Beis Din should kill
her based on the Chazakah (which resolves the doubt). If, on the other hand,
the Chazakah is not strong enough to kill her, how could the Chazakah of
Eshes Ish kill her after the Rabbinic enactment?
(a) RABEINU AVRAHAM MIN HA'HAR explains Rashi in more detail. He says that
if the Chachamim made a Takanah to include the Zman in a Get and then we
find that the Zman has been erased, that creates a situation of "Raglayim
l'Davar," or circumstantial evidence, that the woman indeed sinned before
receiving the Get and the date was erased (or omitted) in order to protect
the woman. This circumstantial evidence is not strong enough by itself to
have a person executed, while the Chazakah of Eshes Ish is also not strong
enough by itself to have a person executed. When the two factors are
combined, however, then Beis Din is able to kill the woman based on the
Chazakah that she was an Eshes Ish, together with the circumstantial
evidence of the missing Zman in the Get. In contrast, if we find that the
contract of Kidushin is missing its Zman, then even though there is
circumstantial evidence of foul play, there is no Chazakah that she had been
married at the time of her sin, and we are unable to execute her based on
circumstantial evidence alone.
Rashi's words, though, seem to imply a different line of reasoning. Rashi
makes no mention of "Raglayim l'Davar." Rather, Rashi clearly implies that
it is the Chazakah alone that gives Beis Din the power to kill the woman;
the sole, determining factor is the Chazakah.
(b) We might therefore suggest as follows. Before the Takanah of writing the
Zman in a Get, the Chazakah of Eshes Ish was not sufficient to have the
woman killed, because she is holding a valid Get which counters the power of
the Chezkas Eshes Ish, for the Get shows that her status of Eshes Ish has
been changed. We cannot give her a status of an Eshes Ish if the item that
takes away that status is in front of us (see RASHI Gitin 17b DH Gazyeh).
However, after the Rabanan instituted that the Zman be written in a Get, if
we have a Get with a missing Zman in front of us, then even though the Get
is valid mid'Oraisa, there is a significant deficiency ("Rei'usa") in the
Get itself regarding the time at which it took effect (since the Zman has
been erased), and thus it is not powerful enough to counter-effect the
Chazakah. Therefore, the Chazakah remains and she is executed on the basis
of the Chazakah.
If this is Rashi's intention, we can perhaps answer the primary question
that the Rishonim ask on what Rashi writes here. TOSFOS (DH l'Hatzalah) and
the other Rishonim point out that in Gitin (17b), the Gemara clearly says
that even if the man cuts the Zman out of the Get before handing it to the
woman, the Get *will* serve to vindicate her in court from charges of
adultery. Even though we do not know when the Get was given -- *and* there
are signs of foul play -- we still acquit the woman because of the Get.
(Similarly, the Gemara there says that if the husband finds a scribe, and
witnesses, that are willing to write a Get without a Zman, such a Get *will*
serve to acquit the woman if presented in court.) Why does such a Get acquit
the suspected adulteress, even *after* the Rabbinic enactment to write a
Zman in a Get?
Based on what we have explained, it may suggested that a Get is only
considered to have a "Rei'usa" if it is missing a part that originally *was
in the Get*. (That is to say, the Zman of the Get has been altered *after*
it was given to the woman to effect a divorce, thereby becoming a "Get.")
Since the Get has been changed after it was given to the woman, the Get has
a Rei'usa -- and the Rei'usa is in the very part of the Get that affects the
case in question, the time at which it was delivered. That is why the woman
may be killed if she erases the Zman that was written on the Get when she
received it. If, however, the husband erases (or omits) the Zman *before*
giving it over to the woman, she can simply have the witnesses sign that the
Get was lacking a Zman at the time of its delivery, and there will no longer
be a Rei'usa in the Get at all. That is why the Get can serve to vindicate
her if it lacked a Zman at the time of its delivery. (M. Kornfeld)
(c) All of the other Rishonim disagree with Rashi. They explain that the
Chazakah of Eshes Ish plays no role in killing the woman, and that is why,
before the Takanah of writing the Zman in a Get, Beis Din could not kill
her. When the Gemara says that the woman will not tamper with the Get but
she will tamper with her Kidushin, the reason for the difference is not
because the Chazakah of Eshes Ish will incriminate her. Rather, she is
*afraid* that the Chachamim will invalidate the Get that was tampered with.
(That is, in truth, they will not invalidate it, but she thinks that they
will.) In the case of Kidushin, though, she does not care if they invalidate
the Kidushin, because even if they do, she will be saved and will not be
killed (since, by invalidating the Kidushin, she will have sinned when she
was *not* an Eshes Ish).
Why, according to these Rishonim, does the Chezkas Eshes Ish in fact play no
role in the case? Why does the Chazakah not tell us that she was an Eshes
Ish when she sinned and that she is Chayav Misah?
1. The Rishonim (RASHBA and RITVA) in our Sugya write simply that this
situation is one of a Safek, and we cannot kill a person based on a Safek.
It seems that they hold that a "Chazakah d'Me'ikara" (a "status-quo"
Chazakah, which tells us to resolve the doubt by treating the person or the
object the way it was until this point) is not strong enough to serve as a
basis for killing a person. (See at length SHEVILI D'CHAZAKAH 19:1, by HaRav
Daniel Rabin of Yerushalayim.)
2. TOSFOS in Gitin (17a, DH Mishum), though, gives a different reason why
the Chazakah is not taken into account in this case. He says that a Chazakah
*could* be used to kill a person, but in this case there are two factors
working against the Chazakah ("Tarti l'Rei'usa;" see Nidah 2b, PNEI YEHOSHUA
and HAGAHOS RAV SHLOMO EIGER in Gitin there). First of all, it is evident
that she presently is no longer an Eshes Ish because she has a Get. Second,
she has another Chazakah that counters her Chezkas Eshes Ish; she had, until
the time that she sinned, a Chazakah d'Me'ikara that she was a good Jew who
did not sin, and so we delay the time that she sinned until the latest
possible moment (which was after the Get was given).
(The other Rishonim apparently do not consider the Chezkas Kesheirah, the
Chazakah that she was not a sinner, to be a valid Chazakah, since it is not
a Chazakah that says something about her *status* per se, but something
about her deeds and her free choice, and that itself is the question for
which she is being judged.)