GEMARA GITTIN 5772
Shiur #1: Daf 17A - 18A
The Requirement of Dating a Get
by Rav Moshe Taragin
The Mishna (17a) addresses situations in which the 'get' was dated
significantly prior to the actual signature.
If this discrepancy falls over two different calendar days, the 'get' is
invalid (at least according to the majority opinion). The mishna does not trace the origin
of 'dating' a 'get'; this task is assigned to the gemara. Inferring the need to date a 'get'
from the mishna, the gemara ponders the root of this law. It assumes that 'dating' a 'get' is
merely a Rabbinical decree and then searches for the rationale of this law.
It is indeed striking that the gemara regards the date of a contract (presumably
a fundamental aspect of any legal document) as so peripheral that it stems
merely from a Rabbinical decree!! After all, verbal witnesses must 'date' their
testimony - if for nothing else than to allow cross-examination (known as
derisha ve-chakira - see Sanhedrin 40a).
This anomaly convinced Rav Chayim Brisker that a 'shetar' is not merely a
written form of testimony, but entails an entirely novel halakhic entity in few
ways similar to verbal testimony.
Had written and verbal testimony been symmetrical, we would demand that a shetar
facilitate the cross-examination we demand of witnesses who testify verbally. Such a stance would assign a more
basic role to the date. Our gemara
clearly rejects this perspective, by attributing the date of a shetar to more
Returning to the gemara: two reasons are suggested for including a date
in a shetar. According to Rebbi
Yochanan, the Chakhamim sought to guard against a husband 'protecting' his wife
from legal punishment in the event of illicit sexual relations. Imagine a scenario where a woman
commits this crime and subsequently persuades her husband to issue a date-less
divorce. She can then claim that
the divorce was issued prior to her crime and thereby escape punishment. To prevent this, the Rabanan
demanded that all 'gets' be dated.
This is referred to as ‘shema yechapeh.’ According to Reish Lakish, a different
concern motivated the decree. A
husband enjoys all profits from his wife's estate during the term of their
marriage (this privilege is known as 'peirot nikhsei melug' and is referred to
as ‘peirot’). Obviously, these
rights expire at the point of divorce.
To ascertain exactly when the divorce occurred (and thereby avoid future
legal wrangling), the Rabanan instituted that every 'get' be dated.
An important question readily presents itself: having been awoken to
include zeman because of the aforementioned concerns, what exactly was the
nature of the decree? Did they
merely attach a 'tag' to avoid these problems by recording the moment of issue,
or did the Rabanan effectively revamp the entire bill of divorce and add a new
element to the 'ingredients' of the 'get'?
Said otherwise: after this decree was made, do we view the date as an
indicator attached to the 'get' to solve certain technical problems, or do we
view it as an integral aspect of the text of the 'get?'
Possibly, the clearest nafka mina to this question can be found in the
gemara (26a) which raises the rule of 'lishma.'
Unlike some other legal documents, a bill of divorce cannot be mass
produced, and must be written specifically for the individuals involved (see
especially the mishna 24a). As a
result, the heart of the 'get' cannot be filled in until the husband
specifically commissions the writing of a 'get' for his wife. The remainder of the text
(containing issues of more peripheral nature), however, can be pre-filled by a
scribe. The mishna includes the
date as an element which cannot be pre-filled but instead must be added 'lishma'
- for this particular divorce. This
gemara suggests - convincingly - that although fundamentally a 'get' does not
require a date, once the Rabanan established its necessity it becomes an
integral component of the contract and must even be composed with particular
design (lishma). This indeed is the
manner by which the Beit Yosef explains the Tur (Even Ha-ezer 123), who cites
this gemara. The Ramban (commentary
to Gittin 26b), however, suggests that if a lishma requirement exists, it does
not indicate the date's integration into the document, but rather a more
technical concern: allowing pre-filled documents will facilitate a slip into
using predated and postdated documents.
To secure this area, the Rabanan demanded that dates be filled only after
the husband directly requests the writing of the 'get.' The Ramban's explanation does not
necessarily view the zeman as an integral aspect of the contract, even though
technically it must be written lishma.
A second halakha which might reflect the status of the date in a 'get' is
the question of a predated 'get' mentioned in the mishna. The gemara doesn't ever address the
specific case of a predated 'get,' but instead provides the background for the
Rabbinic decree of the 'date.'
Ostensibly, a predated 'get' would be disqualified because it fails to
adequately solve the dual problems of 'peirot' and 'shema yechapeh.' Keep in mind, however, that the
gemara never actually attributed the disqualification to these concerns; it only
presented these issues as the source for the general requirement of 'zeman.' Notably, the Yerushalmi (to our
mishna) does directly attribute the disqualification of a predated 'get' to the
failure to facilitate smooth transfer of the peirot.
Interestingly, the Rambam, in his commentary to the mishnayot, explains
the disqualification based upon the predated contract being a 'false' document
(shtar sheker). Indeed, before the
Rabanan established their decree, no date was necessary. Once, however, the decree was
instituted, the date incorporates itself as a fundamental component of the
document; a document with an incorrect date is considered a 'shetar sheker' and
A parallel notion can be glimpsed within the Rambam in Hilkhot Geirushin
1:25. The Rambam invalidates a
'get' which was postdated (a date AFTER the actual signing was affixed). The Raavad objects, because the
classic problems of peirot and shema yechapeh do not apply. It is certainly not in the woman's
interest to delay the assumed date of her divorce, and doing so will in no way
assist her in dodging a deserved penalty.
The Raavad also develops a novel schedule for the cessation of peirot
which is not negatively affected by a postdated 'get.'
The defense of the Rambam's position can take two possible forms. We might still discover certain
technical problems with a postdated 'get.'
Indeed, the woman cannot illegally acquire peirot, but she can cast
aspersions on the 'get' by claiming the divorce occurred before her betrayal. "After all," she will say, "don't
infer too much from the date of the 'get' since we all know it to be
inaccurate!" The Ran agrees with
the Rambam and bases his invalidation of a postdated 'get' upon this exact
The Lechem Mishna proposes a different defense of the Rambam. Indeed, a
postdated 'get' does not invite the types of problems that triggered the
Rabbinic decree of zeman. Yet, this
document (though it might be trouble-free) is still invalid since it is a false
document. Though no particular
problems exist, we cannot process a divorce with a false shetar. Again, we witness that according to
the Rambam, the date – though only the product of a Rabbinic decree - becomes
part of the essential document; any falsifying of this component – even if no
particular problems are created – sinks the shetar.
The situation of a 'get me'uchar' (a postdated 'get') is structurally
significant because it seems to provide an instance in which the technical
problems of 'peirot' or ‘shema yechapeh’ (which served as the motivation for the
takana of zeman in the first place) do not apply, but we still might disqualify
the 'get' because it contains false information.
Such a stance would certify that after the decree to include zeman was
issued, it becomes an integral aspect of the document. Two additional instances emerge from
the gemara's discussion - two more cases in which technical problems do not
necessarily exist and yet we still might invalidate an incorrectly dated
contract because of false information.
The gemara (18a) validates a contract which was signed the night after it
was dated (which, according to halakha, signifies the start of a new day), so
long as the parties were involved in the processing of the contract the entire
time. For example, if they began
issuing the 'get' and dated it Sunday afternoon, but continued to discuss and
process the divorce through nightfall and signed it only at night, this 'get' is
valid since - as the gemara states - they were 'asukin be-oto inyan' (dealing
with the issue of the 'get' throughout the duration). Many Rishonim explain this exception
as due to the presence of a 'kol' - widespread knowledge of the circumstances of
this divorce. Since the witnesses
were ready to sign Sunday afternoon but were merely withheld a few hours due to
the ensuing processing of the 'get,' everyone is aware of the impending 'get'
and will therefore be wary of purchasing peirot from the husband. Similarly, everyone will remember
this 'get' and prevent the woman from lying about a 'get' delivered earlier than
it actually was (the following night).
Does this gemara not suggest that if we can generate a 'kol' (public
knowledge) and thereby avoid the technical problems of peirot and shema
yechapeh, we are allowed to issue a false document? Would this not suggest that in fact
the zeman does not become an integral aspect of the document, and a false date
does not disqualify a 'get'?
The Rishonim present two alternate ways of understanding this gemara. Rashi explains that the gemara was
not validating a predated 'get' in the case of asukin be-oto inyan. Rather, the gemara, at this stage,
was discussing other types of contracts in which the date plays a less pivotal
role. See the Ran, as well, who
delimits the gemara's allowance of asukin be-oto inyan and avoids validating a
false 'get' simply because a 'kol' was created.
These positions might maintain that indeed the zeman does become an
inherent element of the shetar, and we cannot accept a falsely dated contract
simply because people will uncover the discrepancy, thus avoiding potential
A second approach toward
understanding this gemara is presented by the Beit Yosef in Choshen Mishpat
(43). He claims that if the
witnesses are prepared to sign but are delayed for technical reasons, we
consider them as having already signed, since during the interim all parties
continued to discuss the 'get.'
Halakha very often supplies the tools to manipulate actual time. If someone eats bread on Rosh
Chodesh and his meal lasts into the night (after Rosh Chodesh has ready
expired), he nonetheless recites 'yaaleh ve-yavo' in birkat ha-mazon because we
consider him as reciting birkat ha-mazon during the preceding day; he began his
meal during the afternoon and did not interrupt the meal until nightfall. Similarly, according to the Beit
Yosef, witnesses who are prepared to sign are considered as having signed even
if forced to wait for the final details of the 'get' to be ironed out. Hence, this 'get,' though dated
before the eidim actually sign, is not considered a false document, because
Halakha considers the 'get' as having been signed during the afternoon - an
accurate reflection of the date which appears on the 'get.'
A second example of a false 'get'
which might avoid the legal pitfalls of shema yechapeh and peirot can be induced
from the gemara (18a) regarding a 'get' written in a different country and sent
to our location with a shaliach.
Even though the 'get' was only issued months after the signing (allowing for the
travel time of the shaliach), since any document coming from abroad generates a
'kol,' people will thoroughly investigate the matter and avoid mistakes in any
potential litigation. The Rishonim
pose the following question: if a 'get' delivered from abroad generates public
awareness and does not complicate future litigations, why not validate even
predated documents, as long as they were written abroad and delivered through a
shaliach? The Rashba in fact does
accept this logic and allows a 'get mukdam' (a predated 'get') - technically a
false document – brought from a different country, since no legal issues will
arise. The Ran disagrees and
disallows the use of a 'get mukdam' from abroad, even though the public is aware
of the timing discrepancies. He
doesn't articulate the reason for his disapproval, but we might suggest that he
views the 'get mukdam' as a shetar sheker, and cannot validate this type of
document simply because legal complications will not arise. A properly dated 'get,' however,
delivered from overseas, which undergoes a delay between its signing and
delivery, is not falsely signed or dated and can be issued if public awareness
We have witnessed thus far two situations in which a falsely dated document
might be invalidated even though the legal concerns of peirot and shema yechapeh
do not exist.
A final example might emerge from the gemara in Bava Batra (172a) which
cites the position of Abba Shaul allowing a 'get' whose text reads "I divorce
her TODAY," even though no specific date appeared on the 'get.' The gemara ultimately ascribes Abba
Shaul's position to Rebbi Elazar, who maintains that eidei mesira karti (the
critical witnesses are the ones who view the delivery of the 'get'). The Rashbam explains that as Rebbi
Elazar requires witnesses to the delivery, they will testify as to the time of
the delivery, and therefore no legal complications will ensue. The entire need for a date on the
shetar was only considered according to Rebbi Meir, who does not demand
witnesses to the delivery of a 'get.'
An accurate date is therefore necessary to provide information as to when
the 'get' was delivered. What is
clear from Rebbi Elazar is that the Chakhamim never instituted 'zeman' as a
fundamental aspect of a 'get.'
Rather, they demanded some scrutiny or mechanism for ascertaining the date of
issue. Generally, this can best be
accomplished by dating the actual document.
According to Rebbi Elazar, however, once we are certain that witnesses
will view the actual issue, we can dispense with the actual date written on the
Mekorot and Questions for upcoming shiur (#2)
This shiur will consider 2 topics:
a) How precise must the date be?
b) Understanding Rebbi Shimon's position.
Mekorot for topic a)
1) Ittur ma'amar rishon.
2) Rambam Geirushin 1:26, Raavad.
How can we justify the Rambam's position, which allows excising the date after
What importance do you attach to the Ittur's phrase, "ke-sha'ar shetarot?" Compare to Rambam Geirushin 1:24.
Mekorot for topic b)
1) Gittin (18a); Mishna (19a).
Bava Batra (146 a): "Ma'aseh
Rashbam s.v. nafla.
Mishna Gittin (81a).
2) Raavad's comments to the Rambam Geirushin 1:25.
Rosh, Gittin 2:5 "ve-ha-Ra'avad"; Rashba, Gittin (17a) s.v. Reish Lakish,
"ve-ha-Ra'avad ....shloshim yom."
3) Tosafot (18a) s.v. ve-anchei, Tosafot Rid (18a) "de'i le-Reish Lakish
How does the Rashbam in Bava Batra understand Rebbi Shimon's position?
Why does Beit Shammai attach such importance to the writing of a 'get?' Compare
to Shmuel's position (Gittin (18a) regarding counting three months to
How are we to explain the Raavad's position, which grants the husband extended
peirot rights? Contrast the Rosh to the Rashba.
How do we understand the position of the Chakhamim according to Reish Lakish's
view, that peirot are terminated at the point of chatima? Contrast Tosafot with
the Tosafot Rid.