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The Israel Koschitzky Virtual Beit Midrash
GEMARA GITTIN Shiur#8
- Daf 19b
Part One: The Requirement of the Eidei Mesira to Read the 'Get'
Having examined the process by which the signatories acquire knowledge of
the contents of the shetar, the gemara considers the witnesses of the actual
delivery. The gemara declares that they must read or have the document read to
them prior to its delivery, The Rishonim question the possibility of reading the
contents after the delivery, and through this issue present different opinions
as to the purpose of this reading.
Tosafot is the first to ponder a situation in which the eidim read the
'get' AFTER it has already been delivered from husband to wife. Initially they
rule that the reading must precede the delivery. After introducing a gemara in
Yevamot, however, Tosafot is less convinced about the requirement of reading in
general and suggest that b'dieved a 'get' which wasn't read by the witnesses
would be acceptable (if the divorced woman already remarried). Subsequently,
Tosafot concludes that a reading after the 'get' was delivered is sufficient
(supposedly even lechatchila).
The simplest manner toward understanding Tosafot is to claim that the
reading serves a purely utilitarian function - to verify the delivery of an
actual 'get' (and prevent future legal wrangling). If the witnesses ascertain
the identity immediately after this document's delivery, no uncertainties can
develop.
This view of Tosafot's position is somewhat dubious since we might
discover an alternate source of verification regarding the document's identity -
namely the husband. The gemara in
Bava Batra (134b) accepts a husband's testimony that he divorced his wife (since
if he truly wanted to he could rewrite a new bill and initiate a new divorce
proceeding). Why must the eidim read the document to ascertain its identity; why
not rely upon the husband's own admission?
This question - debated by the P'nei Yehoshua is considered by the Sefer
Hateruma as well, who suggests that the requirement for the eidim to read the
'get' would apply only if and when the husband begins to assail its validity (by
claiming that it really isn't a bill of divorce but some other document). In
this instance we demand a reading on the part of the eidei mesira (either before
of AFTER the delivery) to convincingly determine the document's identity. If,
however, the husband publicly confesses the identity of the document, the eidim
do not have to read the document.
The Mordechai (siman 343) cites a dissenting opinion, which maintains
that a 'get' must be read by the eidei mesira PRIOR to its delivery. After all,
the eidim's role far supersedes their serving as verification in the event of
future litigation. Geirushin itself is a ceremony which must be executed in the
presence of two witnesses (eidei kiyum). As these people must witness the entire
act, they must have prior knowledge of the instrument being employed to effect
this divorce - they must read the document prior to its issue. The Ran echoes
this sentiment when he claims that even though the husband would be believed to
help determine the identity of the 'get', the eidei mesira must understand what
they are witnessing [in order to serve as formal witnesses]- a function which
the husband obviously can't perform.
It is interesting to consider how Tosafot might respond to this claim of
the Mordechai. How can eidei kiyum fulfill their function without knowledge of
the actual document? One approach might suggest that Tosafot diminish the role
of eidei kiyum. They must be present (to create a more official and serious or
ceremonial atmosphere) but do not necessarily have to see and understand the
minute details of the divorce. This would entail a dramatic redefinition of
eidei kiyum and their halakhic function.
The Avnei Miluim suggests a more tempered understanding of Tosafot's
leniency. Indeed, eidei kiyum must witness and understand the event which they
attend. However, they can complete their knowledge of the proceedings after the
ceremony has concluded. The Avnei
Miluim develops a famous position that the episode which the eidim witness
doesn't have to unfold before them in a direct manner. If they are capable of
grasping and conceiving the ceremony they have served their role. He relates to
a well-known controversy which erupted regarding the minhag which some
communities adopted (and some still implement) to cover the face of the bride at
her wedding. Some wanted to invalidate this Kiddushin since the witnesses have
no knowledge of the bride. The
Avnei Miluim defends the viability of this form of Kiddushin since they can
remove the veil AFTER the ceremony and verify the identity of the bride. As a
precedent for his ruling he cites our Tosafot. Obviously the eidei mesira must witness
the details of the divorce and acquaint themselves with the contents of the
document. If Tosafot allows the reading to occur after the delivery, they
obviously support the contention that eidim can supplement the event they
witnessed with additional information acquired only after the ceremony has
concluded. Tosafot and the Mordechai engage in a more subtle debate: must eidei
kiyum personally witness and be apprised of every aspect of the ceremony which
they witness, or may they witness an event and process the meaning of what they
witnessed afterwards by acquiring complementary information?
Part Two: Questioning the Identity of the 'Get'
A separate segment of the gemara addresses a situation in which a 'get'
is delivered without any text appearing upon the document. Do we, in any way,
concern ourselves with the possibility that the document actually contains
invisible text, or do we simply dismiss this 'get'?
The gemara begins by citing Shmuel's halacha that in such a scenario we
do worry about the possibility of 'mei milin' - that the document contains text
which has momentarily disappeared and can be restored through certain, known
chemical treatments. To contradict Shmuel the gemara cites a Tosefta about a
husband who delivers a presumed 'get' which the woman then throws into the sea.
In general, though it is advisable to retain the document for future litigation,
the woman is not forced to hold the 'get' after its initial issue. In this case,
however, after the document has been discarded, the man claims that the document
he delivered was in fact a trial or model document but wasn't a legal bill of
divorce. The Tosefta ignores the husband's claim and this woman is considered
divorced as we initially presumed. Somehow, this Tosefta is cited in opposition
to Shmuel's halacha. How it contradicts Shmuel is the product of some debate.
The simple reading would suggest
that the Tosefta assumes - as a baseline - the appearance of text on the
document at the point of delivery. The question of whether to trust the husband
about the nature of the document's content presumes the presence of discernible
text. Clearly Shmuel's view that we 'worry' about a document containing no
apparent text at all is not adopted by the Tosefta. Before we begin questioning
a document's identity we must assure that it contained actual discernible text.
This approach views the contradiction as angular. We don't have a source clearly
stating the need to view discernible text. Rather, we can INFER it from the
Tosefta's debate. Ultimately, the
gemara concludes that even according to Shmuel, we don't consider the
possibility of submerged text unless we subsequently inspect the document with
the chemicals which extract the text. If the text appears after the document has
been delivered, we must at least consider the possibility that it was present at
the point of issue.
The Rabenu Kraskas suggests a different reading to our gemara. The gemara
thought that Shmuel's validation of a document without discernible text was
based upon the husband's testifying that indeed he wrote a 'get' with
disappearing ink. Without his claim we would never consider validating a
document without clear text, but with his corroboration we might embrace this
'get.' To contradict this, the gemara cited the Tosefta which accepted the
woman's claim that the document was indeed a valid 'get' (against the husband's
claim) only because the document in question contained text. In this scenario,
where the respective claims can be verified or disproved (since the text can be
theoretically inspected) we accept the statements of the individuals involved.
Even though the document of the Tosefta was ultimately thrown into the sea,
since it contained text it was something which COULD have been proven. A claim
by the woman about the identity of this document therefore carries greater
weight and is accepted (even after the document has been destroyed). In a
situation, however, in which a claim is unverifiable (since the document
contains no text whatsoever), a claim by the husband or wife about the identity
of the document will not be accepted. How could Shmuel validate this invisible
document simply because the husband claimed it contained unnoticeable text? We accept these types of claims only if
the document contains text (whose exact content is unknown) and the claims are
then considered scientifically verifiable or contestable.
To this the gemara responded that Shmuel, as well, accepted the husband's
statement only because he realized that our case, as well, can be inspected.
Since chemical treatment can potentially extract the text, the husband's claim
can be checked and is therefore more acceptable. The major shift of the Rabenu
Kraskas can be described as follows. The gemara wasn't only concerned with the
legal need for discernible text at the point of issue. First the gemara concerns
itself with a more compelling issue: how we establish the identity of this
document. Even though we can generally accept the claims about its identity from
the husband or wife, we might limit this rule to documents which provide
discernible text and an opportunity to subsequently verify or dispute a claim.
Only after reconciling Shmuel with the Tosefta regarding this question does the
gemara consider a separate concern - whether the text appeared during the point
of delivery. One can already detect this reading of the gemara in Tosafot s.v.
ta'ama when they pose this question - aside from determining the presence of
text on this document, how do we establish its contents? Tosafot did not, however, read this
issue into the gemara in the manner that Rabenu Kraskas did.
Ultimately the gemara does
ponder the question of the presence of text. Even assuming we can ascertain the
contents of the document how can we be sure that the discernible text existed
during its delivery? Even if we
subsequently extract the text we cannot determine the state at the point of its
issue. As Rashi s.v. hashta explains, 'absorbed text is not considered
text.' Since we will forever be
uncertain about the condition of the text during its delivery, Shmuel could only
have meant that we 'worry' about this invisible document and the chance that it
was a 'get.' Although we cannot
conclusively determine it as a 'get', we have to at the very least embrace the
possibility. Rabenu Kraskass suggests a different basis for the gemara's
conclusion that Shmuel was uncertain rather than absolute (in defining this
document as a 'get'). Even if we were to discover that the text remained
invisible during the delivery, we still retain a legal question about the nature
or status of such text. Rashi assumed that absorbed text was absolutely invalid
and Shmuel's question surrounded the condition of the text during the delivery
of the 'get.' According to Rabenu
Kraskas, Shmuel's very uncertainty surrounded the status of absorbed text. He
wasn't sure whether or not to classify it as legal text and therefore claimed
that we must treat this 'get' as safek. This halakhic question revolves around a
broader concept - the definition of text and the relationship between text and
the paper or material upon which it is written. This subject will I"YH be
elaborated in future shiurim. Mekorot for shiur
#9 The Function of Names
within a 'Get' 1.
Gittin (19b) "hahu
gavra...v'leka" Mishna (79b),
gemara...mamzer Mishna (34b), mishna (87b),
rashi s.v. chanichuto Mishna
(26a) 2.
Mordechai Gittin (354), Tosafot
(20a) s.v. ha, Rashi s.v. ha, Rambam s.v. ha, Or Zarua siman
745 3.
Yerushalmi Gittin (2:3) Amar
Rebbi Zeira...le'achar Questions: 1.
Which mishnayot or gemarot
indicate a fundamental role for names in a 'get' and which suggest a more
subsidiary role?
2.
How does the Rabenu Simcha
(cited by the Or Zarua) explain the function of
names? 3.
How does the Rambam read the
gemara in (21b) about sefirat devarim? 4.
How might we distinguish between
the name of the husband and that of the wife, according to the
Yerushalmi? |