GEMARA GITTIN 5772

Shiur #9 - Daf 20a

The Function of Names within a Get

In our further efforts to define the anatomy of a halakhic get, this shiur will explore the function of personal names which appear in get. We might expect the names to constitute an essential element of a get; however, many of the texts which discuss the names within a get suggest a more subordinate role.

            The mishna on Gittin 80a mentions several types of gittin which lack secondary information which the rabbis required within a document.  For example, the rabbis demanded the insertion of the date of the operative monarchy in order to show respect to that governing body.  Omission of this information - though not a biblical invalidation (since the Torah does not require this information to begin with) - would still disqualify the get. Fearing a trivializing of their takanot (enactments), the rabbis fortified their decree by disqualifying any document which deviates from their format.  Rabbi Meir (the author of our mishna) explains that "Kol ha-meshaneh mi-matbei'a she-tavu chakhamim ha-velad mamzer" - any alteration of the format established by the Sages renders the get invalid and children born of any subsequent marriage mamzerim.  Within this context, the mishna cites the example of someone who wrote a wrong name for the husband or the wife within a get. This juxtaposition would suggest a subsidiary role for names within a get: it is not necessary from a biblical standpoint, but only rabbinically.  Alteration of this information is tantamount to incorrectly recording the year of the monarchy.

            Additional basis for this position - that a get does not require names on a biblical level - stems from the mishna in Gittin (34b), which cites the takana of Rabban Gamliel to include aliases.  The mishna does not claim that primary names are necessary at a biblical level, while aliases were demanded subsequently by Rabban Gamliel.  By merely presenting Rabban Gamliel's view, the mishna seems to be claiming that at a biblical level, names are not necessary at all.  A third source for this position can be located in the gemara in Gittin (87b), which describes a get which merely contains what the mishna refers to as "chanikhata;" Rashi explains that the get merely contained the names of their respective families and not their personal names.  This explanation, too, would suggest an ancillary role for names within the get.

            The Mordekhai (Paragraph 354) cites the position of Rabbeinu Yoel that, indeed, names are not vital to a get according to Rabbi Elazar's position.  Since Rabbi Elazar requires eidei mesira (witnesses to the actual delivery of the document), they will verify that the document was in fact delivered to this specific woman.  Indeed, Rabbi Meir himself might require names; since Rabbi Meir only requires eidei chatima, no witnesses can actually verify the delivery to this specific woman.  The aforementioned mishnayot represent Rabbi Elazar's position, which could potentially eliminate the need for names within the get.  Rabbeinu Yoel himself does not articulate a rabbinical decree to include names, but such a conclusion is almost inevitable in light of the mishnayot on 80a and 34b.

            Most Rishonim disagree with Rabbeinu Yoel, claiming that names are a vital ingredient of a get. To neutralize the proof from the mishna on 80a, Tosafot (both on 20a and 80b) claim that the mishna refers to a situation in which names were recorded but slightly altered. In this instance, the disqualification is rabbinical and analogous to incorrectly registering the date of the monarchy; however, if the names were completely omitted, the document would be invalidated on a biblical level.  To support their claim that names are essential to a get, the Rishonim cite two primary sources:

1) They first refer to our gemara (Gittin 20a), which considers the viability of a Torah scroll to serve as a get.  The gemara dismisses this option, since a get requires names; presumably the gemara recognizes a basic need for names within a get and is therefore quick to dismiss the use of a Torah scroll as a get.  Interestingly enough, the gemara itself does not cite a source which spells out a basic need for names; instead, the gemara cites the mishna (80a) which discusses a get with slightly altered names.  Rashi is quick to note that the gemara infers from this mishna that the absence of names entirely would constitute a more basic disqualification (presumably similar to Tosafot, who assume the mishna refers to a case in which the names were slightly changed).

2)         A second source which many cite to indicate the essential role of names within a get can also be found on Gittin 26a.  The mishna there cites an opinion which allows a scribe to write the insignificant parts of a get without proper intent. (This intent, known as lishma, will be discussed I"YH in future shiurim.)  The scribe must, however, delay the writing of the essential get until he is requested to do so by the husband and can properly compose the 'vital' parts of the get lishma - with proper intent.  Among the many ingredients which the mishna considers 'vital' are the names of the man and the woman.  Indeed, Rabbeinu Yoel himself is sensitive to this possible proof and maintains that even though names are not indispensable, they are still necessary le-khatchila.  The mishna itself is aware of certain requirements which are not absolutely binding to a get's validity but still desirable (such as writing all aspects of the get lishma).  Even though a get will be valid without names - according to Rabbi Elazar - it is still more desirable to include names.

            Although logic dictates the necessity of names within a get, and indeed some sources do invoke such a requirement, the Gemara itself never articulates the basis of names within a get. It seems instinctive, yet the Gemara never formulates the actual function of names.  This phenomenon continues in the Rishonim, many of whom demand names, but several of whom do not stipulate the exact role.  Two notable exceptions are the Ramban and the Or Zarua.  The latter (Paragraph 745) cites, in the name of Rabbeinu Simcha, that names are necessary so that the get can be written lishma; unlike other documents, a get must be written specifically for the couple in the process of being divorced.  Rabbeinu Simcha claims that such intent is not merely necessary to qualify the MANNER in which the document was manufactured; there must, in addition, be some discernible expression within the actual text of the get.  Without names 'tagging' the get, we cannot define the document as one which was written with the halakhic intent of lishma. This statement has significant consequences about the nature of lishma and will, IY"H, be revisited in future shiurim which deal with this topic.

            Ingenious as Rabbeinu Simcha's approach might be, it appears from the gemara that the disqualification of a get without names is more basic.  When Rav Yosef considers a Torah scroll as a get, he exclaims, "Le-mai neichush leih?" - why should we even worry (about its possible viability as a get), it contains no names.  The Rashba senses in this statement a wholesale dismissal of a get without names, a disqualification more severe than a properly written document which was composed without proper intent (she-lo lishma).  The gemara (24b) claims that if a woman were to be divorced with a get written she-lo lishma, there is still some consequence to this divorce. Though the divorce process itself collapses, since a properly written document was not delivered, she is considered a divorcee, who cannot marry a kohen.  The Rashba asserts that if a woman were divorced with a get containing no names, she is neither legally divorced, nor even disqualified from marrying a kohen.  Evidently, an unnamed get possess a more fundamental flaw than one written without lishma.  The Rashba does not clarify the exact function of names; still, he maintains that it plays a more central role than merely assuring the substance of the intent of lishma.

            The Ramban does suggest a different reason for the need of lishma; by employing the term sefer to define a get, the Torah (Devarim 24:1, 3) demands that a get tell a story.  This concept, known as sefirat devarim (narrative), is unique to gittin and allows the Chakhamim (who argue with Rabbi Yosei Ha-gelili) to ignore certain requirements which might apply to sefer (see shiur #5).  A get must tell a story, even if the story is not inscribed in a book.  (Later shiurim will address the exact role of storytelling within the process of divorce.)  Without names, claims the Ramban, a get cannot properly narrate its story. Even though the Chakhamim reject Rabbi Yosei Ha-gelili's sefer claim, they still maintain standards of their own.  The goal of sefirat devarim is taken seriously, and names are vital toward ensuring that a story is actually narrated by the document.  In fact, the Ramban in Kiddushin considers extending this storytelling function to a shtar kiddushin (based on the general analogy between get and shtar kiddushin), a document which (unlike a ketuba, which is essentially a prenuptial agreement) effects a marriage, and consequently a shtar kiddushin would require names as well.

            This explanation of get is crucial toward our overall perspective. The Ramban assumes two points:

1) To divorce a woman, a story must be told. Unlike formal documents, which merely encapsulate future testimony, a get must deliver a narrative.  The statement of the Chakhamim to Rabbi Yosei Ha-gelili is not merely intended to reject the need for "sefer;" instead, it replaces the requirement of sefer with one of "sefirat devarim."

2) The story must be told inherently by the document; hence, the document itself must contain names.

Each of these presumptions will be examined in future shiurim as we attempt to uncover the essence of get.

            An intriguing source in the Talmud Yerushalmi suggests a third position regarding the role of names within a get.  In Gittin 3:2, the Yerushalmi suggests that the name of the husband must be recorded, but not the name of the woman.  Had the names served to complete the story, we presumably would have required the names of both parties.  We might explain that the insertion of the husband's name serves a slightly different - albeit related - function. The Rosh in his Tikkun Gittin (a brief handbook, providing a practical guide for one officiating at a divorce procedure, which he includes in his commentary to Gittin), cites a disagreement about including the word "eich" (whereas) in a get.  Generally a shtar is written in the voice of the eidim transcribing their witnessing how or that X did y to Z.  The shtar - as a recording of the testimony of the witnesses - should be written in their voice, witnessing the performance of an act between two other individuals.  The Rosh claims that a get should not be written in this tense, but should rather be the voice of the husband sending his wife away; in other words, the Rosh demands that the story be narrated BY the husband and not by the shtar or the eidim.  We might posit the same claim about names. The story itself can be narrated without names; the blanks will be filled in or supplied by the context (the actual delivery of the document from Reuven to Rachel). Inserting the name of the husband simply assures that the story we hear will be told by the husband, as required by the Rosh.

Sources for next week's shiur (#10):

The Role of the Husband in Composing the Get

1) Gittin 20a, "Amar Rav Chisda...kasher"

Bava Batra (167a) Mishna; Gemara (168a) "Mai ta'ama...li-shhayeih"

2) Rashi Gittin 20b, s.v. Lo yada

Rosh, Sefer Ketivat Ha-get (cited after the Rosh), "Ha-sofer...ha-sechar"

Sefer Ha-teruma – see: http://vbm-torah.org/archive/gittin/source04.gif

Ramban Gittin 20a, s.v. Dilma

Nimukei Yosef Bava Batra 77a (in the pages of the Rif), s.v. "Ve-haba'al"

3) Ran Gittin 9b (in the pages of the Rif), s.v. "Ve-garsinan tu ba-gemara amar Rav Chisda"

4) Tosafot 22b, s.v. Ve-ha: "Ve-yesh lomar de-lo be'inan… zevachim"

Questions:

1) Why must the ba'al own the get?

2) Does the husband have a positive role in the composition of the get?

3) What was the nature of the takana mentioned by the gemara in Bava Batra?  (See the Ran.)

4) If the sofer doesn't act as the agent of the husband, why must we wait for the husband's order to write a get?  (See Tosafot 22b.)