GEMARA GITTIN 5772

By Rav Moshe Taragin

Shiur #21: Who is Qualified to Draft a Get Lishma?

Having outlined different purposes which the requirement of lishma during the composition (ketiva) process might serve, this shiur will study the individuals who are qualified to draft a get.  The mishna in Gittin 22b announces that "Anyone can draft a get - even a cheresh (deaf-mute), shoteh (mental deficient) or katan (minor)." 

The gemara immediately challenges this concept by questioning the capacity of the abovementioned individuals to have the necessary lishma intent.  The gemara ultimately suggests that the mishna is not referring to the part of the get which must be drafted lishma, but rather the standardized part which does not possess this requirement (known as the tofes.)  Indeed the essence of the get – the toref, which must be composed lishma - must be written by a gadol, a person over the age of thirteen years.  Subsequently, the gemara claims that our mishna adopts Rabbi Mei'ir's position that a get must be SIGNED with lishma intent but not necessarily WRITTEN with lishma intent.  Even though the katan does not write the get lishma, it may be validated by a subsequent signing lishma.  Before offering these opinions, however, the gemara raises a different solution: the katan may write a get if a gadol is "omed al gabbav" – literally, standing above him.  How are we to understand this synthesis of the katan who writes the actual document and the gadol who stands alongside him and directs the process? 

Tosafot (ibid., s.v. Ve-ha) assume that the role of the gadol is merely instructional.  Without any instruction, the katan is incapable of having the lishma intent; if the gadol, however, directs his actions and informs him about the necessary intent, the katan would indeed be able to fashion the get appropriately.  Tosafot are initially disturbed by the gemara in Chullin 12b, which does not allow a gadol omed al gabbav to validate a shechita performed by a katan.  Ultimately, however, Tosafot claim that in the context of shechita, no active guidance is afforded the katan (his actions were merely witnessed by the onlookers), and his act is therefore disqualified.  In our gemara, however, the gadol actively informs the katan and assists him in arriving at the necessary focus.  Ultimately, according to Tosafot, the katan performs the act of writing and also provides the lishma intent with the guidance and direction of the gadol. 

Tosafot's position possesses convincing features, but it does raise several questions.  For instance, according to Tosafot, we might not require a gadol accompanying the katan if, in theory, we could locate a precocious katan capable of guiding the less-developed katan.  In fact, the Yerushalmi (2:5) speaks not of a gadol but of a pikei'ach (one who is intelligent) omed al gabbav, suggesting that age is not a prerequisite.  Yet, the Bavli does not mention this option, seemingly demanding a gadol proper.  Tosafot's assigned role for the gadol, though, would seem to invite the possibility of katan pikei'ach omed al gabbav. 

A second issue with Tosafot's approach concerns the presence of the gadol at the point of the ketiva.  By employing the term "omed al gabbav," the gemara implies that the gadol must accompany the katan literally at the moment of ketiva.  If his role is limited to instruction, why can't he provide this instruction prior to the actual ketiva, without actually attending it?

The Rashba in Chullin (ibid.) cites a variant opinion in the name of Rabbeinu Yona.  Rabbeinu Yona establishes that inasmuch as the writing of a get can be assigned to a shaliach, the gadol omed al gabbav case may operate according to a similar mechanism.  It is clear that gadol omed al gabbav cannot be the exact model of shaliach, since a katan cannot serve as a halakhic shaliach.  Evidently, the mere ability to commission a shaliach allows the gadol omed al gabbav to validate the get.

We must address two issues.  First of all, why does the application of shelichut allow other models?  Second of all, how exactly does gadol omed al gabbav operate, assuming it cannot comprise classic shelichut?  In dealing with the first question, we must examine an important principle established by Rav Chayim Soloveitchik. 

In a landmark analysis (Hilkhot Yibbum Ve-chalitza 4:16), Rav Chayim distinguishes between two different forms of intent within the halakhic system; he employs the terms da'at and kavana to classify these different forms of intent.  In some halakhic processes, the participants are not active creators of the desired halakhic change; they merely perform certain prescribed actions, which ultimately trigger defined changes.  In these cases, mere knowledge and awareness of what is occurring is sufficient to ensure the viability of the process; as the individuals are not themselves fashioning the halakhic change but merely participating in a self-driven process, their active and creative intent is not necessary.  In these instances (chalitza, being the example mentioned by Rav Chayim), only kavana (consciousness) is necessary.  However, in other situations where the individuals themselves (by executing required halakhic procedures) are building a new halakhic state, a higher and more active form of intent - defined by Rav Chayim as da'at - is required.  For example, in the instance of kiddushin, the man and woman are actively generating a state of ishut and they each must possess creative intent: da'at.

Rav Chayim also provides a yardstick to help determine which type of intent is required in a given halakhic setting.  If Halakha allows a katan to execute a transition and provide his intent, a lower and less creative type of intent is evidently required.  As a katan is capable of kavana but not da'at, we will allow him to drive a halakhic process where the former is involved, but not one in which the latter is mandated.  Rav Chayim actually cites our gemara (assuming Tosafot's opinion) and ultimately concludes that the drafting of a get requires only kavana and not active da'at. 

Inherently, within Rav Chayim's system lies an important concept which helps us decipher the position of Rabbeinu Yona.  Though Rav Chayim (at least in this piece) does not directly address this factor, his classification greatly impacts on the capacity to delegate a shaliach.  In halakhic processes which are self-driven (requiring only the input of kavana), shelichut is not allowed.  As the individual (in the case of chalitza, the live brother) is not the author of the halakhic change but merely an actor upon the stage in which the change is occurring, he cannot delegate the performance of a required action to an agent.  Only when a person directs the process (in part through his da'at) can he legitimately appoint an agent to act in his place.  Though Rav Chayim does not personally cite this correspondence, it emerges as a clear consequence of his distinction between kavana and da'at.  Indeed chalitza, which requires only kavana, does not accommodate shelichut, while in kiddushin and geirushin, which require the higher level of da'at, Halakha allows the creation of a shaliach. 

Based upon this association we may return to Rabbeinu Yona's opinion.  By asserting that a person can appoint a shaliach to draft a get (an opinion not unanimously accepted), Rabbeinu Yona categorizes ketivat ha-get as a process which requires da'at.  If indeed da'at is needed, apparently the process is being manufactured by human impetus and is not as "automatic" as chalitza.  As such, even in a context in which classic shelichut is not possible (because a katan cannot serve as a shaliach) we might allow other forms of delegation, since the husband (the true author of the process) has the discretion and authority to delegate and to fashion the process in whatever way he chooses.  Indeed, the case of gadol omed al gabbav cannot entail classic shelichut since the katan cannot serve as a shaliach.  However, the possibility of appointing a shaliach allows the husband to design different ways in which the ketivat ha-get will occur.

Even before we describe the exact mechanism of gadol omed al gabbav, an important difference between Tosafot (and Rav Chayim who concurs with them), on the one hand, and Rabbeinu Yona on the other, is clear.  According to Tosafot, ketivat ha-get only requires kavana lishma; hence, the katan can provide such intent given the gadol's instruction.  According to Rabbeinu Yona, however, a higher form of da'at lishma is necessary, rendering the katan incapable of providing such intent and requiring the gadol to be more intimately involved in the actual process.  This distinction - whether the lishma aspect of ketiva must be on the level of da'at or kavana – evokes the question discussed in the previous shiur.  If lishma endows the document with a new halakhic identity, we might require a higher, more creative form of da'at.  After all, ketiva is the opportunity for the scribe (through his creative intent) to impart a new status to the get.  The conferral of this identity would logically require a higher form of intent.  If, however, ketiva lishma merely defines the act as a superior type of composition - conscious writing - but does not impart any new identity, we might suffice with the more basic level of kavana.  Said otherwise, the machloket between Tosafot and Rabbeinu Yona about the level of lishma might be a product of the earlier described question pertaining to the function of lishma.

Having described the structural differences between Rabbeinu Yona and Tosafot we will consider the Imrei Moshe's view of the precise mechanism according to Rabbeinu Yona.  Returning to the precise mechanism of Rabbeinu Yona, we are left with two options.  The Imrei Moshe claims that Rabbeinu Yona recognizes a complete split between the intent and the writing: the katan performs the mere act of writing, while the gadol supplies the lishma.  As opposed to Tosafot, who view the katan (guided by the gadol) as the source of both the lishma as well as the writing, Rabbeinu Yona sees the gadol as the provider of lishma and the katan as performing the physical act of writing.  Indeed, this is also a crucial statement about the nature of lishma according to Rabbeinu Yona, perfectly consistent with our earlier analysis of his position.  If lishma qualifies or animates the act of writing, we might not allow one person to write while another intends lishma.  Why should Reuven's intent animate Shimon's act?  If, however, we view lishma as the intent which confers legal status upon the document, we might allow that status to be awarded while another person is actively composing the get.  After all, the intent itself confers status as long as it is anchored to some creative act performed on the document.  Thus, while Shimon writes, Reuven might be able to endow the document with this status.

********************************************

Sources for the next shiur (#22):

Non-Jews and Minors as Agents in the Delivery of a Get

1)   Gittin 23a, Mishna; Gemara (until the mishna, 23b)

2)   Mishneh La-melekh, Hilkhot Geirushin 1:3

3)   Ra'avad, ibid. 6:9

4)   Tosafot Sanhedrin 72b, s.v. Yisra'el