GEMARA GITTIN 5772
Rav Moshe Taragin
Non-Jews and Minors as Agents in the Delivery of a
Having discussed who may write a get, the following mishna (23a) lists people who are suitable to deliver
Unlike the writing, which is valid even at the hands of a
shoteh (mental deficient) or katan
(minor), the delivery can
only be performed by an agent (shaliach) who is none of the above; in
addition, the representative must be a Jew.
The Gemara comments upon these various individuals and why they are
unsuitable to serve in the role of a
shaliach. The next two shiurim
will focus upon the questions regarding
shelichut which arise from the Gemara's discussion.
Gemara immediately examines the reason that a
cheresh, shoteh or
katan may not serve as
shaliach. The Gemara declares that their
disqualification is based upon the fact that "lav benei
ninehu" – "they do not possess intelligence." One might interpret this rule as
pertaining to their practical capacity to deliver the
get; inasmuch as the act of delivery
must be a cognitive one, we might require the person who executes this act to
possess basic intelligence. This
view, though, would only require cognition at the point of delivery (netina). If a person is appointed to serve as
a shaliach when he is a katan
and subsequently becomes a gadol
(adult) we might, according to this logic, consider his candidacy to perform the
netina. Yet the Gemara
clearly refutes this thesis and explicitly demands that the agent possess
suitability both at the stage of appointment AND during the actual execution. Evidently, intelligence is necessary
as a basic requirement of serving as a representative and not just incidentally,
because these agents are executing a cognitive act.
defining the defect of a potential
shaliach based upon his lack of cognition, we must first study the process
of appointment, known in halakha as minui. Does the appointment process have to
be directed at someone with intelligence?
Why can one not appoint a minor as a
shaliach, with the full knowledge that
the agency cannot be carried out until the agent matures? Why is it absolutely necessary that
the agent be an intelligent adult at the point of designation?
question strikes at the heart of how we understand the process of
minui itself. The Mishneh La-melekh (Hilkhot
Geirushin 1:3) asserts a striking notion about
He maintains that a husband cannot appoint a
shaliach to divorce his wife who is
currently mentally deficient on the condition that her condition improves; since
the divorce cannot occur under the present conditions (since his wife cannot
understand the terms of the divorce), he may not appoint a
shaliach. Evidently the
Mishneh La-melekh sees the appointment of a
shaliach as more than just revealing
one's will or indicating one's desire that another individual perform an act on
his behalf; designating a shaliach is the halakhic empowerment of another individual to perform a
distinct halakhic transaction.
Therefore, if the transaction itself is not yet viable, the appointment cannot
be made. In a similar vein we might
understand our gemara: this empowerment must be conveyed to someone with
halakhic intelligence, someone who is capable of actually performing the
halakhic proposition in question.
According to this view, the lack of intelligence and the inability – under the
current conditions — to execute the delivery renders the
katan ineligible for shelichut.
The appointment process must take into account the present viability of
different concept emerges from the Rid.
As next week's shiur will demonstrate, one of the reasons that a non-Jew
cannot serve as shaliach is because he
is not halakhically similar to the person he is representing. As a
shaliach is an agent, Halakha demands
some degree of parity between the representative and the individual which that
agent represents (meshalei'ach).
This parity requirement is derived from the derasha of "'atem' — 'gam atem'" (Bamidbar
18:28), which establishes the need for this symmetry. At first glance, the Gemara does not
seem to disqualify a katan because he
lacks this symmetry; the Gemara employs a more objective scale: a minor lacks
cognitive intelligence. The Rid,
however, cites "'atem' — 'gam atem'"
to explain the basis of "lav
dei'a ninehu." The absence
of intelligence does not invalidate these people; instead, it establishes a
discrepancy between the meshalei'ach
and the shaliach which sinks the
shelichut. In Hilkhot Geirushin (6:9), the
Ra'avad explains our gemara in a similar manner to the Rid.
opinion of the Rid and the Ra'avad is an important statement about the "'atem' — 'gam
atem'" principle. We might have
read the derasha as a formal exclusion
of non-Jews from serving as agents for Jews.
The Torah does not exclude them by name, but by demanding that the
shaliach be similar to the principal,
the Torah effectively disqualifies non-Jews.
By applying this rule to Jewish minors, the Rid is, in effect,
interpreting it differently. As explained
earlier, the principle is that some degree of parity exists between
meshalei'ach; for this reason - the
dissimilarity – a non-Jew is disqualified; due to the same lack of parity, a
katan cannot serve as the shaliach
of a gadol. The Torah is not
establishing a formal rule, but rather a standard of relative symmetry.
dramatically different interpretation of the "'atem' — 'gam atem'" clause leads to some interesting consequences. For example, how would we rule in a
situation in which a non-Jew is serving as an agent, but the disparity does not
exist? The most obvious case would
be one non-Jew serving as a shaliach for another; indeed, the Mishneh La-melekh himself (Hilkhot
Sheluchin 2:1) cites this question.
A more subtle exception might apply to a non-Jew in the process of converting;
though legally his or her non-Jewish status remains until the moment of
immersion, the convert's announced designs might reduce the gap between him and
the meshalei'ach. Tosafot in two places (Gittin 23b and
Ketubot 11a) discuss the possibility of a Jew serving as a
shaliach on behalf of a non-Jew who is in the process of converting.
question involves the reverse situation: a legal Jew who is no longer on a par
with the person he is representing.
Tosafot in Sanhedrin (72b, s.v. Yisra'el) consider a
mumar (apostate) serving as
shaliach on behalf of a believing Jew. If a non-Jew is excluded for formal
reasons, we might not extend this disqualification to a
mumar; if, however a non-Jew is invalidated because of the discrepancy
between himself and his meshalei'ach,
we might worry about a similar gap involving a
applying the "'atem' — 'gam atem'"
regulation to a katan, the Ra'avad and
the Rid change the way we understand this rule.
Instead of viewing it as a formal exclusion of non-Jews (couched in
colorful terms), we might take the language of the
derasha literally: anytime a gap
exists between the principal and the agent, the relationship cannot be
sustained. This definition might
impact upon which non-Jews, and possibly which Jews, are excluded because of
Sources for the next shiur (#23):
The Relationship between Principal and
Gittin 23a, Mishna; Gemara (until the mishna, 23b)
Kiddushin 43a, "Itmar amar Rav… ke-gufeih"
Gittin 67b, Mishna; Gemara, 70b, "Amar kitvu get… shegisheta hi"
Gittin 62b, "Peshita" until the two dots
Rambam, Geirushin 2:15; Or Samei'ach, ibid.