GEMARA GITTIN 5772

By Rav Moshe Taragin

Shiur #22:
Non-Jews and Minors as Agents in the Delivery of a Get

Having discussed who may write a get, the following mishna (23a) lists people who are suitable to deliver a get.  Unlike the writing, which is valid even at the hands of a cheresh (deaf-mute), 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. 

The 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 dei'a 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. 

In 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?

This 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 minui.  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 cheresh, shoteh or katan ineligible for shelichut.   The appointment process must take into account the present viability of the procedure. 

A 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 benei 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. 

This 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 shaliach and 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. 

This 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. 

A final 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 mumar. 

By 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 this rule. 

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Sources for the next shiur (#23):

The Relationship between Principal and Agent

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

2)         Kiddushin 43a, "Itmar amar Rav… ke-gufeih"

3)         Gittin 67b, Mishna; Gemara, 70b, "Amar kitvu get… shegisheta hi"

4)         Gittin 62b, "Peshita" until the two dots

5)         Rambam, Geirushin 2:15; Or Samei'ach, ibid.