Daf 19b - The Requirement of the Eidei Mesira to Read the Get

  • Rav Moshe Taragin

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In loving memory of
Yitzchak ben Chaim Zvi Schwartz z"l, who passed away on 13 Shvat 5771
and Sheva Shayndel bat David Schwartz z"l, who passed away 13 Shvat 5778
Dedicated by Avi and Sarah Schwartz
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Sources:
 
1. Reading the get
A. Tosafot 19b s.v. Tzerichi
Mordechai, Paragraph 343
Avnei Milu'im 31:4
 
2. Delivering a get that appears to contain no text
A. Tosafot 19b s.v. Ta'ama
Rabbeinu Crescas s.v. Amar Shemuel
B. Rashi 19b s.v. Hashta
Rabbeinu Crescas s.v. Ve-parkinehu amar Shemuel...
 
Questions:
Part One:
1. Why must witnesses to the delivery of the get read the document?
2. Why should they read it before the issue?
3. How does the Avnei Milu'im alter our understanding of the eidei kiyum?
 
Part Two:
1. How does the Tosefta contradict Shemuel's opinion?
2. Ultimately what is the basis of Shemuel's "safek"?    
 
 
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            Having examined the process by which the signatories acquire knowledge of the contents of the shtar, 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, they present different opinions as to the purpose of this reading. 
 
            Tosafot (s.v. Tzerichi) are the first to ponder a situation in which the eidim read the get AFTER it has already been delivered by the husband to the wife.  Initially, they rule that the reading must precede the delivery.  After introducing a gemara in Yevamot (91b), however, Tosafot are less convinced about the requirement of reading in general and suggest that be-di’avad a get which was not read by the witnesses would be acceptable (if the divorced woman already remarried).  Subsequently, Tosafot conclude that a reading after the get is delivered is sufficient (supposedly even le-khatchila).
 
            The simplest manner of understanding Tosafot is that the reading serves a purely utilitarian function — to verify the delivery of an actual get (and prevent future legal wrangling).  If the witnesses establish its character immediately after this document's delivery, no uncertainties can develop. 
 
            This view of Tosafot's position is somewhat dubious since we discover an alternate source of verification regarding the document's nature – 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 write 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 Penei Yehoshu’a, is considered by the Sefer Ha-teruma 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 is not in fact 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 character.  If, however, the husband publicly concedes to the nature of the document, the eidim do not have to read it. 
 
            The Mordekhai (Paragraph 343) cites a dissenting opinion, which maintains that a get must be read by the eidei mesira PRIOR to its delivery.  After all, the witnesses’ role far surpasses their serving as verification in the event of future litigation.  Geirushin itself is a ceremony which must be executed in the presence of two establishing 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 character 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 cannot perform. 
 
            It is interesting to consider how Tosafot might respond to this claim of the Mordekhai.  How can eidei kiyum fulfill their function without knowledge of the actual document? One approach might be to 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 Milu’im 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 Milu’im develops a famous position that the episode which the eidim witness does not have to unfold before them directly; if they are capable of grasping the ceremony, they have served their role.  He relates to a well-known controversy which erupted regarding the minhag which some communities had 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’s identity.  The Avnei Milu’im defends the viability of this case 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 Tosafot’s opinion here.  Obviously the eidei mesira must witness the details of the divorce and acquaint themselves with the contents of the document.  If Tosafot allow the reading to occur after the delivery, they obviously support the contention that eidim can supplement, with additional information acquired only after the ceremony has concluded, the event they have witnessed.  Tosafot and the Mordekhai 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 observe an event and process the meaning of what they witnessed afterwards by acquiring complementary information?
 
 
Part Two: Questioning the Nature of the Get
 
            A separate part 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 Shemuel's halakha that in such a scenario we do worry about the possibility of disappearing ink, or mei millin: that the document contains text which has momentarily disappeared and can be restored through certain, known chemical treatments.  To contradict Shemuel, the gemara cites a tosefta (Gittin 6:4) 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 was not a legal bill of divorce.  Nevertheless, 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 Shemuel's halakha, but precisely how it contradicts Shemuel is a matter of some debate. 
 
The simple reading would suggest that the tosefta assumes - as a baseline - the appearance of a text on the document at the point of delivery.  The question of whether to trust the husband about the character of the document's content presumes the presence of discernible text; clearly, Shemuel'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 nature we must ascertain that it contained actual discernible text.  This approach views the contradiction as angular.  We do not 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 Shemuel, we do not consider the possibility of invisible text unless we subsequently inspect the document with the chemicals which extract the writing.  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. 
 
            Rabbeinu Crescas suggests a different reading of our gemara.  The gemara proposes that Shemuel's validation of a document without discernible text is based upon the husband's testifying that he indeed wrote a get with disappearing ink.  Without his claim, we would never consider validating a document without a clear text; however, with his corroboration, we might embrace this get. To contradict this, the gemara cites the tosefta which accepts the woman's claim that the document was indeed a valid get (against the husband's claim) only because the document in question contains a text.  In this scenario, where the respective claims can be verified or disproved (since the text could have been 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, its character is something which COULD have been proven.  A claim by the woman about the nature 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 character of the document will not be accepted.  How could Shemuel validate this document simply because the husband claims it contains unnoticeable text?  We accept these types of assertions only if the document contains text (the exact content of which is unknown) and the claims are then considered scientifically verifiable or contestable. 
 
            To this, the gemara responds that Shemuel, as well, accepts the husband's statement only because he realizes that in our case, as well, the document 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 Rabbeinu Crescas can be described as follows.  The gemara was not concerned only 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 character of this document.  Even though we can generally accept the claims about its nature from the husband or wife, we might limit this rule to documents which provide discernible text and an opportunity to subsequently verify or disprove a claim.  Only after reconciling Shemuel 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 do not, however, read this issue into the gemara in the manner that Rabbeinu Crescas does. 
 
Ultimately the gemara does ponder the question of the presence of text.  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, Shemuel 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 was a get, we must, at the very least, embrace the possibility.  Rabbeinu Crescas suggests a different basis for the gemara's conclusion that Shemuel 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 would still retain a legal question about the nature or status of such text.  Rashi assumes that absorbed text is absolutely invalid and Shemuel's question concerns the condition of the text during the delivery of the get.  According to Rabbeinu Crescas, Shemuel's very uncertainty relates to the status of absorbed text; he was not sure whether or not to classify it as legal text, and he therefore claimed that we must treat this get as a safek.  This halakhic question revolves around a broader concept, the definition of text and the relationship between a text and the paper or material upon which it is written.  IY”H, this subject will be elaborated upon in future shiurim. 
 
 
Sources and questions for next week's shiur:
Drafting a Get through Engraving
 
Sources:
 
A)        Gittin 20a-b, "Gufa shalchu mi-tam… mei-aberai"
            Rashi (20a), s.v. Ha (2nd one), s.v. Ha ba'ina
            Rambam, Geirushin 4:6
 
B)        Shabbat 104b, "Tana higi'ah...reish."
            Ran (37b, pages of the Rif), "Garsinan ba-gmara lanu"
 
c)         Rashi (20a), s.v. Ve-ilu hakha
            Tosafot Ha-rosh (ibid.), s.v. Ve-hakha
 
Questions:
 
1)         Why is chak tokhot invalid for composing a get?  How does the Rambam's version differ from the terminology of the Ran in Shabbat?
 
2)         What is the dispute between Rashi and Rabbeinu Tam about the fashioning of the Tzitz?  See Shemot 28:9-12, 36-38; 39:30.
 
3)         How may this debate reflect the nature of the chak tokhot disqualification?