Daf 20b: Partially Withholding Delivery of a Get

Sources:

 

1)         Gittin 20b, "Ba'a mineih… di-mureh"

            Rashi, s.v. Einah megureshet

            Rashi (20a), s.v. Andokhteri

            Gittin 15a, "Tanu rabbanan… mei-akhshav dami"

            Rashi, s.v. Ha-neyar

2)         Rashba, s.v. Ba'i

            Rambam, Geirushin 8:14

            Rashba, s.v. Amar leih

3)         Gittin 86b, Mishna, Gemara, "…ba'i"

4)         Gittin 21a, "Al he-aleh shel zayit ...  venetina"

 

Questions:

 

1)         How do Rashi and the Rashba differ in their explanation of the disqualification of "neyar she-li"?

2)         How does the Rambam's understanding differ?

3)         Does the Gemara's discussion about a get written on a gold plate better accord with Rashi’s view or with the Rambam’s?

4)         Does the question of "bein shita le-shita" better accord with Rashi's view or with the Rambam’s?

5)         According to Rashi, why can the man not write the get on the horn of an animal and transfer the horn's title to the woman?

 

 

 

 

The Gemara (20b) describes a situation in which a husband stipulates that he intends to transfer the actual text of a get while retaining ownership upon the paper on which this text is written.  In such an instance of "neyar she-li," the divorce is disqualified by the Gemara; this provokes an important debate among the Rishonim as to the exact reason for this rule. 

 

            Rashi claims that if the base upon which the letters are written is not transferred, then no TEXT has actually been delivered.  A previous shiur addressed the role of "sefer" within the drafting of a get.  Even though the Rabbanan (21b) deny the need for a formal sefer (choosing instead to define the term as sefirat devarim - a narrative about the separation process), they still require the presentation of text.  Ostensibly, halakhic text requires an anchor: namely, the medium upon which it is written; without transferring this anchor to the woman, the husband has not delivered text into her hands.  A parallel statement by Rashi is found in the gemara (20a) which invalidates andokhteri for writing a get.  Rashi (ibid., s.v. Andokhteri) describes this as weaving letters into fabric.  This form of text is invalid since "the letters are not fastened permanently upon the background; instead, the two ends are inserted within the background."  Rashi views a tight and permanent attachment of the letters to their background as a prerequisite for halakhic text.  This statement of Rashi, as well, affirms the role which the background medium plays for the text.  In our gemara, by retaining the background, the husband is only delivering half of the text. 

 

            Though Rashi's definition seems logical, it raises an important question regarding the continuation of the gemara.  The Gemara subsequently ponders a situation in which the husband freely delivers the background underneath the actual letters, but withholds the paper which comprises the space between letters or between lines.  Based upon Rashi's interpretation of the problem arising from "neyar she-li" (retention of paper on which ink lies), we may have difficulty understanding the gemara's question about retention of space not lying directly under letters.  The letters are physically fastened, and the entire package (letters and their underlying paper) is delivered to the woman.  What possible concern is the gemara considering when it raises this question?

 

            This section of the gemara prompts the Rambam (Hilkhot Geirushin 8:14) to reinterpret the earlier section of neyar she-li.  Text alone may not require its underlying background; even if we may require some sort of physical affixing, we would not necessarily demand the complete transfer of both text and paper to the woman.  Instead, the flaw in this process stems from the manner in which the delivery is hampered by the husband's retention.  The Gemara in Gittin (78b) describes a situation in which the husband physically and legally delivers a get to his wife while holding a string attached to the get in his hands.  The gemara invalidates this transfer since "We require 'keritut'" - complete and unequivocal delivery.  By retaining the string (and with it the ability to yank the get from the woman), the husband affects the actual transfer by compromising the absolute nature of the delivery.  By extension, the Rambam demands absolute delivery on a legal level, as well.  By retaining the paper, the husband has still delivered viable text, but he has compromised the degree of keritut, thereby invalidating the delivery. 

 

            The Penei Yehoshua indicates a gemara (21a) which would appear to support the Rambam's development of 'legal keritut.'  The mishna allows the drafting of a get upon the hand of a servant or the horn of an animal - assuming the entire animal or servant is transferred to the woman.  The gemara there (21a) questions the option of writing upon these items and subsequently cutting the hand from the eved or detaching the horn (and delivering it to the woman).  Ultimately the gemara rejects these options, but we are left to wonder why the gemara did not suggest a simpler solution: why not write the get upon the horn and legally transfer the horn to her, without the remainder of the animal?  Based upon the Rambam's clause, we would immediately cancel this option, recognizing the similar lack of keritut in any partial transfer. 

 

            The advantage of the Rambam's interpretation is apparent in the continuation of the gemara.  Subsequent to the discussion about retention of the paper, the gemara probes the case of a husband who delivers the paper under the text but retains the paper between the lines.  Would we view the intervening paper as integral enough to the document that its retention precludes keritut?  Obviously, keritut would only be compromised if an essential part of the item were withheld!  According to the Rambam, the gemara's ultimate question concerns the status of these intervening spaces relative to the rest of the document. 

 

            Considering the advantage of adopting the Rambam's interpretation, we must admit that a parallel gemara accords better to Rashi's reading.  Though the gemara disapproves of legally retaining the paper underneath the text, it supplies an option for valid withholding.  If the husband delivers the document on the CONDITION that the paper will return to him, the delivery is valid.  The difference between the first case (legal retention, which renders the divorce invalid) and the second case (on the condition that the paper returns, which is valid) is the cause of some debate.  Rashi (20b, s.v. Harei zo) claims that the latter instance comprises "matana al menat le-hachazir," a gift which must be returned.  Under such a stipulation, the paper is initially transferred to the woman only to return to the husband afterwards.  Rashi could easily explain the viability of this case, since the paper does in fact fully transfer to the ownership of the woman.  According to the Rambam, though, we may question whether this instance does indeed hamper the level of keritut.  Since he stipulates an eventual return for the paper, the husband may in fact be limiting the nature of the transfer.  Alternatively, we may claim that since he initially transfers the entire package, he does no harm to the level of keritut by engineering an eventual, delayed return of the paper. 

 

            Our gemara quotes an additional situation which may relate to the case of neyar she-li.  A man may issue a get written upon a gold plate and instruct the woman to accept the gold plate as payment of her ketuba.  Even though the paper underneath the text was not delivered for the purposes of get, the delivery is valid.  Certainly, the Rambam would not be bothered by this allowance; as the husband completely transfers both text and paper, no lack of keritut exists.  It is of no consequence that the transfer of the medium occurs as part of the ketuba payment, so long as everything was transferred.  By contrast, Rashi may have to reconsider this situation.  Since the transfer of the plate occurs within the framework of ketuba payment, there may be a flaw in the delivery of text.  In fact, the Rashba, who generally concurs with Rashi's reading of the neyar she-li situation, is troubled by the gemara's ruling and devises a solution toward understanding the gemara.  He claims that in fact the husband, by offering the ketuba and get as one package, is in fact mandating the woman to waive her ketuba and accept the gold plate as the background of her get document.  Had the woman insisted on actually collecting her ketuba from the plate, the get would be invalid, since the background material was not delivered as a get.

 

            Rashi himself does not seem perturbed by the gemara's ruling, possibly indicating that he does not view this case as contradictory to the neyar she-li ruling.  Indeed, the difference between the two is quite interesting.  In the case of neyar she-li, the actual medium serving as background material was never transferred; by contrast, in the second case the background was transferred, but not for the sake of a get.  Must a netina be performed solely "le-shem geirushin" (for the purposes of divorce), or can it serve additional purposes as well?  To Rashi, this gemara may have regarded this case as a complete delivery, thus assuming that the delivery of a get does not require exclusivity. 

 

 

מקורות

1. גמרא גיטין כא. "אמר רבא כתב לה גט..." עד סוף העמוד.

2. עז: "ההוא שכיב מרע... אהאי מעשה אמרה".       
רש"י שם; תוד"ה מה; ר"ן על הרי"ף (דף לט:) ד"ה והא, בסוף הדיבור "ומכל מקום מדין חצרה היא מתגרשת...".

3. רשב"א כא - ד"ה הא.

שאלות הכנה

1. האם יש הבדל בהקניית גט לאישה בין שימוש בקניין אגב לבין שימוש בקניין חצר? מהו ההבדל ומה טעמו?

2. האם רש"י בדף עז: באמת סובר שקניין אגב לבד מועיל לנתינת הגט?

3. בסוף הגמרא בדף כא: - מה זה משנה שאב מקבל גט לבתו קטנה בעל כורחה, אם במקרה של חצר הנתינה אינה "בין מדעתה בין בעל כורחה"?