Does the Transfer of a Get Require a Legal Transaction?
GEMARA GITTIN 5772
Does the Transfer of a Get Require a Legal Transaction?
By Rav Moshe Taragin
Having refuted a possible invalidation based upon the husband's paying for the writing of the get, the Gemara considers another possible reason for Rav Chisda's nullification of all the gittin written in his day: since many gittin were written upon paper worth less than a peruta, the smallest coin of the Talmudic era, the act of netina, giving the get, was not properly executed. To this, Rava responds that the fulfillment of netina does not require something of value: we should interpret the term netina as requiring the delivery of a get, but not the transfer of an object of value. After all, Rava asserts, a person can write a get produced from an issur hana'a, an object from which one is forbidden to derive benefit (e.g., a tree worshipped as avoda zara). Ostensibly, as this item has no value and can nevertheless be used for the production of a get, it appears that something worth less than a peruta can similarly be used. The Gemara seeks to isolate this halakha in the preceding mishna (19a), which allows the writing of the get upon the leaf of an olive tree; as this leaf has no meaningful value, we may similarly allow the get to be written upon something forbidden. The Gemara responds that authorizing writing upon this leaf does not necessarily sanction writing upon something forbidden; the former can combine with other items to form something of halakhic value, while the latter will never and under no circumstances possess any value.
This gemara served as the basis for a very famous position of the Ketzot Ha-choshen regarding the delivery of a get. In general, a contract has to be legally transferred to the ownership of the intended person. In the instance of a shtar mechira, a document which effects a sale, for example, the seller must facilitate the acquisition of the contract by the buyer. In general this transfer is accomplished through mesira, physically handing the contract to the seller. As a get is also a contract, we would expect the same process to be required.
Interestingly enough, the Torah clearly stipulates the need for the husband to perform an act of netina by mandating "Ve-natan be-yadah," "He must place it in her hand" (Devarim 24:1, 3). If the legal transfer of the document to the intended party is intrinsic to shtarot in general, the need for the Torah to stipulate a separate requirement in the context of gittin is questionable. The Gemara (24a) cites a unique halakha which appears to evolve from the word "ve-natan": the acquisition of the document must be a product of the man's delivery and not of a kinyan which the woman executes. Therefore, if the man were to place the document on the ground and the woman were to subsequently collect the document (performing a valid kinyan hagbaha, acquisition by lifting), the divorce would be invalid, since the acquisition did not emerge from the husband's direct act. Apparently, the Torah ADDS a requirement to the process of divorce: although general shtarot must only be legally acquired by the recipient, in any way possible, the get must be acquired through the active delivery of the husband.
Based upon our gemara, the Ketzot (Ketzot Ha-choshen 200:5 and Avnei Milu'im 139:18) develops a dissenting opinion: he claims that by underscoring the word netina, the Torah demands only delivery of a get and not actual legal acquisition. The Torah does not ADD a requirement to the transfer of a get, but rather distinguishes a get. Unlike other documents, it need only be presented to her; thus, a woman can be divorced even though she does not actually acquire ownership of the document.
The Ketzot supplies two proofs for his position. The most blatant discrepancy between gittin and standard document transfer is the unilateral nature of get. Normally, acquisition of an item demands mutual consent between the two parties involved; this gemirat da'at of the two sides is crucial for the ultimate transfer. Gittin are exceptional in that the woman's consent is not required. According to the Ketzot, the Torah does not require her to acquire the get actually; hence, her will is not integral.
The second proof cited by the Ketzot is our gemara, which validates gittin written on issurei hana'a. The Ketzot assumes that a kinyan cannot be performed on these items. If our gemara allows them to be used for manufacturing a get, presumably no active transfer of the document is necessary. One may claim that the Gemara itself alludes to this concept when it validates writing a get on something of minimal worth by explaining that the word netina connotes the delivery of the get. The Gemara may be concerned that we would interpret netina as some form of monetary transfer – an impossibility with issurei hana'a. To justify a get written on issurei hana'a, the Gemara must reinterpret the word netina to refer to simple presentation and delivery of the get.
Of course, the primary assumption of the Ketzot, that issurei hana'a cannot be legally transferred, is by no means universally accepted. See especially the opinion of the Rivash, quoted by the Ketzot himself.
The Rishonim themselves offer little commentary upon this issue. The only source which may comment upon this question may be found in Tosafot 20b, s.v. Bi-khtovet ka'aka. Tosafot wonder whether a get is subverted if a halakhic violation were committed during its execution. For example, if a person tattoos the text of a get upon someone's hand (in a manner which is halakhically forbidden; see Vayikra 19:28) and delivers that person to the woman, would the get be valid? Tosafot claim that the violation of a prohibition in no way affects the viability of a get, and they cite our gemara as proof. After all, a get can be written upon issurei hana'a, and even though an aveira is committed, the get is still valid. Tosafot do not specify which violation was committed in our gemara. Do Tosafot argue with the Ketzot's position, holding that the get written upon issurei hana'a is actually acquired by the woman, and by gaining possession she violates the issur hana'a? Some have quoted this Tosafot as arguing with the assumption of the Ketzot that no kinyan can be performed upon issurei hana'a.
The Ketzot contrasts get with other documents which themselves must be legally acquired by the recipient. Most notably, the Ketzot believes that a shtar kiddushin, a marriage contract, as well as standard shtarot, must actually be acquired by the intended party, unlike get which must only be RECEIVED. The distinction between a get and a shtar kiddushin in particular must be probed, as we often find a strong comparison between a get and a shtar kiddushin. The Talmud Yerushalmi (Kiddushin 1:1) itself seems to disagree with the Ketzot's distinction between a get and shtar kiddushin, by stating that according to the position which allows writing a get upon issurei hana'a, the same allowance applies to a shtar kiddushin. See the responsum of the Rashba, who deliberates the issue of comparing a shtar kiddushin to a get, particularly regarding our issue of issurei hana'a.
The broader consequences of the Ketzot's position are crucial. To what degree do we equate a get, which accomplishes a divorce, to a classic legal document which effects strictly financial transactions? Do we see the two as basically parallel and merely exhibiting secondary or peripheral differences? Alternatively, do we claim that a formal contract can transfer a field but not dissolve a marriage, so that a get, while it involves some other process which happens to look very similar to shtar, exhibits fundamentally different characteristics? This question will be highly significant when we explore the machloket between Rabbi Meir and Rabbi Elazar regarding the role of eidim upon the get. Conceivably, this issue may have formed the foundation of the machloket between Rabbi Yosei Ha-gelili and the Rabbis about how to interpret the term "sefer," which the Torah uses to describe a get. Is the Torah casting a get as some formal document and thereby imposing certain restrictions regarding the manner of its composition? Or is the Torah suggesting a text which narrates a story (sefirat devarim), the articulation of which renders the couple's past interpersonal relationship terminated?
By contrasting so sharply between classic documents and gittin, the Ketzot seems to drive a conceptual wedge between them. One may elaborate upon the Ketzot's position as follows: formal documents are legally acquired by the recipient and work on an abstract level. The text itself effects the transfer of the particular item in question; thus, ownership of the document is crucial for the recipient to acquire possession of the intended item. By contrast, a get seeks to discontinue the marriage by narrating a story about the dissolution of the relationship. As its efficacy is more practical and actual, ownership is not necessary, as the document's being presented from man to woman is a symbolic demonstration of his divorcing her. Consequently, no acquisition is necessary to communicate the inherent message contained within the get.
Sources and questions for next week's shiur:
Topic: Chak tokhot - Drafting a Get through Engraving
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
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?