Rei’ach Ha-get — Scent of Divorce (24a-25a)

  • Rav Yair Kahn
 
Sources:
  1. Mishna, 24a and Gemara, until 25a, “U-machazirin zeh la-zeh ba-yovel.”
  2. Yevamot 52a, “Ba’a mineih Abbayei mei-Rabba… Ve-hainu rei’ach ha-get she-posel ba-kehuna.
  3. Gittin 86b, “Halakha ke-Rabbi Elazar… rei’ach ha-get ein bo;” Mishna, 81a.
Questions:
  1. The Mishna brings different cases of gittin which are invalid because they have not been written lishma.  Is there a difference between these cases in terms of the nature of the invalidation?
  2. There are four different Amoraic opinions about the cases in the Mishna as regards the disqualification from priestly marriage.  What is the basis of the dispute among them?
  3. When does an invalid get render a woman disqualified from priestly marriage, and when does the invalid get not disqualify her?
 
Introduction
 
Our Mishna brings a number of examples of gittin which are invalid because they are not “lishma,” “for her name,” a requirement derived from the term “lah,” “for her,” which the Torah uses in the context of divorce.  The Mishna states (Gittin 24a-24b):
 
Any bill of divorce which is not written for the woman is invalid.  For instance, if a man passing through the street hears the voice of a scribe dictating, “The man X hereby divorces the woman Y from place Z,” and he says “That is my name, and that is the name of my wife,” it is not a valid bill with which to divorce his wife.
 
Moreover, if, after one writes a bill to divorce his wife and changes his mind, he encounters a fellow-townsman who says, “My name is the same as yours, and my wife's name the same as your wife's,” it is not a valid bill with which to divorce his wife.
 
Moreover, if he has two wives with the same name and writes a bill with which to divorce the elder, he must not use it to divorce the younger.
 
Moreover, if he says to the scribe, “Write, and I will divorce whomever I choose,” it is not a valid bill with which to divorce his wife.
 
The special terminology of the Mishna, “Moreover,” “Yeter mi-ken,” indicates that each successive case is more innovative.  The Gemara explains the innovation of each and every case:
 
After one writes a bill to divorce his wife and changes his mind” — what then is the case put in the first clause?
 
Rav Pappa said: “We are dealing there with scribes practicing.
Rav Ashi said: “The language of the Mishnah bears this out, since it says ‘a scribe dictating’ and not ‘a scribe reading,’ which shows that Rav Pappa is right.”
 
What is the point of the word “Moreover”?
 
The school of Rabbi Yishmael taught: “Not only is bill of divorce invalid if it has not been written for purposes of divorce at all, but even one that has been written for purposes of divorce; and not only is this one invalid because it has not been written for the purposes of his divorce, but even the other one, that has been written for the purposes of his divorce, is invalid; and not only is this one invalid because it has not been written for divorcing this woman, but even the other one, which has been written for divorcing this woman, is invalid.
 
Our passage even brings special homilies in order to learn that each and every one of these gittin is invalidated because it has not been written lishma. 
 
However, at the end of the day, following all of the hermeneutical exercises, we may say that we are dealing with a unifying invalidation: in each and every one of these cases, the get has not been written lishma.  According to this, the conclusion is that there would not be any different between a get written by a scribe in order to practice and a get written by the commandment of the husband to a scribe, “Write, and I will divorce whomever I choose.
 
However, the continuation of the passage indicates that matters are not so simple.  There is another aspect to consider, the disqualification of the woman from being in a priestly marriage — her inability to be legally married to a kohen.  A divorcée is biblically forbidden to marry a kohen (Vayikra 21:7), but the Sages extend this to women who appear to have been divorced.  While a bill of divorce may be inherently invalid, it may still disqualify a woman from priestly marriage (as if it were legally binding) — either to her current kohen-husband or a future kohen-husband (should her current husband die). 
 
Rav said: “All of these disqualify her from priestly marriage, except the first,” but Shemuel said that the first also disqualifies.  Shmuel here is following his consistent view: wherever the Rabbis have declared a bill of divorce invalid, it is both invalid and disqualifying
 
Ze'iri said: “None of these disqualify her from priestly marriage, except the last.”  So did Rav Asi also lay down: “None of these disqualify, except the last.
 
Rabbi Yochanan, however, said that even the last does not disqualify.  Rabbi Yochanan follows the principle he has enunciated elsewhere, for Rav Asi said in the name of Rabbi Yochanan: “If two brothers divide an inheritance, they are reckoned as having purchased each his share from the other, and each restores his share to the other in the jubilee year.”
 
Rav Asi and Ze’iri distinguish between the cases of the Mishna as regards the disqualification from priestly marriage due to (as we will see below), rei’ach ha-get, the scent of divorce.  From their words, we may derive that the cases in the Mishna are not of the same ilk, and a practice get is not akin to a “whomever I choose” get.  Therefore, a woman who receives a practice get may still marry a kohen, while one who receives a “whomever I choose” get is disqualified.
 
However, this distinction requires some further explanation.  The two documents are both invalid because of a lack of writing lishma, but why is a certain get not written lishma a disqualification for priestly marriage, while the other get, invalid for the same reason, does not disqualify one for priestly marriage?  Furthermore, we must understand what the basis is for the Amoraic dispute in this issue.
 
Defining Rei’ach Ha-get
 
A passage in Yevamot (52a) indicates that the statement “You are hereby divorced from me, but you are not permitted to any other man” renders the woman ineligible for priestly marriage, even though the get itself is invalid.  However, if he gives her a blank piece of paper and says “You are hereby divorced,” she is not disqualified.  We must understand what the distinction is.
 
I heard in the name of Rabbi Joseph B. Soloveitchik that the rei’ach ha-get which disqualifies from priestly marriage applies only when there is a bona fide action of divorce, even if the divorce does not take effect.  However, if there is no action of divorce at all, then there is no rei’ach ha-get, and the woman is not disqualified from priestly marriage.
 
Thus, it is clear that there is no rei’ach ha-get when a man gives just scrap paper to his wife, because he has not given his wife the instrument of the get, and therefore there is no action of divorce at all.  However, in writing “You are hereby divorced from me, but you are not permitted to any other man,” he has given to his wife the instrument of the divorce.  Even though there is no effectuation of the divorce because the get is invalid, in any case the rei’ach ha-get which disqualifies one from priestly marriage pertains.
 
Indeed, we find below (Gittin 86b): “The law follows Rabbi Elazar (who maintains that the witnesses of a document do not have to sign that document) for bills of divorce.  Rabbi Yannai says: Even the scent of divorce is not in it.”  According to this, we may say that in the view of Rabbi Meir, who believes that eidei chatima effectuate the divorce, if the witnesses do not sign on the get, there is no divorcive object at all.  We find on Gittin 81a:
 
If a man writes a bill with which to divorce his wife and then changed his mind, Beit Shammai says that he has disqualified her from priestly marriage.
 
Beit Hillel says that even if he gives it to her with a certain stipulation and the condition is not fulfilled, he has not disqualified her from marrying a priest.
 
At first glance, Beit Shammai’s view seems problematic: why should a woman be disqualified because of a get which was merely written and never given?  Indeed, their position is understandable based on what we have explained in another context (see מאימתי מוציאין לפירות): writing a get is the commencement of the action of divorce, not merely a preparation for giving the get.  If so, there is a place for Beit Shammai’s view, in which writing the get creates the scent of divorce.  However, Beit Hillel argues and believes that writing a get is only the beginning of the process, and as long as the get has not been given, rei’ach ha-get does not exist.
 
Dispute of Rav and Shmuel
 
In light of all of this, we may return and examine the different views cited in our passage.  We will begin with the stringent view of Shmuel, which disqualifies the women in all the cases of our Mishna from priestly marriage.  In explaining his view, we may say that in the conclusion, there is no difference between the various cases: in all of them, there is an instrument of divorce which is invalid because it has not been written lishma.
 
This also makes sense, because the content of all of them contains a text which expresses the divorce, the severing of the link between husband and wife, and all of them are invalidated because the writing had not been lishma.  Therefore, in all of these cases, one should define the giving of the get as an action of divorce.  Even though these bills of divorce are all invalid, and they do not cause the effectuation of the divorce, nevertheless, the action of divorce itself brings about the rei’ach ha-get which disqualifies one from priestly marriage. 
 
Rav, on the other hand, believes that they are all disqualified from priestly marriage, except for the first. 
 
In the first case, the scribe writes the get in order to learn his trade; he does not write the text as a get at all.  The problem is not that the document is outside of the context of a given marriage; rather, this is a document which has words written on it alone, without any intention to create a get.  A similar distinction may be found elsewhere (Eruvin 13a) concerning the passage of the sota, the suspected adulteress.  The initial position of the gemara compares the invalidity of a sota document written for a different woman, with the invalidity of using the sota section from a Torah scroll. Neither were written for the sake of this particular sota.
 
Rav Nachman bar Yitzchak draws a distinction:
 
Perhaps they are not comparable.  For Rabbi Achi bar Yoshiya may have maintained his view there only because the scroll was written at least for one suspected adulteress, but in the case of a Torah scroll, which is written for the purpose of study, he also would concede that it is invalid.
 
It appears logical that in the view of Rav, this distinction does not express a greater innovation, but rather reflects a halakhic distinction defining the two cases.  In other words, if one does not intend to write a get at all, there is no incidental invalidation of this get not having been written lishma; there, the entire definition of the document as a get is totally misplaced, for the writer does not intend at all to write the get, and he only writes those words for another aim.
 
If so, we are not talking about an invalid get, but rather a document for which the title of get is not at all applicable.  Naturally, giving this document to the woman may not be framed as an action of divorce, because one is only handing over a piece of paper.  Therefore, Rav determines that the scent of divorce which disqualifies one from priestly marriage does not pertain.  However, if one writes the words for the purposes of a get, even though it has not been written lishma, then Rav and Shmuel are in agreement that she is disqualified from priestly marriage.  This is because this bill is an instrument of divorce, albeit invalid, and giving it over falls in the category of an action of divorce, and so we detect rei’ach ha-get.
 
The View of Rabbi Yochanan and Ze’iri
 
However, Ze’iri and Rabbi Yochanan take issue with this, and they believe that even a get written for another woman does not disqualify one from priestly marriage, despite the fact that the scribe writes it for the name of a get.  Their position requires some explanation.
 
In order to explain this position, let us consider the view of Tosafot (22b).  According to Tosafot, writing lishma is not limited to the get’s writer and his intent.  In order that the get should be considered to have been written lishma, we require that the scribe write at the husband’s command.  However, this law requires explanation.  Why is the intent of the scribe dependent on the husband’s command?  Is the scribe not capable of intending to write the get for the sake of the woman without the husband commanding him to do so?
 
Apparently, the requirement of writing lishma is not an incidental law demanding certain intentions at the time of the writing.  Writing the get lishma is tied to the basic definition of the get, according to which the get is an expression of the intent of the divorcer.  Therefore, the content of the get must express the severing of the tie between this man and this woman.  The get is a document which relates to the dissolution of the personal, intimate link between husband and wife, and as long as the get is not directed from the husband toward this woman, it does not relate to any specific marriage, and it is not defined as a bill of divorce. 
 
According to this understanding, “for the woman” is not an incidental requirement in order for the divorce to take effect, but a characteristic law defining the get.  Therefore, without the husband’s command, the get is nothing more than mere words.  If the husband does not stand behind these words and express his desire to divorce his wife, these words are devoid of content.  Similarly, Rabbi Yochanan and Ze’iri determine that any get not written “for her” is not only in the category of an invalid get; it is not considered a bill of divorce.  Consequently, giving over this document is not considered an action of divorce, and even the scent of divorce is not present.
 
According to the above-mentioned approach, the Amoraic dispute is about the fundamental law of writing lishma.  Rav and Shmuel understand that indeed the get can only be kosher if it is written for the sake of the woman, and that a get which is not written lishma is invalid, but in any case, it is an instrument of divorce.  Rabbi Yochanan and Ze’iri dispute them and believe that writing for the sake of severing is what defines the get.  According to them, even if the entire get is written to the highest standards, for the purposes of a get and according to the husband’s command, as long as he does not relate to the woman, we cannot call it “a bill of divorce."
 
The Dispute of Rabbi Yochanan and Ze’iri
 
However, Rabbi Yochanan and Ze’iri argue about the last case, “I will divorce whomever I choose,” and the Gemara connects this to the issue of bereira:
 
Rabbi Yochanan, however, said that even the last does not disqualify.  Rabbi Yochanan follows the principle he has enunciated elsewhere, for Rav Asi said in the name of Rabbi Yochanan: “If two brothers divide an inheritance, they are reckoned as having purchased each his share from the other, and each restores his share to the other in the jubilee year.
 
The issue of bereira is one of the most difficult and complex passages in the Talmud, and it requires a separate analysis.  Therefore, we will push off the essential analysis of this passage to the coming weeks.  In any case, we cannot totally ignore it, and therefore we will dedicate a few lines to explaining the dispute of Rabbi Yochanan and Ze’iri.
 
The law of bereira determines that there is meaning to an act which is done in the present based on what will become clear only in the future.  In our passage, writing a get to satisfy the husband’s declaration “I will divorce whomever I choose” is considered, in fact, to be equivalent to writing a get for a certain specified woman, namely whichever wife the husband will want to divorce in the future.  In fact, the identity of the woman will become clear only at the time that one desires; but in any case, this woman exists now as well, and we only have a lack of knowledge connected to her identity, something which will become clear in the future.
 
According to this view, there is no distinction between clarification on the basis of what has happened in the past and clarification on the basis of what is about to happen.  Therefore, “I will divorce whomever I choose” is similar to the case of a man who has two wives, and one of them steals from him.  If he writes a get to give to the woman who stole from him, the get is an instrument of divorce, a bill of divorcement, according to all views (even according to the one who believes that bereira is untenable): the get is definitely written for a certain woman, because there is only one woman who has stolen from him.  Even though her identity is not clear now, this is only a lack of knowledge on our part.
 
On the other hand, according to the one who says bereira is untenable, the present cannot be defined by the future.  Even if we say that a lack of knowledge based on what has transpired is not a deficiency in the law of writing lishma, being dependent on the future is totally different: if a husband writes a get for a woman whom he will want to divorce in the future, at the time of the writing, he does not indicate any specific woman, because the future is yet to be, and right now there is not any specific woman “whom I will want to divorce in the future.”
 
In other words, we are not dealing with a simple lack of knowledge, but rather the total absence of any possibility of knowing.  At this time, there is no woman “whom I will want to divorce in the future.”  If so, in the view of Rabbi Yochanan, who believes that bereira is untenable, at the time of the writing of the get, there is no connection to any specific woman.  Therefore, this get is not considered a bill of divorce at all, and in giving it there is not even the scent of divorce.  Naturally, Rabbi Yochanan determines that even the last case does not disqualify a woman from priestly marriage.
 
Ze’iri, on the other hand, believes that bereira is applicable; therefore, he claims that in the future it will become clear to which specific this get was written now.  Despite the fact that the get is invalid because we require that it fulfill the requirement of “‘for her’ — that is to say: for her name,” in other words, clear intent at the time of the writing, this is only an incidental invalidation.  Therefore, the title of get applies at the time of writing, and giving it is defined as an action of divorce.  For this reason, Ze’iri concludes that this situation has a rei’ach ha-get to disqualify the woman from priestly marriage.
 
For the next shiur: Understanding Bereira (25a-26a)
 
Sources
  1. Study the entire passage, from 25a, “Ve-Rabbi Yochanan amar” until the Mishna, 26a, with Rashi’s commentary.
  2. Eruvin 37b, “Tana’ei hi… le-khesheyibaka;” Tosafot, s.v.  “Ela mei-atta.”
  3. Ramban, 25b, “Ve-zeh ha-kelal she-ani omer bi-vreira” until “Ve-hu she-yitleh ba-maaseh.”
Questions
  1. What is the difference between bereira and tenai?
  2. What is the idea behind the distinction between making something dependent on oneself and making something dependent on others in relationship to the law of bereira?
  3. How does the Ri (Tosafot, Eruvin) understand the view that bereira is untenable?