The Requirement of Lishma in a Get's Composition

  • Rav Moshe Taragin

 

GEMARA GITTIN 5772

By Rav Moshe Taragin

 

Shiur #20: The Requirement of Lishma in a Get's Composition

 

 

            The first mishna of the third chapter of Gittin lists various types of gittin which were not written "lishma," reminding us that unlike regular documents, a get must be drafted with the specific intent to divorce a particular woman from her husband.  The next two shiurim will address this unique requirement.  Several gemarot throughout the second and third chapters discuss this halakha and these shiurim will attempt to incorporate these scattered discussions.

 

            The mishna on Gittin 26a is the most direct expression of the need to compose a get lishma.  The mishna writes that someone who writes get forms (standardized forms to be filled in with particular details upon request) must omit the space in which the names of the principals, the date and location of the get will later be filled in.  A sofer may not prepare the entire get in advance, including names of potential divorcees, since filling in these names ahead of time cannot possibly be performed lishma - on behalf of two specific individuals planning to divorce.  Instead, he must leave these areas blank to be subsequently filled in "lishma" upon particular request. 

 

            The source for this requirement is discussed by the gemara on 24b, commenting on the mishna on 24a which gives several additional examples of gittin which were not composed lishma.  As the Torah (Devarim 24:1, 3) mandates "Ve-khatav lah sefer keritut" — "He must write for her a bill of divorce," the Gemara first suggests that lishma may be derived from the phrase "sefer keritut," a clause which apparently disqualifies documents which are not prepared for the purpose of divorce.  For example, a document drafted by apprentices practicing their skills cannot be defined as a "sefer keritut" since it was not prepared to effect a divorce.  However, the Gemara realizes that even documents prepared for GENERAL divorce but not prepared for the PARTICULAR individuals who ultimately employ it would be disqualified - EVEN though such a document would qualify as a "sefer keritut."  Evidently, the laws of lishma are derived from an alternate source, the phrase "Ve-khatav la" - the word "la" requiring a more specific level of designation.  Not only must the document be prepared as a bill of divorce (rather than a practice document which happens to contain the appropriate text), but it must also be composed specifically on behalf of the parties who will ultimately divorce. 

 

            This gemara, in considering two different sources for the halakha of lishma, actually suggests two different perspectives upon the halakha; indeed the second source is preferable to the first because the general term "keritut" is replaced by the more specific term "lah."  This linguistic change corresponds to a thematic change: the get must be prepared not only for general keritut, but, more importantly, for the specific parties relevant.  However, there is a second difference between the two terms - one which does not necessarily catch the Gemara's attention at this stage but which could theoretically be a crucial factor in determining the nature of lishma.  The first clause, "sefer keritut," describes lishma as a facet of the actual document.  Halakha recognizes certain objects which must be infused with legal status at the point of manufacture.  For example, a sefer Torah cannot be kasher unless the person preparing the parchment and writing the text intended to prepare a sefer Torah lishma.  This consciousness is crucial toward fashioning a halakhically valid sefer Torah.  A get can be seen in a similar manner.  By mandating "sefer keritut", the Torah demands that a get be endowed with a certain status and not merely be text affixed to its background medium.  Just as a sefer Torah or tefillin must attain this status in order to be valid, so must a get be created lishma.  Said otherwise, the Torah mandates an abstract status which must be infused within the get at the point of composition. 

 

            The second phrase invoked by this gemara portrays a very different function for the intention of lishma.  By deriving lishma from the phrase "Ve-khatav lah," the Gemara might be indicating that it views lishma as a consciousness which must accompany the composition in order to render the ACT of writing halakhically valid.  Unlike other situations, in which the Torah merely requires an act of writing (regarding) Shabbat violation, for example,) in the situation of get, the Torah demands an act of writing accompanied by the intent to utilize this bill in the ultimate divorce.  Without lishma, the ACT of writing itself is invalid and the requirement of "Ve-khatav lah" has not been met. 

 

            To summarize, the syntax of the gemara on 24b suggests two very different roles for the lishma requirement.  We might claim that the cheftza (object) of a get is composed not only of ink and medium, but of an abstract IDENTITY which must be imposed by the person creating the get.  Alternatively, we might perceive the lishma requirement as a qualifier of the ma'aseh ketiva - the act of writing.  Without proper intent, the writing itself has not been properly executed.  Earlier shiurim addressed the potential role which the act of writing might play within the overall geirushin process.  Unlike classic shtarot, the process of divorce begins with the actual drafting of the document.  From this perspective, it would be quite logical to demand specific intent at the point of ketiva in order to cast it as an integral part of the geirushin. 

 

            Several sources throughout Gittin evoke these two very different perspectives.  For example, in the gemara on 86b, Rav Yirmiya considered demanding a delivery (netina) lishma according to Rabbi Elazar.  What would occur if two identical gittin were drafted (two couples have the same names) and sent through the same shaliach for delivery but were confused upon the journey?  Though the writing was clearly performed lishma, the delivery cannot possibly be executed with specific intent.  Can the shaliach deliver both gittin to each woman, thereby ensuring that each will ultimately receive the get designed specifically for her; or do we disqualify gittin which cannot be delivered lishma?  By extending the Torah's requirement of ketiva lishma to possibly include netina lishma, Rav Yirmiya is probably viewing the lishma as an ingredient necessary to animate the process of geirushin.  By isolating ketiva lishma the Torah is merely choosing the launch of the process and informing us that the process cannot be aimless; it must be guided.  Rav Yirmiya extrapolates that all stages of the geirushin (including netina) must be performed lishma.

 

            A second source which casts light upon the function of lishma can be found in an interesting statement of Tosafot regarding text which is written on top of other text (ktav al gabbei ktav).  Though the gemara on 19a is fairly adamant in disqualifying 'double text,' a subsequent discussion (20a) cites several opinions which validate a get which was not originally drafted lishma but upon which the sofer retraced his text with proper intentions of lishma.  If the act of writing upon extant text is halakhically invalid, why can lishma be added through ktav al gabbei ktav?  Tosafot (Gittin 19a, s.v. Deyo) address this issue, and one understanding of their response can be explained as follows: even though the second act of writing is not halakhically recognized as writing, it may still serve as a vehicle for the implantation of lishma.  This answer suggests that lishma is a legal identity which must be endowed to the document.  The act of writing merely serves as the vehicle to convey this intent and establish the inner, legal identity of the document.  Even an act which is not halakhically recognized as formal writing is capable of conveying this status, as long as that act is part of the manufacturing process.  Ktav al gabbei ktav cannot legitimately be considered a formal act of writing: if the requirement of lishma entails some added requirement to the ACT OF WRITING, then it must occur at the point of the original writing and not the second, invalid writing.  However, since lishma is an attempt to infuse the document with a legal status, it can occur at any creative stage of the manufacturing process, even after the formal writing has already concluded. 

 

            Yet, another voice about the nature of lishma emerges from an interesting discussion regarding the need for names within a get.  As noted in earlier shiurim, the gemara on 19a assumes that a get without the proper names of the husband and wife would be invalid.  This same rule is echoed by the aforementioned mishna which demands that the scribe, when preparing gittin in advance, omit the space which will ultimately be filled in with the names of the husband and wife.  What the gemara does not provide, however, is a reason or basis for the inclusion of names.  The Ramban explains this as a special requirement of get; Halakha demands that it not only entail a legal document but also narrate the event occurring (sefirat devarim - see Ramban ibid., s.v. Ha).

 

The Or Zarua however, cites a different opinion in the name of Rabbeinu Chayim.  Without the inclusion of names, the get cannot be considered as written lishma.  Presumably, he views the lishma factor as establishing a unique spirit within the get.  As this element is meant to alter the legal texture, this alteration (the fact that it is specific and not general) must express itself in some palpable manner.  Were lishma merely some intent necessary to accompany and validate the act of writing, we might not - based upon lishma alone - require the appearance of names. 

 

            The next  shiur will, iy"H, address this issue through the lens of an important gemara on 22b, which allows the get to be written by people who on the surface do not seem capable of creating lishma.

 

 

Sources for the next shiur (#21):

Who is Qualified to Draft a Get Lishma?

 

1)    Gittin 22b, Mishna; Gemara (until the mishna, 23a)

2)   Tosafot 22b, s.v. Ve-ha.

3)   Rashba Chullin 12b, s.v. Man tana: "Ve-Rabbeinu Ha-Rav…"

4)   Chiddushei Rabbeinu Chayim Ha-levi al Ha-Rambam, Hilkhot Yibbum Ve-chalitza 4:16