The Role of the Husband in Composing the Get
GEMARA GITTIN 5772
In memory of our grandparents, whose yahrzeits fall this week:
Shmuel Nachamu ben Shlomo Moshe HaKohen Fredman (10 Tevet)
Chaya bat Yitzchak David Fredman (15 Tevet)
Shimon ben Moshe Rosenthal (16 Tevet)
By their grandchildren and great-grandchildren,
Aaron and Tzipora Ross and family
The Role of the Husband in Composing the Get
by Rav Moshe Taragin
Rav Chisda (Gittin 20a) issues a very bold statement that all gittin composed in his day could be disqualified based upon a common error. Rava attempts to identify the particular mistake to which Rav Chisda refers. He considers that the common custom of the woman commissioning the sofer (scribe) to write her own get might violate the requirement of (Devarim 24:1, 3) "Ve-khatav lah" – "HE must write for her [the get]." To this Rava responds that the wife's actions would not invalidate the get, since the rabbis legally transfer the money of the woman to the husband, so that he is really the one ordering the ketiva of the get. Rava refers to the gemara in Bava Batra (168a) which describes a rabbinical takana to facilitate the process of writing a get. Even though, in theory, the man should sponsor the writing – in order to fulfill "Ve-khatav lah" - the rabbis realized that waiting for his consent might stall the process. To accelerate things, the rabbis allowed a woman to pay the scribe and deemed it as if the man had himself paid the scribe. Working in the woman's best interests, the rabbis 'transferred' the money SHE pays to the husband, thereby creating a state equivalent to the husband's having actually paid. Based on this takana, Rava claims that even were the woman to requisition the sofer, we would not disqualify the get based on the requirement that the husband initiate the writing.
Though the rabbis instituted a takana to allow the woman's initiating a get, clearly, on a biblical level, the man has to write the get himself or pay the scribe to write it, a halakha which stems from the word "Ve-khatav." This shiur examines the necessity of the husband's authoring the get.
Rashi, in his comments to the gemara (20b), raises the notion that a husband must own the get in order to perform a proper netina (delivery). He cannot transfer that which he does not own. Surely, at a fundamental level, the husband must acquire ownership of the get prior to delivering it to the woman; requiring him to write the get or, alternatively, to commission the writing from the scribe, would enable him to own the get by the point of delivery. Indeed, many sources cite a need for a sofer to actually transfer the ownership of the document he produces AFTER he concludes its composition. This would support Rashi's claim that the husband must own the get so that he can legally deliver it to the woman. The sofer does not have to transfer the get before he begins to write; indeed, it is preferable to transfer the paper upon which the get will be written as early as possible, so that the scribe will not subsequently forget to transfer the get to the husband. We might have thought to interpret the gemara's insistence that the ba'al write the get as stemming from the necessity that he own the get at the point of delivery.
The Rosh, however, indicates that the husband's involvement in the composition of the get extends beyond the need to own the get at the point of delivery. In his Ketivat Get, the Rosh demands a ketiva of the husband; he takes our gemara literally: the husband must actually initiate the writing, not only own the document at the point of delivery. Evidently, the husband plays some fundamental role in the actual drafting of the get!
The simple approach would be to read literally the term "Ve-khatav." Insofar as the ketiva is part of the process of divorce (an issue discussed in shiur #3), we might require the husband to personally perform the writing just as he must perform the actual delivery of the get. Of course, any act which he must perform, he may delegate to a shali'ach to perform on his behalf. We might claim that the scribe acts as the shali'ach of the husband to perform the ketiva and must therefore be commissioned by the husband. The rabbis established that even when a woman pays the money and performs the actual hiring, we consider the husband as having contracted the scribe, and hence we deem the scribe the husband's shali'ach.
This explanation of the gemara, that the husband must personally or through his shali'ach perform the writing, does not seem to be adopted by most Rishonim: both Tosafot (22b) and the Ramban (24b) claim that the husband does not have to actually write the get. The sofer does not act as his agent since the husband does not have to write the get; rather, without his instructions, the get cannot possibly be considered as having been written lishma, with the proper intent. Without the explicit invitation of the husband, the concept of these two people being divorced has yet to evolve and the writing cannot be oriented toward the divorce. A get without this orientation is invalid (see especially Zevachim 2b). According to these Rishonim, as the ba'al need only instruct the sofer rather than appoint him as agent, we must better understand the need of the takana of the rabbis to transfer the money paid by the woman to the man. Why is it important that the man 'pay' the money to the sofer? As long as he instructs that sofer, the get can be written lishmah. The Rishonim differ slightly in their treatment of this question. The Ramban in Gittin suggests that indeed the husband does not have to initiate the writing; however, we cannot allow the woman to play any active role in the composition of the get. Her role within the entire divorce proceedings must remain passive. If she actually hires the sofer to write a get, she will be actively precipitating the get and thus render this get invalid. By transferring the money to the husband, the rabbis ensured that the get would not be invalidated by the intervention of the woman. Fundamentally, though, the husband does not have to actively initiate the get.
By contrast, the Nimukei Yosef does attribute an active role to the husband. Though he does not have to actually write the get or delegate this writing to a halakhic shali'ach, he still must initiate the writing. The Nimukei Yosef employs the term "makhtiv" – literally, to influence or cause to write - to describe the role of the husband. Thus, the Torah does not obligate the husband to write the get; instead, it requires that he set things in motion. If a woman were to pay the money (in the absence of a takana) the ba'al would not be the initiator. By transferring the money to him, the rabbis assured his role as the makhtiv.
The gemara suggests a fundamental requirement that the husband 'write' the get. Through the rabbinical takana described in Bava Batra, we may allow the woman to pay the sofer or even write the get herself. According to most Rishonim, this requirement serves a function beyond merely assuring that the husband owns the document at the point of delivery. One approach suggests that the husband must personally write the get or at least delegate the writing to his agent; this version reads the term "Ve-khatav" literally. The Ramban and Tosafot, though, both dismiss the notion that the husband must personally (or through his shali'ach) compose the get; hence, they would be forced to understand the "Ve-khatav" factor differently. The Ramban suggests that we might not require his personal initiative toward the writing as long as the woman does not appropriate the composition. The Nimukei Yosef in Bava Batra asserts a more substantive role for the husband: though he does not have to write it, he must initiate it.
Having examined the various positions regarding the role of the husband in requesting and initiating the composition of the get, we may consider an interesting machloket between Rabbeinu Tam and the Ramban as to whether a sofer must legally transfer to the husband the paper upon which he writes the get. Several Rishonim cite the position of Rabbeinu Tam that the sofer must transfer the paper and even the pen he will ultimately use to draft the get; the Ramban, on the other hand, argues with this position. How might we understand this debate?
Intuitively, we might associate this dispute with the issue raised earlier. If we require the husband to actually write the get and we view the sofer as his shali'ach, we may find Rabbeinu Tam's position appealing. As the sofer is writing on behalf of the husband as his agent, we require that the husband own the various writing materials which his shali'ach will ultimately employ. The Or Samei'ach, in his famous discussion regarding the identity of a shali'ach, examines whether a shali'ach must use the material of the delegator to perform his agency. Rabbeinu Tam may require that a shali'ach must always use items owned by his delegator. Therefore, the sofer must make the husband the owner of the paper and pen prior to executing his agency on behalf of the husband.
By contrast, the Ramban does not impute any positive role to the husband in the writing of the get; his required commission of the sofer is only the manner by which we exclude the woman from participating in the process of gittin. Hence, the ba'al does not have to own the pen and paper used to write the get. Even if we adopt the Nimukei Yosef's claim and view the husband as the initiator of the composition, he can still initiate matters without actually owning the material used in the production of the get.
Thus, this first analysis views the debate about whether the husband must own the get as a function of the respective views regarding the role of the husband in the composition of the get.
Theoretically, we may dispute Rabbeinu Tam's position from a different angle, accepting the fact that the husband must personally write the get or, at the very least, delegate a shali'ach. Nevertheless, we may question the need for the sofer to actually transfer the material to the husband. The takana of the rabbis cited by the gemara in Bava Batra may establish that the get is automatically owned by the husband. Just as we allow a woman to pay the sofer and nevertheless we consider the get as owned by the husband, similarly, we do not force the sofer to transfer the material to the husband; this transfer is accomplished through the takana of the rabbis. This depends upon how we define the takana which the rabbis instituted. Did they really transfer everything to the husband - including the money paid by the woman and the materials used by the sofer? Or, did they merely consider the money paid by the woman to the sofer as if it were paid by the husband? If they merely transferred the woman's money to the husband, we might view the sofer as the husband's agent even without the materials belonging to the husband. To effect this state, the sofer must transfer them to the husband directly. Even if we fundamentally agree with Rabbeinu Tam and require the husband's ownership of the materials, we may see this state as having been produced by the takana and not requiring a separate transaction.
The nature of the rabbis' takana can be glimpsed through an interesting question raised by the Ran: what would happen if the sofer uses his own paper rather than purchasing the paper from another person? When the sofer purchases the paper, we might claim that as the husband's agent, he acquires the paper on the husband's behalf; when he uses his own paper, no form of acquisition can occur, and we might not arrive at a state in which the husband owns the paper. After citing an opinion which requires a separate transfer in this case, the Ran cites a dissenting opinion that, even in this instance, no transfer is necessary. He claims that the rabbis, through their takana, transfer everything to the husband. Even if we require the husband's ownership of the writing materials, we might not require an actual transfer from the sofer; we may consider this transfer as having been effected automatically through the takana.
Sources and questions for next week's shiur:
1. Gemara 20a, "Amar Rav Chisda… hilkheta ka-vateih."
2. Why would one entertain the possibility of invalidating a get written on issurei hana'a? Why would it be valid, as the gemara concludes? Take into account the legal status of issurei hana'a.
3. Ketzot Ha-choshen 200:5; Avnei Milu'im 139:18
4. (Please note that these two works were authored by the same person, Rabbi Aryeh Leib Heller.)
5. Identify the two proofs cited by the Ketzot for his position. What assumption does he make regarding our gemara's validation of a get written upon issurei hana’a?
6. Tosafot Gittin 20b, s.v. Bi-khtovet ka'aka
7. What does Tosafot seek to prove from the halakha of issurei hana'a? Does this reflect a certain understanding of the validation of a get written on issurei hana'a? How does this relate to the Ketzot's understanding?
8. How does the Ketzot understand the relationship between gittin and other shtarot?
9. See the dispute between Rabbi Yosei Ha-gelili and the Rabbis in the beraita towards the top of 21b. Relate their dispute to this issue - the relationship between gittin and other shtarot - and the Ketzot's stance in this regard.