SALT - Wednesday, 11 Elul 5779 - September 11, 2019

  • Rav David Silverberg
 
            The Torah in Parashat Ki-Teitzei establishes the method by which a married couple is divorced, instructing that when a husband decides to divorce his wife, “he shall write for her a writ of severance and place it in her hand” (24:1).  This is the source for the concept of a “get” – the document which a husband gives to his wife in order to effectuate the divorce, thus permitting her to marry a different man.
 
            The Gemara in Masekhet Gittin (20a) raises the question of how the requirement of “natan be-yadah” (“place it in her hand”) can be fulfilled through the transmission of a get – a piece of paper that has no value.  Apparently, the Gemara understood “natan” to mean “give,” as opposed to “place,” and it thus assumed that the husband must “give” a get to his wife in the legal sense.  In Halakha, an object with virtually no worth cannot be legally exchanged, and the Gemara therefore wondered how giving a get fulfills the requirement of “natan be-yadah” to effectuate a halakhic divorce.  The Gemara responds, ambiguously, that the command of “natan be-yadah” can, in fact, be fulfilled through the giving of a get, as evidenced by the fact that Halakha allows using for the paper of a get even something which is forbidden for benefit.  For example, an object that has been worshipped as a deity is forbidden for all benefit, but if a husband decides to write the text of a get on this object and give it to his wife, the divorce takes effect.  Something forbidden for benefit has no value, and yet it can be used for a get – thus proving that “natan be-yadah” does not require using an object of value as the document.
 
            The Ketzot (200:5), partly on the basis of the Gemara’s brief discussion, concludes that when the Torah instructs, “natan be-yadah,” it means not that the get must be legally transferred to the wife, but rather than it must be placed in her hand or in her property.  In other words, the woman does not have to acquire ownership over the get, but needs simply to receive it from the husband in the physical sense.  The Ketzot proves this theory from several aspects of the get, including the law established in the aforementioned discussion in the Gemara regarding a get written on an issur hana’a (something forbidden for use).  The fact that such an object can be used for a get, despite the legal impossibility to transferring ownership over such an object, would appear to prove that the get needs to be simply handed to the woman, and not transferred into her legal possession.  Additionally, the Ketzot notes, according to Torah law, a husband can divorce his wife without her consent (though this is not allowed by force of the famous edict of Rabbeinu Gershom).  This means that even if a woman refuses to accept the divorce, the divorce takes effect if the husband places the get in her possession.  Halakha does not recognize the possibility of acquiring ownership over something against one’s will, and thus we must seemingly conclude that a get is effective even without the wife taking ownership over it. 
 
            The Ketzot also builds upon the halakhic concept of “gito ve-yado ba’in ke-echad” (Gittin 77b) – the paradox whereby a woman is divorced through the placing of a get in her property despite the fact that anything she owns is, essentially, owned by her husband.  The property legally belongs to the husband, at least in some sense, and yet, the wife is considered to have received the get, and is thus divorced, when the get is placed in that property.  The Ketzot observes that this is not true in legal transactions.  Real estate can be legally transferred through the transmission of a shetar (document of sale) from the seller to the buyer, but the property cannot be transferred by the seller placing the shetar in that property.  The shetar must be given to the buyer, or placed in his property, and so it cannot be placed in the seller’s property which he wishes to give to the buyer, since the buyer does not yet own it.  The Ketzot seeks to infer from this distinction that the transmission of a get does not constitute a legal transaction.  If it did, it would be impossible to divorce one’s wife by placing the get in her property – since she can only acquire ownership over the property once the get takes effect.
 
            As many have noted (see Minchat Asher, Gittin, 32), the halakhic principle of “gito ve-yado ba’in ke-echad” actually appears to prove that to the contrary, the wife must indeed legally acquire the get in order for the divorce to take effect.  The phrase “ba’in ke-echad” means that Halakha recognizes the paradoxical simultaneity of the woman’s acquisition of the get and her receiving the ability to acquire.  Although she needs to be divorced in order to acquire the get in her property, and she needs to acquire the get in her property to be divorced, the Torah makes a special provision empowering the woman to acquire the get the moment it is placed in her property.  The Gemara does not say that the get is effective because she does not need to take ownership over it; it says that the get is effective because she takes ownership over it even though she first needs to be divorced to take ownership over it.  Seemingly, then, the get indeed needs to be legally transferred to the woman, and not just handed to her. 
 
            Many later writers thus disputed the Ketzot’s theory, and viewed the ability to divorce a wife against her will, and the validity of a get on an issur hana’a, as exceptional provisions established by the Torah, enabling the transfer of a get under circumstances in which legal transactions normally cannot be made.