Daf 17a-18a: The Requirement of Dating a Get (2)
Dedicated by the Etshalom and Wise families in memory of
Mrs. Miriam Wise z"l, Miriam bat Yitzhak veRivkah, 9 Tevet.
Yehi Zikhra Barukh
This shiur will consider 2 topics:
a) How precise must the date be?
b) Understanding Rebbi Shimon's position.
Mekorot for topic a)
1) Ittur ma'amar rishon.
2) Rambam Geirushin 1:26, Raavad.
How can we justify the Rambam's position, which allows excising the date after the signatures?
What importance do you attach to the Ittur's phrase, "ke-sha'ar shtarot?" Compare to Rambam Geirushin 1:24.
Mekorot for topic b)
1) Gittin (18a); Mishna (19a).
Bava Batra (146 a): "Ma'aseh be-echad...yorsha."
Rashbam s.v. nafla.
Mishna Gittin (81a).
2) Raavad's comments to the Rambam Geirushin 1:25.
Rosh, Gittin 2:5 "ve-ha-Ra'avad"; Rashba, Gittin (17a) s.v. Reish Lakish, "ve-ha-Ra'avad ....shloshim yom."
3) Tosafot (18a) s.v. ve-anchei, Tosafot Rid (18a) "de'i le-Reish Lakish ...zakhin lo."
How does the Rashbam in Bava Batra understand Rebbi Shimon's position?
Why does Beit Shammai attach such importance to the writing of a 'get?' Compare to Shmuel's position (Gittin (18a) regarding counting three months to remarriage.
How are we to explain the Raavad's position, which grants the husband extended peirot rights? Contrast the Rosh to the Rashba.
How do we understand the position of the Chakhamim according to Reish Lakish's view, that peirot are terminated at the point of chatima? Contrast Tosafot with the Tosafot Rid.
Last week we studied the function served by the date in a 'get' subsequent to the Rabbinic decree to require this element. We questioned whether the Rabanan demanded a dating system to avoid future legal problems, or revamped the 'get' itself by defining the date as an essential aspect of the 'get.' We addressed this question primarily by inspecting the various forms of 'get' which have inaccurate dates but nonetheless do not complicate future legal proceedings. What about the reverse situation? What would occur if a 'get' were properly dated but the concerns of "shema yechapeh" or "peirot" still existed?
The gemara itself seems to consider this factor when it studies the situation of someone who wrote only the month or year of the signing, but not the exact day. This omission leaves room for maneuvering (suggesting the 'divorce' occurred at the beginning of the month/year or at the end), when in fact the divorce really occurred substantially earlier/later. Why should such an accurately but imprecisely dated 'get' be valid? The gemara responds that even by including the actual day, an air-tight and fully secure state cannot be achieved, since the exact hour of the divorce cannot be determined. Since, however, some general sense of date has been conveyed by including the day, we allow the 'get.' Similarly, the gemara suggests, by merely indicating month or year and providing a very general idea of the date of divorce, a person has created a valid 'get.'
The Ittur extrapolates a radical idea from this gemara. He validates a 'get' which was dated at the point of signature but from which the date was subsequently excised. The gemara itself pondered the danger of such a 'get' and responded that we do not concern ourselves with frauds. The impression (which most Rishonim adopt) is that if, in fact, a person did remove a date after signature, the document would be disqualified - since the dangers of shema yechapeh and peirot emerge. But the Rambam (Geirushin 1:26) validates this type of 'get,' as does the Ittur. The Ittur provides both a rationale and source for this ruling. After all, he claims, the gemara allows documents with only general dating and hence limited effectiveness (such as only adding the year or month). As long as the document has been properly dated and signed, we do not have to concern ourselves with whether future legal doubts will arise. If so, then a contract from which a date was 'removed' should be equally valid, even though it invites future legal complications.
To justify these rulings, the Ittur claims, "The Chakhamim did not innovate a new concept for Gittin; they rather equated Gittin to regular contracts." The Ittur might be claiming that the Rabanan did not issue a decree to prevent shema yechapeh or peirot abuse. Instead, they were awoken by these looming issues and invoked a familiar halakhic device - contract dating - to basically solve the problem. Chakhamim do not manufacture new halakhic concepts in each and every situation. Rather, they employ familiar models which serve the basic purpose. Even if the aims are not entirely met in each and every specific scenario, by fulfilling the takana the process is valid. In our instance, the Rabanan imported the notion of contractual dating to the world of 'get.' Without the technical problems of shema yechapeh or peirot, a 'get' would not require a date. Once they equated 'get' with typical contracts, the date becomes an essential aspect of the 'get.' Once the date is applied the 'get' is valid, EVEN IF THE POTENTIAL FOR SHEMA YECHAPEH OR PEIROT ABUSE REMAINS. The Ittur derived this concept from the gemara itself, which admitted that a general date which still invites legal dangers is sufficient. Similarly, a contract processed legally and dated accurately from which the date was subsequently removed must also be validated. The irony remains that a predated or post-dated 'get' - even if the discrepancy is only a few hours - is invalid, while a contract with a general date (only the year) or even one which remains without any date at all (if it were removed) is valid. The latter cases allow greater legal manipulation than the former ones (which are only off by a few hours). In the former cases, however, the contract testifies falsely; in the latter case, no false testimony is included.
The Rambam not only rules that a date can be removed, but seems to supply similar justification. In Hilkhot Geirushin 1:24 he claims that the Rabanan demanded that a 'get' be dated 'ke-sh'ar shtarot' ('as other contracts'). This expression suggests that no new decree was developed, but rather a 'get' was equated to a regular contract. Therefore, so long as the date is accurate, the 'get' can be issued.
The Termination of Peirot Rights
The mishna cited the position of Rebbi Shimon who validates a predated 'get.' The gemara suggests that he doesn't worry about shema yechapeh (since it is infrequent), and being that the peirot rights of the ba'al are terminated at the point of ketiva (not chatima), the earlier date is actually the vital one. If the 'get' was written and dated Sunday but signed only on Monday, the Sunday date is effective in informing us of the moment of ketiva - which ultimately terminates the husband's rights to peirot. Why should these peirot be discontinued at such an early stage? After all, the actual divorce only occurs at the moment the 'get' is delivered (netina)!!
One solution might be to assess the role of writing a document within the geirushin process. In general, the manufacture of the document is a purely preliminary process of generating the document necessary to effect the legal transaction. We care little as to who wrote it and even less as to the terms of its composition. As long as it was written accurately and signed by valid witnesses, it can be delivered to the appropriate party. In the case of geirushin, however, the Torah writes, 've-khatav la sefer keritut' - he should write for her a document of separation - implying that the writing ceremony is an essential aspect of the divorce. The Rav zt"l claimed that indeed the writing of the document is not merely a preparatory stage, but actually initiates the divorce proceedings. Divorcing a woman is a complex and multi-layered process, and some of the elements of this process are begun by the writing of a document. We will return to this notion quite often, but at this stage we will provide two important manifestations of this principle.
The mishna in Gittin (81a) quotes the position of Beit Shammai that if a husband writes a 'get' but does not deliver it and later reneges on his plan, his wife is still disqualified from marrying a kohen as a divorced woman. Even though the 'get' wasn't delivered and she remains married to her husband, in a certain sense she is considered a divorced woman and can never marry a kohen (after her husband's death). This position highlights the fact that the composition of a 'get' entails the first stage of the actual divorce.
A second example of this notion might be glimpsed in our gemara, which cites the debate surrounding the 3-month waiting period for a divorced woman who wants to remarry. The purpose of the wait is to allow accurate discerning of any future child which is born. In the case of a 'get' written substantially earlier than its actual delivery, when does the waiting period begin? Our gemara (18a) cites a dispute between Shmuel and Rav, with the former claiming that the period begins after the 'get' has been written. Logically, Rav's position makes sense, since the 'get' is effective only from the point of delivery. Might Shmuel's position have been predicated upon the theory that certain elements of the divorce commence even at the early stage of writing?
If indeed we are to view the writing as the early beginning of the divorce proceedings, we might better grasp Rebbi Shimon's position that peirot are discontinued at this stage. If it is true that the divorce has begun, we would expect to see certain elements of their marriage suspended.
Though this explanation is plausible in explaining Rebbi Shimon, it ignores a very interesting formulation on (18a). In expostulating Rebbi Shimon's stance, the gemara claims, "Once he develops the intent to divorce her, he no longer enjoys peirot." Though an earlier gemara (17b) claimed that it was the formal writing which discontinued the peirot, this gemara suggests that it is indeed the husband's intent (which just happens to be established by writing a 'get'). If we are to take this syntax literally, we might expect situations in which similar intent can be established EVEN PRIOR TO WRITING A 'GET,' and in which peirot are disrupted even before the writing. Such a case is indeed provided by the Rashbam, in his interpretation of a gemara in Bava Batra (146a-b). The gemara relates an incident of a husband who enters an abandoned building to determine whether his wife has a physical flaw (with intent to divorce her). Ultimately, the building falls and kills his wife, and the gemara suggests that the husband no longer inherits her. According to the Rashbam's explanation (which, by the way, very few Rishonim accept), since the husband intended to divorce his wife - even though he didn't write the 'get' – he loses many of his rights, including the right to inherit her. The Rashbam cites Rebbi Shimon's position as a source and claims that the husband can potentially lose peirot from the moment the couple begins to fight. Clearly, the Rashbam took our gemara's formulation seriously, that the peirot are suspended even before the geirushin proceedings commence - from the moment the husband develops the intent to divorce.
Assessing this view would demand a better understanding of the exact nature of peirot. If Rebbi Shimon views writing as the initial stage of divorce, we should not be surprised that peirot are suspended. After all, the divorce has begun and we would expect concrete expressions of this unfurling process. Why specifically peirot suffer, and which other rights of a husband might be similarly affected, are all important questions to be pursued. If, however, we adopt the Rashbam's perspective - that mere intent to divorce and even a serious and irreparable dispute terminates peirot rights - we would be forced to examine the nature of peirot. Though this issue is fully discussed in the 5th perek of Ketubot, a brief examination is certainly in order in our context.
The gemara in Ketubot lists numerous reciprocal privileges instituted between husband and wife. The husband enjoys profits from his wife's estate, while he must redeem her if she were captured. She remits her income to him while he supports her day-to-day. Are we to view these arrangements as merely contractual, that the Rabanan conceived a list of mutual agreements between husband and wife to allow a smoother domestic environment? Normal contractual obligations must be clearly specified and articulated in contract, while these are automatic and assumed in light of the Rabbinic institution.
Alternatively, we might claim that the Rabanan did not merely legislate mutual financial obligations; rather, they broadened the terms of the Biblical marital relationship. Biblically, marriage imposes the following obligations upon the husband: sexual rights, clothing and possibly food (see Shemot 21:10). The Rabanan extended the parameters of marriage to include income, profits, redemption, burial, etc. Said otherwise, is the husband's right to receive his wife's income purely financial (with the fact of his marriage purely incidental or contextual), or does it stem directly from his status as husband and the institution of marriage?
By discontinuing peirot prior to the onset of the divorce (according to the Rashbam), Rebbi Shimon might have been signaling that peirot are not merely contractual. If they were, they could not possibly be affected until the divorce actually began. By suspending the peirot before the divorce, from the point when the marriage begins to suffer (fighting, intent to divorce, etc.), Rebbi Shimon clearly assigns the marital institution as the obligating source of peirot. Once this institution 'suffers,' peirot (and indeed, according to the Rashbam, inheritance rights) are affected.
An inverse conclusion might be drawn from the statements of the Ra'avad on the Rambam (Geirushin 1:25). As presented in last week's shiur, the Rambam invalidates a post-dated 'get.' The Ra'avad's counter claim is based upon the premise that no legal complications can arise. The woman will not exploit the time delay to protect her from Beit Din, since the actual date suggests a later date of divorce - clearly not within her legal interests. In terms of peirot abuse, since the peirot remain the husband's anyway until the actual date written on the 'get,' no abuse will occur. The Ra'avad here makes a dramatic claim. If the date on a contract is actually later than its delivery, though the woman's divorce occurs at the point of delivery, her husband's rights to peirot are extended (until the date of the contract) - even though they are no longer married! Many Rishonim are surprised by the notion of such a state - no marriage but peirot privileges!! The Rosh even suggests that the actual marriage peirot rights have expired at the point of divorce and the husband and wife merely entered a separate, independent, contractual agreement whereby peirot moneys are transferred to the husband for a limited time. The peirot he receives are not a logical extension of his original peirot, but a new agreement which bears no resemblance to his original rights. The Rosh's explanation of the Ra'avad provides little insight into the nature of a husband's peirot rights.
The Rashba, though, understands the Ra'avad in a more literal fashion. A post-dated 'get' is actually a form of 'shiyur,' a concept elaborated upon in the 9th perek of Gittin. A husband can issue a 'get' and retain certain rights or delay certain aspects of the divorce. By issuing this 'get,' the husband effectively concludes the divorce but delays the termination of his marital peirot rights until the date which appears upon the 'get.' According to the Rashba's reading of the Ra'avad, we do indeed admit to a situation in which the marriage per se has concluded, but the original peirot rights continue even after the marriage ends. Does this possibility not suggest that peirot rights are not an element of marriage, but merely an agreement that the Rabanan superimposed upon marriage? The ability to sustain these very peirot rights beyond the limits of a marriage according to the Ra'avad would suggest a flimsy bond between the peirot and the marital context.
A third signal as to the nature of peirot can be found in our sugya, in the Tosafot Rid's explanation of Chakhamim's position regarding the conclusion of peirot. Rebbi Shimon discontinues peirot at the point of ketiva (a position we already inspected). Rabanan, according to Rebbi Yochanan, suspend peirot at the point of delivery. This stance does not require analysis, since this is the most natural moment that peirot should end. According to Reish Lakish, though, the Chakhamim claim that peirot are suspended from the point of signature. Why should the signature discontinue the peirot if the 'get' has yet to be delivered? Tosafot (18a) s.v. ve-anchei suggest that Reish Lakish sees the point of signature as reflecting the 'point of no return,' at which it is likely that the ba'al will go ahead and divorce. In cases in which the husband is still deliberating even after the signature, the peirot remain until delivery.
The Tosafot Rid provides a different justification for Reish Lakish's approach. The gemara in Bava Metzia develops the notion of "eidav ba-chatumav zakhin lo." When witnesses sign a document, they can serve as agents on behalf of the issuer of the loan in acquiring lands on his behalf. Every lender receives land guarantees from the debtor. These guarantees (shibud nekhasim) involve partial ownership rights in his debtor's land. The witnesses attain these ownership rights in his behalf when they sign (even before the borrower actually delivers the contract to the loaner). Similarly, the witnesses act as the woman's agents in reacquiring from her husband her peirot rights even at the time of signature, before the 'get' is delivered. Hence, peirot are suspended from the point of signing. This analysis casts peirot as pure financial assets (similar to land rights between debtor and creditor) which can be acquired at early stages by agents acting on the woman's behalf. This formulation, as well, suggests a more independent identity for peirot rights, which has little to do with the marital institution per se.