The Tofes of the Get (26a-26b)

  • Rav Yair Kahn
Sources:
  1. Mishna 26a, Gemara until “U-motiv lah,” 26b, “Amar Rabbi Zeira… tovina de-chakkimei.”
  2. 21b, “Ketavo al ha-mechubbar… u-ntano lah kasher;” “Ve-ibba’it eima… ve-Rabbi Elazar hi.”
  3. Sefer Ha-zekhut [10b, Rif], Ran ibid.  s.v.  “Gemara,” s.v“Amar, U-linyan” [11b, Rif], s.v.  “Hilkakh” [13a, Rif].
  4. Rambam, Hilkhot Geirushin 3:7, 17-18; 1:7.
  5. Yerushalmi 3:1, “Milteih de-Reish Lakish… torfo be-tofes kasher.”
 
Questions:
  1. According to the conclusion of our passage, may one write the standardized part of a get beforehand?  Why? 
  2. What is the status of a tofes written on something attached to ground?  What about a tofes written by a minor?
  3. How do the Rishonim reconcile the various passages?
  4. What is the Rambam’s ruling?
  5. Explain the two views in the Yerushalmi.
 
Introduction
 
Our passage indicates, apparently, that the rules of writing a get are relevant only to the toref, the toref, the personalized essence, not the tofes (“typos” in Greek), the standardized part.​
 
However, we do find the following note by Rabbi Yonatan (26a), “This follows Rabbi Elazar… By rights, therefore, it should not be permitted to write even the tofes of the bill of divorce [beforehand], but for the scribes’ welfare, the rabbis allowed it.” This would indicate, ostensibly, that Rabbi Elazar believes that the tofes must also be written with intent (lishma).However, Rashi rejects this possibility, explaining that “it should not be permitted” refers to a concern that one may also write the toref beforehand; ultimately, this concern was set aside to ensure that there would be scribes available.Indeed, it appears that one must say something along these lines, for if one does not say so, essentially we have a situation of the rabbinical annulment of kiddushin, because the rabbis are legitimizing a get which is biblically invalid.
 
In any case, despite the fact that the laws of writing the get do not apply to the tofes biblically, the Sages institute certain laws as rabbinical decrees.Therefore, Rabbi Elazar in the Mishna disqualifies, due to a lack of proper intent, “tofes attu toref”; in other words, the Sages require all scribes to write the tofes with intent because of a concern that some scribes may come to write the toref of the get without intent.This is stated explicitly above (21b), concerning the issue of writing a get on something attached (mechubbar) to the ground.
 
However, this law requires closer examination, because the conclusion of our passage endorses the view of Rabbi Elazar, who nullifies the tofes written without intent, while writing a tofes upon mechubbar is merely proscribed so ab initio; ex post facto, the get is valid, if one detaches it, fills in the toref and then hands it to the woman.Furthermore, in the passage about a get written by a minor (or others not legally competent), Shemuel legitimizes a tofes written by them, despite the fact that they cannot write with the proper intent.This implies that it is allowed for them to write a tofes ab initio, as we see that "Anyone can draft a get - even a mental deficient or ."
 
The Raavad’s View
 
In order to resolve this contradiction, the Rishonim offer a number of solutions.  In Sefer Ha-zekhut, the Raavad writes that we rule in accordance with our passage: “The law follows Rabbi Elazar; Rav called Rabbi Elazar ‘the happiest of scholars.’”  Therefore, we follow Rabbi Elazar, who does not allow one to prewrite the tofes; he rejects them, and the implication is that even ex post facto they are null and void. 
 
In light of this ruling, the Raavad claims that the passage of 21b in not accepted according to halakha.  Accordingly, if one writes a tofes upon mechubbar, the get is invalid, and the husband may not divorce his wife with it, even if it had been detached before the toref was written.  The same law applies to a tofes written by a minor: according to his view, the get is invalid even if one who is mentally competent writes its toref lishma.  Therefore, the Raavad rules in accordance with Rav Huna, who explains that a get written by a minor is valid only if an adult was standing over him.
 
The Rosh’s View
 
The Rosh also reconciles the passages, but as opposed to the Raavad, he explains the prewriting of the tofes ex post facto, according to the determination of the passage on 21b concerning writing the tofes upon mechubbar.
 
Therefore, he explains that Rabbi Elazar as well only invalidates prewriting a tofes ab initio.  When it comes to a tofes written by a minor, the Rosh explains that this is only valid ab initio if an adult was standing above him. 
 
The Ramban’s View
 
The Ramban distinguishes between the cases in the following way: according to him, the Sages invalidate a get if the scribe writes the tofes without intent, because this is a very common occurrence; however, they do not make any such decree about a tofes written by a minor, because this is very uncommon.  As for writing it on mechubbar, they forbid one who is legally competent from writing on mechubbar ab initio, because this is more common than the writing of a minor, but in any case ex post facto the get is not invalid, because it is not as common an occurrence as that of the scribe who prewrites a tofes
 
The Rambam’s View
 
As for the view of the Rambam, there are different versions of his ruling.  According to the version before us, the Rambam rules like the Tanna Kamma and not Rabbi Elazar (Hilkhot Geirushin 3:7): “For the scribes’ welfare, our Sages permitted them to write the tofes of bills of divorce…”  This is against the simple meaning of the passage, which determines explicitly that “The law follows Rabbi Elazar.”  Most Rishonim take issue with this.
 
In explaining his view, it is possible to argue that the Rambam rejects our passage because of the prior passage (21b), which validates a tofes written on something attached to the ground.  Indeed, the Rambam rules (1:7), “We may not even write the tofes upon something attached,” but if one does so, “it is valid.”
 
The Rambam writes the same (3:17-18) about a tofes written by a minor, that it is valid ex post facto; if an adult is standing over him, then it is valid ab initio.   
 
If so, a prewritten tofes should not be invalid ex post facto.  Therefore, the Rambam decides to rule following the view of the Tanna Kamma who allows scribes to prewrite a tofes for the sake of their livelihood (see the Yerushalmi).  The Ran explains this in the following way: even though in this passage the halakhic ruling follows Rabbi Elazar, in light of the ruling concerning minors writing gittin, in which we allow them to write the tofes of the get but not the toref, “we see that they believe that we do not make a decree of tofes attu toref.”
 
However, the Ran rejects the ruling of the Rambam, because according to his view there is no contradiction between the passages, as the Ramban explains. 
 
One may add that the Rambam has some difficulty with Rabbi Elazar’s law: why, according to Rabbi Elazar, is a tofes written without intent totally invalid, so that even if she remarries, she must leave her second husband?  It appears that according to Rabbi Elazar, there is no ordinary decree; rather, the Sages institute that the tofes also requires intent, just like the toref.  Therefore, if one does not write the tofes with proper intent, the get is invalid, even in circumstances which are not common.  If so, the passage in 23a, which validates a tofes written by a minor, must necessarily be in conflict with the view of Rabbi Elazar. 
 
However, it is still difficult to understand the view of Rabbi Yehuda, who makes the decree of “tofes attu toref” as well as the decree equating all other documents to gittin.  Do we not always say that the Sages do not compound one decree upon another rabbinical decree? 
 
We have studied above (21b), that Rabbi Yehuda invalidates a get “unless it is both written and signed on something detached from the ground.”  According to the view of Shemuel (in the Gemara there), Rabbi Yehuda invalidates a get if its tofes has been written upon mechubbar.  It appears that according to Rabbi Yehuda, one should not differentiate between tofes and toref, because it all comes together to create the “bill of divorcement,” and therefore one must write the tofes upon a material detached from the ground; if so, the same logic applies, and the scribe must write the tofes with intent.  Despite the fact that the Gemara explains that according to Rabbi Yehuda we make a decree of “tofes attu toref”, this is because if he writes the tofes as boilerplate, and then writes the toref with intent, the status of lishma applies to the entire get.  This is what the Gemara says (23a): “When one writes the toref with intent, it is as if one writes the tofes with intent.”
 
In light of this, one need not explain that according to Rabbi Yehuda, “tofes attu toref” is a standard rabbinical decree; rather, the Sages are punctilious specifically about writing the tofes actually lishma, as the letter of the law requires.  This is because the tofes combines with the toref to form the totality of the get.  Therefore, “tofes attu toref” is not a standard decree, so there is ultimately only one decree made by the Sages: equating other documents to bills of divorce.
 
The Position of the Yerushalmi
 
Now, we may turn to the Yerushalmi (3:2), which cites the view of Rabbi Yochanan.  According to him, a scribe may include the line “You are hereby permitted to any man” in prewritten tofes, leaving only the names and date, as the simple meaning of the Mishna indicates.  In this view, there is no difference between toref and tofes.  However, according to Rabbi Yochanan, the law of lishma is not the law of writing the get, but rather an ancillary disqualification, tied to the writing of the names (see ibid. 3:1).  In any case, even according to his view, Rabbi Yehuda requires intent in writing the tofes as well (see ibid. 7:2). 
 
As we have reached this point, it is possible to add that also those who disagree with Rabbi Yehuda concede to the same essential point: according to their view as well, the laws of writing the get apply to the entire get, both the tofes and the toref.  However, they believe that this does not apply to the law of writing upon mechubbar.  This matter is dependent on our understanding of the disqualification of that which is written upon mechubbar, which we derive from the verse (Devarim 24:1), “he shall write… and put it in her hand,” which precludes any intervening action such as detaching. 
 
Now, what is the nature of this disqualification: is it a technical problem of severing the get from the ground, or is it an inherent invalidation of the act of writing?[1]  If the former approach is correct, there is no defect in the writing of the get, but rather in the connection between the writing and the giving.  Therefore, if one writes the tofes upon mechubbar and then goes back and writes the toref once it is detached, we may say that “he shall write… and put it in her hand” may be applied to it, because there is no interruption between the writing and placement.  However, if writing upon mechubbar is an inherent disqualification of the writing, there is good reason to invalidate even the writing of the tofes upon mechubbar.[2] 
 
In light of the above-mentioned material, we should return to our passage.  At the beginning of our analysis, we pointed out that the language of the Gemara indicates that according to Rabbi Elazar, one must write the tofes with intent by the letter of the law, as is indicated by the passage below (26b):
 
By rights, therefore, it should not be permitted to write even the tofes of the bill of divorce [beforehand], but sometimes he wants to go to a distant land, cannot find a scribe and leaves her as a chained wife.
 
According to this, it seems logical that indeed there is a halakhic requirement of lishma for writing the tofes of the get as well.  However, by writing the toref with the proper intent, this intention attaches itself to the tofes as well, as we noted above (23a), “When one writes the toref with intent, it is as if one writes the tofes with intent.”
 
According to this interpretation, one may explain the view of Rabbi Elazar, who invalidates a prewritten tofes entirely, in an innovative way.  It makes sense that according to his words, the decree of “tofes attu toref” is no ordinary rabbinical institution; rather, the Sages demand the element of lishma in the writing of the tofes, as is required by the letter of the law.  However, if so, the same applies that one should invalidate the writing of the tofes by a minor, and one should not differentiate between a common occurrence and an uncommon occurrence (as the Ramban posits).  We are forced to say that the passage on 23a, which validates the writing of minors and others who are not legally competent, is at odds with the view of Rabbi Elazar.  Therefore, the Rambam rejects our passage, and rules according to the prior passage. 
 
However, one should note that according to the Rambam, the writing of a minor is not valid for a tofes ab initio, unless an adult is standing over him.  However, it is not clear what the benefit is of having an adult standing over him, because according to the interpretation in the passage, having an adult standing over him cannot validate the writing of the toref by a minor (see what the Raavad writes in Sefer Ha-zekhut), and if so, what does the adult add to the writing of the tofes
 
It appears that we may explain that even if one must write the tofes with the proper intent, in any case, the rule of lishma does not apply to a get until the toref has been written.  Therefore, the Gemara determines that if a scribe writes the tofes as boilerplate and afterwards he writes the toref lishma, this is equivalent to writing the entire get with the proper intent. 
 
This is what allows the Tanna Kamma to validate a prewritten tofes for the scribes’ livelihood, and this is how the Rambam rules.  Even so, ab initio we require that the writing of the tofes be in concert with the writing of the toref, so that the elements will together create one unified process. 
 
Therefore, at the time of the writing of the tofes, we do not require intent of an adult which can impart the element of lishma to the get, and the intention of lishma is enough to allow this writing to combines with the writing of the toref.  Thus, having an adult standing over him is effective, because he helps the minor to have the proper focus and to write lishma
 
 
For the next shiur: A Lost Get (27a-28a)
By Rav Mosheh Lichtenstein
 
Sources:
1. 27a-28a (Mishna to Mishna)
2. Bava Metzia 12b, Mishna and Gemara until “Hanei rei’i;” Rambam and Raavad, Hilkhot Gezeila Ve-aveida 18:14.
3. Ramban, Gittin (Hashmatot, 9a), s.v.  “Im,” “Aval le-fi dati… be-alma ein chosheshin;” Ran (14a, Rif), “U-lfi ma she-katav be-huchzeku nammei… be-samukh be-siyata di-shmaya.”
4. Ketzot Ha-choshen 65:9.
 
Questions:
1. Why do we require two conditions in order to suspend a lost get?  Why does one of the conditions not suffice in order to be concerned about the get being mixed up with another?
2. What significance does being lost have upon the power of the document?
3. Why are identifying marks effective for returning a lost get and validating it?
 
 

[1] See what we have written in an earlier shiur.
[2] However, it is difficult to say that if one completes the writing of the toref once the body of the get is detached, this is considered as if one has written the entire get while it was detached, as we say concerning the matter of lishma.