Handwritten Get

Gittin (9:4) | Yisrael Bankier | 4 months ago

The Mishnah lists three types of gittin that the Chachamim deemed invalid. If however a woman remarried based on that get, the children from that married would be considered legitimate. In other words, on a biblical level the get is valid, yet, due a concern, the Chachamim did not want those gitttin used. The first of these three cases is if the get was written by the husband, but no witnesses signed the get. We will focus on this case.

Recall that there is a debate regarding the critical witnesses that give the get the power to affect divorce. According to R' Meir it is the witnesses that sign the get, whereas according to the R' Elazar it is the witnesses that were present when the get was handed over to the wife.

The Bartenura explains, that according to R' Meir, even though the critical signatures are missing, the husband's handwriting is equivalent to one-hundred witnesses. Similarly, for R' Eliezer, even without witnesses to the husband giving the get, in this case it would have been valid. Since the husband wrote the get it would have satisfied the pasuk "ve'katav ve'natan". Nevertheless, the Chachamim invalidate this get out of concern that people would then allow a get written by a sofer that was not signed by witnesses.^1^

Returning to R' Meir, the Rashba cites Rashi who also explains that were it not for the gezeira, the get would be valid since the husbands handwriting is equivalent to having one hundred witnesses. He brings a proof from monetary laws where a debt can be recovered based on a contract written by the borrower (albeit from nichsei ben chorin).

The Nemukei Yosef (Yevamot Rif 8b) however finds the comparison to monetary law difficult. There, the contract's function is simply as a proof. There is no better proof than the contract being written by the borrower -- it is tantamount to admission. With respect to a get however, the get affects the divorce. If witnesses are necessary for a get, then without the get, it would lose its power to do so. Instead, the Nemukei Yosef explains that the since the Torah writes "ve'katav" it teaches that for a get, the husband's handwriting is equivalent to witnesses.

The Birkat Shemuel (Gittin 11) probes what is behind the debate between Rashi and those that find his explanation difficult. The Birkat Yosef rejects the answer that the novelty is that the Torah considers the husband's handwriting as equivalent to two witnesses to substantiate a document. If that were the case, since the derash only applied to Gittin, it should not also apply to monetary law (which is not the case). Instead, he explains this debate based a different one.

The Rishonim argue whether a get also requires two witnesses when the get is delivered (according to R' Meir). Rabeinnu Tam requires it, where as the Ran disagrees. The Rabbeinu Tam maintains that "ein davar she'be'erava pachot mi'shnayim". In other words, matters related to marriage and divorce require two witnesses to affect the change in status. Consequently, the witnesses are required when this happens. According to the Ran however, the witnesses in the document are sufficient to satisfy that requirement.

He continues explaining that everyone agrees that the husband's handwriting gives the get substance, just like in monetary law. Nevertheless, for a get we have the second issue of ein davar she'be'erava pachot mi'shnayim. According to the Ran, in the absence of witnesses in the document that element is not being satisfied. The husband's admission to writing the get does not help. That is the issue that Rishonim had with Rashi's explanation. Simply drawing a parallel from monetary law alone is insufficient. Rashi however would agree with Rabbeinu Tam that witnesses are necessary when the get is handed over. Consequently, we were never relying on the witnesses in the get to satisfy this component. Therefore, drawing a parallel from monetary law to explain how the get is substantiated is sufficient.

^1^ See the Tosfot Yom Tov for a different explanation for the gezeira.

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