Shelichut and a Shoteh

Gittin (7:1) | Yisrael Bankier | a day ago

The Mishnah (7:1) discusses a case regarding a person who was afflicted by kordeyakos. In essence, this is a person who is in a state of temporary confusion such that we is not considered having halachic da'at at that time -- like a shoteh. The Mishnah teaches that if he instructs someone to write a get while he is in that state, then we disregard it. If however, he appointed someone to write the get while he was healthy, then, while in that state, instructed him not to write the get, we disregard the retraction. The Bartenura explains that once the husband recovers, the shaliach can then write the get relying on the original instruction. Nevertheless, while the husband is in that state, he is not able to write the get. We shall try to understand this Mishnah.

The Ketzot HaChoshen (188:2) cites a debate regarding if the get was written and delivered while the husband was a shoteh. According to the Rambam (Geirushin 2:15) the get is pasul on a rabbinic level. In other words, the shelichut is still good. Nevertheless, people may confuse this case with another and permit a get to be delivered that was instructed by a shoteh. Consequently, the Chachamim invalidated the get. The Tur (Even HaEzer 121) however understands that the get is invalid on a biblical level.

The Ketzot explains that according to the Rambam, since the appointment as shaliach (minui) was done properly, the shaliach takes the place of the person that sent him. Consequently, on a biblical level, even if the husband is now a shoteh, the shaliach can operate independantly as if he was the healthy husband. If so, even if the husband died, he should be able to deliver the get -- which is not the case. The Ketzot explains, citing Rashi, that once the husband died, the connection between the husband and wife is severed such that a get cannot be given. To be clear, the shaliach continues to be the shaliach even after the husband died; he would still be able to operate as the husband. It is simply that once he died, divorce is no longer relevant or possible.

How do we understand the position of the Tur? The Achiezer (1:28:8) notes that some explain that once the husband becomes a shoteh it cancels the shelichut. He however argues that if that were the case, once the husband recovers, the shaliach would need to be nominated again. As we saw above, that is not the case.

Instead, the Achiezer explains that when a shaliach is appointed, he does not acquire the full power of the husband such that he can act independently. Instead, it is only at the time that he carries out the task that he adopts that power, but it is a power that the husband must have at that time. The Achiezer then puts it differently, that Tur understands that when the shaliach hands over the get it is as if the husband is handing over the get. The shaliach only helps however such that it is as if the husband performed the action. Nevertheless, the kritut (halachic severance) comes directly from the husband. Consequently, if the husband becomes a shoteh, the shelichut is indeed intact. Nevertheless, when the shaliach acts, it is as if the husband is acting and at that time the husband is unable to do so.

The Kehillot Yaakov (20:2) however argues with the Ketzot that one could understand that the Rambam understands that the shaliach is not acting independently, but instead acts as an extension (yad) of the husband. How then would the get work at the time the husband is a shoteh? He explains the debate between the Rambam and Tur is how we understand the issue of a shoteh. One way is that there is a technical deficiency in his actions since they lack da'at. If however the action had da'at then the get would be effective. Alternatively, the issue is that shoteh is simply outside the world of kinyanim. The Kehillot Yaakov explains that the Rambam maintains the first understanding. Consequently, in our case, the action can have daat by way of the shaliach that was appointed when he was healthy. The Tur however would maintain that a shoteh is excluded from the world of kinyanim. Consequently, since the shaliach is only acting as an extension of the husband, the get would not work.

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