This Get is Not Transferrable

Gittin (3:1) | Yisrael Bankier | 6 years ago

As mentioned last week, a critical requirement of a get is that it is written lishmah – with the intention that it is used for the divorce of this particular husband and wife. The first Mishnah in the third perek lists a number of cases that would not meet this requirement. One of these is if that a man wrote a get to divorce his wife, then changed his mind. The Mishnah explains that if he finds another person from his town whose name matches his and whose wife's name matches his wife's name, that friend cannot use the get to divorce his wife. The Bartenura explains that the get was valid at the time of writing, since it was intended to be use for divorced of the two individuals that it was written for. Nevertheless, the Mishnah is teaching use that it cannot be used for another divorce, since that divorce was not considered at the time of writing. If the first husband however changes his mind again, can he use that get?

The Tifferet Yisrael anticipates the following questions. Irrespective of the laws of lishmah, the second man should not be able to use the get. Since the names of the husbands and wives match in that town, the get is not unique enough that we can know to whom the get belongs. The Tifferet Yisrael explains that while ideally the get should be unique, if the get is delivered, it is nevertheless valid. This is because we rule like R' Elazer that the witness that effect the divorce are those that are present when the get is delivery (edei mesira) and not those that are written in the get (edei chatima).

Indeed the Gemara (24b) explains that our Mishnah is going according to the opinion of R' Elazar. The Tosfot explains that according to R' Meir who maintains that it the witnesses on the get that effect the divorce, it would need to be clear from the get on which the witnesses sign, that the get was written for this particular divorce. The names would need to be unique and they would include either the names of the grandparents or other distinctive features. Rashi however explains that the issue for according to R' Meir, that does not require edei mesira, the concern is that the woman who was not divorced will find the get and use it to claim she was divorce. In other words, rather than being an essential requirement for the validity of the get, Rashi understands that the psul is based on an external issue.

Considering the above, granted that the second man cannot use the get, if the first man changed his mind again, can he use the get? The Tosfot R' Akiva comments that there is not problem and he can. The Chatam Sofer (24a, s.v. kol) however cites the Tosfot (32b, s.v. hatam) that explains that everyone agrees that if the husband annuls a get prior to delivery, then the get cannot be used again. In our case, since the husband changed his mind and gave it to another, it should be no different to him annulling the get and therefore not be able to used by the husband again. Why then did the Mishnah rules that the friend may not use the get, but did not include the fact that the husband may not? The Chatam Sofer explains that when the husband cancels a get it is considered as if the husband annulled his instruction to write the get lishmah and it is as if the get was written stam – without an specific intent. At this stage the Mishnah was only teach that a get was not transferrable and was not yet up to teaching that a stam get is invalid.

The Chidushei HaRim however explains that husband changing his mind is not considered as if he annulled the get. The Chidushei HaRim explains that that is why the Mishnah includes specifically this case where the husband changed his mind. Based on what we learnt, even if the husband did not change his mind (and was ultimately going to give his a wife a get) the friend would not be able to use his get. The Mishnah includes this case where he changed his mind so that if he gives the get to his friend it is considered as if the get completely belongs to his friend (another core requirement), in order to teach that due to the lack of lishmah it is still invalid.

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