Tikun Olam in Gittin

Gittin (3) | Yisrael Bankier | 17 years ago

The third perek teaches that originally, if a husband elected a shaliach to send a get to his wife, he would be able to come before a “bet din” and cancel the shlichut thereby effectively putting a stop to the get and the divorce. Rabban Gamliel however, realised the danger in such practices and “mipnei tikkun olam” banded this procedure.

Exactly what motivated Rabban Gamliel to institute this ban is debated in the Gemara (Gittin 32a) and hinges on the different understandings of the original practice. R’ Nachman understood that the husband originally was able to annul the shlichut in front of two witnesses; the term “beit din” consequently not having its usual meaning. In such cases, it was very possible that the shaliach would still hand the wife her get and she would be under the impression that she was indeed divorced. R’ Yochanan therefore understood that Rabban Gamliel felt that the danger would then be that she would remarry, and because she was really not yet divorced, the children from this second relationship would be mamzerim.

Rav Sheshet however felt that originally, if the husband wished, he would be required to annul the shlichut in front of three people – a beit din. The Gemara explains that once an event occurs in front of three people “it lehu kala” (it has a voice) and it become widely known. Consequently, the wife would also know that the shlichut was cancelled. Therefore Reish Lakish explains that Rabban Gamliel’s concern was not because of mamzerut but rather because of agunot. In other words, if a husband was able to retract from a get, it could lead to women being trapped in wedlock.

The Gemara however asks, if the original actions of the husband took affect (with a biblical weighting), how can Rabban Gamliel’s decree, no matter how noble, have any affect. If the husband cancelled the shlichut the wife should not be divorced! The Gemara explains that Chachamim have the ability to uproot the original marriage – “afkinhu Rabbanan le’kidushei minei”. This hinges on the fact that all marriages are affected “k’dat moshe ve’yisrael” – according to the belief of Moshe and Yisrael.

The Tosfot (Ketubot 33a) asks if the Chachamim have such an ability, then it could conceivably be employed in other areas as well. For example, if a woman had an affair, she could be saved from a capital punishment. The husband could quickly send her a get and then cancel the shlichut. Once takanat Rabban Gamliel comes into effect the marriage is retroactively uprooted thereby making her a single woman at the time of the incident. The Tosfot answers in such a case, where the husband sent and cancelled the get for this purpose, the afkinhu would not be applied.

One may be thinking, if the Chachamim have this tremendous power, then why is it not employed in all cases of agunot? The Ramban and Rashba explain that they were limited when they could exercise this power. It was only in cases like this one, were a get (whether or not it was valid) was indeed produced and handed over by the husband. In other cases however, they can not.

Therefore we are introduced to a novel power of the Chachamim while at the same time discover its limits of when they can apply it.

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