Written and Signed before Me

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

On a basic level, a divorce is performed when a husband writes a get (divorce document) and hands it to his wife. In the first Mishnah of Gittin (1:1) we learn that the husband can nominate a shaliach (agent) to deliver the get – a shaliach holacha. If however the shaliach is being sent from outside Israel to his wife in Israel, then the shaliach must say that the get was both written and signed before him – befanai nichtav u'befanai nechtam.

The Gemara records a debate regarding this requirement. For a get to be valid it must be written lishmah; it must be written for the husband and wife that will be using it for the divorce. Raba explains that the Chachamim were concerned that outside Israel, people were not versed in the laws of gittin and may not have written the get lishmah. Consequently, the shaliach must confirm that the get was written as required.

Rava however explains the basis differently. Ordinarily, if the husband would later protest the validity of a get, Beit Din would only need to substantiate the signatures on the get to dismiss the husband claims. If the get was written and signed overseas, doing so would be more complicated. Consequently, the Chachamim instituted that if the shaliach asserts that the get was both written and signed before him, then it is considered as if the signatures have been substantiated and the get would be valid despite future protests.

Rashi stress that the shaliach discussed in our Mishnah, as we have explained, is a shaliach holacha. The Ran (2a Rif, s.v. ve'katav) notes that there is however another type of shaliach in world of gittin, the shaliach that can be nominated by the wife to receive her get – the shaliach kabala. The Ran explains that Rashi implies that a shaliach kabala who brings the get would not be required to say befanai nichtav u'befanai nechtam. Based on our understanding of the requirement of befanai nichtav u'befanai nechtam there should no difference between whether the person bringing the get is a shaliach halacha or a shaliach kabala. What is the basis for the distinction.

The Ran notes that the basis of the gezeira is out of concern that the husband will protest the validity of the get after she received it. He explains that in the case where the shaliach is a shaliach kabala sent by the wife, she is divorced as soon as the get reaches the shaliach's hands, prior to making the return journey. Where the shaliach is a shaliach holacha sent by the husband, the wife is not divorced until the shaliach reaches Israel and gives the get to the wife. Since in the latter case the divorce is not effective as soon as it leaves the husband's hands, it is specifically in that case that we are concerned he will regret his decision, change his mind and then protest the validity of the get.

The Ran's explanation only appears to work according to Rava, where the concern is that the husband will later contest the validity of the get. The explanation does not however work according to Raba, who explains that the concern is the get was not written lishma. According to Raba there should be no difference between a shaliach holacha and kabala.

The Pnei Yehoshua (s.v. Rashi) explains that according to the Tosfot the explanation still works even according to Raba. They explain that Raba's concern is only that the husband will protest using the claim that the get was not written lishmah, e.g. the sofer was only practicing writing gittin using their names. If however there is no concern that the husband will raise the objection, then we are not concerned that the get was not written lishmah. According to Rashi however we still have a question, since Rashi explains that the concern that the get was not written lishmah is a real one, irrespective of whether the husband might raise it. Once again, according to Rashi's understanding of Raba, there should be no difference between a shaliach holacha and kabala.

The Pnei Yehoshua answers that once the shaliach kabala receives the get from the husband overseas, the divorce is complete. From that point it is treated like any other divorce performed overseas and we no longer question whether the get was written lishmah. This then explains why, even according to Raba, the shaliach kabala is not required to say befanai nichtav u'befanai nechtam when delivering the get.

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