1) "HOLECH V'TEN LAH"

QUESTION: The Gemara quotes a Tosefta which discusses a case in which the husband told his wife's Shali'ach, "Holech v'Ten Lah" ("take it and give it to her"). Rebbi Nasan says that the husband may change his mind and recall the Get until the woman receives it from the Shali'ach, because he rules that "Holech v'Ten Lah" does not mean "accept it" (be "Zocheh" it) for her. Rebbi maintains that once the Shali'ach receives the Get, the husband cannot change his mind.

Does Rebbi mean to say that the Get takes effect when the Shali'ach receives it and there is no need for the woman to receive the Get afterwards, since the divorce was consummated when the Shali'ach received it, or does the wife have to receive the Get eventually in order for the divorce to take effect?

ANSWERS:

(a) The RASHBA is in doubt about whether or not the woman needs to receive the Get herself in order for the divorce to be valid. Although the Shali'ach acquires the Get for her, perhaps the man's words, "... v'Ten Lah" ("give it to her"), imply that he wants the Get to take effect only on condition that she eventually receive it herself.

(b) The RE'AH (quoted by the KETZOS HA'CHOSHEN 125:3) understands that implicit in the husband's words is a condition that the Get will take effect only if it is eventually received by the woman.

The TORAS GITIN (140:7) points out that only when the man gives a Get in such a manner is there a basis to say that he is making a condition that she should eventually receive the Get, since there is no other explanation for why he added the term "v'Ten Lah." The woman has no use for the actual document itself, so it must be that he said "v'Ten Lah" as a condition for the divorce to take effect. In contrast, in the case of a person gives a gift to a Shali'ach and says to him to "take it and give it" ("Holech v'Ten") to his friend, everyone agrees that the fact that he said "v'Ten" ("give it") is not for the sake of making a condition that the gift will not be consummated unless it is eventually delivered, but rather he means merely that the Shali'ach should acquire the gift on behalf of the recipient so that he will have it for his own personal use.

63b----------------------------------------63b

2) THE SHALI'ACH MUST "RETURN" TO THE HUSBAND

OPINIONS: The Gemara discusses a case in which a husband sends a Shali'ach to deliver the Get to his wife, and when the Shali'ach arrives at the home of the wife she tells him to be her Shali'ach to receive the Get on her behalf. The Amora'im remain in doubt whether the Get takes effect in such a case or whether the problem of "Lo Chazrah Shelichus Etzel ha'Ba'al" (literally, "the Shelichus did not return to the sender (the husband)") prevents the Get from taking effect.

There are various ways to understand how this principle prevents the Get from taking effect in this case.

(a) RASHI explains that since the husband's Shali'ach has become the wife's Shali'ach before he has carried out the Shelichus of the husband, this negates his power to serve as a Shali'ach for the husband, because a Shali'ach must be able to return to his sender while he still represents the sender and tell him that he carried out the mission that he was sent to do. Here, however, he has become the wife's Shali'ach before he has completed his Shelichus for the husband.

(b) The MISHNEH L'MELECH (Hilchos Gerushin 6:9) writes that when this principle establishes that a Shali'ach cannot accept a new mission before he completes the first one for which he was appointed, the Get does not take effect because there is no second Shali'ach (Shali'ach l'Kabalah) to receive the Get.

In contrast to Rashi's explanation (that the problem is that the Shelichus of the first Shali'ach has been annulled), the Mishneh l'Melech understands that the problem is that the Shelichus of the second Shali'ach has been annulled (see Avnei Milu'im, ibid.).

(c) The RITVA (24a) explains that there is a specific problem in the giving of the Get in this case. The act of giving a Get must involve transferring the Get directly from the hands of the husband (or his representative) to the hands of the wife (or her representative). When the wife appoints her husband's Shali'ach as her own Shali'ach to receive the Get, there is no such act of delivery. (See SHACH and NESIVOS HA'MISHPAT, CM 185:1, who disagree about whether this problem applies only to the giving of a Get or to the giving of all documents.)

According to all three approaches, however, why are the Amora'im in doubt about this principle? The Gemara earlier (24a) unequivocally states that such a Shali'ach does not have the authority to act as a Shali'ach!

The Acharonim (AVNEI MILU'IM 141:1 and CHASAM SOFER to Gitin 24a) answer that in the case of the Gemara earlier (24a), the woman herself was sent as a Shali'ach to bring the Get to herself (see there, and see Insights to 24a). In such a case (where the Shali'ach happens to be one of the parties involved in the transaction), everyone agrees that the person cannot be a Shali'ach since it is impossible for him or her to remain a Shali'ach at the moment the transaction is consummated (since, at that moment, he cannot represent the sender but must represent himself). Accordingly, it is clear to the Gemara there that the woman cannot be a Shali'ach for her husband. In the case of the Gemara here, however, a third party was appointed as Shali'ach by the husband to bring the Get to his wife, but when the Shali'ach arrived the wife decided that she wanted him to act as her Shali'ach as well. Since the Shali'ach is an outside party and can potentially represent the husband at the consummation of the transaction, there is room to question that perhaps he remains a valid Shali'ach even though the wife asked him to represent her as well by receiving the Get for her.

This is why Rashi earlier (24a; see DH v'Chi Matis, and DH v'Ha Lo) stresses that the wife who is sent to bring the Get to herself is not a third party but is one of the parties involved in the transaction, and therefore she is unfit to be a Shali'ach.

3) THE WITNESSES FULFILLED THEIR MISSION

QUESTION: The Gemara introduces a principle called "Asu Edim Shelichusan." This principle states that when witnesses who were told to sign a document have fulfilled their mission and signed the document, they may not sign another document for the person since they already completed their mission (Shelichus) and are not empowered to sign as witnesses again until specifically appointed to do so. The Gemara concludes that if the first document contained an error which rendered it invalid and unfit for use, the witnesses may sign a second document to replace the first, since they have not successfully fulfilled their mission until they sign a valid document.

TOSFOS (DH Kosvim) infers from the Gemara that if the Get was written and signed and then found to have a problem that creates a doubt in its validity, the witnesses should not write another Get because there is a possibility that the first Get was valid and the witnesses already carried out their mission and are not fit for signing a second Get.

Why, though, may they not write another Get out of doubt and give both Gitin to the woman? By giving both Gitin, they certainly give one valid Get and the woman is divorced!

ANSWERS:

(a) The RITVA (Mosad ha'Rav Kook edition) answers that if the witnesses have already carried out their Shelichus, to sign another Get would be considered false testimony, since by signing the Get they testify that the husband requested them to sign that document.

(b) The RASHBA (quoted by the REMA, EH 122:1) disagrees and rules that if there is a doubt about the validity of the first Get, the witnesses may sign another Get and give both to the woman. The BEIS YOSEF writes that even Tosfos agrees with this. When Tosfos writes that they should not write a second Get in such a case, he means that preferably the husband should say that he wants them to sign the Get in a manner in which there will be no doubts, so that they will avoid a situation which would require them to deliver two Gitin simultaneously to the woman.

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