1)

DOES DICHUY APPLY TO DIVORCE? [Gerushin: Dichuy]

(a)

Gemara

1.

32a (Mishnah): If Kabalah was done properly, and then the blood was given to a Pasul (or put in the left hand or in a Chulin Keli), we return it to a Kosher Kohen (or the right hand or to a Keli Shares);

2.

34b: Had the Mishnah taught only putting into a Chulin Keli, one might have thought that this can be fixed because one could Makdish the Keli, but other Pesulim (which cannot be fixed) would disqualify the Korban.

3.

Question: We should say that Dichuy applies! (The blood could not be offered while the Pasul, left hand or Chulin Keli was holding it.)

4.

Answer #1 (Ravina citing Rava): Our Mishnah is like Chanan ha'Mitzri, who says that Dichuy does not apply even to a slaughtered animal;

i.

(Beraisa - Chanan ha'Mitzri): If the goat sent to Azazel (on Yom Kipur) died after slaughtering the goat selected for Hash-m, we find another goat to send to Azazel.

5.

Answer #2 (Rav Ashi): Whenever we can remedy the situation, all agree that Dichuy does not apply.

6.

Support (Rav Shiya): R. Yehudah says that Dichuy applies, but not when it can be fixed!

i.

(Mishnah - R. Yehudah): If the goat selected for Hash-m was slaughtered and the blood spilled, the goat Azazel must die. If the goat for Azazel died, we spill the blood of the slaughtered goat.

ii.

(Beraisa - R. Yehudah): They would gather a bucket from the blood of all the Pesachim on the floor, and throw it on the Mizbe'ach, to be Machshir a Korban (in case its blood spilled).

7.

Gitin 23a (Mishnah): If a minor was appointed to be a Shali'ach to give a Get, and he matured (and gave it), or if a deaf, blind or insane person was appointed, and he became healthy, or if a Nochri was appointed and he converted, the Get is Pasul.

8.

If a healthy Shali'ach was made, and he became deaf, blind or insane, and he recovered (and then gave it), the Get is valid. If the Shali'ach had Da'as when appointed and when he gave it, it is valid.

9.

70b (Mishnah): If a man appointed Sheluchim to write a Get for his wife, then was seized by Kordaikus (an evil spirit), then said that the Get should not be written, his latter words are void.

10.

Opinion #1 (Reish Lakish): The Get may be given immediately.

11.

Opinion #2 (R. Yochanan): The Get may be written only after he recovers.

12.

Reish Lakish learns from 'his latter words are void.' R. Yochanan holds that this means only that he need not command again to give the Get when he recovers, but we cannot write it while he is sick.

13.

Reish Lakish compares a seized man to a sleeping man. R. Yochanan disagrees, for he will not recover automatically. Rather, he is like an insane man.

i.

Reish Lakish disagrees, for we have a cure for Kordaikus, but not for insanity.

(b)

Rishonim

1.

Rambam (Hilchos Gerushin 3:15): Anyone can write a Get, except for... one who became an idolater...

i.

Magid Mishneh: The Rambam holds that a Mumar to idolatry or to be Mechalel Shabbos in public is like a Nochri. In many places the Gemara says that he is like a Mumar to the entire Torah, and he is like a Nochri. However, if he was Mekadesh a Bas Yisrael, she is Mekudeshes and needs a Get. The Rambam means only that he cannot write a Get. Surely, even if he was Mekadesh when he was a (Kosher) Yisrael, he can divorce after becoming a Mumar. All Ge'onim say so. This is obvious. Since his Kidushin is valid, his Get is a proper Get.

ii.

Or Some'ach: Even ha'Ozer asked from Kidushin 41b, which says that R. Shimon needs no verse to teach that a Nochri cannot be a Shali'ach for Terumah, for he holds that a Nochri cannot separate Terumah from his own produce. If a Mumar cannot be a Shali'ach, R. Shimon should need a verse for this, for a Mumar can separate Terumah from his own produce! However, Tosfos explains that R. Shimon discusses Peros from which Terumah must be taken, e.g. they grew a third in a Yisrael's ownership and the Yisrael did Miru'ach (final processing). R. Shimon holds that the Terumah is not truly Kodesh. He learns Terumah from a Gezeirah Shavah "Chet-Chet" from Kodshim. There is no Me'ilah for Kodshim of Nochrim. R. Yochanan says that we cannot redeem Kodshim in an Ir ha'Nidachas. Even what would be bought with their redemption money cannot be offered, due to "Zevach Resha'im To'evah." the same applies to a Mumar to idolatry or Chilul Shabbos; his Terumah is not really Kodesh.

iii.

Or Some'ach: In Sanhedrin 47a, the Gemara asked why Korbanos in Ir ha'Nidachas must die. Since the owners died, they got atonement (so the Korbanos are no longer "Zevach Resha'im"). We should offer them! We must say that once they were Nidchim, they are permanently Nidchim. R. Shimon holds that living animals are not Nidchim. If so, if a Mumar repents, we can offer his Korban! If so, what is his source that his Terumah is not Terumah? In Me'ilah, we say that if a Tor (turtledove) is too young, there is no Me'ilah. The Gemara asked why this is different from Mechusar Zeman (a Korban that cannot be offered yet). It answered that an (animal) Mechusar Zeman is like a Ba'al Mum, which can be redeemed, but there is no redemption of birds. Even though later the bird can be offered, now it has no (intrinsic or monetary) Kedushah, and hence no Me'ilah. All the more so, a Mumar's Korban, even though it will be offered if he repents, now it has no Kedushah or Me'ilah. R. Shimon holds that young Turim have Kedushah. He expounds that Kodshim of Gilgal had Me'ilah, even though they were Mechusar Zeman. This is only when they were Hukdash to be offered in the proper time. A Mumar is not destined to repent, so his Korban is not destined to be offered. 'Dichuy does not apply to what is b'Yado' does not apply in such a case (Tosfos 34b DH Kol). Tosfos (12b DH u'Shma) says that Dichuy does not apply to a Mumar's Korban, but this is not necessary so. Also, I discuss one who was a Mumar from the time of Hekdesh until now. R. Shimon holds that there is no Isur to slaughter it outside the Mikdash, and therefore there is no Me'ilah. If one was Makdish a yearling animal for an Asham that requires a second year animal, he holds that it has no Kedushah. In the Yerushalmi, R. Yochanan says that Korbanos of a Mumar have no Me'ilah. Reish Lakish disagrees, for he holds (Sanhedrin 112b) that their value is offered (through redemption).

iv.

Or Some'ach (DH u'Mah): Even ha'Ozer brings a proof from Gitin 23a, in which we say that if a sane Shali'ach became deaf and regained sanity, the Get is valid. The Mishnah did not discuss a Nochri returning to Kashrus. If a Mumar were not a Ben Bris, the Mishnah should have discussed a Yisrael who became a Mumar and repented! I answer based on the Mas'as Binyamin cited in Magen Avraham (448:4), that a Nochri can be a Shali'ach for a Nochri. If so, a Mumar can be a Shali'ach for a Mumar. The Mishnah omitted Mumar, for the Get can be Kosher even when the Shali'ach was Pasul at the beginning. According to this opinion, if a Mumar has no Shelichus, how can he divorce? We require Shelichus to write the Get, and according to Tosfos (Gitin 9b DH Af), to sign it! A Get in the husband's handwriting is Kosher mid'Oraisa. Witnesses are Shelichus to sign in place of him! The Rambam does not require Shelichus to write or sign the Get. The husband must command only to make it Lishmah.

2.

Rambam (2:15): If a healthy man commanded to write and give a Get, and later he was dazed, we wait until he recovers before we write and give to her. After he recovered, we need not ask if he still wants the Get. If they wrote and gave before he recovered, it is Pasul.

i.

Kesef Mishneh: This is difficult. The Gemara says that it is Batel, for R. Yochanan equates this to a lunatic! All actions of a lunatic are void. Perhaps because Reish Lakish equates him to a sleeping man and says that we may give it, the Rambam minimizes the argument. However, the Gemara explains that Reish Lakish permits because we have a cure. This implies that when there is no cure, spirits other than Kordaikus, he is like a lunatic, and it is Batel! If so, the Rambam should have specified that we can cure it. We do not have a cure for most evil spirits!

ii.

Mishneh l'Melech: Get Pashut answers that the Pesul is only mid'Rabanan. If not, since the Shelichus ended, the husband would need to authorize the Shali'ach again! Why is this different than a Shali'ach who became Pasul, and then Kosher again? If the Shali'ach gave it while he was deaf, it is Batel! This requires investigation.

iii.

Or Some'ach: The Pri Chodosh says that since he was healthy when he made the Shali'ach, even if the Meshale'ach cannot make a Kinyan at the time the Shali'ach does so for him, the Torah says that it works. The only exception is if the Meshale'ach died, for then his marriage ended or his property passed to his heirs. Rashi explains that divorce or freedom after death does not work because the wife or slave is not in the Meshale'ach's Reshus (but not because the Shelichus ended). If a Shali'ach merely acts for the Meshale'ach, the Meshale'ach must still be sane. If the Meshale'ach makes the Shali'ach like himself, he need not be sane at the time of the Kinyan. Temurah 10a connotes like this. Rashi explains that when partners make a Shali'ach to make something Hekdesh, regarding Temurah it is like Hekdesh of one individual. The Yerushalmi equated Kordaikus to a lunatic, and says that R. Yochanan and Reish Lakish would argue also about whether one's Korban is Nidcheh if he becomes a lunatic, or if he gave a Get to take effect tomorrow, and he was seized by Kordaikus at the time it takes effect. This is unlike the Pri Chodosh, who says that they argue about Shelichus.

3.

Rosh (Gitin 6:1): The Halachah follows R. Yochanan. The Ri says that when writing the command of someone about to die, we must ensure that the giver is sane at the time, for he is apt to become dazed. Even Reish Lakish permits only because we have a cure. Or, perhaps even R. Yochanan would compare him to someone sleeping, for he often recovers by himself.

(c)

Poskim

1.

Shulchan Aruch (EH 121:2): If a healthy man commanded to write and give a Get, and later he was seized by illness, we do not write it during his illness. If they wrote and gave it before he recovered, if we have a cure for the illness, it is Pasul. If not, it is not a Get.

i.

Chelkas Mechokek (2, Beis Shmuel 3, and Gra 4): The Bach says that since R. Yochanan does not distinguish whether or not we have a cure, also we do not. Since he was sane when he commanded, even Reish Lakish holds that mid'Oraisa it is valid. The Shulchan Aruch is like the Tur, unlike the Rambam. The Yerushalmi supports the Rambam. His opinion is primary.

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