1) STIPULATING THAT THE GET TAKE EFFECT AFTER DEATH
QUESTION: The Gemara quotes the Mishnah in Gitin (72a) which states that when a man gives a Get to his wife and stipulates that the Get should take place when he dies, the Get is not valid (since a Get cannot take effect after the husband's death). The Gemara cites the opinion of Rebbi Yosi who says that in such a case the Get does take effect, because since the date is written in the Get, we interpret the man's stipulation to mean that at the time that the husband dies, the Get will take effect retroactively from the time of the date written in the Get.
RASHI (DH k'Rebbi Yosi, and in Gitin 72a, DH v'Rav Huna) explains that Rebbi Yosi's logic (in a case of a person who gives a gift to take effect after his death) is that if the person's intention was to give the gift after his death, then he would not have written the date in the document.
The Gemara earlier in Gitin (17a) teaches that the Chachamim decreed that every Get must have the date written in it. However, in order for the date written in the document to be proof that the man wants the transaction to take place from that date, he must have had the option not to write the date in the document, as Rashi writes. In the case of a Get, though, he must write the date! How, then, can the fact that the date is written in the Get be proof that he wants the Get to take effect from that date?
(a) The TORAS GITIN (in Gitin 72a) answers that even though a date must be written in the Get, if the man would have wanted the Get to take effect only after his death, then he should have written in the Get the date as "the time of his death" (even though he would not be writing a specific date since he does not yet know when he will die, it suffices to write a time that can easily be verified). Since he did not write "the time of his death" in the Get, but rather the actual date on which the Get was written, we assume that he wants it to take effect from the time it was written.
(b) The PNEI YEHOSHUA there answers that when Rashi writes that the proof (of Rebbi Yosi) that the man wants the Get to take effect from the time it was written is from the fact that he wrote the date, Rashi is only referring to a case in which the man wrote that he wants it to take effect "after he dies." The Mishnah in Gitin is dealing with a case in which the man wrote that it should take effect "if he dies." Since the term "if..." can be interpreted to mean that it should take effect retroactively (see the words of Abaye in Gitin 17a), Rebbi Yosi holds that we use the date written in the Get to interpret the term "if he dies" to mean that it will take place retroactively even though we do not have the above-mentioned proof that that is his intention.
(c) The MITZPEH EISAN says that Rashi's opinion earlier in Gitin (17a) is that it is enough to write the year in which the Get was written in order to satisfy the requirement for writing the date in the Get. Since the man went ahead and specified the full date when he did not need to do so (since the year would have sufficed), we use this as proof that he wanted the Get to take effect retroactively from that day. (See Insights to Gitin 72:1.)
2) THE PROHIBITION OF BREAD BAKED BY NOCHRIM
QUESTION: The Mishnah (35b) lists various items of Nochrim which the Chachamim prohibited a Jew from eating, but from which they did not prohibited a Jew from deriving benefit. Two of these things are bread baked by Nochrim and food cooked by Nochrim ("Shelakos").
The Gemara inquires about the source for the prohibition against eating food cooked by Nochrim. It concludes that the Derashah cited is not the source for the prohibition, but only an Asmachta. What, then, is the source for the prohibition? For what reason did the Chachamim prohibit eating the cooked food of Nochrim?
In addition, why does the Gemara not inquire about the source for the prohibition against eating bread of Nochrim?
(a) TOSFOS (DH v'ha'Shelakos) quotes RABEINU TAM who explains that the fact that the Gemara inquires about the source for the prohibition of Shelakos implies that the Gemara considered that it might be a Torah prohibition. The Gemara concludes that it must have been a very early decree, originally instituted only with regard to food cooked by Nochrim (and not bread baked by them) to prevent the intermingling that would result by eating their food, which could potentially lead to mixed marriages. Only in the times of Hillel and Shamai was it deemed necessary to add another decree and forbid bread baked by Nochrim for the same reason. Although bread of Nochrim was eventually permitted (to an extent, that is; see 35b), the prohibition against cooked food remained in force, since it was an earlier decree (and apparently was a greater concern for leading to mixed marriages).
(b) The RAN in Beitzah (8a of the pages of the Rif, DH Mena) says, as a general principle, that the fact that the Gemara asks for the source of a prohibition does not mean that the Gemara is necessarily entertaining the possibility that it is a Torah prohibition. He says that this is apparent from the Gemara here. Accordingly, the Ran in our Mishnah (DH ha'Pas) states that the decree prohibiting the bread of Nochrim was established prior to the decree prohibiting their cooked food. This is also the opinion of the RAMBAN (35b) and the RITVA. The Gemara earlier (36b) explains that the decree prohibiting their bread was made in order to prevent one from drinking their wine, which was already forbidden (as a safeguard against intermarriage). In those days (and even in some places today), it was the common practice to drink wine when eating bread. This was the reason for the initial prohibition against eating the bread of Nochrim. Only afterwards did another Beis Din decree that all cooked food is similarly prohibited.
The Ran later lists two reasons for the prohibition against eating the cooked food of Nochrim. One reason is that of Rabeinu Tam, as mentioned above, and another reason is that of RASHI (38a, DH mid'Rabanan), who says that a person who frequently eats in the company of Nochrim might end up eating forbidden food.
The Ritva here explains that the reason the Gemara does not ask this question regarding bread as well is because it was well known that the reason for that prohibition was to prevent intermarriage. The reason for the prohibition of cooked food of Nochrim was not as well known and was not an obvious cause of intermarriage.
This argument gives us another important insight into the Gemara's question concerning the source for the prohibition ("Mena Hani Mili"). Rabeinu Tam seems to hold that the Gemara only asks this question when it thinks that the topic is a Torah law, while the Ramban, Ritva, and Ran argue that there is no such principle. The TORAS CHAIM and YAD MALACHI (#430) side with these Rishonim, unlike the HALICHOS OLAM. (Y. MONTROSE)