GITIN 21 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
1) ABAYE'S QUESTION, RAV SIMI'S ANSWER, AND ABAYE'S REBUTAL
QUESTION: Rava rules that one may give his wife a Get by placing the Get into his own Chatzer (courtyard) and then transferring ownership of the Chatzer to his wife.
Abaye asks that since the Kinyan of Chatzer is derive from the Kinyan of Yad, it must be similar to Yad. Just as Kinyan Yad works both with and without the consent of the woman, Kinyan Chatzer works both with and without her consent. Such a Kinyan is effective when the Chatzer belongs to her at the moment the Get is placed into it.
However, in Rava's case, the divorce should not take effect, because the woman cannot be forced to become the owner of the Chatzer. Even if she willingly accepts the Chatzer, at that moment the Chatzer is not similar to Yad since its acquisition requires her consent, and thus it should not function to acquire the Get for her.
Abaye's words need explanation. Once she acquires the Chatzer, she indeed should become Megureshes against her will. The Gerushin takes place either a moment after, or at the same moment, she acquires the Chatzer. It should not matter that at the time the Get was placed into the Chatzer the Gerushin could not take effect against her will. The Chatzer is now hers and thus it should be able to acquire the Get for her against her will.
ANSWER: RAV SHIMON SHKOP (quoted in OHALEI YITZCHAK) explains that the requirement that a Chatzer be similar to Yad in order to effect a Kinyan means that just as the woman plays no role in the giving of the Get when it is placed into her hand, she must play no role in the giving of the Get when it is placed into her Chatzer. In Rava's case, however, the woman plays a role in the giving of the Get; in order to acquire the Get, the woman must consent to the transfer of ownership of the Chatzer. Consequently, she is assisting in the act of Nesinah.
Rav Simi asks that Rava's case is comparable to the case of a Shali'ach l'Kabalah. When a woman appoints a Shali'ach to receive her Get on her behalf, the appointment of the Shali'ach obviously needs the woman's consent, and nevertheless she becomes divorced when her husband places the Get into the hand of the Shali'ach.
Rav Simi's question is problematic. Although the appointment of the Shali'ach clearly needs the woman's consent, once the Shali'ach has been appointed the woman's consent is no longer necessary. Accordingly, her Shali'ach should be like a Chatzer which belonged to her before the Get was placed into it. In such a case, everyone agrees that she acquires the Get through Kinyan Chatzer. What is Rav Simi's proof against Rava?
Rav Shimon explains that Rav Simi understands that a human Shali'ach differs from a Chatzer or Yad. A woman's Chatzer or Yad belongs to her independent of its role in acquiring a Get. As long as the Chatzer belongs to her (like her Yad), it may acquire the Get for her without her involvement. Her consent plays no role in the giving of the Get. In contrast, a Shali'ach is appointed solely for the purpose of accepting the Get. Accordingly, the acceptance of the Get by the Shali'ach is a direct result of her involvement in the Nesinah. The fact that the Gerushin still takes effect proves that the Nesinah is valid even when her consent is necessary. If the requirement for "v'Nasan b'Yadah" is fulfilled even when her consent is necessary (such as in the case of a Shali'ach l'Kabalah) and the Get is valid, the Get also should be valid in Rava's case.
Abaye responds that no proof may be cited from the case of a Shali'ach l'Kabalah, because the Shali'ach's ability to accept the Get is based on a different verse altogether and is not comparable to Chatzer.
Moreover, once a Shali'ach is appointed, he no longer needs the consent of the woman. This is evident from the fact that a father may accept a Get on behalf of his young daughter. The Torah appoints him as her Shali'ach even though she does not have the intellectual maturity (Da'as) to consent.
Finally, although the initial appointment of the Shali'ach was made through the woman's consent, the Shali'ach should be no different from a Chatzer acquired before the Get was placed into it. The Shali'ach's present acceptance of the Get is not connected to the woman's original consent to appoint a Shali'ach. Accordingly, no proof may be cited from the case of a Shali'ach to Rava's case, in which the woman's consent is necessary for the giving of the Get and the act of giving might not fulfill the requirement of "v'Nasan b'Yadah."
2) CUTTING A GET OFF OF THE OBJECT TO WHICH IT IS ATTACHED
OPINIONS: The Mishnah (19a) states that one may write a Get on the horn of a cow, but he must give the entire cow to his wife; he may not cut off the horn and give it to her. The verse states, "v'Kasav v'Nasan," which implies that the giving of the Get must immediately follow the writing of the Get, and the two acts may not be interrupted by an act of severing the Get from the object to which it is attached.
The Rishonim disagree about whether the act of cutting (which may not interrupt between the writing and giving of the Get) refers only to an act of cutting an object from its source of life (such as cutting a horn from the head of a cow, or a branch from a tree), or even to any act of cutting one object from another (such as cutting a Get written on a section of a large piece of paper from the rest of the paper).
(a) RABEINU SHMUEL and others (see TOSFOS DH Yatza) maintain that only a Get written on a living creature or on an object attached the ground is considered to "lack cutting" and thus may not be cut off after being written.
(b) The RIVAM and RABEINU TAM maintain that even a Get written on an inanimate object, such as a piece of paper, may be said to "lack cutting."
(c) RASHI seems to contradict himself on this issue. The Gemara later says that a Get written on an earthenware vessel is valid as long as the man gives the entire vessel to his wife. Rashi there (DH d'Shakil) explains that there is no concern that he might break off the part of the vessel on which the Get is written, because he does not wish to ruin his vessel. Rashi clearly understands that even when a Get is written on an object which is not attached to the ground, it may not be cut off.
Rashi on the following Gemara, however, writes otherwise. Abaye and Rava disagree about the law in a case in which one writes a Get on the leaf of a plant which is in a perforated earthenware pot. Rava invalidates the Get because of the concern that the man might cut off the leaf and give it to his wife. Rashi there (22a, DH Shema) explains that since the plant is in a perforated pot, the cutting of the leaf invalidates the Get, since the plant is considered attached to the ground (Mechubar l'Karka). Rashi there clearly understands that cutting off a Get is problematic only when it is written on an object attached to the ground. How are these two comments of Rashi to be reconciled?
The KEHILOS YAKOV answers that Rashi follows the view of RABEINU KRESKAS (formerly printed under the name of the Ritva on Maseches Gitin), who explains that for a Get to "lack cutting," an unimportant part must need to be cut from the important part. This applies in all cases, including the case of a Get written on a pot, a Get written on a leaf, and a Get written on the horn of a cow.
In contrast, when a Get is written on a small piece of a large paper, it is not considered to "lack cutting." Although the unnecessary part is larger, it is not inherently more important than the part on which the Get is written.
Rashi's intent may be understood in a similar vein. When one breaks a piece of a pot, the piece is not a pot itself but a broken potsherd ("Chaspa"). Since it certainly is less important that the pot itself, the act of cutting is considered significant and the Get is considered to "lack cutting" while it is attached to the pot (as Rashi explains in DH d'Shakil). In contrast, when one cuts off a leaf from a plant in a non-perforated pot, the leaf retains all of its properties. The Get written on the leaf is not considered to "lack cutting" when it is attached to the plant. Only when the plant is attached to the ground is the Get considered to "lack cutting," since the leaf, when cut, will die (see Rashi to 22a, DH Shema).