QUESTION: The Mishnah (22b) teaches that a Get written by a Cheresh, Shoteh, or Katan is valid. The Gemara cites a Beraisa which states that a Get written by a Nochri is not valid. The Gemara asks what the difference is between a Cheresh, Shoteh, and Katan who have no Da'as and thus cannot write a Get, and a Nochri who -- even though he has Da'as -- has no connection to the concept of Kerisus? One who has either a lack of Da'as or a lack of connection to Kerisus should not be able to write a Get.

Rav Huna (see Chart) explains that the Mishnah refers to a situation in which an adult Jew is standing over the Cheresh, Shoteh, or Katan and is instructing him to write it Lishmah ("Gadol Omed Al Gabav"). This suffices to make the writing of the Get considered Lishmah when a Cheresh, Shoteh, or Katan writes the Get because they can have intention to write it Lishmah when someone instructs them to do so. However, a Nochri does not accept instructions from another person who stands over him and he writes the Get without intention of Lishmah, and thus the Get is Pasul.

Rav Nachman (see Chart) disagrees and explains the Mishnah differently. He explains that the Mishnah follows the opinion of Rebbi Meir who does not require Kesivah Lishmah, and thus the Mishnah permits even a Nochri to write a Get. The Beraisa which disqualifies a Get written by a Nochri follows the opinion of Rebbi Elazar who requires Kesivah Lishmah. Therefore, a Nochri may not write a Get (even if there is a Gadol Omed Al Gabav), while a Cheresh, Shoteh, or Katan may write a Get when there is a Gadol Omed Al Gabav (Rashi, DH v'Ha Vadai).

The Gemara cites a third explanation for the Mishnah which permits a Get written by a Cheresh, Shoteh, or Katan. Rav Yehudah in the name of Shmuel says that the Mishnah follows the opinion of Rebbi Elazar who requires Kesivah Lishmah. Nevertheless, a Cheresh, Shoteh, or Katan is permitted to write a Get when he writes only the Tofes of the Get (the standard text, and not the Toref, the specific details).

According to Rav Yehudah in the name of Shmuel, why does the Beraisa state that a Nochri may not write a Get? Since the Tofes of the Get does not need to be written Lishmah or written by a "Bar Kerisus," even a Nochri should be permitted to write the Tofes of the Get! One might suggest that the Beraisa refers to the writing of the Toref, and when it disqualifies a Nochri it means that a Cheresh, Shoteh, and Katan also may not write that part of the Get. The Mishnah, in contrast, refers to the writing of the Tofes and permits that writing to be done not only by a Cheresh, Shoteh, and Katan but also by a Nochri.

However, this answer does not seem a viable, because the Gemara seems to take for granted that the Beraisa permits only a Nochri to write a Get and not a Cheresh, Shoteh, or Katan. This is evident from the fact that the Gemara asks, according to Rav Huna, why a Nochri may not write a Get while a Cheresh, Shoteh, or Katan may write a Get, and the Gemara does not answer that the Beraisa disqualifies a Nochri when there is no Gadol Omed Al Gabav while the Mishnah allows a Cheresh, Shoteh, Katan, or Nochri when there is a Gadol Omed Al Gabav. Obviously, the Gemara understands that the Beraisa distinguishes between a Cheresh, Shoteh, and Katan, and a Nochri. How, then, does Rav Yehudah in the name of Shmuel -- who explains that the Mishnah refers to the Tofes -- understand the Beraisa which permits a Nochri to write a Get? (MAHARSHA, PNEI YEHOSHUA)

(a) The Beraisa may refer to a Nochri who writes the Toref with a Gadol Omed Al Gabav. The writing of a Nochri is not valid because he does not accept instructions from another person. In contrast, when a Cheresh, Shoteh, or Katan writes the Toref with a Gadol Omed Al Gabav, the Get is valid. That is, even Rav Yehudah in the name of Shmuel -- who explains that the Mishnah refers to the writing of the Tofes -- agrees that there is another instance in which a Get written by a Cheresh, Shoteh, or Katan is valid, and that is when he writes the Toref with a Gadol Omed Al Gabav. (PNEI YEHOSHUA)

Why, though, does Rav Yehudah in the name of Shmuel explain that the Mishnah refers to the writing of the Tofes? He should say, like Rav Huna, that the Mishnah refers to the writing of the Toref with a Gadol Omed Al Gabav!

Perhaps Rav Yehudah in the name of Shmuel considers that approach too forced, since the Mishnah makes no mention of any additional conditions necessary (such as Gadol Omed Al Gabav) for the Get to be acceptable when written by a Cheresh, Shoteh, or Katan. If a Gadol Omed Al Gabav would be necessary, the Mishnah would mention it lest we mistakenly permit a Cheresh, Shoteh, or Katan to write a Get without a Gadol Omed Al Gabav.

The Beraisa, on the other hand, which discusses a Nochri, refers to the prohibition of a Nochri to write a Get. Therefore, the Beraisa may intend to say that even with a Gadol Omed Al Gabav, a Nochri cannot write the Get; he cannot write a Get under any conditions. The Beraisa refers to the Toref as well as the Tofes. A Cheresh, Shoteh, and Katan, however, are permitted to write the Toref under certain circumstances (such as Gadol Omed Al Gabav).

This answer, however, depends on a Machlokes Rishonim with regard to whether or not Rav Yehudah in the name of Shmuel agrees with Rav Huna's ruling. This answer is appropriate only according to the way the RAN explains the RIF (which might also be the opinion of RASHI, DH Makom ha'Toref, as the PNEI YEHOSHUA suggests; see, however, BEIS YOSEF EH 123:1), who maintains that Rav Yehudah in the name of Shmuel agrees that Gadol Omed Al Gabav also helps even for the writing of the Toref.

(b) A similar answer to this question may be suggested based on the view of the RAMBAM (Hilchos Gerushin 3:15) and the RIF (according to the straightforward reading of his words, see Ran ibid.). They rule that according to Rav Yehudah in the name of Shmuel, a Cheresh, Shoteh, or Katan may write the Tofes only with a Gadol Omed Al Gabav. (That is, they require both conditions: a Gadol Omed Al Gabav, and that the Cheresh, Shoteh, or Katan writes only the Tofes.) Accordingly, the Beraisa which says that a Nochri may not write a Get indeed may refer to the Tofes, and it disqualifies a Nochri since even the Tofes requires a Gadol Omed Al Gabav, and a Nochri does not follow the instructions of a Gadol Omed Al Gabav.

(c) However, the RAN himself prefers the view that Rav Yehudah in the name of Shmuel permits only the writing of the Tofes by a Cheresh, Shoteh, or Katan, even without a Gadol Omed Al Gabav, and he does not permit a Cheresh, Shoteh, or Katan to write the Toref even with a Gadol Omed Al Gabav. (Rav Huna, in direct contrast, permits a Cheresh, Shoteh, or Katan to write only with a Gadol Omed Al Gabav, but he does not permit them to write -- even the Tofes -- without a Gadol Omed Al Gabav.) According to this opinion, why does the Beraisa prohibit a Nochri from writing a Get, and permit a Cheresh, Shoteh, and Katan to write a Get, according to Rav Yehudah in the name of Shmuel?

The answer may be that Rav Yehudah in the name of Shmuel maintains that even Rebbi Meir requires that the Kesivah be done Lishmah, mid'Rabanan (see TOSFOS to 22b, DH v'Ha Lav). He argues with Rav Nachman who maintains that Rebbi Meir permits l'Chatchilah even the use of a Get that was found in the garbage. The Beraisa which permits a Nochri to write a Get may follow the view of Rebbi Meir, who maintains that the Toref must be written Lishmah only mid'Rabanan. Since the requirement is only mid'Rabanan, having a Gadol Omed Al Gabav suffices to make it Lishmah. In contrast, the Mishnah does not permit a Cheresh, Shoteh, and Katan to write the Toref even with a Gadol Omed Al Gabav, because it follows the opinion of Rebbi Elazar who maintains that the Toref must be written Lishmah mid'Oraisa, and thus a Gadol Omed Al Gabav does not suffice. (Rav Yehudah in the name of Shmuel does not explain that the Mishnah discusses the Toref and permits a Cheresh, Shoteh, and Katan with a Gadol Omed Al Gabav according to Rebbi Meir, because the Halachah follows the view of Rebbi Elazar.) (M. Kornfeld)

QUESTION: The Mishnah teaches that a blind person may not serve as a Shali'ach to deliver a Get since he is unable to see the writing of the Get and thus he cannot say "b'Fanai Nichtav uv'Fanai Nechtam."

The Gemara earlier (6a), however, states that even one who merely hears the sound of the quill as the Get is written may testify "b'Fanai Nichtav." Why may a blind person not say "b'Fanai Nichtav" and testify that he heard the Get being written Lishmah? (TOSFOS to 6a, DH Afilu)

(a) The ROSH (1:3) answers that even if the blind person hears the writing of the Get, he cannot know that the Get that was given over is the same Get that he heard being written, since he cannot see it. Therefore, a blind person may not deliver a Get and testify "b'Fanai Nichtav."

(b) The Rosh in the name of TOSFOS writes that a blind person may not testify "b'Fanai Nichtav" because his words have the appearance of false testimony, since they imply that he actually saw the writing of the Get. He cannot say, "I heard the Get being written and signed Lishmah," since the enactment of the Chachamim requires that the Shali'ach specifically say the words "b'Fanai Nichtav uv'Fanai Nechtam." (There is no concern that the Get he delivers is not the same one that was written Lishmah. Since it is known that the husband intended to send a valid Get to his wife, there is no reason to assume that he discarded the one that he wrote Lishmah and sent one that was not written Lishmah.)

QUESTION: The Gemara teaches that when an Eved receives a Get Shichrur in which the master writes that he frees only half of the Eved, at the moment the Eved receives it half of him becomes free. Similarly, when a Shifchah (maidservant) receives a Get Shichrur in which the master specifies that he frees only the fetus she is carrying and not the Shifchah herself, at the moment she receives it the fetus becomes free.

The Gemara in Kidushin (23a) teaches that when an Eved receives a Get Shichrur, he acquires the document only through the mechanism of "Gito v'Yado Ba'im k'Echad." Since an Eved is unable to acquire anything (even his Get Shichrur) while he is an Eved, the only way he can become free by receiving a Get Shichrur is if "the Get Shichrur and his freedom (literally 'hand') come simultaneously."

However, if a master frees only the fetus of his Shifchah without freeing the Shifchah herself, the hand which receives the Get does not become free even after the Get is received. Since "Gito v'Yado Ba'im k'Echad" does not apply in such a case, why does the fetus obtain its freedom? (TOSFOS, DH v'Na'aseh)

(a) RASHI (DH Aval Lo) explains that since the Get involves the Eved's emancipation, the concept of "Gito v'Yado Ba'im k'Echad" applies. Perhaps Rashi means that although the Get Shichrur does not cause the freedom of the particular hand (the Shifchah's) which receives it, since it causes the freedom of part of the body (the fetus) the hand is able to acquire the Shichrur for that part of the body. The hand serves not only itself but every part of the body. In the case of the fetus, the hand of the Shifchah serves in the capacity of a hand for the fetus, and thus the hand indeed becomes free at the moment the fetus itself becomes free. This also seems to be the intention of the RAMBAN and RAN.

(b) The TOSFOS HA'ROSH cites the Yerushalmi which maintains that when one frees half of his Eved, he may do so only by giving the Get Shichrur to another person to acquire it on behalf of the Eved (since the hand of the Eved does not become completely free upon receiving the Get Shichrur). The Tosfos ha'Rosh explains that this is also the intention of the Gemara which says that if the master gives a Get Shichrur for the fetus, the mother acquires it on behalf of the fetus. Although she does not acquire the Get Shichrur itself (since she cannot acquire anything), she acquires the freedom on behalf of her fetus when the Get Shichrur is given to someone else. (The fetus is considered a part of her that has come into the world and not a separate individual that is "Lo Ba l'Olam" which cannot be freed.)

The Gemara in Temurah (25b) disagrees with the Yerushalmi and maintains that when a master frees half of his Eved, half of the Eved goes free because of "Gito v'Yado Ba'im k'Echad," even without having someone else acquire the Get Shichrur on behalf of the Eved. The Rosh, however, suggests that with regard to a fetus, for which "Gito v'Yado Ba'im k'Echad" does not apply (because no part of the hand which receives the Get Shichrur becomes freed), the Bavli agrees with the Yerushalmi that the fetus goes free only when someone else acquires the Get Shichrur on its behalf.