GITIN 26 - 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) THE DATE IN THE GET OF AN ARUSAH
QUESTIONS: The Mishnah teaches that even a Get written for an Arusah must have a proper date, and not a date which precedes the date on which the Get actually takes effect.
The Gemara asks why the Get of an Arusah needs an accurate date. According to Rebbi Yochanan (who says that the date must be written in a Get in order to prevent a man from saving his wife from capital punishment if she committed adultery by writing a Get and claiming that it was delivered earlier than the true date of the divorce), a predated Get of an Arusah is invalid for the same reason why a predated Get of a Nesu'ah is invalid. However, according to Reish Lakish (who says that the date must be written in a Get in order to prevent the wife from collecting the Peros that the husband sold during the marriage by claiming that her husband sold them after the divorce), why should a predated Get of an Arusah be invalid? The husband of an Arusah has no right to use or sell the Peros of the property of his Arusah!
The Gemara answers that a predated Get is invalid in this case because of "Takanas ha'Vlad." As RASHI explains, the Chachamim were concerned that a husband who writes a Get during Erusin might write a date from the Erusin, and he will give the Get to his wife only after the Nisu'in and after they conceive a child. People will think that the child was born out of wedlock because the day they figure the child was conceived is later than the date written in the Get, when, in truth, the child was conceived before the divorce took effect.
There are a number of problems with the Gemara's answer.
(a) If a concern for such a rumor exists, why does Reish Lakish not say that every predated Get (Get Mukdam) is invalid because of the concern that people will think that the child was born out of wedlock (and not merely because of the Peros concern)?
(b) The Gemara apparently concludes that in the case of an Arusah, the Chachamim were concerned that the husband will write a date in the Get during Erusin and only give the Get after Nisu'in. However, if this was their concern, why does the Gemara say only that people will spread rumors about the child? There is also the concern that the wife will steal the Peros, as she will be able to collect any Peros the husband rightfully sold after they were married (with Nisu'in) based on the false (predated) date written in the Get!
(a) In response to the first question, the RAMBAN explains that the Chachamim would not have invalidated a predated Get (b'Di'eved) just because people might spread rumors about the child's legitimacy, as the Gemara says later (86a). This concern is only a reason to require a proper date in the Get l'Chatchilah. In contrast, the concern that the wife might unlawfully collect Peros from the buyers due to a predated Get provided grounds for the Chachamim to invalidate the Get even b'Di'eved.
(b) The Rishonim offer a number of answers to the second question.
1. TOSFOS (DH Hacha Nami) explains that the Get of an Arusah specifically mentions that the woman is only an Arusah. If the woman receives the Get only after she is married (with Nisu'in), people know that the time written in the Get must not be the date on which it was given, because it is common knowledge that she was divorced from Nisu'in and not during Erusin. Therefore, if she attempts to collect Peros (from the buyers who purchased them from the husband after her Nisu'in) on the basis of the earlier date written in the Get, the buyers most likely will be informed that the date is not accurate. They will easily foil her intentions and bring testimony that she was married with Nisu'in before the Get was given.
In contrast, with regard to rumors about the legitimacy of the child, the Chachamim were stringent. People have no personal interest in legitimizing the child, and perhaps they will not be aware of the "common knowledge" that the woman was once married and that the date written in the Get is not the date on which the Get was given.
Tosfos asks, however, that according to this explanation a Get Mukdam of an Arusah effectively contains no proof of the date on which the Get was actually given. Consequently, Reish Lakish should invalidate it because the husband might unlawfully sell the Peros even after the signing of the Get (at which time he loses the rights to the Peros; see Gemara, 17b), and the wife will not be able to prove that he is a thief since the date on which the Get was signed is not written in the Get. Tosfos leaves this question unanswered.
The TOSFOS HA'ROSH answers that in this case, even according to Reish Lakish the husband does not lose the rights to the Peros until the time that he gives the Get (and not from the time the Get is signed). Since the Get was delivered after the date written in the Get, the witnesses (Edei Mesirah) will spread the word that the date is not reliable, and the woman will not be able to collect Peros unlawfully from the buyers based on the date written in the Get. (See Tosfos to 17b, DH Ad, who discusses the opinion of Rebbi Yochanan.)
The Rosh does not explain clearly why the husband retains the Peros until the giving (Nesinah) of the Get in this case, in contrast to a normal Get. The TAZ (EH 132:1) suggests that the reason why the man normally loses Peros from the time of the Chasimah according to Reish Lakish is that the husband has made a decision to divorce her (see end of 18a, according to Rebbi Shimon), and from that point on he loses his rights to the Peros. In this case, since the husband married her after he wrote the Get, he obviously did not decide to divorce her at the time of the writing, and therefore he does not lose the Peros until he actually utilizes the Get.
Alternatively, perhaps the Rosh means that the husband loses the Peros from the time of the Nesinah because the day of the giving of this Get probably was the same day as it was signed. The husband presumably had the Get signed on the same day that it was delivered because "a person does not hasten his grief" ("Lo Makdim Inish Pur'anusa l'Nafshei") by having a Get signed before he plans to give it (Gitin 18a). Therefore, the wife may bring the Get to Beis Din as soon as she receives it in order to prove on what day the Chasimah and Nesinah took place, which was the moment at which the husband lost his rights to the Peros (as Tosfos writes on 17b, DH Ad She'as).
There is an obvious question on this logic. Why does Reish Lakish require that the date be written in any Get, if we always assume that the Get was signed on the same day on which it was delivered? The date of delivery can be confirmed even when no date is written in the Get; the woman simply brings the Get to Beis Din on the day of its delivery to prove that all Peros belong to her from now on.
The Rosh may understand that Reish Lakish requires that the date be written in the Get because there are times at which a husband sends a Get to his wife with a Shali'ach and it takes time for the Get to arrive in the woman's hands, even though the husband sent it on the day it was signed. In order to prove on what day the Get was signed, the husband must write the date in the Get. Since the date must be written in a Get delivered by a Shali'ach, the Chachamim required that the date be written in all Gitin.
However, in the case of the Gemara here, the husband who wrote a Get for his wife while she was an Arusah obviously was present with his wife at the time he wrote the Get. He had no need for a Shali'ach; if, after the Nisu'in, he would decide to divorce her, he would simply have the Get signed by two witnesses and deliver it himself.
(Perhaps the reason why Tosfos does not accept this approach is that he maintains that Reish Lakish disagrees with Rebbi Yochanan and rules that a man is suspected of holding on to a Get after the Chasimah and delivering it much later. Therefore, there is no basis to assume that the day of this Get's Nesinah was also the day on which it was written.)
2. The RASHBA answers that there is no concern that the husband will give this Get to his wife after the Nisu'in (and after he sells the Peros), because no witness would agree to sign a Get for a Nesu'ah when the Get specifies that the wife is an Arusah. (Even if a witness might not notice the early date, he certainly will notice that the Get mentions that she is an Arusah.)
The Rashba does not explain the reason the Gemara gives for why one may not predate the Get of an Arusah (the concern that people will say that the Get preceded the conception of her child, "Gitah Kodem li'Vnah"). If the Get is signed only during Erusin and not after the Nisu'in, she indeed should not be pregnant! The Acharonim (see HE'OROS B'MASECHES GITIN and others) explain that the Rashba means that the Chachamim are more cautious to prevent rumors about the legitimacy of the child than they are to protect the buyers who purchase the Peros. Therefore, only with regard to preventing rumors about the legitimacy of her child is there a concern that witnesses signed the Get even after the Nisu'in. (See below.)
3. The RAMBAN explains, like the Rashba, that witnesses certainly will not agree to sign a Get -- which says that the woman is an Arusah -- for the divorce of a Nesu'ah. However, there is a concern that witnesses might sign the Get on the day of the Nisu'in. They will think that doing so will not cause anyone to lose the Peros; even if the Get is predated, it will not prevent the husband from selling the Peros later on the same day (after the divorce), since he could claim that he sold the Peros before the Get was given without being contradicted by the date written therein. However, there is a concern that the Get appears to have preceded the conception of the child, since he might have had relations with her, and the date written in the Get is from the Erusin, long before the beginning of the pregnancy.
The Ramban adds that even if witnesses do not agree to sign the Get of an Arusah after the Nisu'in, they might sign it on the day of the Nisu'in but before the Nisu'in takes place (the date written in the Get, however, is a much earlier date). The husband might then present it to her later that day, after he has married her with Nisu'in and had relations with her. This seems to be the intention of RABEINU KRESKAS as well, and this also might be the intention of the Rashba (mentioned above, unlike the interpretation of the Acharonim cited above).