GITIN 27 - 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.

27b----------------------------------------27b

1) HALACHAH: ONE WHO FINDS A GET

OPINIONS: The Mishnah (27a) teaches that if a Shali'ach loses a Get and then finds it, the Get is valid only when he finds it immediately after he lost it. Rabah states that the Mishnah refers to a place where there are "Shayaros Metzuyos" (frequent internal travel), and thus if the Get was not found immediately one must assume that the Get that was found is not the Get that was lost. The Gemara adds that the Mishnah refers to a place in which "Huchzeku Shnei Yosef ben Shimon" -- it is known for certain that there are two people with the same name in that city. If, however, only one of the two conditions is present, there is no concern that someone else with the same name lost an identical Get.

Rebbi Zeira, according to one version of his statement, explains the Mishnah as Rabah does, that both conditions are necessary -- "Shayaros Metzuyos" and "Huchzeku." According to a different version of his statement, Rebbi Zeira says that even when only the condition of "Shayaros Metzuyos" is present, there is a concern that another person lost the Get, even though it is not "Huchzeku Shnei Yosef ben Shimon" in that place.

Rabah and Rebbi Zeira give this explanation for the Mishnah in order to explain why the Mishnah in Bava Metzia (which the Gemara here cites) says that when a person loses a Get there is no concern that the Get he finds belongs to someone else.

Rebbi Yirmeyah and Rav Ashi, however, give different answers for why the Mishnah in Bava Metzia is not concerned that the lost Get belongs to someone else. They explain that the Mishnah there refers to specific circumstances, such as when the witnesses on the Get testify that they signed on only one such Get, or there is a Siman Muvhak on the Get.

What is the Halachah? When a Get was lost and a Get with the same details was found, is it assumed that the Get that was found is a different Get and not the one that was lost only in a place where it is "Huchzeku," or even in a place where it is not "Huchzeku"? It is clear that when neither condition is present (there are no "Shayaros Metzuyos" and it is not "Huchzeku"), the Get may be returned to the person who lost it. This is clear from the Mishnah in Bava Metzia which says that every "Ma'aseh Beis Din" (deed or document of Beis Din) may be returned to the person who claims to have lost it (even though a significant amount of time passed from the time it was lost), as TOSFOS (DH Kol) explains based on the Gemara in Bava Metzia. However, is the presence of "Shayaros Metzuyos" alone enough to prevent the return of the Get, or is the presence of both conditions necessary to prevent the return of the Get?

The Gemara continues and explains what is considered "l'Altar" ("immediately"). The Mishnah says that when a Get is found "immediately" there is never a concern that it is a different Get. Rav Yehudah in the name of Shmuel (28a) says that in order to permit the finder to give back the Get to the Shali'ach, the Get must have been found before anyone else walked and tarried where the Get was found. Rav Yitzchak bar Shmuel says that the Halachah is that the Get must be found before another person even passes by that place, even without tarrying.

What is the Halachah with regard to what is considered "immediately"?

(a) The Rishonim differ with regard to when a Get that was lost may be returned.

1. The RAN cites the BEHAG and RABEINU CHANANEL who rule leniently and write that only when there are "Shayaros Metzuyos" and it is "Huchzeku" is there a concern that the Get which was found is a different Get from the one which was lost. Their ruling is based on the reasoning that "Ma'aseh Rav" -- the fact that the Gemara says that Rabah acted in practice in accordance with his ruling that both conditions are necessary shows that the Halachah follows this opinion. Moreover, Rebbi Yirmeyah and Rav Ashi -- who give other reasons to explain why the Mishnah in Bava Metzia permits the return of the Get even after a long time has passed -- do not necessarily argue with Rabah and say that "Shayaros Metzuyos" alone prevents the return of the Get. They may merely be suggesting other scenarios in which the Get may be returned (other than a situation in which it is not "Huchzeku").

2. However, the RIF in Bava Metzia (18b) rules stringently. Even when there are "Shayaros Metzuyos" and the place is not "Huchzeku," the Get may not be returned. He infers from the words of Rebbi Yirmeyah and Rav Ashi that they disagree with Rabah and maintain that even if the condition of "Shayaros Metzuyos" alone is present (and not the condition of "Huchzeku"), the Get may not be returned.

The ROSH maintains that if the Get may not be returned in a case where there are "Shayaros Metzuyos" but not "Huchzeku," then certainly the Get should not be returned in a case where there is "Huchzeku" alone without "Shayaros Metzuyos." However, the RAN raises the possibility that perhaps the presence of "Huchzeku" without "Shayaros Metzuyos" is less of a reason to prevent giving back the Get. Hence, despite the presence of "Huchzeku," there is no concern that the Get belongs to someone else. The Ran's opinion seems to be the opinion of the RAMBAM (Hilchos Gerushin 3:9) as well.

3. The RIF in Yevamos (115b) seems to rule leniently, that there is no concern that there are two people with the same names in a place where it is not "Huchzeku." The Rif there rules that in a case where witnesses testify that a man with a certain name from a certain town passed away, there is no concern that there are two people with that name in that place and that the witnesses are testifying about the other man. Beis Din permits the man's wife to remarry based on such testimony.

The ROSH (end of 3:3) explains that the Rif is lenient in the case in Yevamos, where witnesses testify about the death of a woman's husband, because of the concern for preventing the woman from becoming an Agunah (the Chachamim were lenient in a number of ways with regard to testimony about the death of a woman's husband). However, in the case of a Get that was lost, the Rif is not lenient because the husband simply can write a second Get for his wife.

(b) The Rishonim also differ with regard to the amount of time that must past after the Get was lost in order to be concerned that the Get that was found is not the same Get that was lost.

1. The RIF (according to the understanding of the ROSH) rules stringently and writes that as long as someone passed through the place where the Get was dropped, there is a concern that the Get that was found is a different Get.

2. The RAMBAM (according to the understanding of the MAGID MISHNEH) also rules that there is a concern that it is a different Get if a person passed there, but only if there are both "Shayaros Metzuyos" and "Huchzeku Shnei Yosef ben Shimon." However, if there are "Shayaros Metzuyos" and it is not "Huchzeku," then the Get may be returned, but only when a person passed there but did not tarry there. When a person passed there and tarried there, there is a concern that the Get that was found belongs to a different person.

The RAN suggests that this might also be the intention of the RIF.

HALACHAH: The BEIS YOSEF (EH 132:4) rules that even when there are "Shayaros Metzuyos" without "Huchzeku," there is a concern that the Get that was found is not the Get that was lost. When a Get was found in a place where there are no "Shayaros Metzuyos" but where there are known to be two men with the same name, the Beis Yosef cites both opinions, that of the Ran (that the Get may be returned) and that of the Rosh (that the Get may not be returned).

With regard to the amount of time that may pass before the return of the Get is disallowed, the Beis Yosef cites both the opinion of the Rambam (that even if enough time passed such that a person passed there and did not stop there, and there are "Shayaros Metzuyos" and it is "Huchzeku," the Get may not be returned), and the opinion of the Rosh (that when a person passed there and did not stop, if even one condition is present, either "Shayaros Metzuyos" or "Huchzeku," the Get may not be returned).

The TUR (cited by the TAZ) quotes the ruling of the Rosh, that with regard to witnesses who testify about the death of a woman's husband there is no concern that there are two men by that name, due to the Chachamim's desire to prevent a situation of Agunah.

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