1) THE REQUIREMENT FOR TWO PEOPLE TO WITNESS THE APPOINTMENT OF A SHALI'ACH FOR A GET
OPINIONS: The Mishnah states that when a woman appoints someone as a Shali'ach to receive her Get, she must have a pair of witnesses who see her appoint the Shali'ach, as well as witnesses who see that the Shali'ach receives the Get from the husband.
The Mishnah clearly requires that witnesses be present not only for the actual giving of the Get, but also for the woman's appointment of the Shali'ach who will receive the Get for her.
This requirement applies when the woman appoints a Shali'ach to receive her Get. When the husband appoints a Shali'ach to deliver the Get, does he also need to appoint his Shali'ach in front of witnesses?
(a) The RAMBAM (Hilchos Ishus 3:16) rules that the husband does not need to appoint his Shali'ach in front of witnesses. The first Mishnah in Gitin provides proof for this when it states that the Shali'ach of the husband who comes from overseas and says that the Get was written properly is believed, and the Get is considered valid based on his testimony. The Gemara there explains why the Shali'ach is believed when he says that the Get was written properly, but it does not explain why the Shali'ach is believed to say that he was actually sent by the husband. It is clear that there is no need for witnesses to testify that he was appointed.
With regard to why the Shali'ach is believed to say that he was appointed as a Shali'ach to bring the Get (while the woman's Shali'ach to receive the Get needs witnesses to prove that he was appointed), the RAMBAM and RA'AVAD disagree. The Rambam understands that there is an essential difference between the Shali'ach who gives the Get and the Shali'ach who receives it. The Shali'ach who gives the Get is not the final destination, so to speak, of the Get. The Get arrives at its final destination not when the Shali'ach gives the Get, but when the woman receives it. In contrast, a Shali'ach to receive a Get performs the final stage of the Get. When he receives it, it takes effect. Witnesses are necessary for the appointment of a Shali'ach only when the Shali'ach's mission involves an act that is a "Davar sheb'Ervah." Since a divorce is a "Davar sheb'Ervah," the directive of the wife or husband does not suffice; witnesses are necessary in order for the act to take effect ("Edei Kiyum"). The only Shali'ach whose act involves a "Davar sheb'Ervah" and who needs "Edei Kiyum" (see Kidushin 65b) is the one who performs the final act which effects the divorce. The act of the Shali'ach of the husband does not involve a "Davar sheb'Ervah" because the actual divorce takes effect only after the Get has left his hands. That is why only the Shali'ach who is appointed to receive the Get needs witnesses that he was appointed, while the Shali'ach who sends the Get does not need witnesses that he was appointed. Based on this, the Rambam rules that not only in the case of a Get does the Shali'ach of the husband not need witnesses to testify that he was appointed as a Shali'ach, but also in the case of Kidushin the Shali'ach does not need witnesses to testify that he was appointed.
The RA'AVAD disagrees and understands that only in the case of a Get is there no need for witnesses, since the Shali'ach is holding the Get document. The fact that the document is in his hands is testimony that it was given to him by the husband. (When a signed document serves as testimony, it includes testimony that the document was transferred properly.) In contrast, in the case of Kidushin, where the husband merely gives money to the Shali'ach to deliver to the woman, there is no proof that the money was given to the Shali'ach by the husband (since there is no document involved), and thus it is necessary for witnesses to testify that he was appointed as a Shali'ach. (See CHIDUSHEI RABEINU CHAIM HA'LEVI, Hilchos Gerushin 6:9, for a discussion of this issue.)
(b) The ROSH and RASHBA (beginning of the fourth chapter) quote the Yerushalmi which states that there indeed is a requirement for witnesses to see the appointment of the husband's Shali'ach to deliver the Get. The ROSH (beginning of Gitin) writes that the fact that the Shali'ach who comes from overseas to deliver a Get is believed to say that he was appointed by the husband even though he has no witnesses is part of the rabbinical enactment to believe the Shali'ach. That is, the Rabanan enacted that the Shali'ach is believed not only to say that the Get was written properly, but also that the husband appointed him as his Shali'ach.
2) DO WE BELIEVE THE "SHELISH"
QUESTION: The Gemara discusses a case in which a Shali'ach (a "Shelish," or third party) says that he received the Get for the sake of divorcing a man's wife. The husband says that he gave it to the Shelish as a deposit to watch for him but he did not intend that it should be given to the wife for divorce. Rav Huna says that the husband is believed. Rav Chisda says that the Shelish is believed.
The Rishonim ask that if the husband's word is believed over the Shali'ach's, the enactment of the Rabanan discussed in the beginning of Gitin is rendered entirely useless. The Rabanan enacted that the Shali'ach is believed to say that the Get was written properly. If, however, the husband is believed when he says that he did not give the Get to the Shali'ach in order to give it to his wife, the enactment of the Rabanan is meaningless.
(a) TOSFOS answers that Rav Huna maintains that the husband is believed only when both the husband and wife are in the same town. In such a case, if the husband indeed wanted to divorce his wife, he would have given the Get to her directly without the use of a Shali'ach. Therefore, the husband is believed when he says that he did not intend to give the Get to the Shelish for the sake of divorcing his wife. In contrast, the Mishnah in the beginning of Gitin (2a) refers to a case in which the husband and wife are in two different cities, in which case it is more logical to assume that the reason the husband gave the Get to the Shali'ach was because he wanted to give it to his wife (since the husband lives in a different city), and therefore the Shali'ach's word is believed.
(b) The RAN answers that the Gemara here refers to a case in which the husband gave the Get to a Shali'ach l'Kabalah (a Shali'ach appointed to receive the Get on behalf of the woman). Only in such a case is there reason to believe the husband when he says that he did not give it for the sake of divorcing the woman; had he intended to divorce her, he would have given it directly to her. The Mishnah in the beginning of Gitin refers to a case of a Shali'ach l'Holachah (a Shali'ach appointed to deliver the Get to the woman). In such a case the above-mentioned reasoning does not apply; perhaps the husband wanted to give it specifically to the Shali'ach and not to his wife because he did not want the divorce to take effect immediately.
(c) The RAN offers another answer. Perhaps Rav Huna maintains that the husband is believed only when the Get is still in the hands of the Shali'ach and was not yet delivered to the woman. In such a case, it is logical to say that the Get was not given to the Shali'ach for the sake of divorcing the woman and that is why the Get is still in his hands and has not yet been delivered. In contrast, once the wife has received the Get from the Shali'ach, the husband is not believed to say that he did not give the Get to the Shali'ach with intent that it be used to divorce his wife. Therefore, in the Mishnah in the beginning of Gitin there is no concern that the husband will be believed since the Get is immediately handed over to the wife; once the Get has been given to the wife the husband is not believed.
3) AN UNIDENTIFIED WIFE
QUESTION: The Gemara discusses a case in which a man appointed a Shali'ach to betroth a woman to him, and the Shali'ach died before he could return and tell the sender the identity of the woman whom he betrothed. Rebbi Yitzchak rules that the man is prohibited from marrying any woman in the world (lest the woman be a close relative to the woman whom the Shali'ach betrothed to him).
The fact that Rebbi Yitzchak rules that the man is prohibited from marrying any woman in the world implies that only the man has such a prohibition; the Chachamim do not prohibit every woman in the world from getting married as a result of the doubt. If, however, the Chachamim prohibit the man from marrying and do not rely on the fact that the majority of women in the world are permitted to him, why do they permit any woman in the world to marry? They should be concerned that perhaps this woman is the woman who was married to the Shali'ach's sender!
(a) TOSFOS writes that if the woman is an adult, there is no concern that she is already married to a different man; if she already accepted the Kidushin from the Shali'ach she would not marry another man afterwards.
Tosfos asks that, nevertheless, the Chachamim should prohibit all women who were minors at the time the Shali'ach went to betroth someone to his sender, because a minor would not know whether or not her father accepted Kidushin on her behalf, and perhaps she is the one who is married to the sender of the Shali'ach.
Tosfos answers that according to the strict letter of the law, even the sender of the Shali'ach should be permitted to marry since there is no certain that his Shali'ach actually carried out his assignment and betrothed a woman to him, and even if the Shali'ach did carry out his assignment, mid'Oraisa we should follow the majority and permit him to marry, since a majority of the women in the world are permitted to him. The sender of the Shali'ach is prohibited to marry only as a result of a penalty decreed by the Chachamim for his negligence in sending a Shali'ach to betroth to him any woman whom the Shali'ach wanted.
(b) The RAMBAN disagrees with Tosfos and says that there is no reason to assume that the Shali'ach did not carry out his assignment. The Ramban seems to understand that the rule of "Kavu'a" applies here. He explains that the reason why all women are permitted to marry is that every woman has a Chazakah that she was (at one time) not married. This Chazakah says that any woman who comes to get married is presumably not married. This Chazakah, however, works only to permit the women to marry; it does not permit the man who sent the Shali'ach to marry. He is prohibited from marrying any woman because the reason why any given woman might be prohibited to him is not that she might already be married, but because her close relative might be married to him. The Ramban explains that in such a case the rule of Chazakah does not apply since there is a doubt about the marriage of the woman's relatives, while, on the other hand, those relatives are not the subject of the presenting question (but rather, the man who wants to get married, and the woman whom he wants to marry, are the subjects of the question). A Chazakah is not a logical proof to determine the truth about a situation ("Birur"), but rather it is a way of dealing with situations of doubt ("Hanhagah"). Hence, the concept of Chazakah applies only to a question which involves the Halachic status of that which is in doubt. In this case, there is no Halachic discussion concerning the status of this woman's relatives, but only concerning the status of the woman herself.