QUESTION: Rav Kahana says in the name of Rav that we may give a Get on behalf of a man who is a deaf mute who wrote that he wants a Get to be written and given to his wife. Rav Yosef questions what Rav Kahana intends to teach, since this Halachah can be derived from the Mishnah which says that if the husband became mute, we test his desire to give the Get by asking him questions and seeing how he nods his head.

Rebbi Zeira rejects the question and says that we cannot learn Rav Kahana's Halachah from the Mishnah, because the Mishnah refers to one who is mute but can hear, and thus he is Halachically considered an intelligent person. In contrast, Rav Kahana refers to a deaf mute who cannot hear, who Halachically is considered a Shoteh.

Rav Yosef's question implies that writing is an equal or stronger expression of one's desire to divorce than nodding one's head (and, therefore, one can derive from the Mishnah, which relies on nodding, that writing is also a valid expression of one's desire). However, the Gemara later (72a) concludes that we may not rely on writing as a valid form of expression of one's desire to give a Get, even though no one disagrees with the Mishnah that relies on nodding as a valid expression of one's desire to give a Get.

ANSWER: The RASHBA (see also TOSFOS to 72a, DH Kolo) explains that Rav Yosef understands that writing is a stronger proof of one's desire than the nodding of one's head. The Gemara later disagrees with this and relies on nodding but not on writing.

The Rishonim give two explanations for why the Gemara disagrees with Rav Yosef's assumption. The ROSH (6:19) writes that even the Gemara later (72a) agrees that writing one's intent is no less of a proof of his intent than nodding his head; the reason why the Gemara there does not accept the Halachah of Rav Kahana is that he says that even one who is deaf and mute may write his command to give a Get to his wife. The Gemara there maintains that one who is a deaf mute is Halachically unable to give any commands to carry out transactions, and the fact that he can write does not give him the status of one who can speak (this is based on Rebbi Zeira's rejection of Rav Yosef's question).

The Rosh and other Rishonim also cite the opinion of RABEINU TAM who quotes a Tosefta that implies that the scribe who writes the Get must actually "hear" the command to write it. Even if the husband writes to him a command to write the Get, the scribe may not write it. Based on the Tosefta, Rabeinu Tam maintains that even a person who is not a deaf mute may not write a command to give a Get because, as the Tosefta says, the scribe must hear the command spoken.

The Rosh explains that this is not a contradiction to the Mishnah here which permits giving a Get based on the nodding of the husband's head; the nodding of the head is a stronger form of command since he shows his will with physical expressions of his body. The Rosh also answers that the Mishnah is not a contradiction to the Tosefta since the Mishnah refers to one who is mute; in such a case the Rabanan were lenient to rely on the nodding of the husband's head so that the woman will not remain an Agunah. (The second answer must maintain that nodding one's head is not a stronger expression of one's desire than writing, and it must differentiate between a mute who writes his desire and a deaf mute who writes his desire, as the Rosh mentions earlier.)

QUESTION: The Gemara teaches that a witness must give testimony orally and may not write his testimony and send it to Beis Din. This is derived from the verse, "Al Pi Shenayim Edim" -- "By the mouth of two witnesses" (Devarim 17:6), which implies that the testimony must be expressed by the mouths of the witnesses.

RASHI points out that use of documents (Shtaros) signed by witnesses is considered an acceptable form of proof and a way of creating transactions. Why are documents an acceptable form of testimony? The Gemara states that written testimony is not acceptable!

ANSWER: RASHI answers that a document is different from normal testimony, because the document was signed at the time of the transaction and that is the normal way of effecting the transaction.

How does Rashi's answer resolve the question? After all, the verse still implies that the testimony of witnesses must be spoken and not written.

The CHIDUSHEI HA'RIM (Teshuvos, YD 14) explains that Rashi understands that the reason why the Torah disqualifies written testimony is that it is not the normal way of testifying. This reasoning applies only to testimony in court at the time of the hearing; such testimony is given after the act took place. In contrast, a document which is signed at the time of the transaction for the sake of serving as a record and proof of the transaction is specifically done in writing for that very purpose: so that it should serve as proof for a long period of time. Since this is the normal way this type of proof is made, it is an acceptable form of testimony.

QUESTION: The Mishnah states that if a man told someone to write a Get, and that person told others to write and sign the Get, the Get is invalid until the husband directly tells the scribe and the witnesses to write and sign the Get.

The BEIS SHMUEL (EH 123:1) asks that the Mishnah says that both the writing and the signing of the Get must be done as a result of the command of the husband. This does not seem to be compatible with any existing opinion. According to Rebbi Meir, who maintains that the witnesses who sign the Get make the Get valid ("Edei Chasimah Kartei"), it is enough to appoint the witnesses; there is no need to have the Get written as a result of the husband's command (because the requirement of "v'Kasav" refers to the signatures and not to the document). According to Rebbi Elazar, who maintains that the witnesses who see the giving of the Get are the ones who make it valid ("Edei Mesirah Kartei"), it is enough to write the Get as a result of the husband's command; it is not necessary for the witnesses to sign the Get as a result of his command. Why does the Mishnah require that the writing and signing of the Get be done only as a result of the husband's command?

(a) The BEIS SHMUEL answers that the Mishnah follows the opinion of Rebbi Yehudah (21b) who requires the husband's command for both the writing and the signing of the Get.

(b) Perhaps another answer may be suggested based on the view of the RIF and RAMBAM who maintain that Rebbi Elazar agrees that when there are signatures on the Get, it is not necessary to have witnesses at the time of the delivery of the Get. In such a case, Rebbi Elazar agrees that both the writing and the signing of the Get must be done as a result of the husband's command.