1) WRITING THE DATE IN A GET
QUESTION: The Gemara explains the reason for why the Chachamim enacted that the date be written in a Get but did not enact that the date be written in a marriage contract ("Shtar Kidushin"). One reason is to prevent deception in a case of a man married to his niece who committed adultery. In such a case, although the adulteress is Chayav Misah for her sin, her husband (who is her uncle) will attempt to spare her from punishment by giving her a Get with no date, with which she can claim that she was divorced before her sin. The Chachamim's enactment that every Get include the date of writing ensures that no adulteress will evade punishment.
RASHI (DH l'Hatzalah) explains that even if the adulterous woman would erase the date from the Get, she would not avoid punishment. On the contrary, she would incriminate herself. When Beis Din sees that the Get is missing its date, Beis Din assumes that the woman was divorced at the latest possible time, after she sinned (because she has a Chazakah -- "Chezkas Eshes Ish" -- that she was married until now). In contrast, there is no benefit in writing the date in a Shtar Kidushin, because a woman who committed adultery will simply erase the date and claim that she became married after her sin. In such a case, the Chazakah that she was not married until now will support her claim, as Beis Din will have to assume that she was not married at the time of her sin.
RASHI (DH l'Hatzalah) asks that if Beis Din assumes -- based on the "Chezkas Eshes Ish" -- that the woman who was divorced received her Get later (after her sin), why was it necessary to institute that the date be written in a Get? Even with no requirement to write the date in a Get, Beis Din would assume that a dateless Get was given at the latest possible moment (after she sinned). Without a date in the Get, Beis Din may punish the adulteress based on the Chazakah that she was married when she sinned. Why was it necessary for the Chachamim to enact that the date be written in a Get in order to incriminate an adulteress?
Rashi answers that Beis Din may not execute a wrongdoer based on a Chazakah. Before the Chachamim enacted that the date be written in a Get, Beis Din could not execute an adulteress based on the Chazakah that she was married when she sinned; there still would be a doubt whether she sinned before the divorce or after, and thus the woman would be spared. Once the Chachamim enacted that the date be written in a Get, in the event that the date was erased Beis Din may rely on the Chazakah and execute her.
Rashi's explanation is difficult to understand. If a Chazakah provides evidence that the woman was married at the time she sinned, then even before the enactment of writing the date in a Get Beis Din should execute her based on the Chazakah (which resolves the doubt). If, on the other hand, the Chazakah does not provide strong enough evidence to execute her, then how can Beis Din rely on the Chazakah after the enactment?
(a) RABEINU AVRAHAM MIN HA'HAR explains Rashi's words in more detail. The erasure mark of a date in a Get (after the Chachamim enacted that the date be written in a Get) creates a situation of "Raglayim l'Davar," or circumstantial evidence, that the woman indeed sinned before she received the Get, and that the date was erased (or omitted) in order to protect the woman. This circumstantial evidence is not sufficient evidence by itself to have a person executed, and the "Chezkas Eshes Ish" is also not sufficient evidence by itself to have a person executed. Beis Din, however, may execute the woman based on a combination of the two factors -- the "Chezkas Eshes Ish" with the circumstantial evidence of the erased date in the Get. In contrast, when the date is missing from a Shtar Kidushin, although there is circumstantial evidence of foul play, there is no Chazakah that the woman was married at the time of her sin, and Beis Din may not execute her based on circumstantial evidence alone.
This explanation does not seem consistent with Rashi's words. Rashi makes no mention of "Raglayim l'Davar." Rashi clearly implies that it is the Chazakah alone that gives Beis Din the right to execute the woman.
(b) Perhaps another approach may be suggested as follows. Before the enactment to write the date in a Get, the "Chezkas Eshes Ish" was not sufficient evidence to execute the woman. The valid Get in her hands offsets the power of the "Chezkas Eshes Ish" because it shows that her status of "Eshes Ish" has changed. She cannot be assumed to have had a status of an "Eshes Ish" at a given moment if the item which removes that status is present (see RASHI to Gitin 17b, DH Gazyeh). However, after the Chachamim enacted that the date be written in a Get, when a Get missing its date is presented to Beis Din, there is a significant deficiency ("Rei'usa") in the Get itself with regard to the time at which it took effect (since the date has been erased). Despite the fact that the Get is valid mid'Oraisa, it is not a powerful enough piece of evidence to offset the "Chezkas Eshes Ish." Therefore, the Chazakah remains and she is executed on the basis of the Chazakah.
This approach may answer a fundamental question which the Rishonim ask on the words of Rashi. TOSFOS (DH l'Hatzalah) and other Rishonim point out that the Gemara in Gitin (17b) clearly states that even if the man cuts the date out of the Get before he hands it to the woman, the Get serves to vindicate her in court from charges of adultery. Although the date on which the Get was given is unknown, and there are signs of foul play (a piece of the Get is cut out), Beis Din still acquits the woman because of the Get. (Similarly, the Gemara there says that if the husband finds a scribe and witnesses who are willing to write a Get without a date, such a Get serves to acquit the woman if presented in court.) Why does such a Get acquit the suspected adulteress even after the enactment to write the date in a Get?
Perhaps Rashi understands that a Get is considered to have a "Rei'usa" only when it is missing a part which originally was in the Get. (That is, the date in the Get was altered after the Get was given to the woman to effect a divorce, at which moment it formally became a valid Get.) Since the Get was altered after it was given to the woman, the Get has a "Rei'usa" -- and the "Rei'usa" is in the very part of the Get which affects the question at hand, the time at which the Get was given. This is why the woman may be killed if she erases the date in the Get. If, however, the husband erases (or omits) the date before he gives the Get to his wife, she simply asks the witnesses to make a note that the Get was lacking a date at the time of its delivery, and there no longer is a "Rei'usa" in the Get at all. In this way, the Get serves to vindicate her when it lacks a date at the time of its delivery. (M. KORNFELD)
(c) All of the other Rishonim disagree with Rashi. They explain that the "Chezkas Eshes Ish" plays no role in Beis Din's prerogative to execute the adulteress, and, therefore, before the enactment that the date be written in a Get, Beis Din was unable to execute her. When the Gemara says that a woman does not tamper with the Get but she does tamper with her Shtar Kidushin, the difference is not that the "Chezkas Eshes Ish" incriminates her. Rather, the difference is that she is afraid that the Chachamim will invalidate a Get when they see that someone tampered with it. (In truth, they will not invalidate such a Get, but she thinks that they will.) In the case of a Shtar Kidushin, however, she does not care if the Chachamim invalidate the Kidushin, because even if they do she will not be executed (since, when they invalidate the Kidushin, her sin was committed when she was not an "Eshes Ish").
According to these Rishonim, why does the "Chezkas Eshes Ish" indeed play no role in the verdict? Why does the Chazakah not determine that she was an "Eshes Ish" at the time she sinned and that she is Chayav Misah?
1. The RASHBA and RITVA write simply that Beis Din may not execute a person in a situation of doubt. These Rishonim apparently maintain that a "Chazakah d'Me'ikara" (a "status-quo" Chazakah which is used to resolve a doubt by giving the person or object the status it had until the doubt arose) is not sufficient evidence to serve as basis for execution. (See a comprehensive discussion of this issue in SHEVILI D'CHAZAKAH 19:1, by Rav Daniel Rabin, Jerusalem.)
2. TOSFOS in Gitin (17a, DH Mishum) gives a different reason for why the Chazakah is not taken into account in the verdict in this case. He says that although capital punishment could be administered based on the evidence of a Chazakah, in this case there are two factors which work against the Chazakah ("Tarti l'Rei'usa"; see Nidah 2b, PNEI YEHOSHUA and HAGAHOS RAV SHLOMO EIGER to Gitin 17a). The first factor is that she obviously is not an "Eshes Ish" at present; she is holding a Get. The second factor is a different Chazakah which counters her "Chezkas Eshes Ish": she has a "Chazakah d'Me'ikara" of "Chezkas Kesherah" that until the time she sinned she was a good Jew who did not sin. This "Chazakah d'Me'ikara" tells Beis Din to assume that she was a good Jew until the latest possible moment (i.e. after the Get was given).
(The other Rishonim apparently do not consider the "Chezkas Kesherah," the Chazakah that she was not a sinner, a valid Chazakah, because it is not a Chazakah which says something about her status per se, but something about her deeds and her free choice, and that itself is the question for which she is being judged.)