Gerushin - Chapter Three

For the get was not written with the intent of being used to effect a divorce (Gittin 24b).

For the get was not written for the sake of the man [initiating] the divorce and for the sake of the woman who is being divorced (Ibid.).

This ruling depends on the concept of b'reirah - i.e., that since ultimately the husband's intent is clarified, it is considered retroactively as if this had been his intent at the outset.

This concept of b'reirah is relevant not only in the present context, but also with regard to many other contexts discussed in the Talmud and later Rabbinic works. Generally, the rule that is followed is that with regard to questions involving Scriptural law, the concept of b'reirah is not accepted, but with regard to Rabbinic law it is accepted. On this basis, the commentaries question the Rambam's ruling. In the Kessef Mishneh, Rav Yosef Karo explains that although with regard to following stringencies, we say that the concept of b'reirah does not apply to questions of Scriptural law, it does apply with regard to the acceptance of a leniency. Therefore, although the woman must consider herself divorced, she does not have the prerogative of remarrying. On this basis, Rav Yosef Karo quotes the Rambam's wording in the Shulchan Aruch (Even HaEzer 130:4). (See the Beit Shmuel 130:4, who also discusses this issue.)

I.e., tracing over the letters is ineffective, for writing on top of other writing is insignificant (Gittin 20a). A parallel exists with regard to the Sabbath laws. If a person traces over letters on the Sabbath, he is not considered to have violated the forbidden labor of writing (Hilchot Shabbat 11:16).

Although the Shulchan Aruch (Even HaEzer 130:5) appears to favor the Rambam's ruling, it also quotes the opinion of the Rashba, which states that consideration must be made of a get given under such circumstances.

As mentioned in the notes on Chapter 2, Halachah 2, the Rambam does not consider a get that was written before it was given to be predated. Other commentaries do, however, and it is their view that is accepted by the Shulchan Aruch (Even HaEzer 127:5).

According to those authorities, such a get can be acceptable only when it was sent via an agent. This relates to another difference of opinion about this issue. The Tur (Even HaEzer 148) states that this ruling applies only when the get remained in the husband's possession until after he emerged from privacy with his wife. If he gave it to an agent beforehand, it is void. In the Kessef Mishneh, Rav Yosef Karo states that the Rambam does not accept this distinction, and in the Shulchan Aruch (Even HaEzer 148:1), although he mentions the Tur's view, he favors his own interpretation of the Rambam's decision.

This law applies only after the fact. At the outset, such a get should not be used, as reflected in the previous halachah.

When quoting this law, the Shulchan Aruch (Even HaEzer 132:1) follows the opinion of the Tur and Tosafot, who differ with the Rambam and state that the get is acceptable only when it was post-dated, and the date on which it was given was mentioned. If the date on which the get was written was mentioned, the get is unacceptable. (It is worse than an ordinary "old get," because in that instance, the couple merely entered into privacy together; we are not certain that they had relations. In this instance, by contrast, the marriage bond was consummated.)

Although the yevam does not have to consecrate his yevamah, he also does not have to divorce her. Hence, there is a question whether the connection between them is sufficient for the get to be acceptable.

So that they would have a get ready, in order for them to prepare it for a husband in a relatively short time. In this manner, the scribe can use his free time for a useful purpose (Rambam's Commentary on the Mishnah, Gittin 3:2).

These are the parts of the get that are of fundamental importance, and which are referred to as the toref.

On this issue there is a difference of opinion in the Mishnah (loc. cit.) between the Sages and Rabbi Eliezer. It appears that the opinion cited by the Rambam above is that of the Sages. Thus, this ruling is worthy of notice, because it represents a change of mind on the Rambam's part, for he writes in his Commentary on the Mishnah that the halachah follows Rabbi Eliezer. (It is also noteworthy that in the Rambam's manuscripts of his Commentary on the Mishnah, the latter statement was rubbed out and written over, implying that the Rambam deliberated back and forth about the matter when composing that text. See the Kovetz and others, who discuss this issue.)

See also the Beit Shmuel 131:2, who states that the Shulchan Aruch does not mention this law, because most authorities differ with the Rambam and do not grant a scribe such license. (See also Halachah 17 and notes.)

There is a question whether the words within the brackets { } are the Rambam's or a printer's addition. There is, however, no difference in law between the two versions.

As stated in Chapter 1, Halachah 15, it is not necessary for witnesses to sign the get according to Scriptural law. Our Sages required such signatures only to afford an advantage for the woman lest the witnesses die.

The Shulchan Aruch (Even HaEzer 130:17) follows the Rambam's approach and rules that such a get is unacceptable by Rabbinic decree, but not void.

The Tur and Shulchan Aruch (Even HaEzer 131:6) quote the Rambam's decision, while mentioning the minority opinion.

This and the following two halachot are dependent on the Rambam's understanding of a Talmudic passage that appears in Gittin 27a and Bava Metzia 18a. Many authorities differ with the Rambam in the interpretation of this passage, and it is their view that is favored by the Shulchan Aruch (Even HaEzer 132:4), although the Rambam's view is also quoted.

According to these views, if there are two people who, with their wives, share the same name in the same town, there is a difficulty if the get was not discovered immediately.

The Shulchan Aruch (ibid.) also mentions a difficulty when a person was seen passing by the place where the get was lost, even when the place is not frequented by caravans and it is not known that two people of the same name live in that place. His ruling is, however, questioned by the Beit Shmuel 132:10 and others.

The commentaries question why the Rambam requires both factors, that the get was in its original container, and that it could be recognized. Seemingly, one factor alone is sufficient. Indeed, when discussing this issue, the Shulchan Aruch (op. cit.) requires only one factor: either that it was found in the original container, or that the agent could recognize the get.

Note the Noda BiY'hudah (Even HaEzer, Volume II, Responsum 62), who supports the Rambam's ruling, explaining that there are various levels of recognition. Since the agent recognizes the get only by its length and width, it is necessary that it also be found in its container.

Implied is that if enough time passed for one of the passersby to wait there, the get is unacceptable.

And whose wife's name is the same as the woman's name written in the get.

The Ramah (loc. cit.) states that if the name of the husband's town was mentioned, and we know that there is only one couple with the name mentioned in the get, we are not concerned about the fact that caravans frequent the place. We do not suspect that there are two towns with the same name. The Beit Shmuel 131:16 questions the Ramah's ruling.

A sign is, however, necessary. According to the Shulchan Aruch (loc. cit.), it is sufficient for the agent who lost the get to say that he recognizes it; witnesses, by contrast, must give signs through which it can be identified (Shulchan Aruch, loc. cit.).

When quoting this law, the Shulchan Aruch (loc. cit.) states that if there are other individuals who share the same name as the witnesses, the witnesses must also recognize their own signatures.

And whose wives have the same names.

I.e., the agent[s] give both gittin to one woman, and thus she receives the get intended for her. They then take the gittin from her and give them to the second woman. There is no necessity for the woman to know which get was intended for her originally (Gittin 86b; Shulchan Aruch, Even HaEzer 132:3).

The Maggid Mishneh (quoted in the Shulchan Aruch, loc. cit.) explains that if, however, the agent gives the get that remains to one or the other of the women, the status of the divorce[s] is in doubt.

I.e., his most popular name.

I.e., according to the Rambam, there is no obligation to mention the other names with which the husband or wife is known. Other authorities differ and require that all the names by which a man or a woman is known should be mentioned in the get. This latter view is cited by the Ramah (Even HaEzer 129:1).

This issue is particularly relevant today, when many individuals have Jewish names with which they are called to the Torah, and secular names by which they are known by and large. The Ramah (loc. cit.:16) rules that the Jewish name should be mentioned first, but the secular name should also be mentioned in the get.

I.e., a derivative of the person's name by which he or she is often called - e.g., Danny, which is a derivative of either Dan or Daniel. Other interpretations of the term chanichah are offered by different commentaries.

The Ra'avad states that this applies only when the nickname is more extensively used than the person's actual name. Note the discussion of this issue in the Beit Shmuel 129:1. The Beit Shmuel also discusses whether the intent is that, after the fact, a woman divorced with such a get may remarry, or whether the intent is that at the outset such a get may be given.

By Rabbinic decree. If, however, both names are mentioned in the get, the get is acceptable despite the fact that the less-used name is mentioned first (Shulchan Aruch, Even HaEzer 129:2).

At present, it is not customary to mention the woman's city or the man's city. Instead, the location in which the get is given is mentioned.

I.e., even according to Scriptural law.

Our translation is based on the manuscript copies of the Mishneh Torah. The standard printed text was changed by the church's censors.

The equivalence between the desecration of the Sabbath and the worship of false gods is discussed by the Rambam at the conclusion of Hilchot Shabbat, based on Horayot 8a.

Note the Maggid Mishneh, who states that although an apostate is not capable of writing a get, if he is married to a Jewess, he may - and indeed should - divorce her with a get. Just as the kiddushin he gives establish a viable marriage bond (Hilchot Ishut 4:15), a get that he gives can dissolve such a bond.

Even if an observant Jew stands over him, and tells him the intent with which he should write the get, it is void. (See Hilchot Tefillin 1:11.)

The Rambam puts the emphasis on the gentile's lack of proper intent to explain why a get written by an apostate is unacceptable. For the Rambam could have employed the same reason given with regard to a servant - that the laws of marriage and divorce do not apply to him - to exclude a gentile. He chose to give this reason to allude to the law concerning an apostate because an apostate also cannot be relied upon to write with the proper intent (Beit Shmuel 123:5).

The reasons given by the Rambam are significant in another context. As mentioned in the notes on Chapter 2, Halachah 1, there is a difference of opinion among the authorities regarding whether or not the scribe writing the get must be appointed as an agent. All the individuals mentioned are not capable of serving as agents. Since that rationale is not given, it would appear that the Rambam does not require such an appointment. Nevertheless, other sources lead to the opposite conclusion.

The Maggid Mishneh and the Beit Yosef (Even HaEzer 123) quote other opinions, which maintain that such gittin are disqualified by Rabbinic law only. Hence, because of this difference of opinion, the status of the divorce is in doubt (Chelkat Mechokek 123:6).

The Ramah (Even HaEzer 123:3) quotes the opinion of the Tur, who maintains that in such an instance the get is deemed unacceptable by Rabbinic law.

If these individuals are supervised, they will write the get with the proper intent. Hence, there is no reason to negate the feasibility of using the standard portions of the get that they wrote, out of fear that they will write the essential portions without the proper intent.

Halachah 7 above.

It appears that the Rambam's intent is that the get was written by the husband without his knowing of the transgression and not signed. It was given to his wife in the presence of witnesses. Although the same law would apply if the get were signed in unknowing violation of the holy day, the Rambam does not mention that possibility, because it is highly unlikely that both the man writing the get and the witnesses would not know of the transgression (Kessef Mishneh).

Since the transgression was performed unknowingly, the get is acceptable. (See the Rambam's Commentary on the Mishnah, Chulin 1:1.)

Our translation follows the standard printed text of the Mishneh Torah. There are other versions that state "If it was written and signed on a holiday...."

The difference between the two versions is that the prohibition against forbidden labor is less severe on the holidays than on the Sabbath and Yom Kippur. The holidays are mentioned to emphasize that the get is void even in such an instance.

By the husband and was not signed by witnesses.

Here a holiday is mentioned rather than the Sabbath, because if a get were written as a willful transgression in public on the Sabbath, the writer would be considered to be an apostate, and a get that he wrote would be disqualified by Scriptural law, as mentioned in Halachah 15. Since the desecration of the holidays is not so severe, the person is not considered to be an apostate. The get he wrote is, however, disqualified by Rabbinic decree.