Gerushin - Chapter Five

See Numbers 21:26, which uses the word miyado - literally, "from his hand" - as meaning "from his possession." A similar usage is frequent within the Torah and within Talmudic sources.

It must, however, be emphasized that the accepted practice is to place the get in the woman's hand and not to remain content with depositing it in her courtyard. (See Ramah, Even HaEzer 139:14.)

With regard to a courtyard, a point of clarification is necessary. In general, the benefit from a woman's property belongs to her husband, and whatever is acquired by her property belongs to him. In this instance, however, we say that the acquisition of the bill of the divorce and the right to acquire the articles placed in her property become hers simultaneously.

The Rambam's wording implies, however, that when the woman returns to her courtyard, the divorce is effective. Rav Meir HaLevi, as quoted by the Tur (Even HaEzer 139) differs and maintains that the woman must be present at the time the get is placed in her courtyard. If she is not present at that time, Rav Meir HaLevi maintains that the divorce is not effective unless the husband waits and tells the woman: "This is your get," when she picks it up, or the husband must pick it up and give it to her again.

The Rashba submits a third opinion. He maintains that the status of the divorce is doubtful, for perhaps the woman desired the divorce. (See Shulchan Aruch, Even HaEzer 139:2-3 and commentaries.)

When considering something which is to a person's advantage - e.g., the acquisition of an ownerless object - a person may perform this act on behalf of a colleague without his knowledge, for our Sages postulated: "one may act to a person's advantage outside his presence." The rationale is that the person would probably desire to acquire the object. When, however, a liability is considered, this principle does not apply. Nevertheless, if a woman explicitly states that a get should be placed in her courtyard, the divorce is effective even when she is not standing next to it (Beit Yosef, Even HaEzer 139).

In many different halachic contexts, three handbreadths of empty space is considered to be a continuation of the nearest significant halachic entity. This principle is referred to by the name l'vud.

Since it will ultimately come to rest within her property, it is considered as though it has already come to rest.

Accordingly, from this time onward, even if the husband changes his mind and desires to nullify the divorce before the get reaches the ground, he no longer has that option. The divorce is effective and the marriage bond has been broken. If a second man consecrates her at this time, she is considered to be his wife (Maggid Mishneh).

Most other authorities differ with the Rambam on this point and maintain that as soon as the get enters the woman's possession, the divorce is effective, even though afterwards it is consumed by fire or its writing is wiped away by water, provided the fire or the water was not there before the husband threw the get. [Significantly, in his Commentary on the Mishnah (Gittin 8:3), the Rambam does not mention the provision that ultimately the get must come to rest.] Although the Shulchan Aruch (Even HaEzer 139:4-5) mentions the Rambam's view, it is the approach of the other authorities that is favored.

I.e., immediately, even if the get does not reach the woman's property. The rationale is that as long as the conditions mentioned in the following halachah are met, it may be assumed that the laws of gravity will prevail, and the get will come to rest in the woman's property. Therefore, even if it is destroyed by a fluke occurrence beforehand, the divorce is effective (Maggid Mishneh; Shulchan Aruch, Even HaEzer 139:6).

Since he initially threw the get into the fire, it is considered as though it will never come to rest and will never enter the woman's possession in a complete state.

The phrase set off by parentheses is found in the standard printed texts of the Mishneh Torah, but is lacking in many authentic manuscripts and early printings. Eliminating the phrase would imply that there is a difference between the situation described in Halachah 4 and that described in Halachah 3.

This indeed is the Maggid Mishneh's contention. As he explains, in Halachah 3 the husband is throwing the get against the natural gravitational pattern that prevails within the world, while in Halachah 4 the get is being thrown in a manner that conforms with the pattern of gravity. Therefore, as long as the get was not thrown into fire or water, the divorce is binding as soon as the get enters the woman's domain.

The commentaries on Gittin 79a explain that this refers to an instance where the top of the reed or the spear is higher than the walls of the courtyard.

For the wind may blow it outside the courtyard.

Since the get will be protected by the walls of the outer courtyard even within the inner courtyard, if it is thrown toward the inner courtyard the divorce is effective after it enters the space of the outer courtyard (Maggid Mishneh; Shulchan Aruch, Even HaEzer 139:9).

There are two differences between courtyards and containers located in the husband's domain: a) With regard to the courtyard, it is sufficient for the get to enter the space of the husband's courtyard. With regard to a container, by contrast, this is not sufficient.

b) Even when a get comes to rest within a container, the divorce is not effective, except in the specific instance mentioned by the Rambam.

The rationale for both these differences is that the walls of a courtyard are made primarily for protecting the articles contained within, and in the above instance the walls of the outer courtyard also protect the articles within the inner courtyard. In contrast, the function of the wall of a container is to hold the object it contains (Rashi, Gittin 79b).

The bracketed addition is made on the basis of the gloss of the Maggid Mishneh. There are other commentaries that maintain that the containers are located in the woman's domain or in a neutral domain. (See Beit Shmuel 139:13 and the gloss of Rabbi Akiva Eiger on those comments.)

The fundamental principle involved here is that a person cannot acquire an object by virtue of its being placed in a container belonging to him, if that container is located in a domain belonging to the giver, unless the giver is not concerned with the presence of the recipient's container. (See Hilchot Mechirah 4:1.)

It must be emphasized that this concept is not accepted by Rabbenu Asher and the Tur. (See Shulchan Aruch, Choshen Mishpat 200:3 and commentaries.)

When a container is lying on its side and it does not have a bottom, it will not serve a functional purpose. Therefore, the husband will not be concerned that it is placed in his property. As such, if the get comes to rest on it, the divorce is effective.

In this instance, the woman's container will serve a functional purpose. Therefore, it is likely that the husband will object to its presence on his property.

It must be emphasized that Tosafot, the Ra'avad, Rabbenu Nissim and others interpret the passage in Gittin, loc. cit., differently from the Rambam. It is, however, the Rambam's view that is accepted by the Shulchan Aruch (Even HaEzer 139:9).

Rashi (Gittin 77a) explains that a man must assume that a woman will bring such articles with her when she enters a domain. Therefore, the husband's acceptance of the woman's presence also implies a willingness to allow her to bring in such articles.

If, however, the couch belongs to the husband, the divorce is not effective unless the get is given to the woman, even when the woman is sitting on the couch.

Since the couch is ten handbreadths (80 centimeters according to Shiurei Torah, 96 centimeters according to Chazon Ish) high, it is considered to be a separate entity. (See a parallel concept in Hilchot Kri'at Shema 3:9.)

Note the Maggid Mishneh, which explains that in other situations - e.g., a couch belonging to a purchaser that is in the domain of a seller - this concept would not necessarily apply, and the transfer would not be considered effective. (Note Beit Shmuel 139:15.)

If he specified a place, the get would have to be deposited in that place.

For we assume that the place where the woman is standing is the place that she was granted.

Our translation is based on the interpretation of the Rambam's ruling offered by Rabbenu Nissim. The Maggid Mishneh questions the Rambam's rulings, interpreting his approach as implying that if the place where the get comes to rest is within four cubits of the woman, it would appear that the divorce should be effective even if any of these factors applies. And if the place is further removed, the divorce is never effective. The Shulchan Aruch (Even HaEzer 139:11) rules according to other authorities, who interpret this passage according to the interpretation offered by Rabbenu Nissim. The interpretation of the Rambam's words offered by the Maggid Mishneh is mentioned as a minority opinion.

Based on the principle of l'vud, three handbreadths is an extension of any given entity. Nevertheless, since, as happened, the get did not come to rest within the woman's domain, the fact that it passed through it close to the ground is not significant. This same principle is cited in several other contexts - e.g., Hilchot Ma'aseh HaKorbanot 4:9. See also Hilchot Shabbat 13:16.

The Tur (Even HaEzer 139) maintains that, as appears from Bava Metzia 12a, the matter is the subject of an unresolved Talmudic debate. Hence, the status of the divorce is a matter of doubt, and although the woman may not consider herself to be divorced, she may not continue living with her first husband, and if she was consecrated by another person, he is required to divorce her before she may marry anyone else.

Our translation is based on the gloss of the Maggid Mishneh. The Ra'avad and others interpret Gittin 79b, the source for this halachah, as referring to two roofs belonging to the husband, and explain that it teaches a concept similar to that reflected by Halachah 9. Although the Shulchan Aruch (Even HaEzer 139:12) mentions the Rambam's view, it favors the other interpretation.

In certain circumstances, our Sages ordained although a person is standing in property that does not belong to him, the four cubits around him [or her] are considered to be his courtyard. And placing an article within that space is considered to be placing it in his domain. (See Hilchot Zechiyah UMatanah 4:9.) Therefore, just as if the get in a woman's courtyard had come to rest in the woman's courtyard, the divorce would be effective, so too it is effective if it comes to rest within four cubits of her.

If the get does not come to rest within four cubits of the woman, one might say that the outcome is dependent on the difference of opinion between the Rambam and the Tur mentioned in the notes on Halachah 10. In this instance, the Shulchan Aruch (Even HaEzer 139:15) follows the opinion of the Tur and rules that the status of the divorce is doubtful.

In this instance, if the woman erred and remarried she is not forced to divorce her second husband. If, however, she remarried when the status of the divorce is in doubt, she may not remain married to her second husband.

The Rambam does not mention an instance where the woman can protect the get but the husband cannot, and yet it is not close enough to her for her to bend down and pick it up. The Maggid Mishneh states that the Rambam would maintain that in such an instance the status of the divorce is doubtful.

Although with regard to kiddushin, in such an instance the Rambam rules that a marriage bond is established (Hilchot Ishut 4:22), the laws are more stringent with regard to divorce. The Beit Shmuel 139:22 states that most other authorities would differ and would agree that according to Scriptural law, the divorce is effective in such an instance; it is disqualified only by virtue of Rabbinic decree.

Whenever an area becomes considered to be the "four cubits" belonging to one individual, another person may not acquire an article in that area until the first person departs (Gittin 78a).

I.e., according to Scriptural law the divorce is effective, because the four cubits in which the woman is standing become her exclusive property.

The Shulchan Aruch (Even HaEzer 138:2) interprets the intent as being that the knot tying the string to the get must be attached in a manner strong enough to allow the get to be pulled back to the husband. If it is tied loosely, the divorce is effective. If, however, it is the woman who prevents the husband from drawing back the get by clasping it within her hand, the divorce is not effective. The Shulchan Aruch does, however, mention another view, which rules the divorce acceptable in such an instance.

Gittin 78b also derives this concept from the description of a divorce in Deuteronomy 24:3: "And he will write a bill of divorce for her, place it in her hand...." As long as the husband can retake possession of the bill of divorce, he has not severed his connection with the woman.

If, however, the husband does snap the string, the Rambam rules the divorce to be effective. Other commentaries differ, explaining that since the giving of the get was not carried out in the proper manner, the get must be given again for the divorce to be acceptable.

Since the servant has an independent will, he is considered to be a courtyard that is not guarded by the woman herself. Also, the conception of a domain as equivalent to a person's hand applies only when that domain remains still and not when, as in the case of a servant, it moves.

Based on a difference in the version of Gittin 78a, the source for this halachah, the Tur (Even HaEzer 139) and others differ with the Rambam and maintain that it is necessary for the servant to be both bound and asleep for the divorce to be effective. Although the Shulchan Aruch (Even HaEzer 139:16) quotes both opinions, the Rambam's view appears to be favored.

I.e., since the servant was not bound, the Sages disqualified the divorce, lest one give a get to a servant while awake and unbound.

The Rambam's wording implies that once the servant gives her the get, however, the divorce is effective. It is not necessary for the husband to take the get from the servant and give it to her. As mentioned by the Beit Shmuel 139:29, this point is not accepted by all authorities.