1) THE DIFFERENCE BETWEEN THE TRUSTWORTHINESS OF A TALMID CHACHAM AND AN AM HA'ARETZ
QUESTION: Rabah bar bar Chanah stated that a lost object may be returned to the claimant even when the claimant identifies the object merely with "Tevi'us Ayin." However, he added that this applies only to a Talmid Chacham, who is trusted not to lie. An Am ha'Aretz, on the other hand, may not retrieve a lost object based on "Tevi'us Ayin," because his word cannot be trusted.
This distinction between a Talmid Chacham and an Am ha'Aretz is difficult to understand. Nowhere in the Torah is the trustworthiness of a person determined based on whether he is an Am ha'Aretz or a Talmid Chacham. (The only exception is the opinion of RABEINU CHANANEL with regard to the credibility of a single witness in matters of Isurim. Rabeinu Chananel differentiates between a Talmid Chacham and an Am ha'Aretz, but all of the other Rishonim argue with his opinion; see RAMBAN and RAN to Chulin 96a). Why, then, may one return a lost object to a Talmid Chacham when he identifies it based on "Tevi'us Ayin," while an Am ha'Aretz who identifies it in the same manner is not believed? If "Tevi'us Ayin" is a sufficient form of identification, then it should be accepted even when the claimant is an Am ha'Aretz. If, on the other hand, "Tevi'us Ayin" is not a sufficient form of identification, then even when the claimant is a Talmid Chacham it should not be accepted.
With regard to lost money or any other object that has only monetary value, it is easier to understand why there would be a distinction between a Talmid Chacham and an Am ha'Aretz. With regard to Hashavas Aveidah the Torah states, "Ad Derosh Achicha" (Devarim 22:2), from which the Mishnah (28b, see Gemara 27b) learns that before he may return the object, the finder must ascertain whether the claimant is a liar or is credible. Therefore, it is logical to rely on the word of a Talmid Chacham, since it is known that a Talmid Chacham does not alter the truth. An Am ha'Aretz, however, does not have any established credibility, since it is possible that he alters the truth. Thus, the "Tevi'us Ayin" of an Am ha'Aretz is not sufficient simply because his credibility has not yet been established as the Torah requires.
In contrast, the Gemara here discusses a Get that was lost. In such a case, the issue is not whether the Get may be returned to the claimant for the sake of its monetary value. After all, the Get itself may have no monetary value (the paper on which it is written may be worth less than a Perutah). Rather, the issue is whether the Get may be returned so that it can be used to effect Gerushin, divorce. Divorce is an issue of Isur, and, as mentioned above, with regard to Isur there is no precedent in the Torah to assign greater credibility to a Talmid Chacham than to an Am ha'Aretz.
(a) The RAMBAN in Gitin (27a, in his explanation of Rashi there) writes that a Talmid Chacham and an Am ha'Aretz are believed equally with regard to matters of Isur. Accordingly, in the case of a lost Get, both should be considered equally credible. Nevertheless, there is a distinction between a Talmid Chacham and an Am ha'Aretz with regard to "Tevi'us Ayin," but this distinction is not because a Talmid Chacham is trusted not to lie while an Am ha'Aretz is suspected of lying. Rather, the difference is that a Talmid Chacham is much more exacting in what he notices, while others do not notice the precise details of an object. When an Am ha'Aretz claims that he recognizes an object as his own, there is concern that he may be mistaken even if he is not lying intentionally. A Talmid Chacham, on the other hand, is trusted to recognize his own belongings due to his superior recognition of details. Hence, when a Talmid Chacham says that he recognizes an object as his, it may be returned to him, but when an Am ha'Aretz says that he recognizes an object as his, it may not be returned to him.
TOSFOS (here and in Gitin) in the name of RABEINU TAM, however, writes that an Am ha'Aretz, like a Talmid Chacham, does have "Tevi'us Ayin"; he is assumed to be able to identify his own object reliably based on his visual recognition. His word is not accepted, however, because he lacks credibility. Accordingly, the original question returns -- why is a Talmid Chacham trusted more than an Am ha'Aretz in this case, when there is no such difference in all other cases of Isur in the Torah?
(b) Perhaps the Chachamim treat a Get like a monetary matter (l'Chumra) since a Get affects a husband and wife in two ways, as the ACHIEZER (Gitin 27a, #4) writes: it changes the wife's status of Isur and it also impacts on their financial obligations (such as the Kesuvah and the monetary obligations that each party has to the other). Hence, due to the monetary matter involved, the Am ha'Aretz is not trusted when he identifies the Get based on "Tevi'us Ayin," even though his word is accepted with regard to the Isur element of the divorce. When Tosfos writes that an Am ha'Aretz is not believed with regard to "Tevi'us Ayin," he refers only to the monetary matter involved.
(It is interesting to note that the RAMBAM (Hilchos Gerushin 3:9) does not differentiate between a Talmid Chacham and an Am ha'Aretz with regard to "Tevi'us Ayin" of a lost Get. The Ramban in Gitin there explains that this is because of the aforementioned consensus of most of the Rishonim, that with regard to all matters of Isur in the Torah, a Talmid Chacham and an Am ha'Aretz are considered equally credible.) (I. Alsheich)
2) THE SHALI'ACH WHO LOST A GET
QUESTION: The Gemara relates that Rabah bar bar Chanah lost a Get in the Beis ha'Midrash. When the Get was found, he declared that if a Siman was necessary to have it returned to him, then he had a Siman, and if "Tevi'us Ayin" was necessary to have it returned to him, then he had "Tevi'us Ayin." The Rabanan returned the Get to him, and he said, "I do not know whether they maintain that Simanim are mid'Oraisa, and that is why they returned it to me, or whether it was because of the 'Tevi'us Ayin' that they returned it to me (and, if so, only a Talmid Chacham may retrieve a lost item based on 'Tevi'us Ayin')."
RASHI explains that Rabah bar bar Chanah was a Shali'ach who was delivering a Get on behalf of someone else.
How does Rashi know that Rabah bar bar Chanah was a Shali'ach? Perhaps the Get belonged to Rabah bar bar Chanah who intended to divorce his wife? (MAHARAM SHIF, Gitin 27a)
(a) The MAHARAM SHIF answers that it would be inappropriate to assume that Rabah bar bar Chanah was divorcing his wife, and therefore Rashi assumes that he was merely a Shali'ach to deliver a Get for someone else.
(b) REBBI AKIVA EIGER (Teshuvos, 1:107) answers that Rashi understands that Rabah bar bar Chanah must have been a Shali'ach and could not have been divorcing his own wife. If he had been divorcing his own wife, then mid'Oraisa he certainly would have been believed to say that the Get that was found was his, since he would have had a "Migu" that he could have divorced her anyway by writing another Get. It was only mid'Rabanan that he would not have been believed, because of a concern that the Get may belong to someone else. If that were the case, however, then Rabah bar bar Chanah would not have said that perhaps they returned the Get to him because "they maintain that Simanim are mid'Oraisa," for even if Simanim are not mid'Oraisa but only mid'Rabanan, the Get could have been returned to him. Mid'Oraisa he was believed anyway with a "Migu," and even if Simanim are only mid'Rabanan such Simanim would have sufficed for the concern of the Rabanan that the Get may belong to someone else. This is why Rashi explains that Rabah bar bar Chanah was not the husband himself, but he was merely a Shali'ach. A Shali'ach has no "Migu," and thus the concern that the Get belongs to someone else is a concern mid'Oraisa, since there is no basis (such as a "Migu") to believe a Shali'ach or assume that he is not lying. That is why Rabah bar bar Chanah attributed the return of the Get to the fact that "they maintain that Simanim are mid'Oraisa," because only if Simanim are mid'Oraisa could the Simanim allow the Get to be returned to him.
(c) The BEIS AHARON answers that Rashi understands that if the husband himself lost the Get, he would be believed with "Tevi'us Ayin" even if he is not a Talmid Chacham. This is because the husband has a "Migu" that he could have divorced her (as Tosfos writes in Gitin 28a with regard to a Shali'ach who found a Get that he himself lost: when the Shali'ach testifies that he lost the Get but found it himself, he is believed because of a "Migu" that he could have said that he never lost it in the first place). Accordingly, even a husband who is an Am ha'Aretz would be believed because of the "Migu." Why, then, did Rabah bar bar Chanah state that if the Get was returned to him based on "Tevi'us Ayin," it was because he was a "Tzurba m'Rabanan"? If he was the husband, then the Get would have been returned to him even if he was not a "Tzurba m'Rabanan" because of the "Migu"! Based on this, Rashi concludes that he was only a Shali'ach, and thus he did not have a "Migu."