1) A GET GIVEN BY A "SHECHIV MERA" WHO THEN RECOVERS
OPINIONS: The Gemara discusses a case in which a Shechiv Mera (dying man) gave a Get to his wife and then moaned. His wife soothingly said, "Why do you moan? If you live, I am yours!" The Gemara says that her statement is not valid; she merely said those words to make her former husband feel better.
The Gemara implies that a Get given by a Shechiv Mera takes effect regardless of whether or not the man recovers. Is this indeed the Halachah?
(a) RASHI in Gitin (72b, DH Af Gito) explains that this is the opinion of Rav Huna in Gitin there. Rav Huna states that the Get of a Shechiv Mera is like a gift that he gives before his death. Just as his act of giving a gift is annulled (in certain situations) if he recovers, his Get becomes annulled if he recovers. This is also the opinion of RABEINU CHANANEL.
TOSFOS here (DH Ka Mashma Lan) quotes RABEINU TAM who questions Rashi's opinion from the Gemara here. The Gemara implies that the Get of the Shechiv Mera is valid even if he recovers. How does Rashi understand the Gemara here?
Tosfos does not agree with Rabeinu Tam's question on Rashi. It is possible that the two Gemaras are in disagreement. Indeed, the Gemara in Gitin quotes other opinions that argue with Rav Huna. It is reasonable that the Gemara here is quoting an opinion (that of Shmuel) who argues with Rav Huna.
(b) RABEINU TAM understands that the case in Gitin (72a) involves a Shechiv Mera who says that he is giving the Get "from today, on the condition that he dies from this sickness." Rav Huna maintains that if the husband recovers, the Get is annulled, even if he later falls ill with the same sickness. When the husband said that the Get should take effect if he dies "from this sickness," he meant from this bout of the sickness. When Rav Huna says that "a Shechiv Mera, his Get is like his gift," he refers specifically to the case mentioned in the Mishnah there, and not to every case of a Shechiv Mera who gives a Get (for, otherwise, Rav Huna would have said simply, "The Get of a Shechiv Mera is like a gift"). Rava and Rabah maintain that if the man recovers and then becomes sick again with the same illness and dies from it, the Get is valid, since he indeed died from this illness.
The case of the Gemara here was the subject of considerable controversy in an actual incident which occurred in Vienna in the year 5371 (1611), known as "the Get of Vienna." A young man on his deathbed was persuaded to divorce his wife so that she would not need to perform Chalitzah with his brother. He was told by the person who wrote the Get that nowadays no Get is given conditionally. The man agreed to give the Get, assuming he had nothing to lose: if he would recover, he would remarry his wife, and if he would die, his wife would not require Chalitzah. Everyone who advised him assured him that he had nothing to lose. Some say that his wife even stated, "If you live, I am yours." He gave the Get, and then recovered from his illness, but his wife refused to remarry him. The status of the Get became the subject of great controversy. (See TESHUVOS MAHARAM MI'LUBLIN #122.) (Y. MONTROSE)
2) THE DIFFERENCE BETWEEN AN ORDINARY CONDITION AND AN "ASMACHTA"
QUESTION: The Gemara discusses various Halachic applications of the rule, "Asmachta Lo Kanya" -- "an Asmachta does not acquire." In one case, a borrower tells the lender (to whom he owes money) that if he does not pay back the loan by a certain date, the lender may collect from his wine. Rabah rules that such a condition is an Asmachta and thus is invalid.
What is the difference between an Asmachta and an ordinary condition (Tenai)? A Tenai is valid in all types of transactions, as derived from the Tenai which Moshe Rabeinu made with the tribes of Gad and Reuven when he told them that they may receive their portions of land in Transjordan only on the condition that they fight alongside the rest of the Jewish people to conquer Eretz Yisrael.
(a) The BEIS YOSEF (CM 207) in the name of the RAN explains that a condition is an exchange in which both parties consent to the stated outcome. This is the definition of a condition. A typical condition would be, "If you do act A, I will do act B." Many business transactions are structured in this manner. For example, a person may say to someone, "If you transport an item to this place, I will give you fifty dollars." Both Moshe Rabeinu and the people of Gad and Reuven consented to the agreement that they would receive their portions of land in Transjordan if they would join the Jewish people in conquering the land.
In contrast, an Asmachta is a condition stated specifically to punish or cause a loss to someone in the event that he does not fulfill certain obligations. One party dreads the condition from the start. This type of condition qualifies as an Asmachta.
(b) The Beis Yosef quotes the RAMBAN who gives another explanation of the difference between an Asmachta and a Tenai. A normal condition is made in such a way that one party gives the other a choice based on the course of action he chooses to take. For example, Moshe Rabeinu told the people of Gad and Reuven that "if you fight alongside the Jewish people, you will receive Transjordan; if you do not fight, you will not receive that land." The Ramban explains that when one person gives his friend two choices of action, he is in complete agreement that both possible choices are valid. However, if one states that "I will do a certain act by a certain time, and if not, I will give you a certain thing," he is relying on himself to do the act and he does not really anticipate, or wholeheartedly agree, to give the certain thing that he says he will give if he fails to do the act. This type of condition is called an Asmachta.
(c) The REMA (CM 207:14) records other defining features of an Asmachta. One obvious feature is when the person says, "If I do not do this, I will give you a billion dollars." It is clear from the amount of money that he mentions that he has no intention to give what he says he will give. (See Rema at length for various cases of Asmachta.) (Y. MONTROSE)