After learning the Gemara about being mezakeh a Get, I had to pull out my gemara Gittin, since I remembered a very different take on this topic there. Upon review I noticed two differences, and wonder how to resolve them:
1) In Gittin Daf 11, the nafka mina in the mishna between Chov and Zchus is whether the Shlichus may be retracted, but in either case the Shliach does not become a Shliach Kabalah, and as the Meiri says, and so even the Eved's Get is not Chal. This is why if the master dies before the nsinas haGet, he doesn't go free, as the next mishnayos there describe. Here in Yevamos, Rashi says the husband appoints his shliach as a Shliach Kabalah, and the Get takes effect immediately. Why? (And the Lashon doesn't seem to be the answer, since the Gemara in Gittin expains that 'Tenu' is the same as 'Zechu'. Or does Rashi mean that he explicitly tells him to be a shliach kabbala, and in Gittin not?)
2) In Gittin, it seems rather clear that there's a blanket rule for all cases that a Get is a Chov, whereas in Yevamos it is clear that if one could find some marriages where it is clear that she would want the Get, it is considered a halachic zchus, as the Meiri here suggests about a Mumar (which is paskened in the Rema as well I believe). When is this determined case by case, and when is it like a Lo Plug.
Thanks!
Sender Klein, New York, United States
Hi Sender,
Thank you for your inelegant questions. I will turn them over and start with your second question, since it is the formation of the Sugya, and sort of answers your first question too.
We find in Gittin, as we see also here in Yevamos in the last lines of the Perek, that we usually consider marriage as a Zchus, even if the husband is not the best bargain. The Gemara says that even if there are fights between the couple, it is not a Zchus for the woman to be divorced from him.
But this is only true when we are talking about a divorce from a living partner. In the case of this husband, he just wants to compose a Get that will retroactively work, if he passes away, and his dear wife might 'fall' and will be required to marry his brother who she hates, here we will not say that a marriage that hasn't happened yet is a Zchus. There is no question what's so ever, that we cannot marry off a woman without her knowledge just because we say she'd rather be married. This reasoning is only right for a marriage that is already formed So, when the Get is cancelling a future marriage of the woman's brother-in-law, it can be regarded as a Zchus. (See also the Rashba here).
Now to the first question. The reason why we always have this dichotomy that the husband can only appoint a Shaliach le'Holacha, while the wife can appoint a Shaliach le'Kabala who can accept a Get and the woman is divorced right away, is only because the divorce is considered a Chov and not a Zchus.
Once we accept that in a case of Yibum, the retroactive Get can be considered a Zchus, the husband can appoint a Shaliach le'Kabala too. If Get is a Zchus, it is considered as a present which can be given to someone unknowingly, by being Makne it to a him by third party, and it is his right away.
Best Regards,
Aharon Steiner