1) WHY A SINGLE WITNESS IS BELIEVED TO TESTIFY ABOUT A GET
QUESTION: The Gemara says that a single witness is believed to testify that the Get was written Lishmah and that it is not forged because of a leniency the Chachamim instituted in order to prevent situations of Agunah from arising. The Gemara asks that accepting the testimony of a single witness in this case is a Chumra and not a Kula, because if the husband challenges the Get he will be believed and he will invalidate the Get!
The Gemara answers that since the Shali'ach must hand over the Get in front of a Beis Din, he is very careful to research the matter ("Meidak Dayik") and he will not let his reputation become ruined.
The simple understanding of the Gemara is that since the Shali'ach is so careful not to let his reputation become ruined, his words are very reliable and therefore his word is believed against the word of the husband. This indeed is how Rashi here explains the Gemara (end of DH me'Ikara). However, Rashi prefaces his explanation by saying that since a Shali'ach does not want to ruin his reputation, he will make sure that the husband indeed wants to divorce the woman and that the husband will never consider coming to challenge the validity of the Get.
Why does Rashi add those comments? If, as Rashi writes, the Shali'ach's word is believed against the word of the husband even when the husband comes and challenges the Get, why is it necessary for the Shali'ach to make sure that the husband will not come in the first place?
ANSWER: A number of points in the Gemara are unclear and need explanation:
First, why does the Gemara ask that it is a Chumra to believe one witness in this case, because if two witnesses would be required, then "the husband would not come and invalidate the Get"? The Gemara should say instead that it is a Chumra because if two witnesses would be required, then "even if the husband would come, he would not be able to invalidate the Get" (while if a single witness is believed, the husband would be able to invalidate the Get).
Second, the Gemara asks the same question according to the view of Rava, that accepting the testimony of a single witness is a Chumra and not a Kula since, if the husband comes and challenges the Get, he will invalidate it. The Gemara's assertion -- that if the husband comes and challenges the Get he will invalidate it -- is difficult to understand. The very purpose of saying "b'Fanai Nichtav" according to Rava is in order to override the husband's challenge to the Get, and thus it is obvious that the Chachamim instituted that the single witness is believed more than the husband. Why, then, would one think that if the husband challenges the Get, the Get will be invalidated because of his word?
It is because of these difficulties that Rashi explains that the Gemara's question is not that the husband will be believed in court if he challenges the Get, but rather that if the husband challenges the Get he might create a rumor that the Get is invalid and people will not want to marry the woman, thinking that she is still an Eshes Ish. The answer of the Gemara, that the Shali'ach is "Meidak Dayik," does not mean that the Shali'ach is believed more than the husband. First, his word already is believed in court more than the husband's. Second, if the testimony of a single witness is not strong enough to counter the husband's challenge, the logic of "Meidak Dayik" cannot strengthen the testimony of the witness since the very fact of his Shelichus is under suspicion. Although he testifies in front of Beis Din that he is a Shali'ach and he says "b'Fanai Nichtav," he is not more concerned about his reputation than the husband is concerned about his, who testifies in court that the Get is a forgery! Rather, the Gemara means that the Shali'ach is "Meidak Dayik" to ascertain beyond a doubt that the husband divorced his wife willingly and will not be interested in challenging the Get in the first place. This is the way Rashi explains the Gemara.
This approach explains why the Gemara says that if two witnesses would be required, "the husband would not come and challenge the Get and invalidate it," but if a single witness is required "the husband will come and challenge the Get and invalidate it." The Gemara does not mean that the husband will actually disqualify the Get when he contradicts the single witness whom the Chachamim required. As explained above, the Gemara understands (according to Rava) that the Chachamim trusted the single witness to repudiate the claim of the husband. The Gemara's question is that if a single witness is required, the husband will not be afraid to challenge the word of that witness and to spread a rumor that the Get is invalid. Although the Beis Din will not accept the word of the husband, nevertheless the very spreading of a rumor that the Get is not valid will harm the wife.
If this is true, however, why does the Gemara add the words "and invalidate it"? The only concern is that the husband will challenge the validity of the Get and spread a rumor; there is no concern that he will invalidate it! (See TOSFOS, DH Chad Asi, who is bothered by this question and concludes that the term "invalidate it" is not meant in the literal sense.) Moreover, why does Rashi find it necessary to add that since the Shali'ach is "Meidak Dayik," even if the husband does challenge the validity of the Get the Shali'ach is believed and his testimony overrides the testimony of the husband?
The answer is that the approach which Rashi takes here applies only according to the view of Rava. Rabah, in contrast, requires the testimony of "b'Fanai Nichtav" not because the husband might [falsely] challenge the Get and say that it is forged, but because Beis Din is genuinely concerned that the Get truly was not written Lishmah. (It is true that TOSFOS to 2b, DH l'Fi (2), suggests that even according to Rabah the Chachamim were concerned only that the husband would falsely claim that the Get was not written Lishmah; they were not actually concerned that the Get was actually not written Lishmah. Rashi (2b, DH v'Rabanan), though, takes the approach that the Chachamim were afraid that the Get was truly not written Lishmah.) The enactment of our Mishnah was that the Shali'ach who says "b'Fanai Nichtav" is trusted to allay our concerns. However, this only allows us to trust the Shali'ach as long as nobody else challenges his words. The Chachamim did not give his words the power to contradict the husband if he comes and claims that the Get was actually not written Lishmah. Therefore, according to Rabah, the Gemara's question was not just that when a single witness testimony that the Get is Lishmah, the husband will come and spread a rumor. The question was that if the husband comes and says that the Get was not written Lishmah (or forged), he will be believed in court to contradict the single witness, as Rashi explains (DH d'Iy Matzrechas)! That is why the Gemara says that the husband will "invalidate the Get."
Rashi therefore explains that the Gemara, when it explains the opinion of Rabah, answers that when the witness testifies that the Get was written Lishmah, Beis Din trusts his testimony more than it trusts that of the husband because the Shali'ach is "Meidak Dayik." Although the husband claims that the Get was not written Lishmah, he admits that the Shali'ach was a valid Shali'ach, and thus the Shali'ach has a Chazakah that he is "Meidak Dayik" and his word that the Get was written Lishmah is accepted.
When the Gemara explains the opinion of Rava, however, it cannot suggest that the husband's word would be believed over that of the Shali'ach (since the very purpose of the enactment in the Mishnah is to trust the Shali'ach against the word of the husband). Therefore, the Gemara's question must be that the husband will spread a rumor against the word of a single witness, and the Gemara's answer is that the Shali'ach will take pains to ascertain that the husband is not interested in spreading rumors about the Get, as Rashi explains. The reason why the Gemara uses the term "the husband will come and invalidate the Get" when it discusses Rava's opinion is for consistency ("Agav"); it used the identical term when it discussed Rabah's opinion earlier on the Amud.
Tosfos here, on the other hand, does not explain this way because he follows his own opinion expressed earlier, that even according to Rabah the only concern is that the husband will spread a false rumor; there is no doubt about the actual validity of the Get. Hence, even when the Gemara explains the view of Rabah, it knows that the Shali'ach's word is believed over the husband's, since that was the very purpose of the enactment of the Mishnah. (M. KORNFELD)
2) THE IDENTITY OF THE TANA OF THE MISHNAH
QUESTION: Rabah requires that a Shali'ach who brings a Get from Medinas ha'Yam must say both "b'Fanai Nichtav" and "b'Fanai Nechtam" in order to testify that the Get was both written and signed Lishmah. The Gemara asks who the Tana of the Mishnah is who requires that both the writing (Kesivah) and the signing (Chasimah) of a Get must be Lishmah. Rebbi Meir requires only that the Kesivah be Lishmah, while Rebbi Elazar requires only that the Chasimah be Lishmah.
The Gemara suggests that perhaps the Tana of the Mishnah is Rebbi Elazar, and he requires that the Chasimah be Lishmah mid'Rabanan. The Gemara rejects this answer based on the Mishnah later (86a). The Tana Kama of the Mishnah there teaches that there are three types of Gitin which are invalid but if the woman remarries with one of them and bears a child, the child is not a Mamzer. (The Amora'im (86a) disagree whether the woman may remain married based on such a Get or whether she must get divorced from her second husband. According to everyone, however, the child born from that marriage is not a Mamzer.) Two of those cases are a Get on which no witnesses signed but the Get is handwritten by the husband, and a Get on which only one witness is signed (where the scribe who wrote the Get counts as the second witness). Rebbi Elazar disagrees with the Tana Kama and states that even though no witnesses signed the Get, if the Get was given in front of witnesses the Get is valid. The Gemara infers from there that Rebbi Elazar does not require that the Chasimah be Lishmah even mid'Rabanan (as he does not even require that witnesses sign at all).
RASHI is bothered by the Gemara's proof that Rebbi Elazar accepts l'Chatchilah a Get which has no witnesses signed on it? Perhaps when Rebbi Elazar there says that the Get is "valid," he means that the Get is valid only mid'Oraisa, but mid'Rabanan it must have witnesses signed on it.
Rashi (DH Lo Ba'i, and DH v'Im Nises) explains that Rebbi Elazar must accept l'Chatchilah -- even mid'Rabanan -- a Get without signatures of witnesses, since the Tana Kama agrees that the Get is valid mid'Oraisa, and it is invalid only mid'Rabanan. When Rebbi Elazar argues and says that it is valid, he must mean that it is valid even mid'Rabanan.
REBBI AKIVA EIGER (in Gilyon ha'Shas and in Derush v'Chidush) challenges Rashi's proof. Rashi seems to prove that Rebbi Elazar accepts a Get more readily than the Tana Kama does, because otherwise there is no argument between the two Tana'im. Rebbi Akiva Eiger asks that there is another point of dispute between the Tana Kama and Rebbi Elazar. The Tana Kama accepts (b'Di'eved) only a Get written with the husband's own handwriting, or one with at least one signature of a witness, while Rebbi Elazar accepts a Get even with no witnesses signed on it and when the husband did not write the Get himself! Perhaps Rebbi Elazar agrees with the Tana Kama that a Get without signatures is not valid l'Chatchilah, and their argument is whether a Get with no witnesses is valid b'Di'eved. There is no indication from Rebbi Elazar's words that argues with the Tana Kama in a second regard and accepts a Get with one or no witnesses signed on it even l'Chatchilah.
Rebbi Akiva Eiger asserts, therefore, that this second argument is inferred from Rebbi Elazar's choice of words. He does not say that in the case of a Get without witnesses "the child is Kasher," which are the words the Tana Kama uses, but rather he says only "Kasher," implying that not only is the child Kasher, but that the Get is Kasher as well and may be used l'Chatchilah. This is the only way to prove that Rebbi Elazar argues with the Tana Kama and permits the use of a Get without witnesses l'Chatchilah.
Why, then, does Rashi write that the proof that Rebbi Elazar accepts l'Chatchilah a Get without signatures is that this is his only point of dispute with the Tana Kama? Rashi should prove Rebbi Elazar's view from the fact that Rebbi Elazar uses the word "Kasher," which shows that he argues with the Tana Kama and permits l'Chatchilah the use of a Get with the signature of only one witness. (See RASHASH and Acharonim.)
ANSWER: To understand Rashi's intention, it is necessary to examine what prompts Rashi to emphasize that the fact that Rebbi Elazar argues with the Tana Kama shows that he accepts the Get l'Chatchilah, when it is obvious from the Beraisa that Rebbi Elazar maintains that a woman is permitted to remarry based on a Get with no signatures of witnesses. Rebbi Akiva Eiger apparently understands that the Beraisa itself provides no clear proof because, when Rebbi Elazar says that "a Get without witnesses is Kasher," he might mean that only the child is Kasher. Rashi proves that Rebbi Elazar must mean that the Get is Kasher as well because otherwise he would be in agreement with the Tana Kama. Rebbi Akiva Eiger questions Rashi's proof from the fact that Rebbi Elazar argues with a second point of the Tana Kama and says that no witnesses need to be signed on the Get.
Perhaps Rashi understands that the proof from the Beraisa is unclear for another reason. The Gemara later (86a) asks why the Mishnah does not include a case of "Get Yashan" in its list of Gitin that are valid only b'Di'eved. The Gemara answers that there are different levels of "b'Di'eved" validity. The three Gitin mentioned in the Mishnah quoted here are valid only when the woman has already remarried based on the Get. If she has not yet remarried, she must receive a new Get from her former husband. A Get Yashan, however, is Kasher b'Di'eved as soon as it is given to the woman, and once she has received the Get Yashan she may remarry based on that Get.
What, then, is the proof from this Mishnah that Rebbi Elazar, who argues with the Tana Kama, allows a Get without the signatures of witnesses to be given to a woman l'Chatchilah? Although he says "Kasher" and implies that the Get is Kasher and not just the child, perhaps he means that only once the Get is delivered to the woman may she rely on it, but l'Chatchilah, before it is given, he requires that witnesses sign it! That is why the Shali'ach must say "b'Fanai Nichtav uv'Fanai Nechtam" when he delivers the Get to the woman.
This explains why Rashi does not mention Rebbi Elazar's usage of the word "Kasher" as proof that Rebbi Elazar accepts such a Get l'Chatchilah. What, then, is the Gemara's proof that Rebbi Elazar maintains that a Get without the signatures of witnesses may be given to the woman l'Chatchilah?
Rashi explains that the words of the Tana Kama teach that when anything is wrong with the signatures in the Get, even mid'Rabanan (for example, the Get is written by the husband, or the scribe's handwriting is considered a second witness), the woman may not remarry on the basis of such a Get. She must receive a new Get before she may remarry (in contrast to a Get Yashan, where there is nothing wrong with the signatures). There is no reason to assume that Rebbi Elazar disagrees with the Tana Kama on this point. He argues only that a Get does not need signatures of witnesses altogether. Since Rebbi Elazar allows the woman to get married l'Chatchilah on the basis of a Get without signatures (he says that such a Get is "Kasher," referring to the Get itself and not just to the child), presumably he does not invalidate the Get even l'Chatchilah. If a Get is written without witnesses, it may be given to the woman even l'Chatchilah.
Why does Rebbi Akiva Eiger not understand Rashi in this manner? Perhaps Rebbi Akiva Eiger bases his comments on the words of TOSFOS (DH d'Tenan) who asserts that if the signatures are required only to make the Get valid l'Chatchilah, but b'Di'eved once the Get is given the woman may remarry, then the Shali'ach would not be required to say "b'Fanai Nichtav." (The requirement to say "b'Fanai Nichtav" was not enacted in order to prevent a Pesul l'Chatchilah, a factor which invalidates the Get only l'Chatchilah. It was enacted in order to prevent a Pesul b'Di'eved, a factor which invalidates the Get even b'Di'eved.) Tosfos proves this from the Gemara which says that according to Rebbi Meir, although l'Chatchilah a Get may not be written on an object which is attached to the ground (a law which shows that l'Chatchilah the laws of the signatures (Chasimah) apply to the writing (Kesivah) of the Get as well), nevertheless Rebbi Meir would not require the Shali'ach to say "b'Fanai Nichtav" to testify that the Kesivah was done Lishmah. Accordingly, it would not be necessary for Rashi to prove that Rebbi Elazar accepts a Get without signatures of witnesses even l'Chatchilah. Even if such a Get is not Kasher l'Chatchilah, Rebbi Elazar still would not require the Shali'ach to say "b'Fanai Nichtav" since the Get would be valid as soon as it is handed over.
However, Rashi does not necessarily agree with Tosfos on this point. RASHI (DH Ein Kosvin) seems to give a different explanation for why Rebbi Meir does not require, l'Chatchilah, that a Get be written Lishmah, even though he does require, l'Chatchilah, that the Get not be Mechubar (attached to the ground) when it is written. If the Get is written on an object which is Mechubar, the witnesses might forget to cut it off before they sign it. However, if the scribe writes the Get she'Lo Lishmah, that is no reason to fear that the witnesses will forget and sign it she'Lo Lishmah! (See Tosfos to 4b, end of DH v'Chasmu.) Therefore, Rashi finds it necessary to prove that Rebbi Elazar permits giving a Get to a woman, l'Chatchilah, when it has no signatures. (M. KORNFELD)