1) THE REQUIREMENT TO SAY "B'FANAI NICHTAV" WHEN EVERYONE KNOWS THAT A GET MUST BE WRITTEN "LISHMAH"
QUESTION: The Gemara concludes that according to Rava, the requirement that the Shali'ach who delivers a Get must say "b'Fanai Nichtav uv'Fanai Nechtam" was instituted simply in order to be Mekayem the Get (so that the husband cannot claim that it is forged). According to Rabah, it was instituted in order to be Mekayem the Get and to ensure that it was written Lishmah, since the Chachamim were concerned for the possibility that the Get was not written Lishmah.
The Gemara challenges Rabah's opinion from the Mishnah later (9a) which teaches that if a Shali'ach delivers a Get and loses the ability to speak before he can say "b'Fanai Nichtav," witnesses must be brought to authenticate the signatures in the Get in place of the Shali'ach saying "b'Fanai Nichtav." This implies that saying "b'Fanai Nichtav" serves only to be Mekayem the Get and not to ensure that it was written Lishmah.
The Gemara answers that according to Rabah, that Mishnah was written after the people in Chutz la'Aretz learned that a Get must be written Lishmah, and thus there is no longer any need to prove that the Get was written Lishmah. Since it is no longer necessary to prove that the Get was written Lishmah, Rabah's opinion for why "b'Fanai Nichtav" must be said should be identical to Rava's. The Gemara asks, however, that if Rabah maintains that the Mishnah (9a) was written after the people in Chutz la'Aretz learned that a Get must be written Lishmah, then even when a Shali'ach is able to say "b'Fanai Nichtav" he should not be required to say it; it should be enough to be Mekayem the Get with witnesses. That is the Gemara's question on Rabah.
Why does the Gemara ask this question on Rabah and not on Rava? The same question applies equally to Rava's opinion: A Shali'ach -- even if he can talk -- should never need to say "b'Fanai Nichtav" when he brings a Get from Medinas ha'Yam, and it should suffice to have witnesses be Mekayem it.
The answer is that the Gemara does not ask this question on Rava's opinion for one of two reasons. The first possible reason is that Rava indeed does not require a Shali'ach to say "b'Fanai Nichtav" if witnesses are available to be Mekayem the Get. (On the contrary, "b'Fanai Nichtav" was instituted only to make it easier to be Mekayem the Get by enabling a single person to testify to its authenticity.) This is the approach of TOSFOS (2b, DH Mai Beinaihu). The second possible reason is that the Chachamim required the Shali'ach to say "b'Fanai Nichtav" even when the Get has already been authenticated (Mekuyam) because of "Lo Plug" (that is, they applied their enactment in all situations, even where the reason does not exist, in order to ensure that it is upheld in a situation where the reason does exist). However, in the case of a Shali'ach who suddenly became unable to speak, the enactment does not apply because such a case is a very unusual situation (a "Milsa d'Lo Shechicha"), in which case the Chachamim did not apply the "Lo Plug," as the Gemara concludes. This is the approach of Rashi who disagrees with Tosfos (2b; see Insights there).
However, if these are the reasons why the Gemara does not ask its question on Rava, then the Gemara should give the same answers when it asks this question on Rabah's opinion. The Gemara should answer that Rabah indeed does not require the Shali'ach to say "b'Fanai Nichtav" after the people learned the laws of writing a Get Lishmah, when witnesses are available to be Mekayem it (Tosfos). Alternatively, the Gemara should answer that the Shali'ach still must say "b'Fanai Nichtav" because of the "Lo Plug" (Rashi) even when there are witnesses available to be Mekayem the Get.
What, then, is the Gemara's question on Rabah's opinion?
ANSWERS: TOSFOS (DH Iy Hachi) lists a number of possible approaches to the Gemara's question.
(a) Tosfos and other Rishonim write that RASHI in his original manuscript wrote that this Sugya follows the Havah Amina, the initial assumption of the Gemara, according to which Rabah is concerned only for Lishmah and not for Kiyum of the Get. Accordingly, after the people in Chutz la'Aretz became familiar with the laws of writing a Get Lishmah, "b'Fanai Nichtav" should no longer have been necessary altogether, even for Kiyum. The Gemara answers that the Chachamim instituted that the Shali'ach say "b'Fanai Nichtav" because the people of Chutz la'Aretz might again forget about the laws of Lishmah.
This answer seems problematic. Why should the Gemara attempt to defend the initial assumption if it has already proven that Rabah agrees with the reason of Rava? Moreover, the TOSFOS HA'ROSH asks that if Rabah does not require the Shali'ach to say "b'Fanai Nichtav" in order to be Mekayem the Get, why does the Mishnah say that when a Cheresh delivers a Get, the Get needs witnesses to be Mekayem it? Since Rabah does not require a Shali'ach to be Mekayem the Get when he delivers it to the woman, why does the Mishnah say that when a Cheresh delivers a Get, there is no concern that the Get is not Lishmah, but witnesses are needed to be Mekayem it? It should not be necessary to be Mekayem it altogether!
(Rashi apparently understands that the Mishnah (9a) means that only if the husband challenges the validity of the Get must witnesses be brought to be Mekayem it. This interpretation implies that Rashi maintains that when a Shali'ach does say "b'Fanai Nichtav" -- even though he says it only to prove that the Get was written Lishmah (according to Rabah in the Havah Amina) -- nevertheless his testimony also serves to be Mekayem the Get. Therefore, the Mishnah must say that in the case of a Cheresh, where the Shali'ach did not say "b'Fanai Nichtav," it becomes necessary to be Mekayem the Get with witnesses when the husband challenges the Get. Perhaps Rashi retracted this explanation because he changed his mind about this point and now maintains that "b'Fanai Nichtav" cannot help to be Mekayem the Get according to Rabah in the Havah Amina. The Shali'ach is believed, as a single witness, to testify about the Get only when there is no challenge to the validity of the Get. Alternatively, Rashi means that when a Shali'ach says "b'Fanai Nichtav," the husband is not believed if he later claims that the Get was not written Lishmah (Rashi 3a, DH me'Ikara). In contrast, in the case of a Cheresh who does not say "b'Fanai Nichtav," the husband would be believed (even after the people became learned in the laws of Lishmah) to say that the Get was not written Lishmah but that it was written for someone else with the same name who gave it to him. Although usually there is no concern that a Get was written she'Lo Lishmah after the laws of Lishmah became well known, the husband would be believed with a "Migu" that he could have said that the Get is completely forged. Therefore, the Mishnah says that witnesses must be Mekayem the Get in order to remove the husband's Migu, so that he will not be believed if he claims that the Get was not written Lishmah.)
(b) RABEINU TAM explains that according to Rava, the requirement to say "b'Fanai Nichtav" was instituted as a leniency, in order to avoid the necessity to be Mekayem the Get. Accordingly, every Mishnah which discusses the laws of a Shali'ach who says "b'Fanai Nichtav" refers to cases in which there is no Kiyum and one seeks to avoid having to do Kiyum. In such cases the Shali'ach should say "b'Fanai Nichtav." However, according to Rabah, the Chachamim required that a Shali'ach say "b'Fanai Nichtav" as a stringency, because they suspected that the Get might not have been written Lishmah. Therefore, the first Mishnah of the Perek -- which refers to the time before people learned the laws of Lishmah -- means that even when the Get is already Mekuyam the Shali'ach still must say "b'Fanai Nichtav" because of the stringency which the Chachamim instituted. Accordingly, the Mishnah later (9a), which discusses a Cheresh who delivers a Get, refers to the law of "b'Fanai Nichtav" in the same context, and it is saying that even when there are witnesses to be Mekayem the Get, the Shali'ach still must say "b'Fanai Nichtav." That is why the Gemara asks specifically according to Rabah that "b'Fanai Nichtav" should not be necessary for a Get that is Mekuyam, after the people learned the laws of Lishmah!
This approach is valid only according to the opinion of Tosfos, who maintains that Rava indeed is lenient and does not require that "b'Fanai Nichtav" be said in the case of a Get that is Mekuyam. However, according to Rashi (see Rashi 16b, DH Kasher, and Insights to 2b), Rava is stringent and requires that "b'Fanai Nichtav" be said even in the case of a Get Mekuyam, because of "Lo Plug." Hence, according to Rabah as well, the requirement to say "b'Fanai Nichtav" is a stringency both before and after the people learned the laws of Lishmah, since Kiyum will not suffice because of the "Lo Plug."
(c) The RI suggests that the Gemara's question is based on the assumption that Rabah and Rava have a practical argument and not just a theoretical argument. They are not arguing merely over when "b'Fanai Nichtav" used to be said, but they are arguing about when "b'Fanai Nichtav" must be said even today. When the Gemara asks "Mai Beinaihu" -- what is the practical difference between Rabah and Rava -- it is asking what the practical difference is between them even today, after people have learned the laws of writing a Get Lishmah.
Tosfos proves this assertion by reasoning that if the Mishnah (9a) which discusses a Cheresh refers to after people have learned the laws of Lishmah ("l'Achar she'Lamdu"), presumably all of the other Mishnayos in the Perek refer to "l'Achar she'Lamdu" as well, and yet Rabah and Rava still argue about the reason of the Mishnah for why "b'Fanai Nichtav" is said! The Gemara's question, then, is why does Rabah require "b'Fanai Nichtav" even within a single country in Medinas ha'Yam, after they learned the laws of Lishmah? Since they became expert in the laws of Lishmah, and Kiyum is not necessary because they are in the same country, Rava should have agreed with Rabah that in the same country in Medinas ha'Yam it is not necessary to say "b'Fanai Nichtav"! The Gemara answers that the Chachamim instituted a Gezeirah that "b'Fanai Nichtav" be said lest the situation return to the original state of ignorance ("Gezeirah Shema Yachzor Davar l'Kilkulo"). (The words "Hacha b'Mai Askinan," though, imply that only that Mishnah (on 9a) refers to the time of "l'Achar she'Lamdu.")
(d) TOSFOS suggests a simple approach to the Gemara, which he subsequently rejects. He suggests that the Gemara is not asking why "b'Fanai Nichtav uv'Fanai Nechtam" is necessary and Kiyum does not suffice. Kiyum would suffice (or, according to Rashi, Kiyum would not suffice even according to Rava). Rather, the Gemara is asking why "b'Fanai Nichtav" is necessary. According to Rava, "b'Fanai Nichtav" is necessary in order to prevent people from thinking that a single witness may serve to be Mekayem an ordinary Shtar other than a Get (as the Gemara says on 3a). According to Rabah, on the other hand, people know that this Kiyum is different from the Kiyum of an ordinary Shtar, because they see that saying "Yadanu" does not work for the Kiyum of the Get; the Shali'ach (or Sheluchim, according to Tosfos 3a, DH Hacha; see Maharsha there) must say only the text of "b'Fanai Nichtav uv'Fanai Nechtam," while for the Kiyum of an ordinary Shtar the witnesses may say "Yadanu." Therefore, the Gemara is asking that according to Rabah, when it is no longer necessary to say "b'Fanai Nichtav" because of the concern for Lishmah, it should not be necessary to say it even for the concern of preventing confusion with other Shtaros! The Gemara answers that Rabah requires "b'Fanai Nichtav" only because of the Gezeirah Shema Yachzor Davar l'Kilkulo. Accordingly, the Gemara's question is straightforward.
Tosfos rejects this explanation because he proves from the Gemara later (16b) that even after people learned the laws of Lishmah, Rabah still requires the Shali'ach to say "b'Fanai Nichtav" not only because of Shema Yachzor Davar l'Kilkulo, but even because of the fear that people will confuse this Kiyum with the Kiyum of ordinary Shtaros. (Although the Chachamim would not have instituted "b'Fanai Nichtav" because of that fear alone, once they instituted it for the concern of Lishmah, they intended that it also be said in order to prevent confusion with other Shtaros.)
Tosfos' proof is from the Gemara later (16b) which records a Machlokes Amora'im with regard to whether two people who bring a Get need to say "b'Fanai Nichtav." Tosfos asserts that the Machlokes there applies only according to Rabah's opinion (and l'Achar she'Lamdu). According to Rava, who maintains that the purpose for saying "b'Fanai Nichtav" is to be Mekayem the Get, everyone agrees that two people who bring a Get do not have to say "b'Fanai Nichtav" since they are Mekayem it merely by saying that they are Sheluchim (see Insights to 2b). Rebbi Yochanan (16b) says that when two Sheluchim bring a Get together and one says "b'Fanai Nichtav" and the other says "b'Fanai Nechtam," the Get is valid. The Gemara proves from Rebbi Yochanan's statement that he maintains that two people who bring a Get do not have to say "b'Fanai Nichtav uv'Fanai Nechtam."
How does the Gemara prove from Rebbi Yochanan's statement that he maintains that two Sheluchim do not have to say "b'Fanai Nichtav uv'Fanai Nechtam"? Perhaps Rebbi Yochanan says that the Get is valid only because "b'Fanai Nichtav uv'Fanai Nechtam" was said -- one Shali'ach said "b'Fanai Nichtav" and the other Shali'ach said "b'Fanai Nechtam"! Why does the Gemara assume that the Shali'ach who says "b'Fanai Nechtam" must be the same one who says "b'Fanai Nichtav" if "b'Fanai Nichtav uv'Fanai Nechtam" is required when two Sheluchim bring a Get? If the only reason for saying "b'Fanai Nichtav" (l'Achar she'Lamdu) is the concern for Shema Yachzor Davar l'Kilkulo, then it should suffice for the second Shali'ach to say "b'Fanai Nichtav" and attest that the Kesivah was done Lishmah!
Tosfos (16b, DH Alma) points out that the Gemara there teaches that after people learned the laws of Lishmah, Rabah requires "b'Fanai Nichtav" in order to prevent confusion with the Kiyum of other Shtaros. Therefore, the same Shali'ach who says "b'Fanai Nechtam" must also say "b'Fanai Nichtav," so that people not confuse his Kiyum with the Kiyum of an ordinary Shtar.
Although Tosfos rejects this explanation, perhaps Rashi does explain the Gemara this way. Rashi learns the Gemara later (16b) differently from Tosfos, in such a way that Tosfos' proof from there is not valid. Rashi explains that the Gemara -- which discusses whether two Sheluchim who bring a Get must say "b'Fanai Nichtav uv'Fanai Nechtam" -- follows the opinion of Rava, who is always concerned that people will confuse the Kiyum of a Get with the Kiyum of other Shtaros. That is why the Shali'ach who says "b'Fanai Nechtam" is also required to say "b'Fanai Nichtav." Accordingly, the Gemara here -- which is discussing the opinion of Rabah who is not concerned that people will confuse this Kiyum with the Kiyum of other Shtaros (because "Yadanu" does not work for a Get) -- is justified in saying that "b'Fanai Nichtav" is necessary l'Achar she'Lamdu only because of the Gezeirah of Shema Yachzor Davar l'Kilkulo.
How, though, does Rashi explain the Gemara there (16b) according to Rava? Why should two Sheluchim need to say "b'Fanai Nichtav uv'Fanai Nechtam" according to Rava? Since the entire purpose for saying "b'Fanai Nichtav uv'Fanai Nechtam" is for Kiyum, it should be clear that when two Sheluchim bring a Get no further Kiyum is necessary (as the Gemara says on 2b).
Rashi (16b, DH Kasher) answers this question by suggesting that according to the opinion that Rava requires two Sheluchim to say "b'Fanai Nichtav uv'Fanai Nechtam," the reason is "Lo Plug."
This view of Rashi -- that Rava requires that "b'Fanai Nichtav uv'Fanai Nechtam" be said even when the Get is already Mekuyam because of "Lo Plug" -- answers the question of Tosfos earlier (4b, DH Rabah). Tosfos asks why Rabah requires "b'Fanai Nichtav" when a Shali'ach brings a Get from one township to another within Eretz Yisrael; there should be no concern for Lishmah and no concern for confusing the Kiyum with other Shtaros (since Rabah maintains that there is no concern for this, as the Gemara says on 3a). (Tosfos' answer there is consistent with his opinion here.) Rashi might answer that Rabah requires "b'Fanai Nichtav" when one brings a Get from township to township because of "Lo Plug."
This also explains why Rashi rejects the explanation of Tosfos earlier (3a). The Gemara there says that according to Rava, two Sheluchim who bring a Get may say "Yadanu" in place of "b'Fanai Nichtav uv'Fanai Nechtam." Tosfos explains that the Gemara refers to a pair of Sheluchim who bring a Get together (Tosfos 3a, DH Hacha and DH Atu; 5a, DH Bei Trei). That is why the Gemara writes "Yad'inan" (in the plural form) and not "Yadana" (or "Yadati," in the singular form). Rashi, however, explains that the Gemara does not intend to limit the Halachah to two Sheluchim, but even a single Shali'ach who brings a Get (according to Rava) may say "Yadati" in place of "b'Fanai Nechtam." Why does Rashi not explain the Gemara literally? Moreover, as Tosfos points out, according to Rashi's explanation all of the Mishnayos which discuss a Shali'ach who says "b'Fanai Nechtam" are Lav Davka, because if he wants he could say "Yadati" instead! The answer is that Rashi is consistent with his own view, that according to one opinion (on 16b) whatever wording is required of a single Shali'ach is required of two Sheluchim as well because of "Lo Plug." Therefore, if a single Shali'ach may not say "Yadati," two Sheluchim also may not say "Yadanu" because of "Lo Plug." It must be that Rava maintains that even a single Shali'ach may say "Yadati."

5b----------------------------------------5b

2) WITNESSES WHO TESTIFY FROM THE MOUTH OF OTHER WITNESSES
QUESTION: The Gemara cites a Machlokes Amora'im with regard to whether the Shali'ach must hand over the Get to the woman in front of two people or three people. The Gemara first suggests that the Machlokes revolves around the reason for why the Shali'ach says "b'Fanai Nichtav": if he says "b'Fanai Nichtav" in order to be Mekayem the Get (like Rava), then he must say it in front of three people who qualify as a Beis Din, since the testimony of Kiyum must be done in front of a Beis Din. If the reason for saying "b'Fanai Nichtav" is in order to ensure that the Get was written Lishmah (like Rabah), then it suffices to say it in front of two witnesses and it is not necessary to say it in front of a Beis Din. It suffices to have two witnesses who hear the Shali'ach say that the Get was written Lishmah.
Why should it suffice to say "b'Fanai Nichtav" in front of two witnesses, even if the reason for saying "b'Fanai Nichtav" is to prove that the Get was written Lishmah? There is a rule that any testimony must be presented directly in front of a Beis Din. If it is presented in front of another pair of witnesses, the second pair of witnesses may not testify in front of a Beis Din what they heard from the first pair of witnesses, because "Ed mi'Pi Ed" is not a valid form of testimony! The Shali'ach should have to hand over the Get in front of a Beis Din of three people, even if the reason for saying "b'Fanai Nichtav" is to testify that the Get was written Lishmah, so that the Beis Din will hear the testimony directly from him! (PNEI YEHOSHUA)
ANSWERS: The Rishonim discuss this question and suggest two different approaches.
(a) RABEINU KRESKAS explains that the rule that "Ed mi'Pi Ed" is not a valid form of testimony applies only where the testimony of two valid witnesses is required, such as in cases of Dinei Mamonos (monetary matters) and Davar sheb'Ervah. However, when the testimony of a single witness is sufficient (such as in cases of Isurim), where even a woman is able to testify, even "Ed mi'Pi Ed" is accepted (Bechoros 36a). Although the testimony concerning the validity of the Get is actually considered a Davar sheb'Ervah and should require two witnesses, the Chachamim were lenient with regard to the testimony of Lishmah, which is required in the first place only mid'Rabanan, and they ruled that the testimony of the single Shali'ach suffices. This means that the Chachamim gave the testimony of Lishmah a status of testimony for Isurim, and not a status of Davar sheb'Ervah. Therefore, "Ed mi'Pi Ed" would also be valid testimony for Lishmah, and the Shali'ach may hand over the Get in front of any two witnesses. (The reason the Shali'ach is required to be "Meidak Dayik" (3a) is only to prevent the husband from challenging the Get later, and it is not in order to validate the testimony of the Shali'ach.) The Pnei Yehoshua gives the same answer.
(b) The ME'IRI cites the "Chochmei ha'Har" who answer that when witnesses tell the court that they saw the Shali'ach say "b'Fanai Nichtav," it is not considered "Ed mi'Pi Ed." Rather, it is considered an original testimony. When the Shali'ach says "b'Fanai Nichtav," he is not doing so as a witness giving testimony. Rather, he is considered a Ba'al Davar, a participant in the procedure of the divorce, whose actions can prove that the Get was written Lishmah. Thus, when the two witnesses testify that they saw him say "b'Fanai Nichtav," they are testifying to part of the procedure of the divorce, and they are not testifying about what another witness said.
(It appears, according to the Chochmei ha'Har, that the Shali'ach is believed only because he is "Meidak Dayek," since, otherwise, a single witness would not be believed in a case of divorce. The proof that it was written Lishmah, therefore, is not from the words of the Shali'ach alone, but rather from the circumstances that surround his delivery of the Get. There is an "Umdena" that the Shali'ach is "Meidak Dayek" and would not falsify such testimony. That is why what he says is not considered testimony, or "Edus.")

OTHER D.A.F. RESOURCES
ON THIS DAF