GITIN 18 (19 Teves) - Dedicated in memory of Hagaon Rav Yisrael Avraham Abba ben Harav Chaim Binyamin Ze'ev Krieger ZT"L, author of Yad Yisrael (on Rambam) and many other Sefarim. Dedicated by his granddaughter and her husband, Mr. and Mrs. Avi and Lily Berger, of Queens, New York.
1) WAITING THREE MONTHS FROM THE TIME THE GET WAS WRITTEN
QUESTION: Rav and Shmuel disagree about how to count the three months of "Havchanah." "Havchanah" refers to the requirement for a divorced (or widowed) woman to wait three months before she remarries. The reason why she may not remarry before three months have passed is that she might be pregnant from her former husband, and if she marries before three months have passed the identity of the father of the child will be in doubt.
Rav maintains that the three-month period is counted from the day on which the Get is given, and Shmuel maintains that it is counted from the day on which the Get is written.
The Gemara points out that according to Shmuel, if the Get was written a month before it was given, the woman must wait only two months from the time it was given before she may remarry. According to Rav, she must wait three months from the time it was given.
Apparently, Shmuel's ruling is the lenient one. Shmuel maintains that as long as the Get was written, there is no concern that the woman became pregnant. Is there any case in which Shmuel's opinion manifests itself as a stringency?
ANSWER: RAV ELCHANAN WASSERMAN Hy'd (quoted in OHALEI YITZCHAK) points out that Shmuel's ruling may also lead to a stringency. The Gemara earlier teaches that when an unspecific, general date is written in a Get (such as the year alone), the Get is valid. However, for purposes of "Havchanah" such a date causes a problem according to Shmuel. The date written in the Get represents a range from the beginning of the year until the end of the year. According to Shmuel, in such a case the woman must wait three months from the latest day on which the Get might have been written, which is the last day of the date range. In contrast, according to Rav she counts three months from the day on which the Get was given. In this case, Shmuel's ruling is the stringent one.
2) WHEN DOES THE SHEMITAH YEAR CANCEL THE DEBT OF A KESUVAH?
QUESTION: The Gemara discusses what must be done in order for the Shemitah year to cancel a man's obligation to pay the Kesuvah. Rav maintains that once the woman has collected part of the Kesuvah ("Pegimah") and established the remainder as a debt owed to her ("Zekifah"), the Shemitah year cancels the debt and he need not pay the rest. Shmuel maintains that as long as she merely collected part of the Kesuvah (without establishing the rest as a debt) or she made the entire Kesuvah a debt (and did not collect any part of it), the Shemitah year cancels the debt.
RASHI (DH mishe'Tifgom) explains how "Pegimah" works to give a Kesuvah the status of an ordinary debt. When a man and woman are married, her Kesuvah is not standing for collection, and thus it is not considered a debt which Shemitah can cancel. When a Kesuvah is paid in part, it becomes evident that the Kesuvah is standing for collection, and thus it is considered a debt which Shemitah can cancel.
Rashi (DH v'Tizkof) gives another reason for why a Kesuvah does not have the status of an ordinary debt. A Kesuvah is a "Ma'aseh Beis Din," a legal agreement established by Beis Din which is not subject to cancellation by Shemitah because it is considered as though it has been collected already.
According to Rashi's second explanation, how does "Zekifah," establishing the Kesuvah as a debt, alter the Kesuvah's status as a "Ma'aseh Beis Din" such that Shemitah cancels it? How does accepting upon oneself the Kesuvah as a debt remove the stronger obligation of "Ma'aseh Beis Din"?
ANSWER: RAV ELYA MOSHKOVSKY answers that this is exactly the function of "Zekifah." When one accepts upon himself a new obligation to pay an old one, it is as though he "pays back" the old obligation with the new one. Accordingly, the Ma'aseh Beis Din has been paid back already with the acceptance of the new obligation. Since the new obligation is not a "Ma'aseh Beis Din," Shemitah cancels it. (Mordechai Zvi Dicker)
3) A GET SIGNED DAYS AFTER IT WAS WRITTEN
QUESTION: The Mishnah (17a) states that a Get written during the day and signed at night is invalid (according to the Chachamim). Reish Lakish explains that the Get is invalid because of the concern for Peros; since the husband loses his right to the Peros of the woman's property only from the moment the Get is signed ("Chasimah"), and the date written in the Get is the date on which the Get was written ("Kesivah"), the woman might collect unlawfully from buyers who bought the Peros from the husband between the writing and the giving of the Get. Rebbi Shimon argues and maintains that such a Get is valid, because he maintains that the husband loses his right to the Peros from the time the Get is written. Accordingly, the woman rightfully may collect the Peros from buyers who purchased the Peros from the husband between the writing and the giving of the Get.
The Gemara explains that according to Reish Lakish, Rebbi Shimon agrees with the Chachamim in a case in which the writing and signing of the Get were done days apart. In such a case, the Get is invalid because of "Shema Piyes." RASHI explains that if the signing of the Get was delayed for so long, the husband might have appeased her in the interim and by having relations with her he will render the Get a Get Yashan.
The RASHBA challenges Rashi's explanation. If Rebbi Shimon agrees with the Chachamim in a case in which the writing and signing were separated by several days, presumably the reason why the Get is invalid is the same reason why the Chachamim invalidate a Get written during the day and signed at night. Since the Chachamim invalidate the Get in that case because of Peros, Rebbi Shimon also invalidates the Get, signed several days after it was written, because of Peros. Why does Rashi give an entirely different explanation?
Moreover, according to Rashi's explanation, Rebbi Shimon agrees with the Chachamim in this case that the Get is entirely invalid because it is considered a Get Yashan. However, a Get Yashan is invalid only l'Chatchilah, but b'Di'eved a woman may remarry based on a Get Yashan!
The Rashba rejects Rashi's explanation and writes instead that the reason why Rebbi Shimon agrees that the Get is invalid when several days separate between its writing and its giving is that perhaps in the interim the husband annulled the Get, and then he annulled the annulment. In such a case the Get cannot remove the right from the husband to the Peros of the wife's property from the time of its writing. Only when the writing is followed immediately by the giving does the writing of the Get remove the husband's right to the Peros.
How will Rashi answer the questions of the Rashba?
ANSWER: RAV SHABSI YAGEL points out that Rashi actually may mean to say the same thing as the Rashba. Rashi understands that Rebbi Shimon invalidates the Get because of the concern for Peros, but he maintains that Bitul of the Get is not the reason why Rebbi Shimon agrees in this case that the husband does not lose the right to the Peros from the time of the Get's writing. As long as the Get was given eventually, the husband lost the right to the Peros from the time of the writing.
Rashi writes that Rebbi Shimon agrees in this case because the Get became a Get Yashan. A Get Yashan is unable to remove the husband's right to the Peros, because one is not supposed to use such a Get. A Get which one is not supposed to use does not have the power to remove the husband's right to the Peros at the time of its writing. It removes his right to the Peros only when it is actually given. According to Rashi's understanding of Rebbi Shimon, the concern that the Get is a Get Yashan indeed invalidates the Get even b'Di'eved with regard to removing the husband's right to the Peros. (Mordechai Zvi Dicker)