GITIN 22 (23 Teves) - Dedicated l'Zecher Nishmas Nachum (Nathan) ben Shlomo Dovid Mosenkis, whose was Niftar on 23 Teves 5700, by his son Shlomo Dovid (Sid) Mosenkis.
1) A GET WRITTEN ON ERASABLE PAPER
QUESTIONS: The Tana Kama of the Mishnah (21b) states that one may not write a Get on erasable paper ("Neyar Machuk," or paper from which words have already been erased), or on any other item from which the writing may easily be erased with no evidence of any erasure. The Chachamim disagree and permit such a Get. The Gemara explains that the dispute in the Mishnah is based on the familiar dispute between Rebbi Meir and Rebbi Elazar about which set of witnesses on a Get is the primary set which makes the Get effective. The Tana Kama follows the view of Rebbi Meir who rules that the Edei Chasimah, the witnesses who sign the Get, make the Get take effect, and therefore a Get written on erasable paper is Pasul. The Chachamim, who permit such a Get, follow the view of Rebbi Elazar who rules that the main witnesses are the Edei Mesirah, those who see the Get being given over.
How, though, does the dispute between Rebbi Meir and Rebbi Elazar apply to the Halachah of the Mishnah?
RASHI explains that according to Rebbi Elazar, every Get must have Edei Mesirah, and any woman who wants to remarry based on a Get she received from her previous husband must bring the Edei Mesirah to prove that it is a valid Get. Since the Edei Mesirah read the Get at the time it was given, the woman will not be able to alter what was written in the Get without the witnesses noticing the change. In contrast, according to Rebbi Meir, when a woman wants to remarry, she validates her Get through authenticating the signatures of the Edei Chasimah (either by comparing the signatures with the same signatures on other documents, or by bringing witnesses who recognize the signatures, without necessarily bringing the signatories themselves). Hence, according to Rebbi Meir, a Get written on erasable paper is not acceptable because the woman might erase a conditional clause in the Get and leave the signatures of the Edei Chasimah in place.
Rashi's explanation is difficult to understand for a number of reasons.
(a) Why does Rashi write that according to Rebbi Elazar, a woman may not remarry unless she brings the Edei Mesirah? The Mishnah later (86a, cited by the Gemara on 3b) states that according to Rebbi Elazar witnesses sign the Get "because of Tikun ha'Olam." The Gemara (36a) explains that this means that the Rabanan instituted that Edei Chasimah sign a Get so that in the event that the Edei Mesirah die or move abroad and are unavailable, the woman will be able to remarry based on the Edei Chasimah. Hence, even according to Rebbi Elazar a woman is permitted to be Mekayem the Get through the Edei Chasimah!
TOSFOS (22a, DH Man) explains that Rashi must mean that when a Get is written on erasable paper and is able to be forged, Rebbi Elazar will require Edei Mesirah (because she must bring witnesses who actually read the Get, in order to prove that she did not erase anything in it), but not in the case of a normal Get.
However, this does not seem to be what Rashi means. Rashi says that "according to the opinion who maintains Edei Mesirah [Kartei]," when the woman wants to remarry [with such a Get] she must bring the Edei Mesirah. The same requirement, however, should apply according to the opinion that Edei Chasimah Kartei -- she should not be permitted to remarry without bringing the Edei Mesirah (if there were any) or the actual Edei Chasimah who read the Get! Moreover, according to Rashi, why does Rebbi Meir prohibit such a Get more than Rebbi Elazar? Just as Rebbi Elazar permits it by requiring personal testimony about the contents of the Get, Rebbi Meir should permit it by requiring personal testimony about the contents of the Get, by bringing the Edei Chasimah themselves. (TIFERES YAKOV, TORAS GITIN EH 124:2, DIBROS MOSHE)
It seems, therefore, that Rashi means that Rebbi Elazar always requires the woman to bring Edei Mesirah in order to remarry. It is assumed that a Get written on erasable paper will be treated like any other Get, and thus Rebbi Elazar is not concerned that the woman will erase something (since she must bring Edei Mesirah). Rebbi Meir, however, invalidates the Get, lest the Beis Din accept the normal manner of Kiyum for the Get -- without the testimony of the Edei Chasimah themselves. However, as mentioned above, this seems to contradict the Mishnah (86a) which says that Rebbi Elazar permits the Kiyum of the Get through the Edei Chasimah.
(b) Rashi explains that the reason why such a Get is Pasul according to Rebbi Meir is that the woman might erase a conditional clause (a Tenai) that was written in the Get. Rashi writes the same thing elsewhere as well (such as on the Mishnah, 21b, DH Neyar Machuk, and on 20b, DH l'Hizdayef, in the case of a Get written on the hand of an Eved, which is also an erasable item).
Why is Rashi concerned only that the woman will erase a clause in the Get? Perhaps a woman or her husband will lose the Get, and another woman will find it and erase all of the details in it and write in her own details instead. (See the Gemara on 24b which presents such a concern when two couples in the same city have the same names.)
In fact, if the Rabanan would permit a Get written on erasable paper, how can Beis Din ever know that the witnesses who signed it actually signed a Get in the first place? Perhaps they signed another type of Shtar, such as a Shtar Milveh (loan) or a Shtar Mechirah (sale) which someone gave to this woman, and she erased the entire Shtar and wrote a Get in its place! Rashi should say that Rebbi Meir prohibits a Get written on erasable paper because the woman might erase an entire Shtar, and not just because she might erase a single clause in the Get! (In fact, when the BARTENURA explains the Mishnah, he says that she might erase the Get "and write what she wants," i.e. she might rewrite the Get with the names she wishes.)
(c) The Mishnah (2a) teaches that when a woman presents a Get in Eretz Yisrael, Beis Din does not doubt the authenticity of the Get unless the husband challenges it. (See Tosfos 2a, beginning of DH v'Im Yesh, who writes that this Takanah d'Rabanan was enacted because of Agunos.) It is clear that this Halachah applies even according to Rebbi Elazar (since Rebbi Elazar also requires "b'Fanai Nichtav" everywhere outside of Eretz Yisrael).
Why, then, does Rebbi Elazar permit a Get written on erasable paper? Perhaps the woman will erase a clause in the Get and then remarry based on the Get without bringing Edei Mesirah, because her husband did not contest the Get (since he did not know that she altered it)!
(a) The DIBROS MOSHE explains that Rashi maintains that according to Rebbi Elazar, even after the Takanah was enacted that witnesses sign the Get, the Rabanan still require, l'Chatchilah, that the Edei Mesirah themselves be Mekayem the Get. It is only after the Edei Mesirah have died (or are unavailable for other reasons) that Beis Din accepts the Edei Chasimah to be Mekayem the Get.
Still, however, why does Rebbi Elazar accept a Get written on erasable paper? Perhaps the woman will wait for the Edei Mesirah to die, and then erase a clause in the Get, and the Beis Din will be Mekayem the Get through recognition of the signatures without bringing in the Edei Chasimah themselves to testify!
Perhaps under such circumstances, when the Edei Mesirah die Beis Din will not accept a Get written on erasable paper (without witnesses who saw the original Get). This might be what Tosfos means when he says that Rashi requires only the testimony of the Edei Mesirah when the Get is written on erasable paper; in the case of a normal Get, the Edei Chasimah are used to validate the Get if the Edei Mesirah have died. According to Rebbi Meir, Beis Din does not rely on forcing the woman to bring the Edei Mesirah or Edei Chasimah themselves to validate a Get written on erasable paper, since Rebbi Meir never requires her to bring the witnesses themselves in the case of a normal Get, and one might confuse this Get with a normal Get. According to Rebbi Elazar, however, a normal Get requires that the woman bring the Edei Mesirah themselves, like a Get written on erasable paper. The only difference between the two is when the Edei Mesirah have died; since that is a relatively unusual case, Rebbi Elazar maintains that there is no Gezeirah lest one confuse a Get written on erasable paper where the Edei Mesirah died with a normal Get. (M. KORNFELD)
(b) Perhaps there is no concern that a Get written on erasable paper was once a Shtar Milveh or a Shtar Mechirah that was erased and rewritten, because a normal Shtar may not be written on erasable paper. No Shtar would be written on erasable paper with the signatures of witnesses other than a Get. (Although TOSFOS on 22a, DH Lo, and other Rishonim cite the Gemara in Bava Basra (164a) which permits collecting money with a Shtar written on erasable paper since there is a noticeable difference between paper that has been erased once and paper that has been erased twice, Rashi here clearly argues. Rashi writes that if the woman erases a clause it will not be recognizable that anything was erased. Perhaps Rashi understands that the "Neyar Machuk" of the Mishnah is a different type of erasable paper on which it cannot be discerned whether or not the contents have been erased a second time (for example, the writing on the paper was erased already multiple times, such that one cannot tell the difference between the third and fourth times). On such a paper, one may not write any Shtar other than a Get. As the Acharonim point out, Rashi may explain the way he does in order to avoid the questions which REBBI AKIVA EIGER (in the Mishnayos) raises on Tosfos' explanation.)
The reason why there is no concern that the Get was written for somebody else, lost, and then found by this woman who then erased it and wrote what she wanted, might be that it was written on paper that was clearly her husband's (such as his stationery), similar to the erasable Get written on the hand of the husband's Eved (on 20b), which clearly came from the husband. (If he has more than one wife, she would have to bring testimony that this document was indeed given to her and not to her co-wife.)
Therefore, the only concern is that although the Get was given to this wife, perhaps she erased a clause that was written in it.
(c) Although the woman does not need to bring Edei Mesirah to validate the Get before the husband challenges its authenticity, there is no concern that she will erase a clause in the Get and get married before the husband challenges the Get because she will be afraid that the husband will later challenge the Get and successfully invalidate it, thereby making her forbidden to both men and rendering her children from the second marriage Mamzerim. (M. KORNFELD)