1) APPOINTING AGENTS TO WRITE A GET AFTER TWELVE MONTHS
QUESTION: The Mishnah (76b) teaches that if a man tells two people to write and give a Get to his wife if he does not return within twelve months, and they write it before twelve months have passed and give it after twelve months have passed, Rebbi Yosi rules the Get is valid. The Gemara first suggests that Rebbi Yosi's reasoning is that if the husband makes a condition with regard to when the Get should be written, the Get is valid even if the condition is not fulfilled.
What is the basis for the Gemara's suggestion? It is obvious that a person may make a condition in any appointment of a Shali'ach. Why should he not be able to make a condition in the appointment of a Shali'ach to write a Get?
(a) The RITVA and RABEINU KRESKAS write that the Gemara assumes that according to Rebbi Yosi, the husband probably does not care when the Get will be written, as long as it will not be given until twelve months pass. The reason why the husband mentions that they should write the Get after twelve months is to ensure that it not be given until twelve months have passed. His main interest is only that the Get be delivered after twelve months.
Accordingly, Rebbi Yosi would agree that if a man specifies to his agents that they not write the Get until after twelve months have passed (without mentioning the delivery of the Get), the Get may not be written until the specified time.
(b) REBBI AKIVA EIGER and the TAL TORAH suggest another explanation. The Gemara in Kesuvos (74a) teaches that any act which cannot be done through a Shali'ach cannot be made dependent on a Tenai. The Gemara assumes at first that Rebbi Yosi follows his opinion as expressed earlier (66b) that "Mili Lo Memseran l'Shali'ach" -- the man cannot appoint a Shali'ach to tell a scribe to write a Get. Although a Get cannot be written unless the husband commands the scribe to write it (see TOSFOS to 22b, DH v'Ha), telling a scribe to write a Get cannot be done through a Shali'ach, and therefore it cannot be done with a Tenai. Consequently, the scribe should be allowed to write the Get regardless of the Tenai.
Why, then, does the Gemara indeed reject this suggestion? Why may the husband make a Tenai in his appointment of the scribe to write the Get? The Tal Torah explains that commanding the scribe to write the Get is a way of appointing him as a Shali'ach. The rules of the appointment of a Shali'ach are different, and as long as the husband who appoints the Shali'ach does not want the scribe to be a Shali'ach, the scribe cannot write the Get. The normal laws of Tenai do not apply. The source for this is the RAN and RASHBA (Gitin 75b), cited by the AVNEI MILU'IM (38:2), who write that a Shali'ach cannot do anything contrary to what he was appointed to do even when the rules of Tenai do not apply. The logic is that he was appointed as a Shali'ach only to perform the will of the Meshale'ach, and he has no right to do something that the sender would not want him to do.
2) A WOMAN WHO TRANSFERS A GET INTO HER DOMAIN
QUESTIONS: The Gemara relates that a man was very ill and wanted to divorce his wife so that she not need to perform Yibum or Chalitzah. He wrote a Get for her on Erev Shabbos but did not have time to give it to her before Shabbos arrived. On Shabbos, his health deteriorated and he wanted to divorce his wife right away in fear that he would die. Rava ruled that in order to divorce his wife without having to move the Get, which has a status of Muktzah, the man must do the following: He must be Makneh to her the piece of land upon which the Get is resting, and then the woman should close and open the door to that room in order to acquire the property through Chazakah. Once she has acquired the property, she acquires the Get as well.
The laws of Get require that the husband give the Get directly to the woman; he may not leave it on the ground and tell her to pick it up ("Teli Gitech m'Al Gabei Karka"), because it must be his act which gives her the Get. This requirement is derived from the verse, "v'Nasan b'Yadah" (Devarim 24:1), as the Gemara teaches (78a). Why, then, may the dying man tell his wife to make a Chazakah on the property and thereby acquire the Get for herself? The woman is actively taking the Get, while the man is not actively giving it to her!
ANSWER: TOSFOS (77b, DH v'Teizil) answers that since the Get came from the property of the husband directly into the property of the wife (through the Chazakah of the woman), it is considered as though he gave it to her directly.
The answer of Tosfos is unclear. In a case where the Get is resting in the husband's property and he tells the wife to pick it up ("Teli Gitech m'Al Gabei Karka"), the Get comes directly from his property into her domain, and yet the Get is invalid because she did the action and not he. Why is this case different?
If Tosfos means that the Get of the dying man is valid because the Chazakah that his wife performed would not acquire the Get for her if not for the husband's consent, and therefore it is considered as though he is the one who is effecting the transfer of the Get, then Tosfos' words are even more problematic. Every time the wife picks up a Get upon the husband's command, she acquires the Get only if the husband agrees, and yet the Get is not valid because she performed the act of picking it up! It is clear that it does not suffice for the husband to provide the permission for her to acquire the Get; he must physically transfer the Get into her possession. Why, then, should the permission of the dying man suffice? He should be required to physically transfer the Get into his wife's possession.
The Acharonim answer that Tosfos means as follows. The husband indeed must perform the physical act of transferring the Get into his wife's hand, and if she does that act without him the Get is not valid. However, when the woman performs a Kinyan Chazakah, she is not physically transferring the Get into her domain since she does not touch the Get at all. Rather, it is the property of the husband which performs the physical transfer of the Get into the property of the wife. This is comparable to a Shali'ach of the husband handing over the Get to a Shali'ach of the wife (the land of each being like the Shali'ach of each). Therefore, the Get is valid.
In contrast, if the woman herself lifts up the Get from the property of the husband, it is she who effects the physical transfer, and thus the Get is not valid. (CHASAM SOFER)
Another way of explaining the answer of Tosfos is that in the case of the dying man, it is indeed the intention of the husband which causes the transfer of the Get into the domain of the wife, since he agrees to give over his Chatzer to her. Therefore, it is considered as though he is making the transfer, and he fulfills the requirement of "v'Nasan b'Yadah." Why, though, does the same logic not apply in the case of a woman who picks up a Get, with her husband's permission, that is resting in the husband's Chatzer? Since she can acquire it only with his permission, he should be considered the one to be giving it to her.
The answer is that when she picks up the Get, his permission does not put it in her hand. Even had he not given her permission, when she bends down and picks it up the Get is physically in her hand without his permission. His permission in that case does not accomplish "v'Nasan b'Yadah" because "v'Nasan b'Yadah" means that he must physically place the Get into her hands. In the case of the dying man, however, the wife never physically takes hold of the Get. It simply enters her Chatzer. Had the husband not given permission to the wife to acquire the Chatzer with Chazakah, the Get would physically be resting on the property of the husband and not on the wife's property. It is the husband's permission, therefore, which physically places the Get into the wife's property, and that is why his permission in this case is considered "v'Nasan b'Yadah." (See SHI'UREI RAV SHIMON SHKOP, Gitin #4, DH v'la'Aniyus Da'ati.)
3) ACQUIRING A GET BY ACQUIRING THE LAND UNDERNEATH IT
QUESTIONS: Rava ruled that a man who was very ill and wanted to divorce his wife could do so on Shabbos by transferring to her the land on which the Get was resting. The woman should then close and open the door to that room in order to acquire the property through Chazakah, and once she has done that and acquired the property, she will have acquired the Get as well. (See previous Insight.)
RASHI (DH Harei Zu Chazakah) explains that when she makes a Chazakah on the Chatzer in which the Get is resting, she acquires the Get with "Kinyan Agav."
The Rishonim question Rashi's explanation. Why does Rashi explain that the woman acquires the Get with Kinyan Agav? He should explain that once the land becomes her, she is Konah the Get with Kinyan Chatzer!
It is clear that a woman may acquire a Get which is resting in a Chatzer through Kinyan Chatzer by making a Kinyan on the land, as Rashi himself writes earlier (21a, DH Kena'as'hu). The Gemara there explains that when the husband places a Get in his Eved's hands and is then Makneh the Eved to his wife, his wife immediately becomes divorced since she acquires the Get in the hands of the Eved through Kinyan Chatzer. (The Gemara adds that the Eved must be tied up so that he not be a "walking Chatzer.")
Why does Rashi here find it necessary to explain that the wife acquires the Get through Kinyan Agav?
Moreover, if the wife acquires the Get through Kinyan Agav, why did Rava rule that the husband should give her the property upon which the Get is resting? The Halachah is that in order to acquire an item with Kinyan Agav, it is not necessary for the item to be resting on the land ("Tzivurin"). When the recipient takes possession of the land he automatically receives the Metaltelin wherever they are (Kidushin 27a). It must be that Rava required specifically a Kinyan Chatzer, and that is why he insisted that the husband should give to his wife the land underneath the Get; a Kinyan Agav would not suffice for the delivery of the Get because the Torah requires "v'Nasan b'Yadah" (Devarim 24:1), which means that the Get must be given directly to the woman's hand or Chatzer. Why, then, does Rashi explain that the Kinyan of the Get in this case is accomplished though a Kinyan Agav? (RAMBAN and other Rishonim)
(a) The DIVREI EMES (cited by the ACHIEZER 1:33:4, as cited by SHI'UREI RAV SHMUEL ROZOVSKY #239) explains that Rashi perhaps follows the view of the ITUR who rules that one who lends property cannot be Makneh an object to the borrower by placing it on the borrowed property (even though the borrower can acquire from other people by having them place the object on the borrowed property).
Rashi learns that the dying husband only lent to his wife the property underneath the Get, and he did not give it to her as a gift (as the RI here says, cited by TOSFOS DH Mah). Therefore, the husband would not be able to be Makneh the Get to his wife with Kinyan Chatzer, but rather he needs to use Kinyan Agav. (See Shi'urei Rav Shmuel Rozovsky for another approach to this question.)
In response to the second question (why Rashi requires "Tzivurin" for Kinyan Agav to take effect here), the KETZOS HA'CHOSHEN (202:4) suggests that when one gives a Get, the Get must be resting on the property which is Koneh it through Agav, because if the Get is not there but is in the husband's property, it would be comparable to the case of a husband who gives to his wife a Get to which a string is attached, and he holds in his hand the second end of the string, which the Gemara (78b) says is not valid since it is not called "Kerisus" (Devarim 24:1), complete severance from the husband. If the Get is resting in the property of the husband, it is also not called "Kerisus."
What do the other Rishonim, who assert that a Kinyan Agav would work for a Get even without "Tzivurin," maintain? The KEHILOS YAKOV (Gitin #16) explains that they maintain that there is no lack of "Kerisus" unless the husband is physically holding the string that is attached to the Get, and he can pull the Get out of her hands with that string. If, however, the Get is merely resting in his property, it is still considered "Kerisus."
(b) The PNEI YEHOSHUA suggests that according to Rashi, a Kinyan Chatzer would not suffice to acquire the Get for the woman since such a Kinyan would be comparable to a case of "Teli Gitech m'Al Gabei Karka" ("take your Get from upon the land") which is invalid. The husband must give the Get to his wife and she cannot take it by herself. A Kinyan Chatzer can acquire the Get for the woman only after the property is already in her possession. At that point, however, the Get no longer is resting in the property of the husband, and thus it is not considered as though he is giving it to her. In contrast, a Kinyan Agav takes effect on the property and on the Get at the same time; thus, the Get leaves the property of the husband and goes into the property of the wife at the moment of the Kinyan Agav. The fact that the wife acquires the Get through the Kinyan Chazakah that she makes does not make it "Teli Gitech," as explained in the previous Insight.
How, though, does this explanation reconcile the Gemara earlier (21a) which says that a woman may acquire a Get in the hands of an Eved through Kinyan Chatzer? The CHASAM SOFER explains that the Gemara there rules like Rava's conclusion, that "Gitah v'Chatzerah Ba'in k'Echad" (she acquires the Chatzer and the Get simultaneously), as Rashi there writes. The Gemara here at this stage, however, does not consider the logic of "Gitah v'Chatzerah Ba'in k'Echad." Rather, the Gemara thought that the wife of the dying man was an Arusah, and that the Kinyan of the Chatzer came first and afterwards the wife acquired the Get. Since the wife's Kinyan came only after she acquired the Chatzer, it is not considered as though the husband gave the Get directly to her and the Get is not valid.
Once the Gemara concludes that "Gitah v'Chatzerah Ba'in k'Echad," then even the Kinyan Chatzer of the Get comes at the same time as the Kinyan of the Chatzer itself, and therefore the Get is coming directly from the husband. (This is the way the Chasam Sofer explains the Pnei Yehoshua. See REBBI AKIVA EIGER.)
The Chasam Sofer adds that this answers the second question of the Rishonim on Rashi as well. Normally, a Kinyan Agav does not require the item to be "Tzivurin," resting on the land that is being acquired. However, as the Rishonim point out, a Kinyan of a Get must be done through "v'Nasan b'Yadah," through the husband placing the Get into the wife's hand. If the Get is resting on the husband's land, the woman cannot become divorced even though the Get has been transferred to her through Kinyan Agav. The Torah requires that the Get be physically placed in the woman's hand or courtyard. Therefore, in order for a Kinyan Agav to accomplish a Gerushin, the Get must be resting in the wife's land at the time the Kinyan takes effect.
In other words, Rashi maintains that the Kinyan of the Get is distinct from the "b'Yadah" of the Get. The Kinyan may be accomplished with Agav, and the "b'Yadah" may be accomplished by the Get resting in her Chatzer. The other Rishonim maintain that the Kinyan which must be done is the type of Kinyan which involves "b'Yadah," since it is the element of "b'Yadah" which accomplishes the Kinyan.