QUESTION: The Mishnah (77a) teaches that when a man throws a Get to his wife while she is standing in his home, she is not divorced even if the Get is with her in bed. The Gemara infers that this applies only if the Get is in his bed; if he throws the Get into her bed (or basket), the Get is valid and she is divorced.
The Gemara asks why the wife's bed should be able to acquire the Get for her while she is in her husband's house. The Gemara in Bava Basra (85b) discusses the question of whether utensils of a buyer can acquire an item for him when they are resting in the property of the seller. If the Mishnah here means that the woman does acquire her Get, we should prove from here that the utensils of the buyer do acquire the items for the buyer even when they are resting in the seller's domain.
The Gemara answers that the reason the bed acquires the Get for the woman is because the bed itself is more than ten Tefachim from the ground and thus is a separate domain unto itself. Only the legs of the bed occupy space in the husband's property below ten Tefachim, but the husband does not care about the space taken up by the legs of his wife's bed.
The Gemara gives several explanations for how the wife's basket acquires the Get for her while in the husband's domain. One answer is that the Get is thrown into the basket while the basket is resting between her feet. Another answer is that the husband is a basket salesman and thus he does not mind that his wife's basket rests on his property (since he has lots of baskets on his property).
RASHI (DH Bein Yarchoseha) explains that all of these answers accomplish that the husband does not mind the fact that the wife's bed or basket is resting on his property, and therefore he is Makneh that property to the wife. As a result, it is the wife's property on which her basket is resting, and not the husband's property, and that is why her basket acquires the Get for her. Apparently, Rashi learns this from the wording of Rebbi Yochanan's answer, that "Makom Kalsah Kanuy Lah," the place where the wife's basket rests is Kanuy ("acquired") to her.
How, though, does the woman acquire the property beneath the basket? Even if the husband does not mind that she uses that property, his lack of opposition still does not grant her the ownership of the property. She must do a formal act of Kinyan (such as a Chazakah) in order to acquire the property as her own. (TOSFOS to Bava Basra 85b, DH Kegon)
Moreover, if it is possible to be Makneh the property to the wife without an act of Kinyan, why should there be any question in the case of utensils of a buyer that are resting in the domain of the seller? Since the seller intends for the buyer to acquire the merchandise he is selling, the seller obviously lends to the buyer the area underneath the buyer's utensil. Property that is loaned is considered like a person's own Chatzer with regard to Kinyanim (see Tosfos to 77b, DH Mah she'Kansah). Accordingly, the utensils of the buyer resting on the property of the seller should acquire the merchandise for him.
(a) RABEINU GERSHOM and the other Rishonim in Bava Basra answer that when the basket rests between the woman's feet, it is as if it rests upon her body. Her body certainly is considered like her Chatzer, an independent and separate domain from the property of the man's domain in which she is standing.
With regard to the basket seller, Rabeinu Gershom explains that the Gemara means that the husband sold a basket to his wife. Because she gave her husband the pleasure of purchasing the basket from him, the husband in return is Makneh to her the property upon which the basket is resting ("b'ha'Hi Hana'ah...").
Rabeinu Gershom seems to refer to a type of Kinyan similar to a Kinyan Chalifin, in which one person who receives something from another person can be Makneh something else in return without doing any further act of Kinyan. (See Bava Metzia 47a and Kidushin 7a.) Apparently, according to Rabeinu Gershom the same type of Kinyan applies whenever a person buys a basket (or other item) that is resting on the floor of the seller's store (or home).
It is not clear, however, how Rabeinu Gershom explains the Gemara's answer with regard to the legs of the bed. How does the woman acquire the area underneath the legs of the bed?
(b) The RIVA, cited by Tosfos in Bava Basra, answers that even if the woman does not own the area underneath the legs of the bed, as long as the seller does not object, the utensils of the buyer can acquire the merchandise for him. The reason the utensils of the buyer cannot acquire the merchandise when the owner objects is because the utensils are Batel to the ground on which they are resting, and that ground belongs to the seller. However, when the seller does not mind, the utensils are not Batel and they can be Koneh the merchandise inside them for the buyer.
According to the Riva, what would be considered a case in which the seller objects? Is it not obvious that when the seller wants to sell something to the buyer, he gives permission to the buyer to put his utensils in his property?
The answer is that according to the Riva, the utensils of the buyer are Batel to the domain of the seller unless the seller gives unconditional permission to the buyer to keep his item on the seller's property any time that he wants, and not just in order to accomplish the Kinyan. The momentary permission that the seller gives in order for the buyer to make a Kinyan does not suffice.
According to the Riva, when the Gemara states according to Rebbi Yochanan that "Makom Kalsah Kanuy Lah," it does not mean that the place where the basket is resting literally belongs to the wife. Rather, it means that a husband never minds when his wife keeps baskets on his property.
This may be the intention of Rashi as well. Although Rashi writes that the area where a woman sits ("Bein Yarchoseha") is Kanuy to her, he might simply be using the wording of the Gemara and he does not mean that the wife literally owns the property there. When Rashi adds that "until now (meaning when the Get was given), the area that was between her feet was Kanuy to her," he is emphasizing the point mentioned above -- that a utensil of the buyer can acquire for him only if the seller unconditionally allows the utensils to remain there, and not if he allows them to remain there only for the moment of the Kinyan itself.
(c) The KETZOS HA'CHOSHEN (189:1) writes (with regard to another point) that in order to acquire land through borrowing ("She'eilah"), it suffices to use the land for the purpose for which it was borrowed. It is not necessary to make a Chazakah of locking it up (as the Gemara says on 77b). According to the Ketzos ha'Choshen, the Gemara may simply mean that if a husband allows his wife to place her basket or bed on his property, the moment that she places it there she is Konah the area beneath it, b'She'eilah (through borrowing it), by using it as a place upon which to rest her basket or bed.
(This clearly contradicts the explanation of Rabeinu Gershom and the Riva, who imply that the woman must make an actual Kinyan of Chazakah or Chalifin in order to gain true ownership of the land beneath the basket (as is clear from the previous two answers).)
However, according to the Ketzos ha'Choshen, why is it necessary for the Gemara to teach that the husband does not mind when his wife's bed or basket rests on his property and, as a result, she acquires the area from the moment that she puts her bed or basket there? Why does the Gemara not simply say that the husband wants his wife to acquire the Get, and therefore the moment he throws the Get into her basket she uses the land as a place on which to rest her basket in order to receive the Get?
One answer might be that the Mishnah implies that the husband can divorce his wife even against her will by throwing the Get into her basket or bed. If the woman does not own the land underneath the basket until the time the Get is thrown, then if she says that she does not want to receive the Get she does not acquire the land beneath the basket and the Get does not take effect. (See CHIDUSHEI RABEINU MEIR SIMCHAH in Bava Basra.) Therefore, the Gemara explains that the woman acquired the area beneath the basket or bed at the moment that the basket or bed was placed there. Since she already owns that area, when the husband throws the Get there she acquires it against her will.
However, this answer does not suffice to explain the Gemara's question regarding whether the utensils of the buyer in the domain of the seller acquire on behalf of the buyer, because the Gemara refers to a person who purchases a product willingly. Why does the Gemara not assume that when the seller sells something to the buyer, he gives the buyer permission to borrow the land underneath his utensil, and when the buyer fills up his utensil he makes a Kinyan on the land through She'eilah (borrowing)? Likewise, the Gemara earlier (77b), in the case of the dying man, required that the woman make a Kinyan Chazakah on the property underneath the Get even though, as the RI explains, the husband only lent her the land underneath the Get. Why should she not acquire the land by simply having her Get rest on it?
Perhaps the answer is that even according to the Ketzos ha'Choshen, the borrower must perform an action which shows he is using the land. Simply by leaving his utensil, or her Get, on the land is not sufficient because no action is done. The borrower can acquire the land only at the moment at which he places his utensil there. At that moment, however, the seller was not yet Makneh to him the land b'She'eilah. (If the buyer would pick up his utensil and then place it down again with intention to make a Kinyan She'eilah on the land, then his utensil would be Koneh the area for him.)
This might also be the intention of Rashi if Rashi means literally that the land is "Kanuy" to the woman.
QUESTION: The Mishnah teaches that a Get is valid if a woman finds it fastened to her husband's back and she takes it from there, as long as the husband afterward tells her, "Have your Get." The Gemara asks why the Get takes effect when he says, "Have your Get." It is comparable to a man who tells his wife to take the Get that is resting on the ground ("Teli Gitech m'Al Gabei Karka") which is not valid, as Rava rules.
The Gemara answers that the wife pulled the Get from upon her husband's back. The Gemara asks that this also fails to fulfill the requirement of "v'Nasan b'Yadah" (Devarim 24:1), since she is taking it and he is not giving it to her.
The Gemara answers that the man bent himself towards his wife ("Arak Lei Chartzei"), and then the woman took the Get. Since he started the action of giving it to her, it is considered as though he gave it and not that she took it.
Why does the Gemara change its wording in the second question? If the Gemara does not know that the husband moved himself closer to his wife in order to facilitate giving her the Get, it should have asked that the original question remains -- that it is still a case of "Teli Gitech m'Al Gabei Karka." While it is true that the reason why the Get in a case of "Teli Gitech" is invalid is that the Torah says "v'Nasan b'Yadah" as Rashi mentions, nevertheless if the Gemara needed to quote Rava to ask its first question, it obviously did not assume that this Halachah would have been derived from "v'Nasan" had Rava not taught it. Hence, the Gemara should quote Rava again in its second question and ask that nothing is gained by saying that the wife pulled out the Get.
Moreover, since the Gemara seems to learn that "v'Nasan b'Yadah" is an obvious Derashah that needs no source, why does Rava need to teach that the Get in a case of "Teli Gitech m'Al Gabei Karka" is not valid?
ANSWER: Without Rava's teaching, one might have thought that the requirement of "v'Nasan b'Yadah" means only that the wife cannot take the Get on her own, without asking the husband, even if the husband wants to divorce her. If, however, the husband initiates the divorce by telling his wife to pick up the Get, one might have thought that his statement alone satisfies the requirement of "v'Nasan." Rava therefore teaches that "v'Nasan" requires the husband to perform an act of giving, and not just to tell his wife to pick up the Get.
Accordingly, the flow of the Gemara is clear. Initially, the Gemara assumes that in the case of the Mishnah, the act of giving ("Nesinah") is accomplished when the husband says, "Have your Get," and not when the wife takes the Get from her husband's back. The Gemara then questions this answer from the ruling of Rava, who teaches that the husband's statement alone does not satisfy the requirement of "v'Nasan."
The Gemara then alters its understanding and says that, indeed, a statement alone does not qualify as "Nesinah." The "Nesinah" occurs at the time the Get is physically transferred to the wife. Saying "have your Get" is necessary only in order to ensure that the wife realizes that she is divorced (as TOSFOS says in DH Eino Get), because if the wife does not realize that she is divorced the Get is not valid.
The Gemara questions this assertion. Since the wife is the only one who did an action, and not the husband, even without Rava's teaching it should be clear that the Get is not valid because there is no act of "Nesinah" on the part of the husband.
The Gemara answers that the husband does do an act of physically delivering the Get to his wife -- this act is his act of bringing his body closer to the wife before she draws the Get from upon his body.
HALACHAH: The Gemara implies that the husband does not have to deliver the Get to the wife completely by himself, by physically handing it over to her. Rather, as long as he brings it closer to his wife, his wife may then take it from his hands.
The ROSH, however, cites RABEINU CHANANEL who explains that "Arak Lei Chartzei" does not mean simply that the husband moves his body closer to the wife, but that the husband makes the Get looser by withdrawing his stomach so that it is easier for her to remove it from his belt. The Rosh writes that it may be inferred from Rabeinu Chananel that the husband must not only bring the Get closer to his wife, but he must also do an act of releasing the Get before his wife takes it. For example, the husband must stretch out his hand, and then open up his fingers, and then the wife may take the Get from his hand.
TOSFOS (78b, DH Im) raises another problem. If the wife takes hold of one side of the Get while the husband is holding the first side, perhaps the act should be considered a lack of Kerisus, like when the husband is holding the end of a string that is tied to the Get in such a way that he could pull it out of his wife's hand. Even if his wife pulls the Get out of his hand, the Get will not be valid because she took it and he did not give it, for his act of bringing the Get closer was meaningless all the while that his hand was closed.
In practice, Beis Din instructs the woman to close her hand, and the husband folds up the Get and pushes it into the wife's closed hand so that she grasps the Get tightly entirely through the act of the husband.
QUESTIONS: The Mishnah teaches that when the husband and wife are standing in a public domain and the husband throws a Get to his wife, if it lands closer to her she is divorced, and if it lands closer to him she is not divorced. If it is halfway between them ("Machtzeh Al Machtzeh"), she is "Safek Megureshes" (doubtfully divorced).
Rav explains that "Karov Lah," closer to her, means that the Get is within the wife's four Amos, and "Karov Lo" means that it is within the husband's four Amos. "Machtzeh Al Machtzeh" means that they are both standing within the same four Amos. The Gemara asks that if they are both standing within the same four Amos, then the Get should belong to the first person who entered those four Amos, and she should not be Safek Megureshes, since two people cannot own the same four Amos. It cannot be that they arrived there at the exact same moment, because there is a principle that "Iy Efshar l'Tzamtzem," it is impossible for two events to happen simultaneously.
Rav Kahana answers that when the Mishnah says "Machtzeh Al Machtzeh," it means that the husband and wife are standing exactly eight Amos apart, and the Get is resting halfway between them.
There are a number of questions on this Gemara.
(a) Why does the Mishnah need to mention the four Amos of the husband altogether? His four Amos would seem to be no different from anyone else's four Amos, or any area outside of the woman's four Amos. The Mishnah should say that if the Get is far from her (i.e. outside of her four Amos), she is not divorced, and if it is partially in her four Amos and partially outside ("Machtzeh Al Machtzeh"), she is Safek Megureshes. It should make no difference whether or not the Get is within her husband's four Amos. (RASHBA; see also MAHARAM SHIF.)
(b) RASHI writes that according to Rav Kahana, when the Mishnah says that the Get is "Machtzeh Al Machtzeh," it means that the husband and wife are exactly eight Amos from each other. This is indeed the implication of the words of the Gemara (beginning of 78b) which says that the Get "leaves his four Amos and enters her four Amos."
It is clear that when Rashi says "not more [than eight Amos apart]," he means that if the man and woman would be standing more than eight Amos apart (plus the width of the Get), the Get could not be resting in both his set of four Amos and in her set of four Amos at the same time. However, why can they not be standing less than eight Amos apart? For example, if they are six Amos apart, and the woman arrived there first, when the Get rests four Amos away from her and two Amos away from him, it is half in his four Amos and half in her four Amos, even though they are standing less than eight Amos apart from each other.
(c) How can a woman acquire her Get through the Kinyan of "Arba Amos"? The Kinyan of Arba Amos is only a Kinyan mid'Rabanan, and thus a Get acquired through the Kinyan of Arba Amos should not be valid mid'Oraisa! (The same question applies to Rebbi Yochanan's answer, that the wife acquires the Get as long as she is able to protect it, even if it is a hundred Amos away from her. Since no other item can be acquired in such a manner, how can a woman acquire a Get, mid'Oraisa, this way?)
(a) The RASHBA and TOSFOS HA'ROSH explain that the Mishnah teaches a new Halachah when it says that when the Get falls within the husband's four Amos the woman is not divorced. It is teaching that when the husband arrived there first and the woman arrived afterwards, and now they are both standing in the same four Amos, if the husband throws the Get next to the wife she is not divorced because the four Amos belong to him. (This also seems to be the intention of the RAMBAM in Hilchos Gerushin 5:9.)
The TIFERES YAKOV suggests that the Mishnah is teaching an additional Halachah. The Mishnah is teaching that even when the Get falls within the husband's four Amos (that is, where the husband arrived first, as the Rashba explains), and then he leaves those four Amos and they become her domain (because she remains standing there), the Get is still not valid. One might have thought that the Get is valid just as the Get of the dying man (77b) is valid since it was transferred directly from the husband's domain to the wife's domain. The Mishnah teaches that the Get is not valid because the husband is not giving the domain to his wife, but rather he is exiting the domain, making it like Hefker, and then she takes it for herself by remaining there (and she does not need his permission to acquire that area).
With regard to the Mishnah's case of "Machtzeh Al Machtzeh," the TIFERES YAKOV and CHAZON ISH (147:1) write that the reason why the end of the Mishnah states that the other half of the Get is in the husband's domain is that if the other half of the Get is in Reshus ha'Rabim, the woman indeed would be divorced, just as the woman is divorced when she takes hold of one end of the Get and the other end is not in her hands.
This explanation is problematic. The Gemara in Bava Metzia (8a) implies that if part of an object (such as an item of Hefker) is resting on the ground and the other part is in one's hand, he does not acquire the object. Hence, the woman should not be divorced when the Get is resting on the ground of Reshus ha'Rabim (as the Tosfos ha'Rosh here writes). Why, then, does the Gemara say that when the Get is half in the man's domain it is not valid because it is "Agid Gabei," attached to him? The Gemara should say instead that it is not valid because it is not entirely in her domain, and it makes no difference in whose domain the other half is resting. The Tosfos ha'Rosh writes that the Gemara indeed means not that the Get is in the husband's domain, but that the Get is not entirely in the wife's domain. This is also the implication of RASHI (DH v'Ha Agid Gabei).
Accordingly, when the Mishnah says that when the Get is "Machtzeh Al Machtzeh" she is not divorced, it really does not have to mention the husband's four Amos, because as long as the Get is partially outside of the woman's four Amos she is not divorced, regardless of whose four Amos the other half of the Get is resting. Apparently, the Mishnah discusses a Get which is resting partially in the husband's domain only because it mentions a Get which is in his domain in the first case of the Mishnah.
(b) The TIFERES YAKOV explains the reason for why there must be exactly eight Amos and not less between the man and the woman. If there would be less than eight Amos between them, the husband would not have a full four Amos for himself (that is, if the wife preceded him there, and she would not have four Amos if he preceded her). Since he has less than four Amos, he is not considered to have a significant area (Makom Chashuv) and thus the area becomes Batel to Reshus ha'Rabim. Consequently, the wife or husband (whoever has less than four Amos) cannot acquire the Get. (This is based on the earlier assertion of the Tiferes Yakov, that if the husband does not retain ownership of the other half of the Get, but it is merely resting in Reshus ha'Rabim, the Get takes effect and the woman is divorced.)
Another possibility is that the same Halachah indeed would apply if the man and woman were closer than eight Amos from each other. However, the Gemara prefers to find a case in which both the man and the woman each have a full four Amos, so that the case will be similar to the case in the beginning of the Mishnah, and so that the words "Machtzeh Al Machtzeh" (half and half) will apply (since each one has half of the area between them).
(c) TOSFOS in Bava Metzia (10a, DH Arba Amos) and the ROSH here address the question of why the Kinyan d'Rabanan of Arba Amos, or the fact that the woman is able to guard the Get from a hundred Amos away, suffices for the Kinyan of a Get. Tosfos and the Rosh write that the Rabanan instituted that a woman acquires a Get with her Arba Amos in Reshus ha'Rabim "Mishum Iguna," because the husband might disappear and she will not be able to get another Get from him. Tosfos adds that the Takanah of Kinyan Arba Amos was made only to acquire two types of items: a Metzi'ah (an item that was found) so that people not fight over it, and a Get because of the concern of Iguna. In all other situations, Arba Amos is not Koneh.
Tosfos implies that once the Rabanan gave to the woman the four Amos around her, that area becomes like her Chatzer mid'Oraisa, and therefore she can become divorced mid'Oraisa through the Kinyan which the Chatzer effects.
However, this explanation does not apply to the case in which the woman acquires the Get because she is able to guard the Get even when it is a hundred Amos away. In that situation, the Rabanan did not enact that the area that the woman could guard is considered her Chatzer. The ROSH here writes that this was a special Takanah d'Rabanan through which "Afka'inhu Rabanan l'Kidushin": when the Get is resting in a place which she could guard, the Rabanan uprooted the original Kidushin because of Iguna, according to Rebbi Yochanan. The RAN adds that the Takanah was made "b'She'as ha'Shemad," when the Nochrim forbid Jews from giving Gitin.
The PNEI YEHOSHUA suggests that just as the word "v'Nasan" teaches that the Get does not literally need to fall into the wife's hand (as the Gemara on 77a mentions), it also teaches that it does not have to fall literally into her Chatzer. Any area which she can guard satisfies the requirement of "v'Nasan," even though it cannot acquire the Get for her through Kinyan Chatzer. (According to this approach, the same should apply to a thief; he should be Koneh the item if it is in a place that he can protect, even though that place does not belong to him. Moreover, according to this explanation, the Halachos of Get are apparently not the source of Kinyan Chatzer.)