1) THE HUSBAND'S RIGHT TO INHERIT HIS WIFE'S PROPERTY IS AN ESSENTIAL PART OF THE MARRIAGE
QUESTION: The Mishnah enumerates various conditions in a Get which the husband may make, which permit the woman to marry everyone else apart from specific men. The Gemara asks several questions concerning the law of a "Shi'ur" (a remnant in the bond between the man and wife, which compromises the element of "Kerisus" necessary for a Get to take effect). One of the questions is whether the Get is valid when the man gives her a divorce "apart from your inheritance."
RASHI (DH Chutz mi'Yerushaseich) explains that the husband attempted to make a condition that if she would die after the divorce, he would still inherit her. What is the law in such a case? Does the divorce take effect since he did not omit any element of severance in the Nisu'in (marriage) by his condition, or does the divorce not take effect since a husband inherits his wife's property only when she is married to him (see Bava Basra 109b, based on Bamidbar 27:11), and thus his condition that he still inherits her means that she is still married to him and the Get is not valid? (See Rashi DH mi'Mishpachto.)
Why, by retaining the right to inherit his wife's property, should the man's condition invalidate the Get? A Get permits the woman to marry anyone she wants; its purpose is merely to determine which men she may or may not marry. In contrast, inheritance is an entirely different issue, a financial matter which involves who is entitled to her estate after her death. There should be no connection whatsoever between the Get (a matter of Dinei Isur) and the inheritance (a matter of Dinei Mamonos).
(a) RAV CHAIM SOLOVEITCHIK (on the Rambam, Hilchos Mechirah 13:3, DH v'Hinei Omnam) answers that the Gemara here is proof that the law that a man inherits his wife's property is a marital law (a law of Ishus) and not a financial one (a law of Mamonos). Part of the rights that are created at marriage is the right of the husband to inherit his wife; it an inherent part of their marital bond.
(b) The CHAZON ISH (EH 56:22) first suggests that the Gemara here -- which entertains the possibility that the Get is invalid when the husband stipulates that he retains the right to her inheritance -- maintains that mid'Oraisa the husband inherits his wife. However, the Chazon Ish points out that the RAMBAM evidently does not understand the Gemara this way, because he rules (in Hilchos Nachalos 1:8) that it a husband inherits his wife only mid'Rabanan (this is the opinion of Rav in Kesuvos 84a), and yet in Hilchos Gerushin (8:6) the Rambam rules that if the husband divorces his wife on condition that if she dies he will inherit her, the Get creates a Safek Gerushin. The Rambam clearly understands that the Gemara's question applies even though the husband's right to inherit his wife is only mid'Rabanan.)
The Chazon Ish instead suggests that the Chachamim enacted a decree to consider the marriage a bond not only with regard to Ishus, but also with regard to inheritance. That is, when a man and woman marry, their marriage creates a bond with regard to inheritance as well as the bond of the man-wife relationship. The Chazon Ish adds that it is possible that if the right of inheritance is retained at the time the man gives a Get, this is considered a Shi'ur mid'Oraisa, a failure to fully severe the relationship, since the Get has not effected an absolute "Kerisus," as the wife is still connected to the husband with regard to her inheritance.
The Chazon Ish also suggests that although the Rambam rules that the husband inherits his wife only mid'Rabanan, nevertheless perhaps the Rambam is in doubt whether his right to inherit her is mid'Oraisa. Therefore, if a man gives a Get and attempts to retain his right to her inheritance, one may not be lenient to consider it a valid Get. (D. BLOOM)
2) WHEN ONE MAY AND MAY NOT BE STRINGENT WITH GITIN
QUESTION: The Gemara (end of 85b) states that Rava enacted that one write in a Get, "How so and so, the son of so and so, dismissed and divorced his wife so and so, who was his wife until now." (See SHULCHAN ARUCH EH 126:8, who writes that one should write this text in the first person, "I, so and so, now divorce my wife.") He must also write that he divorces his wife, "from today, forever."
The CHELKAS MECHOKEK (#26) writes in the name of the ROSH (in the end of the Rosh's commentary to Gitin, in his "Seder Kesivas ha'Get") that the reason for Rava's enactment is that the Get must record the way the husband divorced his wife. (The Gemara earlier (21b) derives from the word "Sefer" in Devarim 24:3 that the Get must tell how the husband divorced his wife.)
The Gemara explains that the reason he must write "from today" is to negate Rebbi Yosi's opinion that the "date on the document is its proof." RASHI (DH Min Yoma) explains that according to Rebbi Yosi, when a Get is written for a Shechiv Mera (a dying man), the words "from today" do not need to be written because the date in the Get proves that it takes effect from the day it was written, and no one will mistakenly think that the Get took effect after the Shechiv Mera died and is not valid. To repudiate Rebbi Yosi's opinion, Rava instituted that scribes should write in all Gitin the words "from today." Rashi adds that although the Halachah follows the view of Rebbi Yosi, we should avoid any issue of dispute issue when writing a Get so that the divorce will be unanimously accepted and the pure lineage of the families of Yisrael will be subject to no suspicion.
This reasoning, that we should be more stringent with regard to Gitin than the letter of the law requires, apparently contradicts the Gemara earlier (end of 5b). The Gemara there relates that Rebbi Achi, who was appointed responsible for Gitin, said that one who delivers a Get from overseas is required to have stood at the writing of the Get and witnessed the writing of every letter (to ensure that every letter was written Lishmah). Rebbi Ami and Rebbi Asi disagreed and said that witnessing the writing of every letter is not necessary. They added that one should not argue that it is proper to act stringently in the matter, because if one acts stringently he will cause people to speak disparagingly about earlier Gitin which were not written with this stringent practice.
(See MORDECHAI (#316) who rules, based on the Gemara there, that a scribe who writes a Get should not write Tagin (or Ziyunim) on the letters in a Get. Tagin are the decorative lines written on the tops of the Shin, Ayin, Tes, Nun, Zayin, Gimel, and Tzadi, in a Sefer Torah. This is because one who changes the former custom not to write Tagin will cause people to speak disparagingly about earlier Gitin which were not written in this way.)
Why does the Gemara here state that one should act stringently when writing a Get, while the Gemara earlier (5b) teaches that one should not act stringently when writing a Get, lest he harm the reputation of earlier Gitin?
ANSWER: The TERUMAS HA'DESHEN (1:232, DH v'Al) answers that there is a distinction between whether people will think that the former Gitin are entirely invalid or whether they will think that the former Gitin are merely questionable and doubtful. If the complete writing of the Get brought from overseas was not witnessed by the one who delivers it, people will think that earlier Gitin -- the writing of which was not witnessed in its entirety by the one who delivered it -- are entirely invalid. It appears as though the witness lied when he said, "It was written in front of me," since not every letter was written in his presence. Similarly, although there are grounds to require Tagin on the letters in a Get, if we would be stringent and require Tagin people will assume that letters without Tagin are not valid letters at all and they will consider all Gitin without Tagin as entirely valid.
In contrast, adherence to the stringency of the Gemara here to write "from today" will not cause people to think that earlier Gitin, in which these words were not written, are entirely invalid. They will realize that the earlier Gitin were valid according to Rebbi Yosi, because the date written in the Get indicates that the Get took effect from that day, Rather, they merely will spread rumors that the Get was not written in strict accordance with all opinions. In such a case, when people will not err to say that the Get is entirely invalid, it is preferable to ensure that future Gitin are written in accordance with all opinions than to be concerned about the reputation of earlier Gitin. (See also TOSFOS to 26a, DH v'Tzarich, and TESHUVAS MAHARIL #105 and others (cited in the new edition of the Terumas ha'Deshen) who discuss the guidelines for when one may be stringent with the laws of the writing of a Get.) (D. BLOOM)