MAY WE GIVE A GET WHILE THE HUSBAND IS INSANE? [divorce: lunatic]
(Mishnah): The Tzibur or partners cannot make Temurah. "Lo Yachalifenu v'Lo Yamir" (singular) teaches that only an individual can make Temurah.
10a - Question (Rami bar Chama): Can the Makdish make Temurah, or the Miskaper (the one who gets atonement through the Korban)?
Answer (Rava): It must be the Miskaper. If it were the Makdish, Temurah could apply to a Korban of the Tzibur or partners, e.g., if they made a Shali'ach to be Makdish the animal!
Gitin 67b (Mishnah): If a man appointed Sheluchim to write a Get, then was seized by Kordaikus (an evil spirit), then said that the Get should not be written, his latter words are void.
70b (Reish Lakish): The Get may be written and given immediately.
(R. Yochanan): The Get may be written only after he recovers.
Reish Lakish learns from the Mishnah 'his latter words are void';
R. Yochanan explains that this means only that he need not command again to give the Get when he recovers, but we may not write it while he is sick.
Reish Lakish compares a seized man to a sleeping man. R. Yochanan compares him to a lunatic.
R. Yochanan does not compare him to a sleeping man, for he will not recover automatically, but a sleeping man awakes automatically.
Reish Lakish does not compare him to a lunatic, for we have a cure for Kordaikus, but not for insanity.
Question: Does R. Yochanan disagree with the following?!
(Shmuel): If a man's windpipe and foodpipe were cut, and he gestured to witnesses to write a Get for his wife, they write and give it;
(Beraisa): If a man was found cut up or hanging, and he gestured to witnesses to write a Get for his wife, they write and give it.
Answer: In those cases, the man is totally sane, just weakness has begun. If one was seized by Kordaikus, his mind is deranged.
Rambam (Hilchos Gerushin 2:15): If a healthy man commanded to write and give a Get, and later he was dazed, we wait until he recovers before we write and give to her. If they wrote and gave before he recovered, it is Pasul.
Rosh (Gitin 6:1): The Halachah follows R. Yochanan. The Ri says that when a Shechiv Mera (a sick person who fears lest he die) commands to give a Get, one must be careful that his mind was sound also at the time it is written, for sometimes his mind alternates between sanity and insanity. Even Reish Lakish compares Kordaikus to sleep only because we have a cure. Perhaps even R. Yochanan holds that a Shechiv Mera is like someone sleeping, for no action needs to be done. It is normal that his mind recovers by itself. It is good to be careful.
Rashi (10a DH Im): If the Makdish makes Temurah, then Temurah applies to a Tzibur and partners, e.g. if they made a Shali'ach to be Makdish a Korban. If it depends on the Makdish, it is considered that an individual was Makdish it. A Mishnah teaches that the Tzibur and partners cannot make Temurah! Rather, it depends on the Miskaper, therefore it is not considered an individual's Korban.
Or Some'ach: The Pri Chodosh says that since he was healthy when he made the Shali'ach, even if the Meshale'ach cannot make a Kinyan at the time the Shali'ach does so for him, the Torah says that it works. The only exception is if the Meshale'ach died, for then his marriage ended or his property passed to his heirs. Rashi explains that divorce or freedom after death does not work because the wife or slave is not in the Meshale'ach's Reshus. If the Shali'ach merely acts for the Meshale'ach, the Meshale'ach must still be sane. If the Meshale'ach makes the Shali'ach like himself, he need not be sane at the time of the Kinyan. Temurah 10a connotes like this. Rashi explains that when partners make a Shali'ach to make something Hekdesh, regarding Temurah it is like Hekdesh of an individual.
Rashba (70b DH Ha d'Akshinan l'Rebbi): The Gemara challenged R. Yochanan from Shmuel's teaching of one who was slaughtered. If we assume that a slaughtered man's mind is not sound, we should challenge Shmuel from the Mishnah, which says that he can command to give a Get! Rather, all agree that a slaughtered man has a clear mind, and one seized by Kordaikus has a dazed mind. The questioner assumes that surely at some point between commanding and writing or giving, the slaughtered man was very weak and his mind was dazed. Even so, we are not concerned, like Reish Lakish, since his mind was sound when he commanded. The Yerushalmi connotes like this.
Question: The questioner thought that we cannot heal a slaughtered man, so he is like a lunatic. Reish Lakish admits in such a case. Why did the Gemara challenge R. Yochanan?
Answer (Rashba citing Tosfos): Reish Lakish never said that he is like a lunatic. We merely said that even Reish Lakish would agree that we do not write for a lunatic, since we cannot heal him. We relied on the conclusion. Perhaps the questioner thought that Reish Lakish holds that even if he went insane, since he commanded when he was sane, we write, just like we write for one who was slaughtered, even though the questioner holds that his mental state deteriorates. Alternatively, if one was slaughtered, we have a cure. Even though the wind befuddles him, if he were in a marble house, we could cure him.
Shulchan Aruch (EH 121:2): If a healthy man commanded to write and give a Get, and later he became (mentally) sick, we do not write it while he is sick. If they wrote and gave it before he recovered, if we have a cure for the sickness, it is Pasul. If not, it is not a Get (it is totally Batel).
Rema: After he recovered we write and give it, even if he protested during his sickness that they should not give it.
Beis Yosef (DH v'Chasav): The Rambam says that if they wrote and gave before he recovered, it is Pasul. This is astounding. R. Yochanan totally equates him to a lunatic. All actions of a lunatic have no effect! Perhaps since Reish Lakish says that we write, and we compare this to a sleeping man, we minimize the argument between Reish Lakish and R. Yochanan. We should not say that R. Yochanan holds that if they wrote it it is Batel, and Reish Lakish permits writing it l'Chatchilah. It suffices to say that R. Yochanan disqualifies mid'Rabanan. However, the Gemara said that Reish Lakish is Machshir because we can cure him. This implies that if we cannot cure him, e.g. he was seized by a different Ru'ach Ra'ah, Reish Lakish agrees that he is like a lunatic. If so, the Rambam should have specified that it is Pasul only if we have a cure, but if not, it is Batel. Also, the Rambam did not mention Kordaikus, only a Ru'ach Ra'ah. In most cases of Ru'ach Ra'ah, we do not have a cure!
Bach (3): The Poskim say that one may not write the Get until he recovers. The Tur holds that if they wrote and gave it during his sickness, it is Batel, for he was like a lunatic. The Beis Yosef asked why the Rambam disqualifies only mid'Rabanan, why he didn't say that this is only when we have a cure, and why he did not mention Kordaikus. He holds that the last two questions are difficult also for the Tur. I say that there is no question. Since we hold like R. Yochanan, we hold that having a cure does not matter. Even if we have a cure, if they wrote and gave it during his illness, it is Pasul. Since a cure is needed, it is Mechusar Ma'aseh (an action needs to be done), even if we have the cure. R. Yochanan said 'we write only after he recovers'. This connotes that he forbids only mid'Rabanan. If a Get written during his illness were Batel, he would have taught this. Also, since it is not explicit in R. Yochanan's words, we cannot be lenient due to our own reasoning.
Note: Sometimes the Rambam's ruling is a leniency, e.g. if she remarried with a Pasul Get, she may remain with him!
Bach (ibid.): Therefore, the Rambam's opinion is primary. The Gemara said only that R. Yochanan compares him to a lunatic, but not that he is truly considered a lunatic. Also, the Rambam can hold that since when he commanded to write it his mind was sound, even though later he became sick, it is only Pasul. This is why the Gemara challenged only R. Yochanan from the case of one who was slaughtered, and did not challenge Reish Lakish.
Chelkas Mechokek (2): The Bach is correct. Also, since his mind was sound when he commanded, mid'Oraisa there is no concern if he was dazed when it was written. Reish Lakish agrees to this, even when we do not have a cure. Perhaps this is even if he became a total lunatic. The Yerushalmi connotes like this. The Shulchan Aruch rules like the Tur, but it seems that the Rambam is correct.
Beis Shmuel (3): Shiltei ha'Giborim holds like the Tur, and says that the Get does not even disqualify to Kehunah (if he was dazed when it was written). The Mechaber says that the Rambam distinguishes between whether or not we have a cure; this is wrong. In any case mid'Oraisa the Get is valid. This is why we need not check him when he was slaughtered (Sa'if 8), and we are not concerned lest he became insane. Even though there is more chance that he became insane later than when he commanded, we check only at the time he commands (for if he was insane then, the Get is Batel).
Gra (4): The Rambam, Tur and other Poskim did not distinguish between whether or not we have a cure. To explain why the Rambam says that it is only Pasul, the Beis Yosef distinguished. This is wrong. The Tur and Rambam wrote Stam! They hold that R. Yochanan does not distinguish.
Bach (4): The Beis Yosef says that as long as his mind was sound when he commanded and when we write, we are not concerned if his mind was dazed in the middle. The same applies to a Shechiv Mera (a sick person who fears lest he die). The Tur did not need to mention that he must be sane when it is given. We learn from one seized by a Ru'ach Ra'ah. Also, we can say that since regarding a Shechiv Mera, the Ba'al ha'Itur permits writing when he is insane since he was healthy when he commanded, the Tur taught that he must be sane when it is written.