Gerushin - Chapter 6

And from that time onward, the husband cannot recant.

That is, when does the requirement for witnesses apply?

See Chapter 1, Halachah 16.

See Chapter 1, Halachah 15.

A divorce is considered to be undesirable and detrimental for a woman. Therefore, an agent cannot be appointed for her without her consent. For an activity that is detrimental to a person cannot be performed on his or her behalf without his will (Gittin 62b).

See Hilchot Ishut 3:15, where the Rambam states: ‘‘For the only purpose witnesses would serve with regard to the agency... is to make known the truth of the matter.’’
The marriage bonds are annulled. According to the Rambam, the distinction between these agents and a sh’liach kabbalah appointed by the woman is that through the acceptance of the get, and ‘‘no matters involving forbidden marital relations [are established if] fewer than two witnesses are present (Yevamot 88a).’’ Since the sh’liach kabbalah is concerned only with receiving the get, his agency involves nothing else but the actual divorce. Hence, witnesses must be present to acknowledge the appointment of this agent. In contrast, the agency of a sh’liach holachah and a sh’liach hava’ah also involves transporting the get, an activity that is merely a preparatory step for the divorce. Hence, witnesses are not required for his appointment.
It must be emphasized that the Ra’avad and others offer a far more straightforward rationale clarifying the distinction between these agents. A sh’liach holachah and a sh’liach hava’ah each carry the get with them. Hence, they need no further proof of their agency. A sh’liach kabbalah, by contrast, does not have possession of the get before the divorce. Hence, his position must be strengthened by having his appointment observed by witnesses.
In practice, it has already become customary for the appointment of a sh’liach holachah to be certified by a written document. There are opinions that differ and require that the appointment of a sh’liach holachah also be observed by witnesses. (See Shulchan Aruch, Even HaEzer 141:11, 30, 40.)

The Rambam’s statements are intended to negate the opinion of his teacher, Rabbi Yosef Migash, who maintains that a servant may serve as a sh’liach holachah. The Shulchan Aruch (Even HaEzer 141:31) quotes both views, but appears to favor the Rambam’s view.

See Chapter 3, Halachah 15, and Hilchot Ishut 3:17.

The Rama (Even HaEzer 141:33) states that a priori, it is proper that the agent not share any family ties with the husband, his wife, or the judges executing the divorce.

It would appear that even if the signatures of the witnesses have not been verified and the acceptability of a get depends on the agents’ statements, these individuals may serve as agents.

That the divorce is unacceptable, but not void.

As can be seen in the various manuscript copies of the Rambam’s Commentary to the Mishnah (Gittin 2:6), the Rambam changed his opinion regarding the acceptance of these individuals as agents when the veracity of the signature on a get has been established. The standard text of the Commentary to the Mishnah states that if the witnesses’ signatures have been verified, the get is acceptable unless the person worships false gods or violates the Sabbath in public. This is also the view of other authorities and is the ruling favored by the Shulchan Aruch (Even HaEzer 141:33).

See also Chapter 12, Halachah 17. Based on the objections of the Ra’avad, the Kessef Mishneh modifies the Rambam’s ruling slightly, explaining that the intent is that the woman may not remarry, and not that the get is void. If, however, she does remarry, her second husband is also required to divorce her.
The get she received from her first husband is not void, because it is possible that witnesses will come and verify the signatures on the get. In such an event, the divorce will be effective retroactively. Nevertheless, since those signatures have not been verified as of yet, her second husband must divorce her.
Rav David Arameah explains that the Rambam’s intent is that the get is still viable, but it should be given to another agent to bring about the divorce. Note the Maggid Mishneh and others who question the source for the Rambam’s ruling.

In all these instances, since the agent was not fit to serve in that capacity at the time the agency was delegated to him, it is as if the agency had never been conveyed upon him.

The fact that, in the interim, he was unfit to serve as an agent is of no significance. Note the Or Sameach, who on this basis questions what the law would be if the husband negates the agency and then desires to reestablish it. Must he reappoint the agent or not?

Gittin 63b states that our Sages entertained a hypothesis that this involves a disregard for the honor of the husband, and therefore the divorce should be void, but they did not accept this theory.

And thus, the divorce would be acceptable if a get were placed in her courtyard.

The Ra’avad disagrees with the Rambam and maintains that the rationale is that a minor is never empowered to appoint an agent. And thus, a woman below majority may not appoint a sh’liach hava’ah either. It must be noted that in Hilchot Sh’luchin V’Shutafin 2:2, the Rambam indeed states that in no instance may a minor appoint an agent. See the Lechem Mishneh and Rav Kapach, who emphasize that a special law applies with regard to an agent to receive a get, for he is considered to be the extension of the woman’s hand. Note the Rambam’s wording in Chapter 1, Halachah 1.

Hence, the divorce does not become final when the agent receives the get. It is only when the get reaches the woman’s hand that the divorce takes effect.

I.e., the husband’s statements imply that he is unwilling to give the agent the get in his original capacity, but that he is willing to charge him with a different agency — bringing the woman the get as agent of the husband.
This ruling is not accepted by all authorities. The Rashba and Rabbenu Nissim differ, maintaining that in such an instance, the status of the divorce is in doubt. The Rambam’s opinion is quoted by the Shulchan Aruch (Even HaEzer 140:6), while the other views are cited by the Rama.

With regard to the transfer of a present, the Rambam maintains that the expression ‘‘Give it to him’’ is equivalent to saying ‘‘Acquire it on his behalf’’ (Hilchot Zechiyah UMatanah 4:4). Nevertheless, because the husband said ‘‘Bring it to her;’’ it is clear that he desired the agent to serve in the capacity of a sh’liach holachah.

The Shulchan Aruch (Even HaEzer 140:8) explains that the phrase ‘‘in the capacity in which she appointed you’’ is of primary significance here. If the husband does not add that phrase and says merely: ‘‘Bring the get to her,’’ he is appointing the agent to be a sh’liach holachah, and the agent is accepting this appointment by taking the get. Therefore, if the agent delivers the get to the woman, the divorce is effective.

By serving as a sh’liach hava’ah, the agent accepts far more responsibility and difficulty than by serving as a sh’liach kabbalah. If he served as a sh’liach kabbalah, the divorce would be completed after he received the get. As a sh’liach hava’ah, the agent must trouble himself to bring the get to the woman. As such, we assume that since the woman was willing to accept the agent as a sh’liach kabbalah, she is certainly willing to accept him as a sh’liach hava’ah.

With this expression, the woman’s intent is that the agent should begin acting as her agent and hold the get for her. For keeping the get as an entrusted article violates the instructions that her husband gave him (Rabbenu Nissim).

The doubt is whether an agent can begin acting in the capacity of the woman’s agent before he has completed executing the agency with which he was charged by the husband (Gittin 63b).

See Chapter 1, Halachah 16.

See Chapter 1, Halachah 19.

See Chapter 1, Halachah 21.

The Rambam rules that after the fact, a get given in private is acceptable. There are, however, geonim who hold that such a get is unacceptable (Chapter 1, Halachah 16). Since the status of an agent is weaker than that of the husband himself, a second transfer of the get is required in this instance a priori (Maggid Mishneh).

See Halachah 26. The Shulchan Aruch (Even HaEzer 141:59) rules that at the outset, a husband should not nullify a get unless either the agent he appointed or his wife is present. Otherwise, it is possible that the woman may receive the get — and marry another man — before receiving notice that her get was nullified.

I.e., people other than the agent. If he nullifies the get in the presence of the agent, no one else need be present.

Note the Rama (Even HaEzer 141:59), who cites an opinion that allows the husband to nullify the get by speaking to two people, one outside the presence of the other.

For the divorce has already taken effect.

In this context, the words ‘‘a very brief time’’ are a loose translation. The Hebrew term toch k’dei dibbur has a very specific meaning: the amount of time necessary to say ‘‘Shalom alecha, rabbi umori.’’

The rationale is that divorcing a wife is a very serious matter and a man would not make such a decision unless he were resolute. Therefore, his change of mind is not considered to be a clarification of his original position (as in certain other instances — e.g., a retraction of a business commitment), but rather an entirely new decision.

The fundamental principle involved is that Torah law depends on a person’s acts and statements, not his feelings. Although it is obvious that the husband desired to nullify the get, since he was not able to take binding action the divorce is valid. (See also Halachah 25.)

See Chapter 9, Halachah 27.

The Ra’avad differs with Rambam and maintains that although a person may nullify the agency of one of the two (or ten), doing so does not nullify the agency of the other(s). Therefore, if they give the woman the get, the divorce is effective. Although the Rambam’s opinion is also mentioned, it is that of the Ra’avad that is favored by the Shulchan Aruch (Even HaEzer 149:61).

The Rama (Even HaEzer 134:1) states that even when the husband makes statements to two witnesses individually, the objection is binding.

In Hilchot Mechirah, Chapter 6, the Rambam explains the details of lodging an objection with regard to a sale. There he explains that when a person is compelled to make a sale against his will, he can nullify the transaction by issuing an objection stating that he was compelled to make this sale. With regard to an objection to a get, other autho-rities (see Tur and Shulchan Aruch, Even HaEzer, Chapter 134) also mention the concept of compulsion. The Rambam, however, omits mention of the subject entirely. As reflected in Halachah 27, our Sages considered lodging an objection to a get in a very negative light.

The situation mentioned by the Rambam in the previous halachah is not merely a theoretical question. In many instances, a husband who was compelled to divorce his wife would seek to have the get nullified so that their marriage could continue. Similarly, apostates and men whose feelings toward their wives have soured have sought to nullify their divorces in order to cause their wives difficulties.

Many of the other commentaries differ with the Rambam concerning this point. Some — e.g., the Rashba — are more stringent, for they maintain that the husband can word his objection to nullify even such a statement. They explain that to insure that the get is not nullified, the husband must also disqualify the testimony of any witness who heard his objections.
Others — e.g., Rabbenu Asher — are more lenient and maintain that all that is necessary is for the husband to say that all objections to the get are nullified. The Shulchan Aruch (Even HaEzer 134:3) rules according to the Rashba. The Rama maintains that Rabbenu Asher’s ruling is halachically acceptable; however, he counsels following the Rashba’s ruling to eliminate all doubts.

Despite the statements that he had made previously, if the husband nullified the get afterwards, his statements would be effective and the divorce void (Maggid Mishneh).

There are authorities who differ with the Rambam on this point, based on their version of Gittin 32b. According to these authorities, since the get was written according to law, it is always able to be used for a divorce and can never be nullified by the husband. In consideration of the opinion of these authorities, when quoting this law, the Shulchan Aruch (Even HaEzer 141:66), rules that the status of the divorce is in doubt.

The point is that these expressions all indicate that the husband no longer desires to use this get to divorce his wife.

For all the statements quoted above are false. The get is effective; it is the husband who no longer desires to use it.

The Rambam implies that the question is whether the word בָּטֵל implies a future tense — i.e., that his intent is to nullify the get — in which instance the divorce would not be effective. Or whether it implies the past tense, in which case, as in the previous halachah, the husband would be giving us incorrect information.

If, however, the man nullifies the get in the presence of the agent or in the presence of his wife, there is no difficulty.

The primary reason for giving such a get — for the marriage is terminated with the husband’s death regardless — is to free a childless woman from the obligations of yibbum and chalitzah. If the get was given before the husband’s death, these rites are not necessary. Otherwise, they are. With the current advances in record keeping and communication, it is usually possible to eliminate the doubt mentioned in this halachah.

The Shulchan Aruch (Even HaEzer 141:69) states that this law applies only when a city is surrounded by the army of the ruling authority. If it is surrounded by an army from another country, we no longer operate under the presumption that the husband is alive.

In his Commentary to the Mishnah (Gittin 3:4), the Rambam defines a ship in distress as follows: ‘‘One that faces a tempest-torn sea that threatens to sink it. The sailors are unable to control its path as they desire.... Nevertheless, all the oars and the other instruments remain intact.’’

This applies regardless of whether the person is being tried by a Jewish court or a gentile court.

In his Commentary to the Mishnah (loc. cit.), the Rambam defines this as referring to a ship whose oars, steering mechanism and other navigational tools have been broken, and it is totally at the mercy of the waters. The laws that apply when a ship has sunk are described in Chapter 13, Halachah 16.

The implication is that if the person was sentenced to death by a Jewish court, we presume that the sentence was carried out. (See Hilchot Terumot 9:2.) In contrast, there is a possibility that a gentile court will accept a bribe.

Lest the husband have died already.

For we do not know which came first, the husband’s death or the giving of the get.

Although the husband desires to divorce her, she remains his wife until the get reaches her. Therefore, the husband remains obligated by the marriage contract.