QUESTIONS: Rebbi Meir holds that, mid'Oraisa, a Get that is sent to a woman
or to an Eved is not valid when the sender changes his mind before it
reaches the intended recipient. RASHI (DH Chazarah) explains that since the
sender no longer wants to give a Get, the Shali'ach who delivers the Get is
no longer considered to be the Shali'ach of the sender. Consequently,
mid'Oraisa there is no Gerushin (or Shichrur), because the Torah requires
that the Get be given from the husband's hands, or from his Shali'ach's
hands, into the hands of the woman (or the Eved), and here the person who
delivered the Get was neither the one who wrote the Get nor his Shali'ach.
(a) Why does Rashi write that the Get is not valid because of "v'Nasan
b'Yadah" (Devarim 24:1) -- because the husband did not put it in her hand?
Even if the husband himself were to give a Get to his wife *without*
intending to divorce her (but rather for her to look at it and give it back,
for example), the Get would not be valid, because a Get is only valid when
it is given willingly by the one who wrote it with intention to be Makneh it
to his wife (or Eved). In this case, where the Shelichus was repealed and
the person who was carrying the Get delivered it to the woman or to the Eved
against the will of the husband or the master, the Get will not be valid
because there was no Da'as Makneh (intention of the giver), and not because
of the verse requiring "v'Nasan b'Yadah!"
ANSWER: We learned earlier (see Insights to 9:4) that according to Rashi,
the reason the Beraisa does not mention similarities between Get Ishah and
Shichrur Eved that are Halachos mid'Oraisa is because it is obvious that a
Shtar Shichrur is similar to a Get Ishah with regard to all of the Halachos
mid'Oraisa, since Shtar Shichrur is learned from Get Ishah through the
Gezeirah Shavah of "Lah, Lah." As we pointed out, this explains why the
Gemara intitially thought that the Beraisa is justified in listing the
similarity between Get Ishah and Shichrur Eved of Chazarah, since this
similarity has nothing to do with the Gezeirah Shavah of "Lah, Lah," but
rather it is dependent upon other considerations (i.e. whether it is a Chov
or a Zechus to the recipient). Why, then, does the Gemara eventually reject
the answer of "Pesulim d'Oraisa Lo Katani" for the reason that the Beraisa
does list the Halachah of Chazarah, if there is a good reason for why that
Halachah is mentioned in the Beraisa even though it is a Halachah d'Oraisa?
(b) The Gemara concludes that the Beraisa mentions only those similarities
between Shichrur and Get which do not also apply to Kidushin. Why, then,
does the Beraisa mention the retraction of the document ("Chazarah")? If the
man sends a Shtar Kidushin to a woman and then changes his mind before it
reaches her hands, she does not become Mekudeshes! The Gemara answers that
if the husband makes a Shali'ach to give his wife a get against her will
("Ba'al Korchah"), he may change his mind, while by Kidushin there is no
such thing as a Shali'ach bringing Kidushin against the will of the woman
(Rashi, DH b'Shelichus).
What does the Halachah of giving a Get "Ba'al Korchah" have to do with the
Halachah of Chazarah? The Beraisa could have mentioned just as well that
Shichrur Eved is similar to Get Ishah with regard to the laws of writing it
on something that is "Mechubar." Although these laws of "Mechubar" apply to
a Shtar Kidushin as well, the Beraisa still needs to mention "Mechubar"
because a man who sends his wife a Get against her will must also be careful
that it is not written on something that is "Mechubar."
(c) Why does the Beraisa not mention the similarity between a Get Ishah and
Shichrur Eved that they can both be sent against the will of the recipient,
which does not apply to Shtar Kidushin! (TOSFOS, DH b'Shelichus)
According to Rashi, the answer is that the Gemara ascertained that the
reason why the Beraisa lists the Halachah of Chazarah is *not* in order to
teach that Shichrur of an Eved is a Chov to the Eved. Rather, the Beraisa is
interested only in teaching Halachos that affect Shichrur and Get because of
the way that the *Shtar* Shichrur and the *Shtar* of Get Ishah must be
written, signed, or validated. The fact that the master can change his mind
when he sends a Shtar Shichrur has nothing to do with the way the Shtar is
written. Chazarah depends on an external factor -- that the result of the
Shtar is not wholly beneficial to the Eved.
Therefore, the Gemara concluded that the similarity of Chazarah means
something else entirely. It means that if the master sends a Shtar Shichrur
to his Eved and changes his mind before the Eved receives it, *even if* the
master later (after the Shtar was handed to the Eved) decides that he
*wants* to free his Eved and he wants the Shtar to be valid, it will still
not take effect. The reason for this is because of the Halachah that the
master or his Shali'ach must *give* the Shtar to the Eved; the Eved cannot
*take* it for himself from atop the ground. This Halachah is learned from
the words "v'Nasan b'Yadah," as Rashi says later (24a, DH Lo Amar Klum).
Even though the verse only says "v'Nasan" in the Parshah of Get Ishah, we
learn that a Shtar Shichrur must also be given to the Eved by the master
(and not *taken* by the Eved) through the Gezeirah Shavah of "Lah, Lah."
This is why the Gemara asks that the Beraisa should not have listed the
Halachah of Chazarah -- since that is also a Halachah that is learned
through "Lah, Lah."
This also explains why the Gemara earlier (9b) does not ask why the Beraisa
does not mention the Halachah that an Eved cannot take the Shtar for himself
but it must be given to him, just like a Get Ishah. The Gemara only asks
that the Beraisa should mention the Halachos of "Lishmah" and "Mechubar."
According to our explanation, the Gemara cannot ask why the Beraisa leaves
out the Halachah that the master must *give* the Get to the Eved, becuase
the Beraisa indeed mentions that Halachah (in the form of the Halachah of
Chazarah), as the Gemara concludes!
This answer our first question as well. Why did Rashi say that when the
master changes his mind the Shichrur is not valid because of the requirement
of "v'Nasan?" He should have said that it is not valid because the master
does not want to free his Eved! The answer is, as we have explained, that
the Gemara understood that the case in the Beraisa is when the master
consents to the Shichrur *after* it has already reached the hands of the
Eved. In such a case, where the master *does* have intention for the
Shichrur to be valid, the only reason the Shichrur is not valid is because
of "v'Nasan," since the Get Shichrur was not given by the master (or by
someone appointed by him as his Shali'ach) to the Eved.
The Gemara answers that the Beraisa does not mention Halachos that do not
apply to Kidushin. The logic of this is because if the Halachah applies to
Kidushin, the reason it applies is because of the Hekesh that compares Gitin
to Kidushin. Any Halachah that can be learned from that Hekesh can equally
be learned that it applies to Shichrur from the Gezeirah Shavah of "Lah,
Lah," and therefore the Beraisa would not have to teach that this Halachah
applies to Shichrur.
The Gemara then asks that the Halachah of *Chazarah* does apply to Kidushin
and yet the Beraisa still mentions it It applies to Kidushin because it is
inherently a Chov for a woman to become married, making her prohibited to
everyone else. Therefore, the Shtar Kidushin will take effect only when it
reaches the hands of the woman. When the husband sends a Shtar Kidushin with
a Shali'ach and he changes his mind before it reaches the hands of the
woman, and then he later changes his mind again and wants the Kidushin to
take effect, the Kidushin will *not* be valid because it was not *given* to
her by the man (or by his appointed Shali'ach), and a Shtar Kidushin ha the
requirement of "v'Nasan" just like a Get, because of the Hekesh. Therefore,
asks the Gemara, why does the Beraisa mention that the Halachah of Chazarah
applies to Shichrur if it is obvious? Any law which is learned through the
Hekesh to apply to Kidushin is also learned through the Gezeirah Shavah to
apply to Shichrur!
The Gemara answers that the Beraisa intends to teach that when the husband
makes a Shali'ach to give a Get to his wife (or the master makes a Shali'ach
to give a Shtar Shichur to his Eved) Ba'al Korchah, against her will, and
then he changes his mind before it reaches her, and then he changes his mind
again -- after she receives it -- and decides that he *does* want it to take
effect against her will, the Get does *not* take effect. This is a Halachah
that does not apply to Kidushin (since he cannot make Kidushin take effect
against the woman's will). Therefore, the Beraisa finds it necessary to
mention that we nevertheless *do* learn this Halachah from Get Ishah to
Shichrur Eved, even though we do *not* learn this Halachah from Get Ishah to
Kidushin through the Hekesh.
We may ask, though, why should the Gemara assert that this Halachah does not
apply to Kidushin? This seems to be the same Halachah of "v'Nasan" that does
apply to Kidushin when the man wants the Kidushin to take effect *with* the
woman's consent! As such, it *is* a Halachah that applies to Kidushin!
The answer is that the Halachah of "v'Nasan" that applies to a Get Shichrur
that is given Ba'al Korcho, *against the will* of the Eved, could not have
been inferred from the Halachah of "v'Nasan" that applies when a Kidushin is
given with the *consent* of the woman. These two Halachos are two different
levels of the requirement of "v'Nasan." The reason for this is that
"v'Nasan" does not require the master to physically hand the Shtar to the
Eved. Rather, even if he does something that causes the Shtar to enter the
domain of the Eved (or if the husband causes the Get to enter the domain of
his wife), it is considered a fulfillment of "v'Nasan." (See TOSFOS 77b, DH
v'Teizil, and RASHI there, DH Harei Zu Chazakah.)
When a Shtar Shichrur is delivered to the Eved without the consent of the
master, and then the master decides that he wants to free his Eved, and the
Eved consents to make a Kinyan on the Shtar Shichrur, it is clearly the Eved
who is instigating the Kinyan by wanting to acquire it. Therefore, it is not
considered "v'Nasan." However, when the master decides that he wants the
Shichrur to take effect *against the will* of the Eved, even though the
Shichrur takes effect only when it enters the Reshus of the Eved and the
Eved acquires it against his will, nevertheless one might think that this is
considered as though the master instigated the Kinyan (and has fulfilled the
requirement of "v'Nasan"). The Beraisa therefore teaches that the Shichrur
is *not* valid, because it does *not* fulfill the requiremement of "v'Nasan"
(since the master did not physically bring it into the Reshus of the Eved).
*This* is a Halachah that cannot apply to Kidushin, and therefore the
Beraisa finds it necessary to teach that this Halachah *does* apply to
Shichrur (because of the Gezeirah Shavah of "Lah, Lah").
This explains what the connection is between the Halachah of Chazarah and
giving a Get against the will of the recipient. This also answers the
question of Tosfos, why the Beraisa did not list the Halachah that Shtar
Shichrur and Get Ishah can both be given against the will of the recipient.
As we explained above, the Beraisa is interested only in listing Halachos
that apply to the writing, signing, or validating of the Shtar, and not
Halachos that are dependent upon external factors, Halachos that do not
relate to the Shtar itself. (See TORAS GITIN.)