QUESTION: Rav Kahana says in the name of Rav that we may give a Get on
behalf of a man who is a deaf mute who wrote that he wants a Get to be
written and given to his wife. Rav Yosef questions what Rav Kahana is
teaching us, since we can derive this Halachah from the Mishnah that says
that if the husband became mute, we can test his desire to give the Get by
asking him questions and seeing how he nods his head.
Rebbi Zeira rejects the question and says that we *cannot* learn Rav
Kahana's Halachah from our Mishnah, because our Mishnah is referring to one
who is mute but can hear, and thus he is Halachically considered an
intelligent person, whereas Rav Kahana is referring to a mute who is deaf
and cannot hear, who Halachically is considered like a Shoteh.
Rav Yosef's question implies that writing is an equal or stronger expression
of one's desire to divorce than that which is expressed by nodding one's
head (and, therefore, we can learn from the Mishnah that relies on nodding
that writing is also a valid expression of one's desire). On the other hand,
the Gemara later (72a) concludes that we do not rely on writing as a valid
form of expression of one's desire to give a Get, even though no one
disagrees with our Mishnah that we rely on nodding as a valid expression of
one's desire to give a Get!
ANSWER: The RASHBA (see also TOSFOS 72a, DH Kolo) says that Rav Yosef
understands that writing is a better proof of one's desire than the nodding
of one's head. The Gemara later, though, disagrees with this, and therefore
we rely on nodding but not on writing.
There are two different explanations for why the Gemara disagrees with Rav
Yosef's assumption. The ROSH (6:19) writes that even the Gemara there (72a)
agrees that writing one's intent is no less of a proof of his intent than
the nodding of one's head; the reason why the Gemara does not accept the
Halachah of Rav Kahana is because he says that even one who is deaf *and*
mute may write down his command to give a Get to his wife. The Gemara
disagrees with this, since it holds that one who is a deaf mute is
Halachically unable to give any commands to carry out transactions, and the
fact that he can write does not give him the status of one who can speak
(this is based on Rebbi Zeira's rejection of Rav Yosef's question).
The Rosh and other Rishonim also cite the opinion of RABEINU TAM, who quotes
a Tosefta that implies that the scribe who writes the Get must actually
"*hear*" the command to write it, and even if the husband writes to him a
command to write the Get, the scribe may not write it. Based on this,
Rabeinu Tam maintains that even a person who is not a deaf mute may *not*
write a command to give a Get, because, as the Tosefta says, the scribe must
*hear* the command spoken.
The Rosh explains that this is not a contradiction to our Mishnah which
permits giving a Get based on the nodding of the husband's head, since the
nodding of the head is a stronger form of command, since he is showing his
will with physical expressions of his body. The Rosh also answers that the
Mishnah is not a contradiction to the Tosefta since the Mishnah is talking
about one who is mute and in such a case the Rabanan were lenient to rely on
the nodding of the husband's head so that the woman will not remain an
Agunah. (The second answer must hold that nodding one's head is not better
than writing, and it must differentiate between a deaf mute who writes and
one who is only mute, as the Rosh writes earlier.)
HALACHAH: The SHULCHAN ARUCH (EH 120:5) quotes the opinion that no one can
give a written command to have a Get written for his wife. He then writes
that there are those who hold that one who is mute may give such a command
in writing.
QUESTION: The Gemara says that a witness must give an oral testimony, and he
may not write his testimony and send it to Beis Din. This is derived from
the verse that says, "Al Pi Shenayim Edim" -- "By the mouth of two
witnesses" (Devarim 17:6), which implies that the testimony must be said by
the mouths of the witnesses.
RASHI points out that use of documents signed by witnesses is considered an
acceptable form of proof and a way of creating transactions. Why is this an
acceptable form of testimony? It is a written testimony which should not be
accepted!
ANSWER: RASHI answers that a document is different from normal testimony,
because the document was signed at the time of the transaction and that is
the normal way of effecting the transaction.
It is unclear, though, how Rashi's answer resolves the question. After all,
the verse still implies that the testimony of witnesses must be spoken and
not written!
The CHIDSHEI HA'RIM (Teshuvos, YD 14) explains that Rashi learns that the
reason why the Torah disqualifies written testimony is because it is not the
normal way of testifying. This only applies to testimony in court at the
time of the hearing; such testimony is made *after* the act took place. In
contrast, a document which is signed at the time of the transaction for the
sake of remaining as a record and proof of the transaction is specifically
done in writing for that very purpose: so that it should remain as a proof
for a long period of time. Since this is the accepted way this type of proof
is made, it is an acceptable form of testimony.