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Gitin, 72

1) STIPULATING THAT THE GET TAKE EFFECT AFTER DEATH

QUESTION: The Mishnah states that when a man gives a Get to his wife and stipulates that the Get should take place when he dies, the Get is not valid (since a Get cannot take effect after the husband's death). The Gemara cites the opinion of Rebbi Yosi who says that in such a case the Get does take effect, because since the date is written in the Get, we interpret the man's stipulation to mean that at the time that the husband dies, the Get will take effect *retroactively* from the time of the date written in the Get. RASHI (DH v'Rav Huna) explains that Rebbi Yosi's logic (in a case of a person who gives a gift to take effect after his death) is that if the person's intention was to give the gift after his death, then he would not have written the date in the document.

We learned earlier (17a) that there is an enactment that every Get must have the date written in it. However, in order for the date written in the document to be proof that the man wants the transaction to take place from that date, he must have had the option *not* to write the date in the document. But in the case of a Get, he *must* write the date! How, then, can the fact that the date is written in the Get be proof that he wants the Get to take effect from that date?

ANSWERS:

(a) The TORAS GITIN answers that even though a date must be written in the Get, if the man would have wanted the Get to take effect only after his death, then he should have written in the Get the date as "*the time of his death*" (even though he would not be writing a specific date since he does not yet know when he will die, it suffices to write a time that can easily be verified). Since he did not write "the time of his death" in the Get, but rather the actual date on which the Get was written, we assume that he wants it to take effect from the time it was written.

(b) The PNEI YEHOSHUA answers that when Rashi writes that the proof that the man wants the Get to take effect from the time it was written is from the fact that he wrote the date, Rashi is only referring to a case in which the man wrote that he wants it to take effect "*after he dies*." Our Mishnah, though, is dealing with a case where he wrote that it should take effect "*if* he dies." Since the term "if..." can be interpreted to mean that it should take effect retroactively (see Abaye in our Gemara), Rebbi Yosi holds that we use the date written in the Get to interpret the term "if he dies" to mean that it will take place retroactively even though we do not have the above-mentioned proof that that is his intention.

(c) The MITZPEH EISAN says that Rashi's opinion earlier (17a) is that it is enough to write the year in which the Get was written in order to satisfy the rabbinic requirement for writing the date in the Get. Since the man went ahead and specified the actual date when he did not need to do so (since the year would have sufficed), we use this as proof that he wanted the Get to take effect retroactively from that day.

72b

QUESTION: Rav Huna says that the Get of a deathly ill person is like his gift. Just like he can retract his gift if he recovers from his illness, so, too, he can retract the Get. Rabah and Rava disagree with Rav Huna.

RASHI explains that Rav Huna is referring even to a case in which the man did not specify that he was giving the Get only on the condition that he will die from the illness. We assess and assume that it was still his intent to give the Get only on the condition that he die as a result of the illness. The RAN and RITVA infer from Rashi later (73a, DH Lo) that if the man stated a condition that the Get take effect if he dies, then everyone agrees that the Get is annulled if he recovers.

TOSFOS cites RABEINU TAM who understands that if the man does not mention that he is giving the Get "if he will die," then everyone agrees that he cannot retract the Get even if he recovers from his illness. He learns that Rav Huna is referring to a case in which the man said that the Get that he wrote should take effect "*from today* if I will die." Rav Huna holds that in such a case if he recovers (to the extent that he can go out in the marketplace), the Get is nullified even if he eventually dies from the same sickness. Rabah and Rava argue and hold that since he eventually died from the same illness, the Get takes effect.

The Rishonim (RAMBAN and others) question Rashi's view. The Gemara asks from our Mishnah on the view of Rav Huna. Our Mishnah says that if the man wrote that the Get should take effect "from today" if he will die and then he recovered and walked outside, and then he eventually became sick and died, then we evaluate the situation: if he died from the original illness, then the Get takes effect, while if he did not die from the original illness, then the Get does not take effect. According to Rashi, however, Rav Huna is referring to a case in which the man made *no* condition, and in that case Rabah disagrees with Rav Huna. But in the case of the Mishnah, where the man made a condition, we do not find that Rabah would disagree with Rav Huna! Why, then, according to Rashi, does the Gemara ask from the Mishnah only on Rav Huna, and not on Rabah and Rava as well?

ANSWERS:

(a) The RAMBAN answers that the basic Machlokes between Rav Huna and Rabah is whether we may interpret one's words by his implied intention even though he did not articulate his intention explicitly in those words. This is relevant both in the case in which he does not mention the condition at all (which is the case that Rav Huna is discussing), and in a case in which he said that the Get should take place if he dies but did not specify that if he will recover before he eventually dies, that he does not want it to take effect (which is the case of the Mishnah). Therefore, even though the Mishnah is a different case, it is still dependent on the logic of Rav Huna and Rabah.

(b) The RAN answers that the Gemara that asks from the Mishnah disagrees with Rav Huna even in a case where the man made an explicit condition. When Rashi writes that *everyone* agrees that he may nullify the Get when he made a condition, Rashi means only that Rabah and Rava agree with Rav Huna in such a case, since they disagree with Rav Huna only because of a Gezeirah that people will say that a Get can take effect after death; that Gezeirah, though, applies only in a case where the Get was given without any conditions.