(2004/5764)
We reprint this Torah essay written by Ilan Tokayer, Ilan Yechezkeil ben Aharon Ze'ev, TABC '03, z"l, LeIlui Nishmato. This article (written in May 2004) demonstrates Ilan's love of Torah and serious abilities in Torah learning. In addition to being an outstanding Lamdan, Ilan was an outstanding Menstch, as everyone who had the merit of knowing him can testify. Ilan stood for everything we value at TABC – Torah study, Shemirat Mitzvot, love of family, value of secular studies independent of professional preparation, and dedication to Am Yisrael and Eretz Yisrael (Ilan served with distinction in Tzahal). The entire TABC administration, staff and student body deeply mourn his loss.
Introduction
The Torah in Devarim (24: 1-5) describes the Halachic divorce process. As part of this process, the husband must write a Sefer Kritut, a divorce document commonly known as a Get, for his wife and give it to her “Biyada,” in her hand. At first glance, a Get seems no different than an ordinary Shtar Kinyan. However, many Achronim, primarily the author of the Ketzot Hachoshen (200:5), point out that there may be a major fundamental difference between the nature of giving a Get and a Shtar Kinyan. The Ketzot Hachoshen (200:2:5) claims that whereas for a monetary Shtar it is undoubtedly required for the acceptor to Halachically acquire the document by means of Zechiyah, in a Get there is no such need for the woman to Halachically acquire the Get and the mere giving of the Get “Biyada” suffices for a valid divorce.
In this article, we will examine this claim of the Ketzot, how others question his view, and other potential sources that seem to give credence to view of the Ketzot.
The Ketzot’s Chiddush
In the beginning of the eighth Perek of Gittin (77b), the Gemara discusses a case in which a man throws a Get into his wife’s courtyard. The Gemara questions the Mishna that says that such a Get is valid by referring to the rule that all of a woman’s profits belong to her husband. When the man threw the Get into the courtyard, it should not be a valid “giving” of the Get. As long as she is his wife only he can accept something in her field. However, in order for her to accept something in her field she must be divorced, and she is only divorced once she accepts the Get in her field. The Gemara debates this “catch-22” and concludes that “Gitta Vachatzeira Bain Kiechad,” a woman’s Get and courtyard come into her possession simultaneously.
The Ketzot Hachoshen claims that in such a case, being that at the time of the “Netinah” (the “giving” of the Get) the field did not belong to the woman, it is impossible for the woman to acquire the Get in the field, being that the field is not yet fully hers. The only way that Gitta Vachatzeira Bain Kiechad would help us is if there is no requirement for Zechiyah of the Get on the part of the woman. Furthermore, this explains how a woman and a slave may be given a Get against their will, since there is no concept of Zechiyah against one’s will. This also explains, according to the Ketzot, how a Get may be written on Issurei Hanaah according to the view of the Rashba that there is no concept of Zechiyah with Issurei Hanaah. From this, the Ketzot writes that there is no Zechiyah required when the wife receives the Get, rather the Torah requires a valid Netinah alone.
Arguments Against the Ketzot and Defenses For His Claim
Many Achronim were quick to present arguments against the Ketzot. Rav Shimon Shkop, the Hagahot Baruch Taam on the Ketzot, and the Staipler Gaon all challenge the Ketzot similarly. If indeed there is no Zechiyah in the giving of a Get, then there should be no difference between giving a Get written on Issurei Hanaah and the case in which a husband gives a wife a Get with the stipulation that the paper remains his. In both cases the Get is given to the wife but the paper still belongs to the husband. However, the case of Issurei Hanaah is a valid Get and the latter case is not. The Miluei Chotam on the Avnei Miluim points out that the Ketzot himself seems to write to the contrary elsewhere.
The Staipler defends the Ketzot by making the following distinction between the two cases. In the case that the husband gives a Get but keeps the paper the husband himself is directly causing that there will be no transition of the Get into his wife’s custody. In the case of Issurei Hanaah, the husband gives the Get with no intention of obstructing his wife’s possession of the Get, however, there is an external factor due to which the Get remains in his possession. Such a Get is valid, claims the Kehillot Yaakov, because the husband did nothing to prevent the divorce. In the case that the husband refuses to give the wife the paper upon which her Get is written he actively gets in the way of the Netinah and therefore such a Get is not valid.
The Miluei Chotam cites the Baal Hahaflaah and the Imrei Binah that cite Rashi in Eiruvin that says that a woman does not need to acquire her Get. They support the Ketzot’s view and say that a Netinah alone is needed for the woman to be divorced.
Rav Isser Zalman Meltzer raises a different problem with the ruling of the Ketzot. The Gemara (Gittin 77b) concludes that if a Get is thrown into the woman’s field she is not divorced until she stands by its side. He claims that if indeed there was no need for Zechiyah but only Netinah, since there was a good Netinah from the moment the Get was thrown into her field she should be divorced right away even if she does not arrive at the field. The fact that for the divorce to take effect the woman must arrive at her field makes it seem that she needs to be koneh the Get.
Perhaps we can defend the Ketzot as follows. There are two aspects of Netinah in a field. One is that the husband must place it there. The other is that the woman must be near the field. Even though the Netinah is fine before the woman comes to her field, in order for the Get to take effect the woman must stand next to her field. This is not a form of Zechiyah as Rav Meltzer suggested but rather simply a prerequisite for the field having the Halachik status of “her hand” and thus rendering it valid for the woman to receive her Get in it.
Alternate Solutions Similar to the Ketzot's
Rav Shimon Shkop and the Birchat Shmuel answer the problem of Gitta Vachatzeira Bain Kiechad in a different way than the Ketzot. They claim that unlike the Ketzot writes, the woman must acquire the Get. However, similar to the Ketzot, the regular rules of Zechiyah do not apply and in their stead a Netinah alone suffices for Zechiyah. This idea is rooted in the Yerushalmi that says that the Torah made a rule that unlike the rules of regular Zechiyah, a Get is acquired by the woman simply by the husband placing it in her hand and no further action is needed on the part of the woman.
The Grir Mi’Ponovizh offers a similar answer in order to solve the problem of Gitta Vachatzeira Bain Kiechad. In every Kinyan, he explains, there are two parts: the item’s leaving its previous owner’s domain and its entering into the ownership of its new owner. These concepts can more clearly be defined as the Maaseh Netinah and the Chalot Hakinyan. Although in a regular transaction, the transaction does not take effect until both requirements are met, in the case of Gitta Vachatzeira Bain Kiechad, just the fact that the Get has left the husband’s domain is enough for the Get to take effect thereby making the field fully hers in order to do the second part of the Kinyan in it. The Imrei Moshe adds that, by nature, a Get of a woman or a slave cannot be acquired by the receiver in their previous state and therefore inherent in the nature of a Get is the condition that unlike other documents, it takes effect before it is actually acquired by the second party.
Other Sources that Support the Ketzot’s Chiddush
A. Geirushei Kitana
The Torah gives a father the right to marry off his daughter and accept her kiddushin. The Gemara discusses whether such a girl can be divorced and who accepts her Get. Tosafot is under the opinion that a girl is always able to accept her Get at any age provided that she will not return to her ex-husband. In Zechiyah, a child cannot acquire anything until he reaches the level of “Tzror Vezorko Egoz Venotlo.” This view of Tosafot that a girl may accept her Get even at an age too young for Zechiyah seems to only work according to the view of the Ketzot that one need not be zocheh in order to accept a Get.
B. Maaseh Kinyan
Tosafot in Ketubot writes that in order for a Get to take effect the woman does not need to raise the item three tefachim as is needed for a normal Kinyan but since the Torah says “Venatan Biyada Veshilcha Mibeyto,” she is divorced by the husband’s placing the Get in her hand with no further action needed. This can be interpreted in two ways. Either this Tosafot is similar to the Yerushalmi cited by Rav Shimon Shkop and the Birchat Shmuel that Netinah itself is a valid Zechiyah for Gittin, or Tosafot is under the opinion that there is no Zechiyah required in Gittin and that is the reason why the woman does not need to perform Hagbahah. The Torah never mandated that there be Zechiyah and that is Tosafot’s reason for bringing the Pasuk of “Venatan Biyada.”
The Torat Gittin points out that whereas any Maaseh Kinyan may be used for a regular Zechiyah (such as for a gift), in Gittin only forms of Kinyan that we learn from "Yad,” are effective. This goes in accordance with the Gemara in Bava Batra that says that “Get Lav Bar Kinyan Hu,” a Get is not susceptible to the rules that govern normal Kinyanim. This is why in Gittin, normally ubiquitous Kinyanim such as Agav, Chalipin and Sudar do not work as they do in almost all other Kinyanim. This is why the Ramban, Rashba, and Ran reject Rashi’s suggestion that the case of “Hahu Shechiv Mera” is referring to giving the Get along with land as a Kinyan Agav. Furthermore, they agree that, like the Torat Gittin, only a Kinyan that is learned from Yad may be used for a Get and the case of “Hahu Shechiv Mera” is dealing with a kinyan chatzer.
C. Zechiyat Daled Amot
The Gemara in Bava Metzia (10a) talks about the principle of “Arba Amot Shel Adam Konot Lo.” In the Gemara in Gittin (78b), Rabi Yochanan says that if a Get thrown to a woman in public domain and it is closer to her than to her husband, she is Zocheh even if it is up to one hundred Amot from her. Tosafot point out that since the Gemara in Bava Metzia stipulates that the Halacha of Daled Amot in a found item is learned from Gittin, the distance should be the same in both cases and Rabi Yochanan should say that the woman in the case in Gittin can only be divorced if the Get is within four Amot of her. Tosafot explains that in Gittin, too, there is a limit of four Amot if the woman is not Yecholah Leshomro. It is only in a case where the woman is Yecholah Leshomro that the limit is raised to one hundred amot. This distinction between Yecholah Leshomro and Yecholah Leshomro, which only exists in Gittin, shows a major fundamental difference between regular Zechiyah of Arba Amot and receiving a Get in Arba Amot. Furthermore, Zechiyah of a Metzia in Daled Amot only applies in a Simta whereas the case in Gittin clearly states that it is in Reshut Harabim. By comparing these two cases we see the difference between a woman's receiving a Get and Zechiyah in general and how a Get cannot require regular Zechiyah.
D. Zechiyah Beavir Kupata
The Gemara in Avodah Zarah (71a) when dealing with Yain Nesech says that if wine reaches the Avir inside an idolater’s Kli, the wine becomes his and is treated as Yain Nesech. This operates on the Halacha that the Avir of a Kli is Koneh. In a similar case in Gittin, in which the husband throws a Get into the air of his wife’s Kuppa, she is not divorced from him until the Get hits the ground. Rashi says that this is because the walls of a Kli are not made Lishmor, to securely keep an item in its hollow space. Tosafot extrapolates from Rashi’s words that in Rashi's opinion the Avir of a Kli is not Koneh. Therefore, Tosafot rejects Rashi’s statement by bringing the Gemara of Yain Nesech in Avodah Zarah and proves that there is kinyan in the empty space of a Kli. Tosafot is forced to reason that the case in Gittin is when the Get was thrown above the walls of the Kuppa since if it were to be inside the Chalal of the Kuppa she should be divorced right away even before the Get hits the bottom of the Kuppa.
The Ketzot Hachoshen (200:1:2) explains that a Get is not like regular Zechiyah. In regular Zechiyah, the air of a kli is zocheh for the kli’s owner. In the case of a Get, however, Zechiyah is not what is needed for the woman to receive the Get. The Get is not the woman’s until it is Mishtameret Lidaata. This explains Rashi’s statement that the walls are not meant Lishmor. What Rashi meant, according to this view, is that although the walls of a Kli are valid for Zechiyah, they are not enough to make a Get that comes into the Kli’s airspace to become Mishtameret. In order for the Get to become Mishtameret it must land inside the Kli.
Conclusion
The Ketzot Hachoshen’s chiddush that there is no concept of Zechiyah in the process of giving a Get has raised many eyebrows in recent rabbinic literature. Many Acharonim disagree with the Ketzot’s principle, some completely and some more moderately like Rav Shimon Shkop, the Grir, and the Birchat Shmuel. Some that were quick to ask difficult questions on his theory were just as quick to defend him such as the Staipler in the Kehillot Yaakov. In further support beyond what the Ketzot cites, there are many other sources in Shas and in the Rishonim that seem to support the Ketzot’s principle.