Siman 121

The one who divorces must be of sound mind at the time he commands to write the get, and if he was not of sound mind, his command is no command. Therefore, one who was seized by a "ruach ra'ah"—which is an illness that confuses the brain—and said, "Write a get for my wife," there is nothing in his words, and they do not write it even when he recovers unless he commands to write it after he has recovered; and his words that he spoke previously are nothing. And even if they wrote it based on his previous words and signed and he gave it to his wife, it is a get batel from the Torah (Kessef Mishneh in the Beit Yosef), for since there is nothing in his words, it was not written by the command of the husband (Pri Chadash). And even an examination does not avail for this, because he is established for us as a definite shoteh (Beit Shmuel). However, it appears to me that if they examined him and he answered properly, and they wrote and he gave it to her, she is a safek megureshet, for how can we be lenient regarding the prohibition of a married woman in a case where he answered properly? And perhaps the "ruach ra'ah" did not control him as it seemed to us, and therefore we follow the stringency and it is a safek (and what the Beit Shmuel wrote in subsection 1, that if they wrote it the get is batel, does not refer to his previous words; see there and examine carefully).

If he was healthy at the time he commanded to write it and an evil spirit seized him, they do not write it while he is in his illness. And if they wrote it and gave it during his illness, the Tur wrote that it is nothing, whether he died from the illness or whether he recovered. Thus far his words. It is clear from his words that according to the Torah it is not a get at all, even though the command was during his health. However, the Rambam in chapter 2, law 15, wrote that if they wrote it and gave it before he recovered, it is pasul. Thus far his words. And since he did not write "void," it is clear from his words that its invalidity is rabbinic and not from the Torah. And to this the great later authorities (Bach, Chelkat Mechokek, Beit Shmuel, and the Gra) agreed, that since he was healthy at the time of his command, even though the writing was at the time of his insanity, it is only a rabbinic invalidity; and they wondered about the Tur, see there. And in my humble opinion it appears that they do not disagree at all, for the Rambam is dealing with a case where he said "write and give," as is clear from his words, see there, and its giving was by others, and therefore he wrote "they wrote and they gave," meaning by others; and since the command was during his health, its invalidity is only rabbinic. But in the words of the Tur it is clear that he only commanded regarding the writing, see there, and therefore he was precise and wrote "and if they wrote it and he gave it during his illness, it is nothing," meaning that they wrote and he gave it to her; and since the giving was at the time of his insanity, it is obvious that it is nothing (and that which is written in the printed edition "and they gave it," the intention is also that he gave it, and it is more likely that the first vav is a printer's error, and therefore the Rambam wrote "they wrote and they gave" and the Tur changed the language of the giving).

Our teacher, the Beit Yosef, in his great work, distinguishes that the Rambam is dealing with a case where its cure is in our hands to perform for him, and therefore it is not a disqualification from the Torah; whereas the Tur is dealing with a case where its cure is not in our hands. Based on this, he stated the matters without elaboration in the Shulchan Aruch, section 2. However, all the great authorities refuted his words, for in the Gemara (70b) this distinction is not according to the halacha. Furthermore, the Rambam and the Tur did not mention this distinction at all, which implies that they do not hold of this distinction; rather, even when its cure is not in our hands, its disqualification is only rabbinic.

If he was healthy when he commanded to write it, and before the writing he was seized by a malevolent spirit and they did not write it, if he subsequently recovered and returned to his health, they write it based on his initial words and there is no need to ask him a second time. Furthermore, even if during the time of his folly he protested against the writing, they pay no heed at all to the words he spoke during the time of his folly, and there is nothing to that protest (Tur).

And similarly, a drunkard who reached the drunkenness of Lot and said "write," they do not write, for he is not a person of intellect at all. And the Rambam, of blessed memory, wrote there: And if he did not reach it, this is a doubt. Thus far his words. And according to this, if he became very drunk, even though it is clear to us that he did not reach the drunkenness of Lot, nevertheless it is a doubt (Kesef Mishneh). However, before the Tur there was a different version in the Rambam, for this is his wording: And the Rambam wrote etc. if the matter was a doubt whether he reached the drunkenness of Lot, this is a doubt. Thus far his words. It is explained that specifically because we have a doubt whether he reached the drunkenness of Lot; but if it is clear to us that he did not reach it, even though he became very drunk, it is a get, for we establish that a drunkard who has not reached the drunkenness of Lot, his purchase is a purchase and his sale is a sale, and if he committed a transgression that carries the death penalty, they execute him for it (Eruvin 65a). However, our teacher, the Beit Yosef, in his great work, wrote that it is possible that even according to the version of the Tur, as long as he became very drunk, we automatically doubt whether perhaps he reached the drunkenness of Lot. And I wonder, for since the beit din executes him when he committed a transgression that carries an obligation of the death penalty as mentioned, if only he did not reach the drunkenness of Lot even though he became very drunk, all the more so regarding a get we should not be concerned. However, one could say that certainly the power of a great beit din is sufficient to recognize if he reached the drunkenness of Lot, and we rely upon them even for death, but not regarding a get, for it is impossible to rely upon our recognition. And even though it is stated in the Gemara there similarly regarding lashes, and for lashes a great beit din is not required, nevertheless ordained judges are required and their power is sufficient; but a get has no obligation at all to be performed by a beit din, for does everyone who divorces, divorce in a beit din (Arakhin 23a)? Therefore, certainly one cannot rely upon our recognition.

And know that according to what I have written, this is what the Rambam wrote in the fourth chapter of Ishut: A drunkard who performed kiddushin, his kiddushin are valid, even if he became very drunk; but if he reached the drunkenness of Lot, his kiddushin are not valid, and one deliberates on this matter. Thus far his words. His intention is also on the first clause, that we follow the stringent view regarding one who became very drunk, for perhaps he reached the drunkenness of Lot and we are not experts (Beit Yosef). And similarly, when it appears to us that he reached the drunkenness of Lot, we are concerned that perhaps it is not so, and we follow the stringent view in every case. And see what I wrote in siman 44, section 4.

From these matters it is explained that it is proper that on the day of the get, the divorcer and the divorcee should not drink any intoxicating beverage, even a small amount, in order to distance themselves from doubts, and several great authorities have written thus (Shiltei HaGibborim and Beit Shmuel, subsection 2). However, if he drank a small amount, one should not delay the get because of this if the get is urgent. And there is one who says that it is proper that they fast on that day (Be'er Heitev in the name of Tikkun Yissachar), but we have never heard of this custom; only regarding beverage do we warn them that they should not drink, and so we are accustomed.

In the Gemara (70b) it is explained that if he commanded to write a get and at the time of its writing he went to sleep, we have no concern with it; even though he is not a sentient being at the time of sleep, nevertheless, since he lacks no action because they are able to wake him, he is like one who is awake. Based on this, one of the great authorities wrote that if he commanded to write a get and was not drunk, and at the time of the writing he became very drunk, we also have no concern with it; even though a drunkard is comparable to one seized by a "ruach ra'ah" and to a "shoteh" as has been written, nevertheless, since in the Gemara we distinguish between one who is sleeping and one seized by a "ruach ra'ah" because one who is sleeping lacks no action while one seized by a "ruach ra'ah" lacks an action to perform a healing for him, and regarding a drunkard he also lacks no action, his law is like one who is sleeping (Beit Shmuel, subsection 2). And I am astonished, for it is explicitly explained in the Shas (Eruvin 64b) that when one has drunk more than a revi'it, neither sleep nor walking is effective for him, see there. On the contrary, we find in the Shas that they would perform healings for drunkenness, to smear the palms of the hands and the feet with oil and salt (Shabbat 66b). And how can we say that he lacks no action? Therefore, Heaven forbid to be lenient in this, and if this occurred, she is a "safek megureshet."

It was taught in the Tosefta (Terumot chapter 1): One who is sometimes a shoteh and sometimes healthy—meaning, lucid—this is the rule: as long as he is a shoteh, he is like a shoteh for all matters; when he is healthy, he is like a lucid person for all matters. Thus far his words. This was brought in the Shas (Rosh Hashanah 28a). And similarly, the Rambam, of blessed memory, wrote regarding the matter of testimony in chapter 9 of Edut. This is his wording: An epileptic at the time of his seizure is disqualified, and at the time he is healthy, he is fit. This applies both to one who has seizures from time to time or one who has seizures constantly without a fixed time, provided that his mind is not constantly muddled, for there are epileptics who even at the time of their health, their mind is deranged upon them. One must deliberate much regarding the testimony of epileptics. Thus far his words. And if so, certainly one must deliberate much regarding the get of those who are epileptics.

And according to this, that which is written in the Shulchan Aruch, section 3: One who is at times healthy and at times a shoteh, when he is healthy, he is like a person of sound mind in all matters, and if he gave a get at that time, his get is a get, even if he is merely healthy in a general sense and not completely lucid. Thus far his words. That is to say, even though he is weak and the signs of his illness are still recognizable in his body, such that he has not completely recovered but is like a person strengthening himself from his illness, nevertheless, during the time of his health, he is like a person of sound mind for that time (Beit Yosef in the name of the Rashba). It appears to me that not in all types of illnesses of insanity is the law so, such as with an epileptic according to the words of the Rambam that we cited, where certainly we must see that he has returned to his strength almost entirely. And similarly, one must be precise in other matters similar to this illness. The words of the Shulchan Aruch refer only to such a shoteh of whom we clearly know that at the time his insanity departs from him, he is in his right mind like any other person; therefore, even though he is still weak of strength and his illness is recognizable, nevertheless in his mind he is healthy and strong. And one must be very precise in this matter.

Our teacher, the Beit Yosef, wrote in his great work in the name of the Ri"v and the Ramah that when we do not know with certainty the time that he stands as healthy and the time that he is a shoteh, it is a case of doubt, and this is obvious. Thus far his words. The explanation of his words is that when the time that he is healthy is not known—meaning that his illness and his health occur without a fixed time—if we did not know clearly that at the hour he gave the get he was healthy, such as where the beit din did not examine him precisely, one should not validate the get based on a mere assessment where the observers said that he appeared healthy to them then; since it was without precision, one should not validate the get. And all the more so if he was not completely lucid, as his strength was still weak as I wrote in the previous section, one should not validate in such a case when his time is not fixed. But when he has a fixed time, then during his time of health we establish him in his chazakah of health, since such is his way (and this is also the intention of the Ba"sh in subsection 4). And I saw one who wrote that when his illness has no fixed time, one should not validate his get even during his time of health (according to the P"t subsection 2), and it is impossible to say so, for the Rambam explicitly wrote that there is no difference between an epileptic with a fixed time or without a fixed time, as I wrote in section 9. And also the wording of the Tosefta that we brought does not indicate this, and what logic is there to differentiate in this? Rather, it is certainly so that without a fixed time one must examine very, very precisely (and also from Rosh Hashanah 28a it is explicitly proven so, see there and examine closely).

And at the time that he is healthy and permitted to divorce, as has been explained, even if we knew that he would return to his folly, we have no concern regarding it, since he is now healthy. And it is not similar to what was written in siman 119 regarding a woman, that one should not divorce her even during her time of health when she is sometimes healthy and sometimes a shoteh, for there it is a rabbinic enactment so that people do not treat her as ownerless during her time of folly. And post facto, even regarding a woman, it is a valid get, as has been explained there in section 24. However, regarding a man, this does not apply. And the signs of a shoteh were explained in Choshen Mishpat siman 35; and see what I wrote there in section 7 regarding the opinion of those who disagree with the Rambam and hold that only with the signs stated in the Gemara at the beginning of Chagigah is he considered a shoteh and not in any other manner. And their words were rejected by most of the poskim, and we explained that it is possible that they also agree with the Rambam, see there (and see the Beit Yosef in this siman and the Beit Shmuel subsection 9).

Those afflicted with black melancholy, who do nothing of madness but only sit in sadness and distance themselves from the company of people, and do not request to eat, yet when given food they eat, and do not initiate speech, and when asked they answer few words, and do not speak words of madness—it must be deliberated whether their law is as a shoteh or not. According to logic, there are no signs of madness in this, but rather the illness of sadness alone, and it depends on the perception of the beit din to understand his way and his actions (and see Rashi, Chagigah 3b, s.v. "le'olam" etc.: I have heard it is an illness that takes hold from anxiety, thus far his words, and this is not a shoteh, see there and in the Pitchei Teshuvah):

One must be very, very careful regarding the get of a shekhiv mera, that when he commands to write the get, he must be of sound mind at the time he commands the scribe to write and the witnesses to sign. Furthermore, at the time the scribe writes and the witnesses sign, he must be of sound mind during the entire duration of the writing and the signings, for the scribe is the agent of the husband; since at the time of its writing he is not of sound mind, how can his agent write? And even according to the poskim who hold that we do not require agency for the writing, nevertheless, when he commands him to write and the scribe stands in his place, it is necessary that he himself be of sound mind and be fit to write it himself. And even at the time of the witnesses' signatures, if he was of unsound mind, our teacher, the Beit Yosef, wrote that the get is void, and even when there are witnesses of delivery, it is nothing but like a forgery from within. And although this is only a rabbinic disqualification, nevertheless the get is void according to the Torah (Tuv Gittin). The reason is that since he commands them to sign, it is necessary that there be the law of agency in this, and since the law of agency is nullified because he is of unsound mind, the get is void (ibid.).

However, in my humble opinion, it is astonishing to say so, that it should be void according to the Torah if he was not of sound mind at the time of the signatures. For it is understandable regarding the writing, since the obligation is upon him to write the get and he writes it via the scribe, it is necessary that he be fit for writing at the time of the scribe's writing. But regarding the signatures of the witnesses, even if we say that the obligation is upon him to have witnesses sign, it is sufficient that he is of sound mind at the time he commands them to sign. But at the time of the signatures, what does his state of mind matter to us? For he himself cannot sign the get, and it is upon the witnesses to sign as in all testimony. And how can we say that the get is void according to the Torah? And in truth, in all the Rishonim it is not mentioned at all that he must be of sound mind at the time of the signatures, only at the time of the writing and the delivery. And also in the Shulchan Aruch, section 4, the signatures are not mentioned at all; see there. And so too our teacher, the Beit Yosef, in his great book, who elaborated on this matter, did not mention this at all. Only at the end of his words did he write, this is his wording: And where it is clarified to us that he was insane at the time of the command, or at the time of writing and signing, it is void according to everyone. Thus far his words. And it appears to me, since he did not write "or at the time of signing," his primary intention was the writing, and it is a routine expression to include them together because nothing intervenes between writing and signing. And the commentators of the Shulchan Aruch also did not mention signing at all. Therefore, the law requires further study.

And all the more so that at the time of the giving he must be of sound mind (Levush). And if his mind became impaired between the writing and the giving, it is of no concern to us. And the proof is from what has been explained regarding one who says, "Write a get for my wife," and a malevolent spirit seized him and he said, "Do not write," and he then returned to health—they write based on his initial words, as was written in section 4. It follows that the seizure of a malevolent spirit did not nullify his initial words, and all the more so it shall not nullify the act of the writing of the get (Beit Yosef). And even if in the middle of the writing his mind became impaired and they ceased from writing, when he returns to health they complete the writing (ibid.). And it likewise is explained from all our teachers, the Rishonim, that he need not be of sound mind except at the time of writing and giving, and that which was interrupted in the interim by a lack of knowledge is of no concern to us, as our teacher, the Beit Yosef, elaborated on this in his great book; see there.

And that which our teachers the authors of the Tosafot wrote (70b, s.v. Hatam), and this is their wording: And regarding a get of a shekhiv mera, the Ri says that one must be careful that he does not become impaired between the writing and the giving, etc. Thus far their words. Their intention is not that the impairment in the interim invalidates the get, but rather this is the explanation: that if after the writing he became impaired and gave it to her while he was impaired, even if he recovered afterwards, we do not say "the matter is revealed" that he was sane when he gave her the get and it was merely a temporary stupor that seized him and the get is valid. Rather, we are in doubt lest he was a shoteh at the time of the giving, and she is a safek divorcee (Beit Yosef). Or, their intention is that they are obligated to see before the giving that he stands in a sane mind at the time of the giving; and if we did not see, and after an hour we saw him in an impairment of mind, we are concerned also regarding the time of giving, for it is not appropriate to establish him on the chazakah of the time of writing—that he was sane—and to say that also at the time of giving he was sane, for since he is prone to impairment, he has no chazakah (and see Maharsha and Pnei Yehoshua there). And that which is written in the Seder Ketivat HaGet of the Rosh, of blessed memory, and this is his wording: And if a shekhiv mera commands to write a get for his wife, the sofer shall be careful that the sick person be sane and composed in his mind from the beginning of the writing until the completion of its giving, for if his mind becomes disordered in the interim, even though his mind returns to him, the get is invalid. Thus far his words. This is a printing error, and it should say: until the completion of its writing (Beit Yosef). And so too the Tur at the end of siman 154, who transcribed this Seder from the Rosh, wrote explicitly: from the beginning of the writing of the get until the completion of its writing, see there. And so too our teacher Yerucham transcribed it thus, and not like what is written before us in the Rosh, see there (ibid.). And so it is implied from what he wrote, "that the sofer shall be careful," for if it were according to the version before us, the "carefulness" would be upon the arrangers of the get; but regarding the time of writing, the language of "carefulness" is appropriate for the sofer who writes before him. Nevertheless, our teacher, the Rema, wrote in Darkei Moshe, letter 1, that since also in the Seder HaGet found in our hands it is written according to the language in the Tosafot and the Rosh, it is good to be concerned for his words. Thus far his words. And so wrote some of the great Acharonim (Beit Shmuel, subsection 5), and only ex post facto should one be lenient (ibid.). And I do not understand their words; what relevance is there here for "ab initio" and "ex post facto"? Is it in our hands that the mind of the sick person should not be interrupted in the middle? And if we say that their intention is that when he becomes insane in the middle, one should ab initio arrange another get, this is even more wonderous; for who can say to us that in the second one it will not be so? And furthermore, how shall we not be concerned for the "tikkun ha-olam," lest there will not be time to arrange another get in its entirety? Therefore, their words are not clarified to me, in my humble opinion, and the main point is like the words of our teacher, the Beit Yosef.

And in my humble opinion, it appears to me to uphold also the version of the Tosafot and the Rosh before us, and they do not contradict all the poskim; rather, one must distinguish between when the sick person only commands to write and to sign, and the giving he gives himself, for then we are not concerned with what was corrupted between the writing and the giving. And the Tosafot and the Rosh are dealing with when he said "write and give," where he made an agent also for the giving of the get, for then there is reason to say that if it was corrupted between the writing and the giving, it is not a get. And the intention is not that the get is disqualified, but rather that the giving is disqualified, and he must make an agent for the giving another time when he recovers, or he shall give it to her himself, for the reason that will be explained with the help of Heaven:

For behold, there are some among the great authorities who raised a difficulty regarding all that is explained in the Shas and poskim, that a person has the ability to say "write and give a get to my wife." How can he appoint a messenger for the giving while the get is not yet written? For we hold that any matter that one cannot do now, he cannot appoint a messenger for (Nazir 12b). And behold, prior to the writing, it is not in his power to deliver a get to his wife, so how can he appoint him as a messenger? And one cannot say that because it is in his power to write it, it is considered as if he can do it now, for the Tosafot there wrote explicitly that even in a matter that is in his power, since it lacks an action, he cannot appoint a messenger; see there (Noda BiYehuda in the book Dorshe L'Zion, derush 13). However, the answer is simple: certainly, if he were only appointing a messenger for the giving alone, he would not have the power to do so; but since he appoints for the writing and the giving, it is all one mission from the beginning of the writing until the completion of the giving (his son in the gloss there and in Teshuvot Sha'ar Efraim, siman 86). To what is this comparable? To one who delivers a get to a messenger to bring it to his wife who is a journey of several days from here; even though it is not in his power to deliver it to her now, nevertheless, since the mission begins from this moment, we have no concern (ibid.).

And according to this, regarding a shekhiv mera who says, "Write and give a get to my wife," and he became mentally impaired after the writing, the agency for the giving is nullified. And even though the agency is not completely nullified when he becomes mentally impaired in the middle, as has been written, this is all in the middle of the writing or in the middle of the giving, where it is not nullified but rather interrupted for the time being. However, when he appointed an agent for the writing and the giving together, and the agency was interrupted between the writing and the giving, the giving is called an agency unto itself. And if we consider it an agency unto itself, behold, his agency that he performed before the writing is not effective, for he himself cannot perform the act. And of necessity, he must either appoint an agent for the giving for when he recovers, or he must deliver it to her himself. And one must deliberate on this, for I have not found any of the poskim who speak of this, and therefore the law requires further study.

And according to what has been explained, any sick person whom it is a mitzvah to write a get for his wife requires examination both at the time of writing and signing and at the time of giving. However, the examination is not like the examination of one who became mute, which will be explained in this siman, that requires examining him three times and intermittently. For specifically when he became mute from his speech is such an examination required, but a sick person who speaks requires only a slight examination to see if his mind is settled upon him, so that he should not be like the sick who speak and do not know what they are saying (Beit Yosef). And so our teacher, the Rema, ruled in section 4, and there is none who disagrees in the matter. And when he does not know what he is saying, his law is like a shoteh (ibid.). And one should not ask: since he speaks and knows what he is saying, why is an examination required at all? For it can be said that since he is a sick person, his mind is prone to change; therefore we are concerned for him. And furthermore, that in truth this thing itself is his examination: for when he speaks and knows what he is saying, they write a get for him.

And if they did not examine him, and they wrote and gave her a get, our teacher, the Beit Yosef, wrote in his great work that it is possible it is kosher ex post facto, for such is implied by the wording of the Tosafot and the Rosh, who wrote that one must be careful in this, and it implies that it is only a general caution. And this is specifically when he did not become mute, but if he became mute, even ex post facto one should not validate it without an examination, as will be explained (the Rema in Darkei Moshe; and one must look further into the Beit Shmuel, subsection 5, who disputed him, see there, for behold, the Rema also deals with one who became mute, see there). However, in truth, even when he did not become mute, it is always possible to clarify even afterwards according to the state of his illness, and those who serve him in his illness will be able to know well if he was of sound mind during the entire time of the writing and the giving. And the custom has already spread that every posek who comes to arrange a get for a sick person examines him extensively and does not rely on others, and they supervise him during the entire time of the writing, the signing, and the giving.

The sages taught in the Mishnah (beginning of chapter 7): If one became mute and they said to him, "Shall we write a get for your wife?" and he nodded with his head, they examine him three times; if he said for "no," "no," and for "yes," "yes," behold these shall write and give. And even though we require that they hear his voice saying to the scribe "write" and to the witnesses "sign," it is explained in the Yerushalmi that nodding is like the hearing of a voice. And it is explained in the Gemara (70b) that the examination of three times must be intermittent, which means that they wait a while after the nodding and return and ask him that same question itself (Rashi). And similarly, they wait after the second question a while. And also regarding the questions of "no" and "yes," they ask him one "no" and two "yes," and two "no" and one "yes." And this examination is explained in the Yerushalmi: How do they examine "no" and "yes"? They say to him, "Shall we write a get for your wife?" He says "yes" (meaning, he nods with his head). "For your mother?" He says "no." "For your sister?" He says "no." "For your daughter?" He says "no." See there. And this requirement for one "no" and two "yes" and two "no" and one "yes" is because we are concerned that if he is asked "no" and "yes," "no" and "yes," and he nods his head once "no" and once "yes" and so on in order, perhaps a sickness has seized him such that he nods with his head without intent, once "no" and once "yes." But when he nods twice "no" and once "yes," and so on in this manner, it is not to be attributed to sickness, and certainly he answers with intent.

It is further stated in the Shas there in a baraita that they say to him: "Do you wish for us to bring you fruits from the tree that grow in the summer?" and this they ask him during the rainy season. And in the summer, they ask him about fruits whose way is to grow in the rainy season. And through this they understand if he is of sound mind or not; for when he says "yes" regarding fruits whose way is to grow at this time, and says "no" regarding fruits whose way is not to grow now, it is a clear sign that he is of sound mind, and if not, he is not of sound mind. And they do not ask him generally to bring these fruits or those, for general fruits could possibly be preserved in honey from the summer for the rainy season or vice versa; rather, they ask him if he wishes that they pick them for him from the tree (Tosafot). And the examination of the baraita does not disagree with the examination that has been explained, for the previous one is also a good examination; rather, the examination of the baraita is a better examination since he does not err between the summer and the rainy season. Therefore, in this examination, there is no need for alternating, nor one "no" and two "yeses" like the previous examination, and it is sufficient with three times "no" and three times "yes." And also, they do not ask him about warm garments in the summer, whether to give them to him to wear and cover himself, or cold ones in the rainy season, for from this there is no proof even if he answers "yes" to "no" and "no" to "yes," for perhaps a chill seized him in the summer or a fever seized him in the rainy season; but from fruits it is clear proof (Gemara and Tosafot). And all that has been explained is according to the method of Rashi and Tosafot there in the sugya, see there.

But the Rambam, of blessed memory, wrote in chapter 2, law 16: One who became mute, yet his mind is sound, and they said to him, "Shall we write a get for your wife?" and he nodded his head, they examine him three times intermittently; if he said to them "no" for no and "yes" for yes, these people shall write and give it. And they must examine him very thoroughly, lest his mind has become unsettled. Thus far his words. And it is implied from his words that the Gemara and the Yerushalmi did not specifically mandate these exact examinations, and he also did not mention what they said in the Gemara regarding one "no" and two "yeses." Furthermore, it is implied from his words that three questions are sufficient, because he holds that the Gemara did not speak specifically, for the main point is to emerge from doubt so that we know clearly that he answers with understanding, and this is included in what he wrote, "and they must examine him very thoroughly." And everyone can perform the examinations according to their own judgment, provided that they emerge from doubt (Kesef Mishneh). It also appears that he does not interpret "intermittently" according to the explanation of Rashi as a delay of an hour, but rather "intermittently" refers to "no" and "yes." And all the poskim did not mention this delay of an hour of Rashi. Nevertheless, one should be concerned and act stringently like the opinion of Rashi, of blessed memory, if there is time for this (and so it appears from the Hagahot Maimoniyot there and from Rabbi Yerucham that one should be concerned for the opinion of Rashi, and so wrote the Beit Shmuel in subsection 7). And it appears to me that "an hour" is not specifically what we call an hour, one twenty-fourth of a full day, but rather it means with an interval of time.

This is the wording of the Tur: One who became mute, and they asked him if he desires that they write a get for his wife, and he nodded his head to say yes, they examine him with other matters by asking him something appropriate to respond to. If they see that his mind is settled, in that he gestures for a negative response a nodding in the manner of people for "no" and for "yes" a nodding of "yes" three times for each, they write and give. And they should not examine him three times "yes" or three times "no" one after another, but rather one "yes" and two "no," or two "yes" and one "no." And they should not examine him regarding things found at that time; rather, in the summer they ask him if he wants fruits of the winter, and in the winter if he wants fruits of the summer. If he responds "yes," he is certainly a fool, and if he responds "no," he is sane. But if they asked him in the summer if he wants to wear warm garments appropriate for the winter and he responds "yes," he is not in the status of a fool, for perhaps a chill seized him; and similarly, if he responds "yes" in the winter regarding summer garments, it is to be attributed to perhaps a fever seized him, and she is doubtfully divorced. Thus far the words of the Tur.

And that which he wrote, that they examine him with other matters, his intention is that the examination should not be regarding matters of a get like the reasoning of the Yerushalmi, but rather the examination must be from other matters (Bach and see Beit Yosef and examine closely). And it also appears that he does not hold of the delay of Rashi (ibid.), and he required that the examination be specifically with fruits (ibid.). Furthermore, it appears from his words that specifically when he answers "yes" regarding fruits that are not in this season, he is certainly a shoteh; but if he answers "no" regarding fruits of the season, he is not established as a shoteh, for certainly perhaps he answers with awareness, only he has no desire to eat these fruits. However, according to this, why did he write regarding one who answers "no" about fruits that are not in this season that he is a pekiah? From where do we know that his intention is for cleverness, that he knows they are not found now? Perhaps his intention is that he has no desire to eat them. But in truth, even if so, his intention at any rate is that he is a pekiah, for he answers properly and knows what they are asking of him. And the Tur did not mention that they should ask him about picking fruits from the tree, because it was implied to him that even with ordinary fruits, when they speak, the intention is not for those preserved in honey. And he also was precise and wrote one "yes" and two "noes," and two "yeses" and one "no," to exclude that they should not ask him the one "no" after the two "noes," so that there should not be three consecutive "noes," for this is not truly alternating. And our teacher, the Beit Yosef, was not concerned for this, as is proven from his words in section 5, see there (see Be'er Sheva subsection 7).

Furthermore, it appears to me that the Tur did not specifically mean an examination with fruits, but rather his primary intention was to examine him with other things and with things that are not found at one time versus another, in order to know through this if he is of sound mind. For there is no reason to say that only an examination with fruits constitutes an examination and not something else. A proof for this is that our teacher, the Beit Yosef, transcribed his wording in the Shulchan Aruch and omitted the examination with fruits. However, from the wording of our teacher, the Rema, who wrote: "And there are those who say that they examine him by means of fruits, etc., if he wants them to pick for him from the tree," thus far his words, it implies that we specifically require an examination with fruits. And it seems to me that in our countries we do not practice this examination, and it is impossible at all to practice so, for among us no fruit grows during the rainy season.

It is stated in the Yerushalmi: when do we require three examinations? In one who became mute while in a state of health, for then the concern is great that perhaps he is not of sound mind; but a sick person who became mute, a single examination is sufficient for him, for certainly he became mute due to his weakness and not because he lost his mind. However, several of our early teachers did not mention this distinction for the law, and the Rambam also did not mention this, and likewise the Tur and the Shulchan Aruch. And Rashi in the Mishnah explained: "became mute from an illness," see there (Beit Shmuel; and one can only say that this is the explanation: that the muteness is due to a sickness that has now come upon him).

If they did not examine one who became mute according to the law and he gave her a get, she is also a case of doubtful divorce. And there are those who say that this applies specifically to one who became mute while in good health, but regarding one who became mute due to his illness, there is room to permit it ex post facto in a situation of iggun (Beit Yosef). And there is one who disagrees with this (Beit Shmuel, subsection 5). Regarding the law, one must deliberate on this and understand the state of the illness.

Specifically regarding one who became mute, his nodding and gesturing are effective when they have examined him, for he is a person of intellect but is unable to speak. Similarly, a congenital mute who hears but does not speak has the status of a person with all his faculties, and we rely on his gesturing regarding a get. However, a cheresh who neither hears nor speaks, whose status is like that of a shoteh, does not release his wife through gesturing if he married her while he was a person with all his faculties; likewise, a yevamah who fell to him from his brother who was a person with all his faculties, for since the kiddushin is from the Torah and the yibbum is from the Torah, and he is not a person of intellect to exempt her with his get. But if he married a woman while he was a cheresh, even if she was a person with all her faculties, he releases her through gesturing, for just as he married her through gesturing, so too he releases her through gesturing, and for this reason he also does not require examination. Similarly, a congenital mute does not require examination, for his marriage was also through gesturing. And some say that a cheresh and a mute require examination (see Beit Shmuel subsection 9 for the two opinions). A cheresh does not have the status of a shoteh in this matter, for a shoteh has no kiddushin or get, but a cheresh does, for a cheresh has a weak intellect; therefore the sages ordained marriage for him, which is not the case for a shoteh, as I wrote in siman 44, see there. The law of handwriting was explained in siman 120. Know that gesturing is specifically with his head and his hands, but twitching with his mouth—that is, the contorting of lips—is not effective, for it is not as good a sign as gesturing (Rashi, Gittin 59a). However, if he married by means of twitching, it is possible that he also divorces by means of twitching (Beit Shmuel subsection 9), and see what I wrote in Choshen Mishpat siman 235.

A goses, according to the opinion of Rashi and Rabbeinu Chananel, is considered like a dead person and cannot give a get even if he is of sound mind. One of the Rishonim wrote a reason for this, because the Sages, of blessed memory, said (Kiddushin 78b) that when one is a goses he is unable to give a gift, see there; and regarding a get it is written "and he shall give into her hand," and we require that he be fit for giving (the Rosh there in the name of Ri of Bonn). And even though in the first chapter of Ohalot we learned in a Mishnah that a goses is like a living person for all matters—he inherits and bequeaths, binds to yibbum and exempts from yibbum—this is all regarding matters that occur automatically, and not that he should perform an action like the giving of a get or a gift, for in this he is considered like a dead person. However, Ri the Elder, the author of the Tosafot, and the Rosh, of blessed memory, disagreed with them, and this is also the opinion of the Rashbam, of blessed memory (Bava Batra 127b), that it is only a gift that he cannot give when he is a goses because he lacks the strength to speak, but when he is able to speak, it is a simple matter that his law is like a living person for all matters, as is proven from the Mishnah in Ohalot, and there are many other proofs for this, see there. Our teacher, the Beit Yosef, wrote in his great work that according to this opinion, even a goses who cannot speak, if there is only enough time to examine him, he may give a get through gesturing and nodding. And some say specifically when he can speak, but a goses who does not speak cannot give a get (Mordechai and Semag). Our teacher, the Rema, wrote that one should be stringent like this opinion. And it is not similar to what will be explained regarding one whose simanim were slaughtered, who may give a get through gesturing—and you have no greater goses than that—for there, since he was slaughtered while healthy, his mind is clear to him; this is not the case with a goses due to illness, whose mind is not clear when the power of speech is taken from him (Chelkat Mechokek, subsection 10), or because since he is a goses due to illness and the power of speech has ceased from him, he is considered like a dead person (Beit Shmuel, subsection 10). The Radbaz decided in a responsum (Part 4, Siman 206) that if he is only able to speak, they may write a get for him ab initio; and even though in matters of gittin we apply several stringencies, it is different here where it is impossible otherwise, see there. And it is explained from his words that when he is unable to speak, we do not rely on his gesturing.

Our Sages, of blessed memory, said (70b) that if they slaughtered in him the two simanim or the majority of them, and he gestured and said, "Write a get for my wife," they write and give it. And so it was taught: If they saw him mangled or crucified on the cross, and he gestured and said, "Write a get for my wife," these people shall write and give it. And it is not necessary to say "write and give," since he is in danger, like one who is cast into a pit, for whom saying "write" alone is sufficient. And even though he will die immediately, nevertheless, as long as his soul is within him, he is considered as living. And thus our Sages, of blessed memory, said there: He is living, though his end is to die. And similarly it was taught in the Tosefta of Gittin (chapter 4): A healthy person who said, "Write a get for my wife," and went up to the roof and fell, they write and give it to her as long as there is a soul within him. Thus far his words. It follows that even though he fell to his death, nevertheless, as long as he is alive, he is considered as fully living. The Rishonim were in doubt whether these cases require examination. Therefore, our teacher, the Rema, ruled that he requires examination three times, as has been explained, if he is unable to speak. And one should not ask how we know that his intention was for the writing of a get, for in truth it deals with a case where we said to him, "Shall we write a get for your wife?" and he nodded his head (Tosafot). And there is one who says regarding one in whom the majority of the two simanim were slaughtered, if they wrote it without examination, it is kosher post facto (Beit Shmuel). And it is a great wonder to say so, for we are witnesses that it is a very difficult thing for him to have it in his mind during the entire time of the writing of the get and its delivery. And know that there is one who wrote that in every place where examination is mentioned, we are not experts in this (Bach). However, it does not appear so from all the poskim and the Shulchan Aruch, and one must deliberate on the matter (Chelkat Mechokek and Beit Shmuel). And in truth, it is difficult to say that in a case of iggun we would not rely upon our examination.