Siman 122

If he told a scribe and witnesses to write, sign, and give a get to his wife, and that they should also be the agent to deliver it to her, and they wrote, signed, and gave it to her, and a disqualification was found in the get, whether according to Torah law or rabbinic law (Beit Yosef), they may write and sign another get and deliver it to her even without the husband's command for the second get. And even though once witnesses and a scribe have performed their agency they no longer have the power to perform another agency without the knowledge of the sender, for he only appointed them for one thing, nevertheless in such a case they may write another get, for they have not yet performed his agency, as he commanded them to write a get and not merely a shard (63b). And one should not say that this is only well-settled when the disqualification is from the Torah, where it is certainly merely a shard, but when its disqualification is rabbinic, it is not a shard, for from the Torah she is divorced, and if she were to receive kiddushin from another we would require a get from him, and it is not a shard; however, in truth, regarding the matter of agency it is merely a shard, for it is obvious that when the husband commanded them to make a get, his intention was for a get that is valid even according to rabbinic law so that she may marry with it, for if not so, what benefit is it to her or to him? Therefore, regarding this matter it is called merely a shard, and they may write another get without his knowledge.

And so, even if it was written and signed in a valid manner, but the get was lost before they delivered it to her, they also write another get, for in this case as well they have not completed their agency, as he commanded them to give it to her, and when it was lost, they had not given it to her (Gemara). The Rambam, of blessed memory, in chapter 2, omitted this case of it being lost, and it requires further study, for no one disagrees on the matter. It must be said that he holds it is an a fortiori argument from one written in an invalid manner (Beit Yosef). However, in the Gemara it implies the opposite, that being lost is a greater novelty; see there (and see Lechem Mishneh; and the words of the Mishneh LaMelech require further study, for how could the reasoning of Rabbah be completely opposite to that of Rav Nachman). But in truth, when we examine his words closely, he did not omit it at all, for this is his wording there: If he said etc. and the get was found to be void or invalid, these individuals write another get, even a hundred, until a valid get reaches her hand. Thus far his words. And since he wrote "until it reaches her hand," it follows automatically that as long as it has not reached her hand, such as if it was lost or for another reason, they write another get (Pri Chadash). And it is not specifically if it was lost on its own, but even if they lost it manually, they also write another get (ibid.), for in any event it has not reached her hand. And it is possible that for this reason the Rambam did not explicitly write "lost," but rather "until it reaches her hand," in order to include even losing it manually.

And this is specifically when he made them agents for the giving as well; but if he commanded them only to write and sign, and that they should deliver the get to another agent who would bring it to her—whether he said "write and give to the agent" or whether he said "write and give to the agent and he shall bring it to her"—it is an inquiry in the Gemara there if they can write another get when it was lost from the hand of the agent. For they have performed their agency, and even when he said "and he shall bring it to her," it can be said that the intention is not that they are obligated to sustain it until he brings it to her, but rather that it is the way of people to recount all his words, that his will is that the agent should bring the get to her. And it remains in a state of teiku; therefore, in such a case, they do not write another get. And if they wrote and sent her another get by means of this agent, she is doubtfully divorced. And that which we have explained is according to the explanation of Rashi there, and so wrote the Rosh (HaTikabel 66), that in these two laws, when it is lost, it is a legal doubt; see there. And even though from the wording of the Tur it is implied that the doubt is only in the second law when he said to them "and he shall bring it to her," but in the first law there is no doubt here, for certainly they cannot write another, and there is a basis for this in the halacha (according to the Geonim on "if you will say," see the Beit Yosef), nevertheless, perforce it is impossible to say so, as is proven from the Rosh (Beit Yosef), and in both laws it is a doubt.

But the Rambam, of blessed memory, wrote there: If the husband said to them, "Write, sign, and give to a messenger to bring to her," and they wrote, signed, and gave to the messenger, and the get was found to be void or invalid, they may not write another until they consult with the husband, for he did not make them messengers for the divorce, and perhaps he only desired that they write and give to the messenger alone, etc. And if they wrote another get, etc., she is in a state of doubtful divorce. Thus far his words. And he interprets the inquiry in the Shas regarding a case where an invalidity was found in the get; but from Rashi, the Rosh, and the Tur, it is implied that the inquiry pertains only to the matter of it being lost. But regarding an invalidity, how does "they have performed their mission" apply? For they did not write it according to its law. Furthermore, it is implied from the Rambam that specifically when he said "to bring to her" it is a doubt, but in the first inquiry, when he only said "give it to a messenger," there is no doubt here, for certainly they cannot write another even if an invalidity was found in its writing. And the reasoning of the Rambam must be that since he only commanded them to deliver to the messenger, and through the delivery into his hand she is not yet divorced, if so, it is possible that the husband is unconcerned even when it is written with an invalidity, since even with a valid one she is not yet divorced, and he did not make them messengers until she is divorced (Kesef Mishneh). Rather, when he said "to bring to her," it is a doubt, for perhaps his intention was until it reaches her hand (ibid.). And it appears that according to the Rambam, in a case where it was lost, in any event it is obvious that they cannot write another get since it was written according to its law (Beit Yosef and see Be'er Sheva subsection 7).

And some say that Rashi and the Rambam do not disagree regarding the distinction between "lost" and "found to be invalid," for Rashi did not specifically mean "lost," as the same applies if it was found to be invalid in the get, it is a doubt; and likewise the Rambam, who mentioned "invalid in the get," the same applies when it is lost (our teacher Yerucham, part 3). However, this does not seem to be so, for in truth the reasonings are not equal; rather, it is certain that if it was found to be invalid in the get, according to Rashi, the Rosh, and the Tur, they certainly may write another get, and if it was lost, according to the Rambam, they certainly may not write another get (Beit Yosef).

There is one who wishes to reconcile the opinions, that what the Rambam wrote—that if a disqualification is found in the get it is invalid—this refers to when the disqualification was found after they delivered it to the agent and the disqualification occurred after the delivery into the hand of the agent, and this is exactly like being lost, since it was delivered to the agent in a valid state; but regarding a disqualification that was in it previously, even the Rambam admits that they may write another (Beit Shmuel, subsection 7). However, it does not seem so from his words, for he wrote this same language previously as well, and there its meaning is that it was written with a disqualification, see there. Furthermore, in the Gemara, before this inquiry, the law of being lost was mentioned, see there, and for this reason Rashi, of blessed memory, explained it regarding being lost. And if it should enter your mind that the Rambam's intention was regarding a disqualification that arose in the hand of the agent, why should he mention a law that is not found in the Gemara? It would have been better for him to write "when it was lost." Rather, it certainly appears that he wrote this intentionally because it was obvious to the Rambam that regarding being lost there is no doubt here, as I have written. And certainly, for the law, one must be stringent according to both opinions (and even though from the Maggid Mishneh it also implies like Rabbeinu Yerucham, nevertheless the primary view is like the Beit Yosef). And from our teacher, the Rema, in section 2, it appears that he takes the primary view for the law like Rashi and like the explanation of the Beit Yosef that we have written, see there, and he was very brief, see there.

It is a simple matter that even according to the opinion of Rashi, as has been explained, that when a disqualification is found in a get, in any case they may write another get, this is only when he says "write and give" or "write and give to the agent" so that the agent shall deliver it to her. But if he commanded the scribe to write and the witnesses to sign, and he took the get from their hands and delivered it himself to the agent to bring the get to his wife, and it was found disqualified, they do not have the ability to write another get without the permission of the husband, for the agent was not made an agent by him except for this get delivered to him and not for another (Chelkat Mechokek subsection 6). And even if he did not explicitly make him an agent for this get but rather made him an agent generally and delivered it into his hand, he does not have the ability to receive another get without his knowledge (Beit Shmuel subsection 8), for ultimately when he delivered it into his hand, he did not appoint him as an agent except for this get. And if he said to the agent, "Bring this get and up to one hundred gittin until one of them is fit," according to the Rav, the law is like that of a scribe and witnesses, which will be explained before us (ibid.).

According to the laws that have been explained, anyone who writes a get for his wife and delivers it to her hand himself, and they arrange the get as is customary where the arranging Rav instructs the husband to say to the sofer, "Write a get for my wife," and to the witnesses to sign, as will be explained in the Seder HaGet in siman 154, and the husband says so, and a disqualification is found in the get, the husband does not need to command the sofer again to write; rather, the sofer himself writes another get, for he made him an agent to write him a get and not merely a shard. And the Rosh, of blessed memory, wrote (ibid.) that this is specifically when it is found to be completely disqualified, but if they are in doubt regarding the get whether it is kosher or not due to stringencies that they were accustomed to be stringent with not according to the depth of the law, he does not have the power to write another get, for behold, according to the essential law, the sofer fulfilled his agency. Therefore, when another get is required, the husband must command him to write another get. And so too if there is a doubt for the arranger if there is a disqualification in the get according to the law or if there is no disqualification in it, he must command, for how shall the sofer write on his own? Perhaps there is no disqualification in it and he has already fulfilled his agency.

Because of this, our teachers the Tosafot (63b) and the Rosh there and other Rishonim wrote that it is good to instruct the husband to say to the scribe and to the witnesses to write and to sign, so that the get will be valid according to their opinion without any hesitation; for then, if there is found in it even some stammering that does not constitute a disqualification according to the law, they can write and sign another get without the permission of the husband, since he gave them permission previously for this.

Therefore, our teachers, the authors of the Shulchan Aruch, established this in the Order of the Get at the end of siman 154, where they wrote there in section 15: The husband shall extend the parchment, etc., to the scribe in the presence of witnesses and say to him in their presence, "Write for me a get for the purpose of divorcing my wife, so-and-so, etc., and I give you permission to write the get from one until one hundred until one shall be valid without any doubt, whether in the writing or in the signing, according to the opinion of the scholar so-and-so or to anyone to whom he shows it," etc. Thus far their words. And they wrote similarly in section 16, that he should also say this to the witnesses, that they should sign for him up to one hundred gittin until one of them shall be validated according to the opinion of so-and-so the scholar, see there. And so all those who arrange gittin are accustomed to do.

And it is very puzzling to me, for several of the Rishonim wrote that it is not proper to do so because of the concern of bereirah, for we would need to say that the matter was clarified retroactively that this get which the Rav validated was the one intended by the husband. And we hold that regarding Torah law there is no bereirah, as is written in the Hagahot Mordechai of Gittin in the name of our teacher Yosef Colon, see there. And so wrote the Kol Bo, and so wrote the Beit Yosef in his great work in this siman, that it was so written in a pamphlet in the name of our teacher Yechiel. And he added to this that the source of this matter is from Ri the Elder, the author of the Tosafot, and he holds that we rule there is bereirah (as the Ran wrote at the beginning of the fifth chapter of Nedarim and the Rosh there and Tosafot Temurah 30a). However, the Rambam, of blessed memory, and Rabbeinu Tam, of blessed memory, and several other Rishonim ruled that regarding Torah law we hold there is no bereirah.

Furthermore, it is a wonder to me, for in this siman, section 1, they wrote in the Shulchan Aruch, this is his wording: Therefore, if the husband is leaving the city, he should say that he gives them permission to write and sign a get from one until one hundred, until there shall be one that is valid, whether in the writing or in the signing, according to the opinion of the rabbi in the city without any hesitation, and to anyone to whom he shows it; but if the husband is in the city, one should not rely on this, and the husband must return and command the witnesses and the scribe each time, and so we practice, that he returns and commands as at first, and also transfers to them the parchment and the ink if nothing remained for the scribe from that which he transferred to him at first. Thus far his words. And the reason that we do not rely on this is because of bereirah, as the Beit Yosef wrote. And if so, later in the Seder HaGet, which deals with an ordinary get where the husband is in the city and is not in a hurry to leave, why did they establish this in the Seder HaGet?

It appears to me that our teachers, the authors of the Shulchan Aruch, maintain that perforce there is no concern of bereirah in this, for how is it possible to say that Rabbeinu Tam, the author of the Tosafot, follows his own reasoning that we establish "there is bereirah"? For the Tosafot in Gittin (24b) wrote in his name that even the one who maintains generally that "there is bereirah" admits that in Gittin we establish "there is no bereirah," since "and he shall write for her" implies that it must be clarified at the time of writing; see there. Rather, certainly bereirah is not relevant to this at all, as the Maharshal wrote (in Yam Shel Shelomo, Gittin, chapter 2, siman 5). This is his wording: And it is not clear to me at all to compare this to the matter of bereirah, since he said "until it is fit according to the opinion of the Rav," if so, it is as if he explicitly specified that the first ones are nullified, and only with this last one will his agency be completed. Thus far his words. (And the Get Pashut wrote similarly; see there). And even though if we examine closely there is a concern of bereirah in this, for we require that the get be written lishmah and for the purpose of kiritut, meaning that the scribe shall write it so that the husband shall divorce her with this get, and since he did not make him an agent for the writing except in a manner that the Rav agrees to this get, if so, at the time of writing he writes to divorce with it in a manner that the Rav agrees, and even if it is fit and the Rav does not agree he will not divorce with it, and this is actual bereirah (Tuv Gittin), for after he shows it to the Rav and the Rav agrees to this get, the matter is clarified that this get was written for the purpose of divorce. However, in truth it must be said that this is not a complete condition and he does not stipulate strictly, and the main intent of the condition is that he makes him an agent to write as many gittin as he wishes, and it depends on his will to show it to the Rav (ibid.). Furthermore, this is a condition like other conditions in a get, and if so, regarding every condition in a get let us also say that when the condition is fulfilled it becomes a get retroactively, why should we not say that there is a concern of bereirah in this? However, Rashi, of blessed memory, already wrote (Gittin 25b) that bereirah is not relevant to conditions in a get, for since it is in his power to fulfill them and his intent is to fulfill them when he stipulates them, and when it is fulfilled it becomes a get retroactively, there is no concern of bereirah in this; see there. And here too, it is in the power of the scribe to write a fit get, and the Rav certainly will not seek pretexts to disqualify it, and automatically this does not fall under the concern of bereirah (it appears to me).

Therefore, in the Seder HaGet in siman 154, they wrote to practice thus due to the concern that perhaps they will write a second get and forget to take permission from the husband, and perhaps there will not be a total disqualification in the get such that according to the law they have no permission to write another get without his command; and regarding the concern of bereirah, they do not hold of it for the reasons we explained. However, in this siman, which deals with the fundamental law, they wrote that if the husband is leaving the city, then it is necessary to say this, for how shall they act when there is a concern regarding the get and he has left the city? And afterwards they wrote that when the husband is in the city, it is not worthwhile to rely on this, and he must return and command, for since there are those who hesitate due to the reason of bereirah, and regarding a get we are very exacting to fulfill all opinions, therefore when he is in the city he should command once more. And then he should not say this formula, for since we are doing this to return and command, how can he say this formula which contains this concern? And so wrote the Acharonim. And one should not say that if so, how did they arrange this formula in the Seder HaGet, why should we not be concerned ab initio for the concern of bereirah to fulfill all opinions? For it can be said that they were more concerned for the concern that perhaps they will forget to tell the husband to command them to write another get than for the concern of bereirah, since in their opinion there is no concern of bereirah in this at all.

And all this is to justify their words, but in truth I have seen and heard from great authorities who greatly doubted this and established the practice not to say this formula, and so I conduct myself. For why should we place our heads between the disputes of the Rishonim? For ultimately, when another get is required, we do not rely on the first arrangement, and the husband commands them another time to write and to sign. If so, it is superfluous even for one who does not hold this concern, unless the husband is in a hurry to leave, for then it is necessary to arrange with this formula. (The Tuv Gittin in subsection 7 also wrote that it is better not to say this formula at all, but only to say that he should write as many gittin as he desires, see there. And since it is impossible to say according to the formula of the Shulchan Aruch, why do we need this saying at all? And so my father-in-law, the Gaon Rabbi A.M. Halevi of Pinsk, told me that he and his predecessor, the Gaon Rabbi Mordechai, of blessed memory, did not arrange with this formula at all).

Our teacher, the Rema, wrote that some say that which we say, that the witnesses and the scribe have fulfilled their agency and he must return and command again, is specifically if it was already signed and became disqualified; however, if it was not yet signed, they may write another and the husband does not need to command. But they practiced stringency in every case. Thus far his words. And they wondered about him: what is the connection of the scribe to the witnesses? For the scribe has already fulfilled his agency (Taz, and these are also the words of the Beit Shmuel, subsection 6). And this is settled only according to the one who holds that the witnesses of the signature effect the severance, for the essence is the signatures, and the writing without the signatures is nothing. But for us, who established that the witnesses of the delivery effect the severance, the essence is the writing (ibid., and also the Yam Shel Shelomo there disagreed with the Tashbetz, see there). Furthermore, the source of the law is from the Tashbetz, as the Beit Yosef wrote, and he did not write this as the halacha but was in doubt regarding this, see there. And according to this, that which he concluded, that they practiced stringency in every case, this is not a stringency, but rather according to the core of the law it is so (Taz):

And it appears to me that his opinion is thus: for certainly if he had commanded the scribe individually to write and the witnesses individually to sign, they would indeed be two separate missions. However, since he commanded them in one standing to write and to sign, it is all one mission, and as long as they have not signed, the mission has not been completed at all. And this is not a matter of "on the condition that I divorce her," for ultimately, he commanded them together to write and to sign. And a proof for this is from what the Nimukei Yosef wrote (Chapter Get Pashut, and brought in the Sma, siman 49, subsection 10), that a document which had one witness signed on it and was lost or erased, they may write another document, for as long as the second has not also signed, it is called "they have not performed their mission," see there. Behold, it is explicit that even though this witness performed his mission, nevertheless, since he commanded both of them, as long as the second has not finished, it is called even regarding the first that he has not finished his mission. And so too regarding a scribe and witnesses. And therefore, here too there is one who says that even if one witness already signed his name on the get, nevertheless, as long as the second has not signed, it is called "they have still not performed their mission," and they are permitted to write another get (Chelkat Mechokek, subsection 2). However, according to the custom that they practiced to be stringent in every case, it implies that even if he wrote only a portion of the get and a disqualification occurred in it, even so, he performed his mission for this portion that he wrote, and the husband must return and command again (ibid.). And according to the custom, even in a complete disqualification where according to the Torah he could write another, nevertheless, they practiced to be stringent.

He further wrote that even in a case where by law they must ask the husband and he must command them to write another get, such as when it is not invalid by law but only due to a mere stringency, nevertheless, if they wish to write another get and give her both gittin, they have the permission to do so and need not ask the husband. Thus far his words. And the reason is simple: for if the first is valid, she is divorced with the first, and if it is invalid, his consent is not required and she is divorced with the second. However, it will be explained further on that one should not give two gittin except in a case of exigency; therefore, this is not a good remedy (Beit Shmuel, subsection 2). And know that what our teacher, the Rema, wrote—that when the husband commands again to write another get, he acquires for them the parchment and the ink—the phrasing is not precise, for does the husband need to acquire for them (ibid.)? And it appears to me that it is a scribal error, and it should be said: "acquires for him," meaning the scribe acquires for the husband, see there.

There is one who says that the scribe should be careful, after the rabbi has seen the get and it had some deficiency—such as to extend a letter or letters that were blurred and their impression is not recognizable—that he should not do so without the permission of the rabbi, for perhaps it is kosher in the opinion of the rabbi and he has already performed his mission. Therefore, in some get templates, the husband says to the scribe at the beginning that it should be kosher in the eyes of the rabbi, and to the one to whom he shows it, and to you, so that he too will have permission to correct since it was also made dependent on his opinion (Chelkat Mechokek subsection 1 in the name of Darkei Moshe). But this custom has never been practiced, and certainly for one who does not practice this entire version as we have explained, the scribe has no permission to correct anything in the get without the permission of the husband. However, one of the great authorities already wondered about this: since it is kosher even without correction, what do we care if he corrects it on his own? And if it is invalid without the correction, then he does not need the opinion of others at all, for he has not yet performed his mission. Perforce, it must be dealing with a case where in truth it is not kosher without the correction, but only that the rabbi erred in this and said it is kosher; then, if he corrects it without the permission of the rabbi, it is not effective, because the husband commanded him until it should be kosher according to the opinion of the rabbi (Tuv Gittin). According to this, in a place where they do not practice this version at all, it is much better, for it is within the authority of the scribe himself to correct in any case, as I have written.