Siman 123

The Rambam, of blessed memory, wrote (Chapter 3, Halacha 15): Everyone is fit to write the get except for five: a gentile, a slave, a deaf-mute, a deranged person, and a minor. Even the woman herself may write her get. An Israelite who converted to be a gentile or who desecrates the Sabbaths publicly is like a gentile in all his matters. And why do these five not write? Because the writer must write for the sake of the man who divorces and for the sake of the woman who is being divorced, and the gentile writes with his own intent. A deaf-mute, a deranged person, and a minor are not possessors of intellect. And the slave is not within the law of gittin and kiddushin; therefore, he is disqualified like a gentile in all his matters. And if one of these five wrote the get, it is not a get, even though fit witnesses signed it and it was delivered to her with fit witnesses. Thus far his words.

From his words it is explained that he holds like the poskim whom we wrote of in siman 120, section 14, that we do not require agency in the writing; for if not so, why must he explain these reasons, for all of these, aside from a slave, have a simple reason: that they are not capable of agency. It also appears that he holds that even though we do not require agency in the writing, nevertheless, it is necessary that the writer be from those subject to the laws of divorce and marriage. Therefore, he wrote regarding the disqualification of a slave the reason that he is not within the law of divorce and marriage, meaning that he is not subject to these laws. And there are some of our teachers who hold that in a matter where we do not require agency, we also do not require being subject to the laws of divorce and marriage; for the Talmud (23b) disqualified a slave for the delivery of a get because he is not within the law of divorce and marriage, because to deliver a get we require the law of agency, therefore regarding a slave, even though he possesses agency, nevertheless he is not subject to the laws of divorce and marriage. But the writing of the get, if we say that we do not require the law of agency, we also do not require that he be from those subject to the laws of divorce and marriage (Tosafot 22b, s.v. "ve-ha" according to the first answer, and the Rosh, and the Ran, and the Rashba there). (And therefore the Tur and Shulchan Aruch did not write these reasons, because they hold that we require agency in the writing, as I wrote there).

And as for why the Rambam required the reason regarding an idolater that "he writes for his own purpose" and it was not sufficient for him with the reason of "slave," it is certainly so that regarding the idolater himself, the reason that "he is not a party to the covenant" would suffice. However, because he wrote that one who desecrates the Shabbat in public is judged like an idolater, and regarding him it is impossible to say this reason, for he is certainly a party to the covenant, as even though he has sinned, he is an Israelite; therefore, he was required even regarding an idolater to give another reason, for this reason applies also to one who desecrates the Shabbat (Beit Shmuel, subsection 5). And according to this, that which the Rambam wrote—that if these five wrote it, it is not a get—is well-settled, and it implies that from the Torah it is not a get. And it is difficult: since he wrote regarding the disqualification of an idolater that it is because "he writes for his own purpose" and does not write "lishmah," yet it is still a doubt, for perhaps his intention was "lishmah"? But in truth, his disqualification is because "he is not a party to the covenant" (Beit Yosef). And according to this, for our teachers who hold that even "party to the covenant" is not required for the writing, the disqualification of an idolater would be a doubt (ibid.). And know that a deaf-mute, an insane person, and a minor are called "parties to the covenant," for in truth they are parties to the covenant when the minor grows up and the deaf-mute and insane person become sound; but they are not "parties to knowledge" at all to write "lishmah," and the disqualification is from the Torah.

And according to this, regarding one who desecrates Shabbat, where the reason is only because he acts of his own volition when he writes, it appears that it is not certainly void according to the Torah, but rather doubtfully void, for perhaps he wrote it lishmah. It is possible that because of this, the Rambam was precise in his wording, that if one of these five wrote the get, it is not a get, to exclude one who desecrates Shabbat, who would be a case of doubt as I have written. And according to this, as a matter of law, regarding a deaf-mute, an insane person, and a minor, according to all the poskim the get is void according to the Torah. And regarding a gentile and a slave, according to those who hold that agency is required for writing, and certainly those who must be subject to the laws of divorce, it is also void according to the Torah. And even according to the Rambam, who does not require agency for writing, since he requires those subject to the laws of divorce, it is also void according to the Torah. And according to the poskim who do not even require those subject to the laws of divorce, regarding a gentile it is doubtfully void, for perhaps he did not write of his own volition, and regarding a slave it is valid, for he does not write of his own volition. And so wrote the Ramban and the Rashba, as the Maggid Mishneh and the Beit Yosef wrote in their names; see there. And one who desecrates Shabbatot is doubtfully void according to all opinions, as we have explained (so it appears to me).

And regarding that which he wrote, that the woman herself may write her get, the Tur wrote in the name of the Ramah that this is specifically when the husband first tells her to write it, for it must be written by him or his agent, as otherwise it is nothing. Thus far his words. And he follows his own reasoning, that we require agency in the writing, and the same applies to another person (Chelkat Mechokek and Beit Shmuel). And the Tur informs us that it is not only necessary in the case of another person—for even one who does not require agency nevertheless holds that without the husband's command it would not be lishmah, as written in siman 120, see there, for a woman is not standing for divorce (beginning of Zevachim)—but even she herself, when she is standing to be divorced and certainly writes lishmah, nevertheless, since agency is required, it is necessary that the husband command her. And the Rambam did not mention this, for he does not require agency in the writing, as has been written. And nevertheless, it is certain that according to him as well we require that he command her, and if he did not command her, it is possible that it would be a legal doubt, and it is not similar to another person for the reason we explained, and it requires further study. And that which the Rambam writes "a woman" as a novelty, that even she may write, this is regarding another matter: for the language of the get is that the husband speaks to her, and I would have said that specifically the husband or another by his command should write and not she; he informs us that she too can write. But regarding the matter of lishmah, one could say the opposite, as I have written (it appears to me).

The Tur further wrote: when she writes her get and transfers it to her husband, and he returns and gives it to her. Thus far his words. And certainly this is so, and all the Rishonim explained it thus, for even though the rabbis granted him the fee for the writing, nevertheless when the parchment is hers, she must transfer it to him, for the sages did not institute a transfer of her property, as was written in siman 120, section 29. And even when she transfers it to him after the writing, it is perfectly fine and is not called "lacking an action," as was written there in section 32; see there. And the Rambam did not need to mention this, for it is a simple matter, and he also was not dealing with this; he only said that she is permitted to write it, and the parchment can be his (see Chelkat Mechokek and Beit Shmuel, subsection 2). (And the Shulchan Aruch wrote exactly like the wording of the Tur; see there, section 1.)

The Rambam further wrote there: If one of these five wrote the formulaic part of the get and left the essential part blank—which is the place of the man, the place of the woman, the place of the date, and the place of "behold you are permitted to any man"—and a competent adult Israelite wrote them for her sake, this is a valid get. It is permitted to allow a deaf-mute, a deranged person, or a minor to write the formulaic part of the get ab initio, provided that a competent adult stands over them. However, a gentile or a slave may not write the formulaic part ab initio, even if an Israelite stands over them, etc. Thus far his words. (For he explains in the Gemara 23a that Rav Huna and Shmuel do not disagree, and both require an adult standing over them and leaving the essential part blank; see there).

The explanation of his words is that according to the essential law, there is no concern regarding the tofes at all, for writing lishmah is only required for the toref. Therefore, the sages permitted, due to an enactment for the benefit of scribes, to write the tofes of gittin, as was written there in law 7, and it is an explicit Mishnah (26a). Therefore, post facto, if one of these five wrote the tofes, we are not concerned about it. However, ab initio, we do not permit them to write even the tofes, for we decree regarding the tofes on account of the toref, and ab initio, even the tofes must be written lishmah, and only due to the enactment for the scribe did they permit this. However, with an adult standing over them and instructing them to write lishmah, it is permitted even ab initio for the tofes, for he is indeed writing it lishmah. But regarding a gentile or a slave, "standing over him" is of no avail, for they act on their own volition. And regarding the toref, "standing over him" is of no avail even for a deaf-mute, an imbecile, or a minor, and it appears that this is only rabbinic, for according to the Torah, why should it not be effective? And regarding a gentile or a slave, if they wrote the toref while one was standing over them, it also appears to be a doubtful disqualification according to the Torah, for perhaps they did not act on their own volition (and so wrote the Beit Shmuel at the end of subsection 5).

And there are some of our teachers who hold that regarding a gentile, even post facto, the tofes is invalid by rabbinic decree. And some say that regarding a deaf-mute, deranged person, or minor, if an adult stands over them, they may write even the toref, and only regarding a gentile or a slave is it invalid because they act on their own volition; and regarding the tofes, everyone may write it ab initio even without one standing over them (for they hold that these are two interpretations of Rav Huna and Shmuel and they do not disagree, and examine this carefully). And some hold that if one stands over them, a deaf-mute, deranged person, or minor may write even the toref, and without one standing over them, even the tofes is invalid (for they hold that they disagree and the halacha follows Rav Huna, see there). And some hold that they may write the tofes even without one standing over them, and the toref is invalid even if one stands over them (for they hold that they disagree and the halacha follows Shmuel, see there). And according to the poskim who hold that we require agency in the writing, it is obvious that the toref is invalid in all cases (and the interpretation of Rav Huna follows Rabbi Meir, see there in Tosafot in the second explanation). And it is a simple matter that for the law one should be stringent according to all opinions. And know that regarding what they wrote, that the place of the date is included in the toref, even though it is only by rabbinic decree, nevertheless they strengthened it as if it were from the Torah (Beit Shmuel, subsection 6), and see what I wrote in siman 124, section 32, and the same applies here, see there.

Our teacher, the Rema, wrote in section 1 that the husband should not initially write the get himself, nor should he instruct the scribe how to write, but rather he tells him plainly to write. And some say that one should be stringent that even a relative should not write initially where it is possible with another. And initially the scribe should write with his right hand, and if he is left-handed, he should write with his left. Thus far his words.

And behold, that which he wrote that he should not command the scribe how he should write, the reason is simple: for perhaps he will change something of his words in a matter that does not contain a disqualification, nevertheless it will disqualify the get since he did not write as he commanded and he deviated from his agency. And that which he wrote that a relative should not write ab initio, even though there is no reason for this as our teacher, the Beit Yosef, wondered in his great book, nevertheless there is a slight concern that he might be mistaken for a witness; and in truth it is a weak reason, for we should not decree decrees of our own. Also, what he wrote that he should write with his right hand, there is a great reason for this, for since the Torah said "and he shall write," and standard writing is with the right hand, and consequently a left-handed person shall write with his left, which for him is the right, as with tefillin. And consequently, when one is ambidextrous, he should write ab initio with his right hand, and post facto there is no hindrance in this, for even with the left it is considered writing for one who is ambidextrous, as we learned regarding the liability of Shabbat (Shabbat 103a): One who writes two letters, whether with his right or with his left, is liable; and they established in the Gemara that this refers to one who is ambidextrous, but for ordinary people one is not liable when he writes with the left. And so the Rambam, of blessed memory, ruled in chapter 11 of Shabbat. And according to this, an ordinary scribe who wrote with his left, it would be a disqualified get. Nevertheless, the great Acharonim wrote that in a case of agunah or where the get was already given, one should not disqualify it even if he is not ambidextrous (Beit Shmuel subsection 4 and Chelkat Mechokek). And the reason is that one should not compare it to Shabbat, for regarding Shabbat we require "thoughtful labor" (ibid.). And there is a proof for this from what our teacher, the Beit Yosef, ruled in Orach Chaim siman 32 regarding tefillin, that if he wrote with the left and it is not possible to obtain others, it is kosher, see there. However, even the law of tefillin is not explicitly explained as such in the Rishonim, see there in the Tur and Beit Yosef, and it requires great study regarding the practical deed.

However, that which he wrote, that the husband should not initially write it himself, is astonishing, for the primary commandment of the Torah is upon the husband that he should write her a scroll of severance, and permission was granted to him to command that it be written; but to warn him initially that he should not write it himself is very astonishing. However, they wrote the reason because the Tur wrote in siman 126 in the name of the Ittur that there are many technicalities in a get that the sages mentioned, as will be explained there, which only apply when the husband writes it himself or when he told the scribe to write such and such, for the husband could say "I intended to ruin it," but when he commands the scribe to write without specification, there is no concern regarding several of the technicalities, see there. And according to this, it is better that he not write it himself so that perhaps if he changes any of the technicalities, it would be in his power to ruin it (Beit Yosef). Thus it turns out that this law is like a type of enactment and not by strict law, and this is not a sufficient reason (Taz). And one should add another reason, like that which we learned regarding the recitation of bikkurim (Bikkurim chapter 3): originally, anyone who knew how to read would read, and for one who did not know, they would prompt him, and they refrained from bringing because of the shame; they enacted that they should prompt everyone, see there. And so too here, if permission were given to the husband initially to write it himself, it could be that one who cannot write it himself would refrain from divorcing because of the shame, and sometimes there is a mitzvah in the get or an enactment for an agunah; therefore they enacted that even one who can write should not write it himself. And one should further add a reason because we learned (chapter 9) that if he wrote in his own handwriting and there are no witnesses on it, the get is pasul, but if she married, the offspring is kosher; and therefore perhaps witnesses will not be available to him, and he will want to be rid of her, so he will write it himself and deliver it to her. Therefore, they distanced it so that the husband should not write it himself.

It was taught in the Tosefta (Shabbat chapter 12): A minor holds the quill and an adult holds his hand and writes—the adult is liable; an adult holds the quill and a minor holds his hand and writes—the adult is exempt. Thus far its words. And the Rambam wrote similarly in chapter 12 of Shabbat; see there. And we learned from this that the one who holds the hand of the writer and leads his hand over the parchment is called the writer, and not the one holding the quill. According to this, even regarding a get, if the minor held the quill and the adult held the hand of the minor, the get is kosher, and in the opposite case, the get is invalid. And even though it was taught there previously: One holds the quill and one holds his hand and writes—the one holding the quill is liable, the one holding his hand and writing is exempt, thus far its words—behold, it is explicitly stated to the contrary, that the primary one is the one holding the quill. However, it must be said that this is a scribal error, and it should say: The one holding the quill is exempt, the one holding his hand is liable, for so it is proven from the Rambam that we cited (and so wrote the Hagahot HaGra). And the Rambam did not cite this first clause at all. However, there is room to doubt whether this is specifically when the one holding the quill is unable to write by himself, for then the one holding the hand is called the writer, or perhaps even when he is able to write by himself, nevertheless, since the one holding the hand performs the act of writing, the one holding the quill is not considered the writer at all and his hand is considered like the quill. And so it appears primary (and so it is implied from what was written there: He intended to assist him, etc., and there too there is a printer's error and it is emended in the Gra; and delve into it).

The Rambam, of blessed memory, wrote in chapter 3 of Laws of Divorce, halakha 19: One who writes a get on Shabbat or on Yom Kippur inadvertently and gave it to her, she is divorced. If he wrote it and they signed it on that day willfully and he gave it to her, she is not divorced, for the witnesses are disqualified by Torah law. If he wrote it on Yom Tov willfully and it was delivered to her before valid witnesses on Yom Tov, this is a disqualified get. Thus far his words. The explanation of these matters is that it has already been explained that one who desecrates Shabbat publicly is disqualified from writing the get. And even according to those who hold that for the first time he is not yet disqualified (Tosafot Chullin 14a), that is regarding one who commits a single transgression, such as one who slaughtered on Shabbat or wrote two letters. But regarding a get, which contains many words, he is disqualified when he has written more than two letters (Beit Shmuel, subsection 8). And even though regarding the punishment of death, everything he did at one time and with one warning is considered a single labor, nevertheless, regarding the matter of his legal status being like a gentile, with every two letters, when he completes them, every two letters constitutes a desecration in its own right. But when he wrote it inadvertently, the get is not disqualified, just as a transaction performed through a prohibition is valid, as written in Choshen Mishpat siman 208. And even though if one cooked on Shabbat inadvertently it is forbidden on that day so that he should not benefit from the labor of Shabbat, as written in Orach Chaim siman 318, nevertheless, regarding a get this is not applicable, for even without this it is forbidden to divorce on Shabbat, and if he divorced, what he did is done, as written there in siman 339; see there carefully.

And know that the same law applies if the witnesses signed inadvertently, it is also kosher, for what difference is there in this, and the Rambam did not need to mention this (Pri Chadash). And it is possible that he intentionally did not mention the witnesses, for even if the witnesses signed willfully and the get is invalid, nevertheless, since the scribe wrote inadvertently, if there are kosher witnesses of delivery, its invalidity is rabbinic, for it is like "forged from within" and is not void according to the Torah. And the practical legal difference is that if she received kiddushin from another, she requires a get from the second as well.

And that which he wrote, that if they wrote it and signed it intentionally the get is void because the witnesses are disqualified by Torah law, he did not need this [reasoning], for behold, from the writing of the scribe it is void by Torah law. And it appears more likely that the version of the Rambam brought in the Tur is correct, in which it is written: if they wrote it and signed it on Yom Tov intentionally, etc., see there. And regarding Yom Tov, he was forced to this reason, for if it were because of the writing of the scribe, it would not be void; for granted that he is a wicked person, nevertheless, only one who desecrates Shabbat publicly has the status of a gentile, and not one who desecrates Yom Tov. And in the Shulchan Aruch the version is "on that day" or "on Yom Tov," see there, and they needed this reason because of Yom Tov as I have written. And that which he wrote, "if he wrote it on Yom Tov intentionally and it was delivered to her before valid witnesses, it is disqualified," his intention is "wrote it and signed it," and it refers back to the above, and its disqualification is because the witnesses are wicked and it is like a forgery in its essence. But if witnesses did not sign, or if they signed inadvertently, the get is valid, as I have written, for because of Yom Tov it is not disqualified regarding the writing of the get. And so wrote the great later authorities (see Beit Shmuel subsection 8 and Chelkat Mechokek subsection 11 and subsection 12).

And know that regarding this, that on Shabbat the get is void when he wrote it intentionally, this is specifically when he wrote it in public (b'farhesya), but in private (b'tzina) his status is not like a non-Jew (Pri Chadash). However, one must doubt what is called public in this regard: if it is specifically ten from Israel as in the sanctification of the Name, or if only another Israelite sees and he does not conceal himself from desecrating Shabbat it is called public. And so it implies explicitly in the Gemara Eruvin 69a. See there. And if so, it is well why the Rambam did not mention in this law "when it was in public," for regarding a get it is necessarily public, as the husband, the wife, and the witnesses know of this; whereas in the previous law he mentioned that one who desecrates Shabbat in public is disqualified from writing a get, for in other matters when he desecrates Shabbat it can also be in private, where he does it between himself and himself and no person sees him, and not when the desecration is in the writing of the get itself. The great later authorities wrote also in this law "public" (Chelkat Mechokek subsection 11, Beit Shmuel subsection 8, and Pri Chadash), and it requires great study, for the "public" of the sanctification of the Name we derive from a verse at the end of the eighth chapter of Sanhedrin, "And I shall be sanctified in the midst of the children of Israel," see there; but regarding the desecration of Shabbat, where the reason is because of the insolence, what difference to me is ten or fewer? And from Eruvin there it implies as I have written. And it requires further study for the law.

Our teacher, the Rema, wrote that one should not divorce at night, and if he divorced at night, some say it is a pasul get. Therefore, after the congregation has prayed Maariv, even though it is still broad daylight, one should not divorce; see below at the end of siman 154. Thus far his words. He means that there it was explained that in a time of pressing need, even in the middle of the night, they may write and give it, see there; for in truth there is no sound reason not to divorce at night, and in the Gemara it implies explicitly that this is not so (at the end of the seventh chapter, "when the sun comes out," see there and examine it closely). And they wrote the reason: that certainly the writing of the get and the signatures of the witnesses are permitted even ab initio at night, and they only wrote regarding the giving of the get that just as the Sages forbade chalitzah at night because it is like a legal judgment, as written in siman 169, so too the giving of the get. For regarding chalitzah they wrote that because through this she takes her ketubah, it is therefore like a legal judgment (Nimukei Yosef, chapter "Mitzvat Chalitzah"); and here too, behold, through the get she takes her ketubah and it is like a legal judgment. But in truth it is not comparable, for in chalitzah her ketubah reaches her already from the death of her husband, except that until the chalitzah she does not take it because perhaps he will perform yibbum with her; but regarding a get, behold, until she receives the get she has no obligation of a ketubah, and the obligation begins after the giving of the get. Furthermore, chalitzah requires a beit din, but regarding a get the Sages said: "Is it then so that everyone who divorces, divorces in a beit din?" (Arachin 23a). And certainly a get through a messenger to deliver to the woman, which requires saying "in my presence it was written and in my presence it was signed" and requires a beit din, should not be delivered at night (Noda BiYehudah). However, nevertheless, since the matter came from the mouths of the early authorities and our teacher, the Rema, cited them, we do not arrange a get at night except in a time of pressing need (and what the Noda BiYehudah wrote from Rashi at the beginning of Sanhedrin is no proof at all, for Rashi's intent was regarding chalitzah, see there; and in the Seder HaGet it will be explained also regarding the matter of a beit din).