Siman 133

It has already been explained that we establish the law according to Rava who said that witnesses of delivery effect the severance. And that which witnesses sign on the get was instituted by Rabban Gamliel only for the sake of the order of the world, in order to find authentication. Therefore, ex post facto, if there were no signing witnesses at all, but only witnesses of delivery, the get is valid. Nevertheless, ab initio, it is forbidden to act without signing witnesses. And even for us, who tear the get and it is not in the woman's hand, and the reason of authentication is no longer relevant, nevertheless, since in all gittin it is customary to sign, if this get is different without signing witnesses, there is no greater cause for rumor than this, as was written at the beginning of siman 130 in the name of the Yam Shel Shlomo. And I found similarly by the author of the Terumat HaDeshen, siman 232, see there; and he added another reason: that since there are several anonymous Mishnayot and Beraitot that follow Meir who said that signing witnesses effect the severance, and a get without signing witnesses is merely like a shard of pottery, we remove ourselves from all dispute so that it shall be with absolute permission and so as not to cause any rumor at all regarding the marriages of the daughters of Israel. Thus far his words. And ex post facto, it is valid without signing witnesses.

There is one who wrote that all this applies when the husband did not command the witnesses to sign, but if he commanded them to sign and they did not sign, and he gave the get with witnesses of delivery alone, the get is invalid from the Torah (Mishkenot Yaakov siman 27, and cited in Pitchei Teshuvah). And he brought proofs from the Shas (19a) regarding the matter of writing ink over red paint, for even according to the one who holds that the upper writing is considered writing regarding Shabbat, nevertheless one should not rule so regarding gittin; and if the signatures are only rabbinic, why should one not rule so? Rather, it must be that when the husband commanded them to sign, then the get is void from the Torah when they did not sign. And he brought another proof from the Yerushalmi (chapter 2, halacha 2) regarding the matter of a get that was written by day and signed at night, where Rabbi Shimon validates it, and Resh Lakish says that his reason is that he holds like Rabbi Eliezer and does not require witnesses of signature at all, and once it was written the get was completed; and it says there: here it is where he wants to have witnesses sign, here it is where he does not want to have witnesses sign, see there. It follows that when he wants to have them sign, it is not a get without the signatures of witnesses. And in my humble opinion, Heaven forbid to say so, for certainly when he sends it via a messenger and commanded the scribe to write and the witnesses to sign, and they did not sign, and the messenger delivered the get to her without witnesses of signature, certainly he deviated from his agency and the get is void. But when he delivers it to her himself, even though he initially commanded the witnesses to sign, he subsequently consented without witnesses of signature. And the Yerushalmi only said that when he wants to have witnesses sign, the get is not completed until after the signatures, and when they signed at night it becomes a "predated" get, and this is certainly so. And from our Shas it is simple that there is no proof, as one can say it deals with delivery via a messenger. Furthermore, according to the Rif it is valid with witnesses of delivery alone. Furthermore, even if it is rabbinic, one should not perform an action, for if it is not considered writing it is like a get that is forged from within.

And he further wrote that nowadays, when the husband commands to write a get, his intention is that they should write it properly according to all the customs, even if they have no basis in the law at all, and if they did not do so, the get is void. And he wondered about several great authorities who were lenient in a time of pressing need regarding several matters, see there. And I say that the great authorities instructed well, for certainly if he spoke of a specific detail explicitly and they did not do so, there is indeed a grievance; but in an ordinary case, he is commanding to write a get according to the opinion of the arranging Rabbi and according to the law, and why should we say that the get is void, Heaven forbid, in a matter that has no basis in the law at all? (See Rashi, Bava Metzia 96b, s.v. "nim'alu").

And even regarding a matter that he spoke of prior to the writing of the get, that they should do such and such, if afterward he consented without that matter, it appears to me that he has the power to do so. And there is a proof from the laws of conditions that will be explained in siman 143, that he has the power to nullify the condition even after the giving of the get. And even though the condition is stated after the writing of the get—for prior to the writing it is forbidden, as written in siman 147—nevertheless, according to several poskim, even prior to the writing it is valid, as written there (see there in the Beit Yosef). And we have not found a distinction in this, that a condition prior to the writing cannot be nullified. And there is a proof from that which we learned in a Mishnah at the beginning of the ninth chapter, that if he wrote the condition in the get, even if he went back and erased it, it is invalid because it was not written for the sake of total severance (Tosafot 84b). And according to the one who holds in the Gemara there that specifically if he wrote it it is invalid, but orally it is valid even before the toref, it implies explicitly that if he went back and nullified the condition, similar to going back and erasing it, it is valid. And from the perspective of logic it is so, for as long as the get has not come into her hand, it is not considered an act at all, only mere speech (Tosafot at the beginning of 84a, s.v. "Rabbi Shimon"), and he can nullify the speech, for speech comes and nullifies speech. And all the more so regarding a matter that has not yet been done at all, such as if he said to the scribe "write" and to the witnesses "sign," and after the writing he does not want them to sign; behold, their signing depends only on his speech, and why should he not be able to nullify his speech? And so it is explicitly explained from the words of one posek who wrote that if the husband said to three people that they should write and sign, and one of them died, that in a time of great need and a situation of iggun, they should not sign at all on the get, and it shall be with witnesses of delivery alone (Beit Shmuel siman 130, subsection 29).

Our teacher, the Rema, wrote that he must deliver the get to her in the presence of both of them together. Thus far his words. This is to exclude if he delivered it to her in the presence of one and then returned and delivered it to her in the presence of another (Beit Yosef). And some have written that this is ab initio, but ex post facto their testimony is joined, just as in monetary laws where we maintain in Choshen Mishpat siman 30 that their testimony is joined, and only in capital cases is "separated testimony" invalid, while all other prohibitions are equal to monetary laws (Beit Shmuel and the Gra). And in any event, the get is not void (Beit Shmuel). And there is one who is uncertain about this, whether the get is disqualified or void (Bach). And in truth, the matter is not equal to all other prohibitions and monetary laws; for there, where we only need to know the act, separated testimony is indeed joined, except in capital cases which is a decree of the verse. But regarding witnesses of gittin and kiddushin, where witnesses are required for the matter itself, this is not testimony at all in the case of separated testimony. Behold, regarding kiddushin it was explained explicitly in siman 42 that it is not kiddushin at all if he betrothed her before one in the morning and before one in the evening, except for one who is stringent regarding the testimony of a single witness, see there. And if so, what is the difference between this and gittin? And that which witnesses of signature are valid in such a case, as is implied in the Gemara (33b), this is because at the time of the signatures the get is not completed until it reaches her hand, and then both of them are signed upon it. But regarding witnesses of delivery, where the get is completed at the time of delivery, without two witnesses this is nothing, just as in kiddushin (Tumim). And certainly if there are witnesses of signature on the get and he delivered it to her before one and afterwards before another, certainly the get is not void, for according to the system of the Rif and the Rambam, witnesses of signature alone are sufficient, as will be explained. But without witnesses of signature, it appears that this is not a get at all in such a case. Nevertheless, in practice one should be stringent, for perhaps just as there is one who was concerned for kiddushin with a single witness, so too one must be concerned for divorce with a single witness (Taz and Beit Shmuel). And at the time of delivery, the man and the woman must see the witnesses, just as in kiddushin (ibid.).

The opinion of the Rif, of blessed memory (chapter 9), is that this which Rava maintains, that witnesses of delivery effect the severance, means even witnesses of delivery effect the severance, and he agrees with Rabbi Meir that also witnesses of signature alone effect the severance. And when witnesses signed upon it and he delivered the get to her between him and her, it is a get according to the Torah. And he infers this from the enactment of Rabban Gamliel, for if you should think that without witnesses of delivery it is nothing, what enactment is there in witnesses of signature? Behold, if she brings the get before us, we should still be concerned lest it was delivered to her without witnesses of delivery. Rather, certainly witnesses of signature alone suffice. And such is the opinion of the Rambam in chapter 1, and the Ra'avad, and the Ramban, and Rabbeinu Yerucham; and also from the Rashba it appears somewhat that he agreed to this. And if it is difficult how she can be divorced without witnesses, answer that we consider the signed witnesses as if they are standing before us. And there are those among the Rishonim who explained the matter in this manner: that certainly Rava maintains that only witnesses of delivery effect the severance and not witnesses of signature, and nevertheless he agrees that witnesses of signature are effective without witnesses of delivery because the delivery effects the severance so long as there are witnesses at its time, whether they testify on the delivery itself or on the essence of the matter. And now, that which Rava agrees that witnesses of signature are effective even though he did not give it with witnesses of delivery is not because witnesses of signature effect the severance, but because the delivery effects the severance since there are witnesses on the core of the matter, for they are like witnesses of signature who are witnesses of delivery, since the get emerges from her hand with these witnesses and it is known that the husband delivered it to her, and it turns out as if they themselves testify on the delivery (Ran ibid.).

But the opinion of Rashi, and the Tosafot, and the Rosh, and the Maor, and our teacher Ephraim the student of the Rif, and the Smag, and Sefer HaTerumah, and the Mordechai is that without eidut mesirah it is nothing, and only eidut mesirah effects the severance and not eidut chatimah. And that which Rabban Gamliel ordained is because since the get leaves his hand with eidut chatimah and the witnesses are verified, it was certainly delivered to her according to the law in the presence of eidut mesirah. And on the contrary, they added to say that even according to Rabbi Meir, who holds that eidut chatimah effects the severance, nevertheless it must be delivered to her in the presence of two witnesses, for there is no matter of ervah with fewer than two (Tosafot 4a, beginning with "Since we establish" in the name of Rabbeinu Tam, and the Rosh chapter 9, section 7). And since it is a dispute of the great authorities, it follows that for the law one must be stringent like all the opinions. And ab initio, all opinions are also equal that we require eidut mesirah and eidut chatimah, and so they practiced in all the dispersions of Israel. And it has already been explained in siman 130 that ab initio one takes one set of witnesses who shall be the witnesses of the signing and the witnesses of the delivery, and not two sets, because of the concern of "a matter" and not "half a matter." And ex post facto, there is no concern in this, for this is not "half a matter," as I wrote there.

And know that our teacher, the Beit Yosef, in section 1 first ruled according to the opinion of the Rif that a witness of delivery alone is sufficient ex post facto, and afterwards he wrote: And there are those who say that if it became known that it was given to her without a witness of delivery, even though witnesses are signed upon it, it is invalid. Thus far his words. And this is the opinion of the Geonim that the Rambam brought in chapter 1, who hold that it is invalid but not void, and he did not bring at all the opinion of all those authorities who hold that without a witness of delivery it is not a get at all (see Beit Shmuel, subsection 3). And it is possible that since in practice there is no difference in this, for to void the get entirely is impossible because of the opinion of the Rif, but rather one must invalidate it because of the other opinions, and there is no difference in this law. And one should not err that if it is only a rabbinic invalidation we maintain "if she married she shall not leave" in siman 150, for certainly regarding this invalidation it is not relevant to say so. Nevertheless, he should have explained. Furthermore, there is a difference regarding if he betrothed her sister or her mother or her daughter, for according to the Rif and the Gaon it would be a complete betrothal, and according to Rashi and Tosafot there is no betrothal here at all, and if another betrothed this forbidden relative, she requires a get from him. And it requires further study.

The signatures must also be dry at the time of the giving so that it will not be writing that can be forged; however, post facto, there is no hindrance regarding the signatures, only regarding the get itself (Taz) as has been written in siman 124. It is customary to gather ten men at the time of the giving of the get in order to publicize the matter that she is divorced, and the judges, the scribe, and the witnesses are of the count, and likewise relatives; and there is no hindrance at all in this matter, as is understood.