Siman 134

It is a known and agreed upon matter that any action a person performs, if he did not perform it of his own will but rather they coerced him to do it, his action is nothing. For behold, even a transgression, when one performs it under coercion, he is not punished for it, as it is written: "But to the girl you shall do nothing." And it is a fortiori regarding the giving of a get, which must be by the will of the divorcer; and if they coerced him to give a get, the get is void according to the Torah. And even if he did not deliver a protest, the get is void since they coerced him to it. And such is the law regarding a gift, as is written in Choshen Mishpat siman 205, and there in section 10 we explained this. And one should not ask: behold, there are several whom we coerce to give a get, as we learned in a Mishnah (Ketubot 77a): "And these are those whom we coerce to divorce," for behold there is a get against his will. However, in truth, regarding this we learned (Arakhin 21a) that regarding those whom the law dictates to coerce them to give a get, we coerce him until he says "I want to." And since he said "I want to," behold he acts with will.

There is a question regarding this: how is it considered "will" when he says "I want to," given that they coerce him to say so, and consequently it should be considered duress? The Rambam, of blessed memory, wrote the answer to this at the end of the second chapter, and this is his wording: We do not say one is under duress except for one who is pressured and forced to do something that he is not obligated to do by the Torah, such as one who was beaten until he sold or until he gave. But one whose evil inclination overcame him to nullify a mitzvah or to commit a transgression, and was beaten until he did the thing he is obligated to do, or until he distanced himself from the thing he is forbidden to do, he is not considered under duress from [the court], but rather he coerced himself with his own evil mind. Therefore, this one who does not want to divorce—since he wants to be of Israel and wants to perform all the mitzvot and to distance himself from transgressions, and it is his inclination that overcame him—once he was beaten until his inclination weakened and he said "I want to," he has already divorced of his own will. Thus far his words. And this is what our Sages, of blessed memory, said (Bava Batra 48a): because it is a mitzvah to listen to the words of the Sages; meaning, therefore, when he says "I want to," he resolves in his heart to divorce her, for he is performing a mitzvah since the Sages obligated him to send her out (Rashbam).

Therefore, if they coerced him unlawfully, where he is not obligated according to the law to give a get, and a beit din coerced him to give a get, even if he said "I desire it" and did not submit a moda'a, or submitted a moda'a and nullified it, the get is invalid according to the Torah. Nevertheless, it contains a "scent of a get" and disqualifies her from the priesthood because we decree it on account of a lawful case (Beit Shmuel, subsection 13). Similarly, even one whom the law dictates that they coerce him to divorce, it is forbidden to do so through gentiles, but only through a beit din of Israel. And if gentiles coerced him to divorce, even though he is obligated to divorce according to the law, the get is invalid. Nevertheless, it disqualifies her from the priesthood, and the sages, of blessed memory, explained (88b) the reason is that it may be confused with a lawful case of Israel; they decreed that it should disqualify her from the priesthood. But according to the Torah, it is not a get at all, as it is written: "before them" and not before gentiles, see there. Therefore, if gentiles coerced him unlawfully, where he was not obligated by law to divorce, it does not contain even a "scent of a get" and she is not disqualified from the priesthood. And we do not decree on account of an unlawful case of Israel, for there itself it was a decree on account of a lawful case as I have written, and how can we decree a decree upon a decree (Rashi ibid.)? And one should not decree on account of a lawful case of Israel, for certainly a lawful case of gentiles or an unlawful case of Israel may be confused with a lawful case of Israel since they are equal in one matter; this is not so regarding an unlawful case of gentiles on account of a lawful case of Israel, they are not confused (Gemara) since they have no equality at all (and regarding the disqualification from the priesthood, if the kiddushin of another takes effect, see Beit Shmuel and Torat Gittin).

And how do they act when the law dictates that he is obligated to divorce and our hand is not strong enough to compel him and we need to compel him via the secular courts? The beit din shall request of the secular courts that they compel him in such a way that they say to him: "We are compelling you until you do what the beit din of Israel tells you." Then his law is as if Israel compelled him. This is what the sages taught in the Mishnah there: A get coerced by Israel is valid, and by Cutheans it is invalid; but with Cutheans, they beat him and say to him, "Do what the Israelite tells you," see there. (And all these matters we are not to do without permission from the government).

This is the wording of the Tur: The Ramah wrote specifically with this wording, but if gentiles coerce him and say to him, "Give a get," even though an Israelite says to them to coerce him, it is invalid. But it is not clear to my father, the Rosh, of blessed memory, for since an Israelite says to them to coerce him, even if the gentiles say to give a get, it is valid. Thus far his words. The explanation of his words is that a beit din of Israelites requested them to coerce him, and they coerced him to give a get and did not mention to him that he should do what the Israelites command him; the Ramah holds that this is as if they compelled him on their own. And the Rosh holds that since it was according to the request of an Israelite, it is as if Israelites compelled him. And it is possible to say that they do not disagree, for certainly if the Israelite is standing there at the time of the coercion, and this one hears that the Israelite is requesting him to coerce him and he coerces him, this is exactly like the coercion of an Israelite, and the reasoning of the Rambam that we brought in section 2 applies to this. But if the request was not in his presence, and the coercion was not in the presence of the beit din, and the gentiles did not mention the name of an Israelite to him at all but only "Give a get," even if he knows that this is according to the request of an Israelite, it is as if they compelled him on their own. Or it is possible to say that they disagree in this: for behold, that which we wrote in section 3, that according to the law gentiles from the Torah is not a get—from the words of the Rambam it does not imply so, but rather that it is only invalid by rabbinic decree. And even though from the sugya in Gittin there it is explained that from the Torah it is not a get, yet from the sugya in Bava Batra (48a) it is explained that it is only invalid by rabbinic decree (Beit Yosef), and the Rambam was concerned for that sugya. And according to this, one could say that if it is invalid from the Torah, certainly they must necessarily mention, "Do what the Israelite says to you," and if the invalidity is only by rabbinic decree, it is sufficient when he knows that the coercion came through an Israelite. However, it does not imply that the Rosh holds that its invalidity is only by rabbinic decree (see Yerushalmi on this Mishnah and it requires further study in its interpretation, and it appears to me that their dispute depends on this, and examine it closely).

Our teacher, the Rema, wrote in section 8: And even if he received money for the giving of the get, we do not say that because of this he consented. Thus far his words. He means to say that in Choshen Mishpat there it was explained that there is a difference between a sale and a gift; for in a sale, even if we knew that he was coerced, nevertheless if he did not submit a moda’a the sale is valid, but in a gift, even without a moda’a the gift is void. And the reason is that in a sale, since he takes money, through his coercion he concludes and transfers ownership, which is not the case in a gift. And it was explained there that a get is judged like a gift. And if so, I would have said that also regarding a get, when he receives money for the get, he concludes and divorces; he comes to teach us that regarding a get we do not say so, for this is not a monetary matter where he would consent for the sake of money. Therefore, if we only knew of his coercion, or even if we did not know of his coercion but it is known to us that it is coerced, even if he did not submit a moda’a and received money, nevertheless it is not a get until he says, after the removal of the coercion from him, that he is giving the get willingly. And more will be explained regarding this, with the help of Heaven, in section 33.

All these matters apply when he did not submit a moda'a, but if he submitted a moda'a, even if Israelites coerced him according to the law and he said "I desire [to do so]," it is of no effect until he nullifies the moda'a. For so it is implied explicitly in the Gemara (at the end of the fifth chapter of Arachin) that "I desire" is of no effect in the presence of a submission of a moda'a. And the reason is simple: just as if they coerce him regarding the get unlawfully and he says "I desire," it is nothing, as has been explained that "I desire" is only effective in a case where the law mandates the divorce, for it is a mitzvah to heed the words of the sages; but in a case where the coercion is not according to the law, his statement "I desire" is of no effect, for just as he is coerced regarding the giving of the get, so too is he coerced regarding his statement "I desire." Similarly, regarding the submission of a moda'a, even if we did not know of his coercion, and certainly when we did know of his coercion and he submits a moda'a, he is forced to give against his will; and just as he is forced in its giving, so too is he forced in his statement, for even if we did not know of his coercion, he is perforce coerced since he submitted a moda'a. And should you say: if so, what use is the nullification of moda'ot? This matter will be explained before us.

What is the delivery of a moda'a? The Tur wrote that if one delivered a moda'a before two witnesses and said, "This get that I wish to give to my wife, know that I am coerced to give it, and therefore I say before you that it shall be void," it is void even if he did not perform a kinyan, even if they do not recognize his coercion, and even if he is not telling the truth and is not coerced; since he voided it, it is not a get. And even though he gives it afterward, we do not say that he voided the moda'a he delivered until he says explicitly that he voids the moda'a, and then it is voided and does not require a kinyan. Thus far his words. And this is simple: that the voiding of the moda'ot must be of free will. That is to say, if he was coerced regarding the get, they are obligated to remove his coercion from him so that he may do as he wishes and void the moda'a he delivered; for if he is still coerced, what benefit is there in his voiding? Behold, he is coerced regarding the get and regarding the voiding of the moda'a. And if we do not know of his coercion at all, but rather he only delivered a moda'a, then automatically when he voids the moda'ot it appears clearly that he gives of his free will; for if not so, who forces him to void the moda'ot? And it is not similar to the statement "I want to," which we explained does not avail when he delivered a moda'a, because we say that he is coerced regarding this statement of his, as I wrote; for this is certain: as long as he does not explicitly void the delivery of his moda'a, we say that certainly he has some coercion that forces him to also say "I want to," for if not so, who forced him to give the get and to previously deliver a moda'a? But when he explicitly voids his previous moda'a and we do not know of his coercion, we say that it is certainly so: that at first he had some coercion and now his coercion has been removed; for if not so, who forces him to explicitly void his previous words? And if in truth we see that he has some coercion, the voiding of his moda'a is nothing, as I wrote. But when the coercion is not known to us and he explicitly uprooted his previous words, why should we be concerned? Behold, there is no moda'a here at all. This is in contrast to the statement "I want to," where he did not explicitly void that which he previously delivered as a moda'a; we say that his first words still stand since he did not explicitly void them, for if it should enter your mind that his previous coercion was removed, he should have voided the moda'a he delivered in order to uproot the moda'a (as mentioned above).

This is the wording of the Rambam in chapter 6, law 19: One who said to two people, "The get that I am writing for my wife is void," and afterward he wrote a get and gave it to her in the presence of two others, it is void; and this is the delivery of a moda'ah regarding a get. And similarly, if he said to them, "Any get that so-and-so writes for me is void," or "Any get that I write in the beit din of so-and-so is void," the get is void. Or, "Any get that I write from now until twenty years is void," the get is void. And similarly, if he said before two people, "Any get that I write for my wife, so-and-so, is void, and any statement with which I nullify this moda'ah is itself void," and afterward he wrote it and gave it to her, even though he nullified the moda'ah before writing the get, the get is void. If so, what is the remedy for this matter? That the witnesses say to him before the writing of the get: "Say before us that all the things you delivered which would cause, when those things are fulfilled, the nullification of the get, are hereby nullified," and he says "Yes." And afterward he tells them to write, sign, and give it to her, and they should not let him go until the get reaches her hand, so that he does not go out and nullify it. And neither the one delivering a moda'ah nor the one nullifying a moda'ah requires a kinyan. Thus far his words.

And we learned from his words that the delivery of a moda'a regarding a get, even if we knew clearly that he has no duress and he also does not mention duress at all, but rather that he nullifies it before its writing, it is nullified if he did not nullify his moda'a. And thus most of our teachers agreed, and so they wrote without qualification in the Shulchan Aruch. And there are some of our teachers who wrote that we specifically require a moda'a in which he mentions duress, but without stating duress, if he said, "The get that I will make shall not be a get," this is not a nullification. For since he was not under duress at all, we are witnesses that he resolved in his heart at the time of the act, and nullification before writing is not effective for it unless he nullified it after writing (Rashbam, Bava Batra 40a). And this can be explained through reasoning: for since he is not under duress but rather nullifies it before writing, what is the nature of his nullification? If we say that he nullifies the scribe and the witnesses, behold, when he returned and said to them "write," he returned and made them agents, and we establish that a later speech comes and nullifies an earlier speech; and all the more so according to the one who holds that agency is not required for the writing of the get. And if we say that he nullifies it to be like mere shard, behold there are those who hold that even after writing he can never nullify it so that it would not be in his power to return and divorce with it (according to the version of the texts at the beginning of the fourth chapter of Gittin, "can the get itself be nullified?" and see Tosafot there s.v. "Hatam," and this is the opinion of the Ramban and the Rashba as the Maggid Mishneh wrote in chapter 6, halacha 21, and the Rambam does not hold so, see there). However, it can be said that the nature of the nullification is that he comes to nullify the agency of the scribe and the witnesses so that it should be as if they wrote it not according to its commandment, such that it would not be "for her name" and would be invalid. And when he returned and said "write," it implies that he says so according to their knowledge and not according to his own knowledge, until he says "I retract my first nullification" (Ramban, ibid.). And from the words of the Tur that we brought, it is somewhat implied that he must mention the language of duress, and even though we knew that he is not under duress, nevertheless he must mention the language of duress, and so it is somewhat implied from the language of the Shulchan Aruch. However, there is no reason to say so, and therefore it can be said that they took the common way of the matter, for it is common to say so before the witnesses, because if not so, they would ask him: "If you do not desire the get, do not give it." Therefore, it is his way to say that he is under duress.

And that which the Rambam wrote, that when one nullified it before two and went back and wrote it before two others, this is a void get, his intention is not that if he gave it before the first two it would be a valid get, for this is not a logical reasoning at all. Rather, he took the common way of the matter, for those two before whom he nullified it will not attend to the get, knowing that he nullified it. And it is not similar to other documents where they can sign on the moda'ah and also on the bill of sale or the gift (Bava Batra 40b), for there it does not lead to ruin, which is not the case with a get. And certainly if he wants to give the get before them, they will not agree until he nullifies the moda'ah. Furthermore, it seems clear to me that if one delivers a moda'ah regarding a get before witnesses, they are obligated to come to beit din and tell of it so as not to lead to a stumbling block.

And regarding that which he wrote, "Any get that so-and-so shall write for me is void," it appears to me that this is what he is saying: that he only voids the get that so-and-so shall write for him, or the beit din of so-and-so, but if another should write it, he does not void it. And it comes to teach us that even in such a case, where he does not void it entirely but only voids the writing of so-and-so, this too is called a moda'ah. And afterwards, it informs us that he can void it for a duration of time, such as for twenty years. For even though it is possible to say that since he does not void it entirely, but rather voids the writing of so-and-so or for a certain time, it is merely idle words, for what does he care if this one or that one writes the get, or what difference is there between before twenty years or after? Nevertheless, since it depends upon his will, he can deliver a moda'ah in any manner.

However, regarding that which he wrote, that when one delivers a moda'ah on the get and also on the cancellation of the moda'ah that he will perform, the cancellation of the moda'ah is not effective and the get is void, and the remedy for this he wrote is that he should say before the witnesses that all things he delivered whose fulfillment causes the cancellation of the get are hereby cancelled, thus far his words, it is not understood at all what remedy this is, since he delivered a moda'ah on all cancellations he will perform. And the Rashba, of blessed memory, already raised a difficulty against him and wrote that for this there is no remedy except by disqualifying witnesses; that is to say, he shall cancel all moda'ot and furthermore disqualify any witness who would testify that he delivered a moda'ah before him. And since he disqualifies every witness against him in this matter, even if they testify, we do not accept their words. And if you say, what does even this avail regarding the prohibition if they testify and perhaps they have already testified, it can be said that whenever he disqualifies his witnesses, he also cancels the moda'ot completely. Thus far his words. And so we conduct ourselves, as will be explained with the help of Heaven. And even this remedy is not complete, for ultimately what shall we do if in truth he does not cancel completely.

However, the words of the Rambam are also well-explained according to what we explained in section 8, that this certainly requires knowing that now there is no duress upon him (or in a case where one is coerced according to the law, we say that it is his will to fulfill the words of the sages), and only that he must truly uproot his previous words so that he nullifies everything he said before. As long as he has not truly uprooted them, even if he said "I am willing," we say that he is forced into this; this is not the case when he truly uproots them, for then no speech remains for us to fear the nullification of the get, see there. According to this, if he delivered a moda'ah regarding the nullification of the moda'ah, he must truly uproot this language that he spoke and truly nullify the delivery of the moda'ah regarding the nullification of the moda'ah. However, there is a concern that perhaps he delivered a moda'ah regarding this as well, and therefore the Rambam, of blessed memory, says that he should include all previous speech in a general sense, whatever it may be, and say that all things he delivered that could cause the nullification of the get, he hereby nullifies them. Consequently, no concern remains for us, for we know that now he is free in his will and has nullified all his previous words, and what is there for us to fear? Even if we say that perhaps some thought remains in his heart, we hold that a disclosure of intent regarding a get is of no consequence, and all the more so since we see nothing other than his previous words, and he has nullified them. And so wrote the Ran, of blessed memory (in chapter 4), that according to the words of the Rambam, of blessed memory, no concern remains, see there. And the Rambam only said that he must truly nullify all his previous words (and according to what I wrote, the words of the Maggid Mishneh are understood, see there).

And the Rosh, of blessed memory, also wrote there similarly, and this is his wording: And if he submitted a moda'a and said, "Even if I nullify it, it shall not be nullified," if he nullified the moda'a and the moda'a of the moda'a until the end of every moda'a, everything is nullified; just as the nullification of one moda'a is effective, so too it is effective for several moda'ot and for all conditions that he stipulated. Thus far his words. And these words of his are also explained according to what I have written, and one can only wonder at what he wondered regarding the words of the Rambam, of blessed memory. And so too the Tur, after bringing the words of the Rosh, wrote "not like the Rambam etc.," see there, for in truth their intention is one, but the Rambam stated it in a different language. And the conclusion of the Rosh regarding the words of the Rambam also appears as I have written, but the Tur did not bring them, see there (and see the Beit Yosef who brought the wording of the Rosh).

Behold, according to the law, there is certainly no need for a cancellation of protestations unless we have reason to fear that he is divorcing against his will. If it were known that he is divorcing of his own will, there would be no need for a cancellation of protestations, for he is not suspected of causing spiritual ruin before Heaven and delivering a protestation (Bach). Nevertheless, all our teachers, the Rishonim, wrote that one should cancel protestations in every get, and thus the Tur and the Shulchan Aruch stated without qualification in section 3. This is his wording: It is customary to require a cancellation of protestation even for one who divorces of his own will; however, if he forgot to cancel the protestation, it is kosher since he divorces of his own will. Thus far his words. And so wrote in Likkutei Maharil, that once he forgot to cancel protestations and said that he is not concerned about this because he knows that the get was by the husband's will, see there.

And the text of the nullification they wrote in section 2, and this is its wording: Therefore, one must nullify before the writing of the get every moda'a that he issued, and he shall say thus: "Behold, I nullify every moda'a that I issued regarding this get, and likewise I nullify every matter that would cause, should those matters be fulfilled, the nullification of this get; and likewise I testify about myself that I did not issue any matter regarding the get such that the get would be nullified because of it, and behold I disqualify any witness or witnesses who shall testify that I issued or that I said any matter such that this get would be nullified because of it, or that the strength of this get would be weakened because of that moda'a or that statement." And some say that it is sufficient if he says that he nullifies the moda'a and the moda'a of the moda'a until the end of all moda'ot, and such is the custom; however, it is good ab initio to be concerned and to say according to the first opinion. Thus far its words. And behold, they brought all the opinions that we explained, and that which they wrote that it is good to be concerned for the first opinion, their intention is regarding the disqualification of witnesses, or their intention is for the text of the Rambam (see Taz and Be'er Sheva subsection 4, and according to what I wrote, the words of the Rambam are like the words of the Rosh, and examine this closely).

A moda’a must be before two witnesses (Bava Batra 40a). Our teacher, the Rema, wrote in section 1: And even if he did not deliver it before two witnesses together, but rather to this one not in the presence of that one, provided that they are kosher. Thus far his words. And this fact, that it is effective even not in each other's presence, such is the law in every testimony where we only need to know the truth alone, except for capital cases where the Torah decreed that "separated testimony" is invalid, and likewise regarding gittin and kiddushin where the witnesses are for the essence of the matter. However, there is room to deliberate if he delivered a moda’a before one witness, or before relatives or those disqualified, that it is not effective; for after all, he delivered a moda’a and did not divorce willingly. And if we say that one witness or relatives are not believed, nevertheless, this is the decree of the Torah that one witness or relatives are not believed even when we know clearly that they speak the truth; but what does this have to do with the delivery of a moda’a? Since he delivered a moda’a in any event, what does it matter that they are disqualified for testimony? And it can be said that as long as he did not deliver it before two kosher witnesses, we judge this as "matters of the heart," and matters of the heart are not matters. And even though he expressed it with his mouth, this is only like a "disclosure of intent," and we establish that a disclosure of intent regarding gittin is not a significant matter, as written in siman 141. Or perhaps, since he did not deliver it before two kosher witnesses, he also did not intend it as a complete moda’a. However, it is possible to say that in truth, this is specifically if we do not believe the witnesses who are not kosher for testimony or the single witness; but if we knew that their words are true, perhaps there is reason for concern due to the stringency of a married woman, and it requires further study for the law. And it appears more likely as I wrote previously (see Rivash siman 232, and there is no proof from there). And in section 32 it will be explained regarding the matter of disclosure of intent before the writing of the get.

He further wrote in section 3 that it is the custom to nullify protestations before the writing and after the writing before the giving. The reason is that we are concerned lest he nullified the get after the writing or at the time of the writing. Even though this second nullification is only effective according to those who hold that he cannot nullify the get itself, but according to those who hold that the get is always nullified, there is no benefit in the second nullification. Therefore, some have the custom not to allow the divorcer to leave until after the giving so that he will not nullify it upon his departure. Nevertheless, this is the custom, to nullify even after the writing. In truth, the Rambam wrote there that they should not allow him to leave until the get reaches her hand, for he holds that when one nullifies after the writing, the get is always nullified, and we explained this in section 10. Nevertheless, according to the Ramban and the Rashba, it is effective.

One who delivers a moda'a regarding the get, they strike him with makat mardut because he caused there to be mamzerim in Israel; for the get reached her hand and she will marry with it, and afterwards witnesses will come [testifying] that he canceled the get in their presence or that he delivered a moda'a in their presence prior to the writing of the get, and it will be found that the offspring is a mamzer. And even if he canceled the moda'a at the time of the giving, even so we are stringent regarding him, as there is a concern lest there are those who know of the moda'a and do not know of the cancellation and will spread a slur. And certainly one must be stringent in this matter. And some say that they do not strike with makat mardut except when they coerced him according to the law and he delivered a moda'a (Beit Shmuel, subsection 11), and seemingly this is implied from the commentary of Rashi (Kiddushin 12b, s.v. "ve-al"). However, from the words of the Maggid Mishneh, chapter 6, law 26, it is not implied so (for what does he question on the commentary of Rashi?). And the main point is so: for certainly regarding one whom they compel with some compulsion, it is not relevant to punish him for the delivery of his moda'a; but it has already been explained that the delivery of a moda'a is effective without any ounes, and in such a case, he is certainly worthy of punishment (and Rashi took the common way of the matter).

Our teacher, the Beit Yosef, wrote in section 10: A get for which the husband issued a moda'ah regarding its delivery and gave it to her, and afterwards he nullified [the moda'ah] of his own will and said to her, "Be divorced with the get that I already gave you," he does not need to take it back from her. Thus far his words. And certainly his intention is only regarding the delivery of a moda'ah that he is under duress, and he did not mention the nullification of the get; for if he mentioned the nullification of the get, according to the Rambam and several poskim the get is nullified and he cannot go back and divorce with it, as was written in siman 141. And the matter is simple that the get must be intact in her hand or in her domain at the time he says to her, "Now be divorced," etc., for the primary taking effect of the get is now and not previously. And one should not ask that if so, if he said it to her on the next day it would be a "predated" [get], for it can be said that since it was written and delivered on the day of the writing, we are not concerned about it, and this requires further deliberation. And the Levush wrote that the get takes effect retroactively, and it requires further study.

It has already been explained that if it is known that he is under duress, even if he did not submit a moda’a, the get is void. And what is called duress? Whether it is financial duress, such as where they coerce him to give a get or else he must give such and such an amount of money, or whether it is physical duress, where they beat him or place him in prison, or wish to place him there, and the like. And specifically duress from others, but duress of his own accord is not called duress. And so our Sages, of blessed memory, said (Bava Metzia 48a): Perhaps duress of his own accord is different from duress from others, see there. And what is called duress of his own accord? For example, where he loves his wife and she hates him and causes him distress until, because of this, he gives her a get; since the essence of the get is given willingly, though he is pressured from another side, it is called duress of his own accord. For if not so, we would consider most gittin as under duress, for when one divorces, he presumably has some reason that he is compelled to divorce. Rather, certainly since regarding the essence of the get he is not under duress and did not submit a moda’a, the get is kosher.

And so too, if he concluded with his wife regarding a get, and the conclusion was of his will, and he deposited a sum of money with a third party on the condition that if he retracts from the get, the third party shall hand over the money to her, or give the money as a fine to the lord of the city, this is not considered coercion, for behold, he divorces of his own will. And even though he is compelled due to the money that he will lose if he does not divorce, it is not considered an ounes, for behold, he did so of his own will, and the fine that he made, he made of his own will in order to strengthen himself to divorce, and it is not considered an ounes. And similar to this we find in the Gemara (46b) regarding one who says, "All the fruits in the world shall be forbidden to me if I do not divorce you." Shall we say that he was under an ounes because of the konam? Rather, certainly, since he made the konam of his own will, it is considered complete will (Beit Yosef in the name of the Maharam). And all this is when he does not regret the get, but if he regrets it and wants to retract from the fine, and they coerced him based on the fine, and due to the loss of the fine he was compelled to divorce, it is a complete ounes, even if he did not submit a moda'ah, since he does not want the get (ibid. in the name of the Responsa of the Rashba). And I am in doubt even if he annulled the moda'ot if it is effective as long as they have not removed from him the ounes of the money; for since he cries out that he does not want to divorce, but rather that he is compelled because of the deposited money, what does the annulment of moda'ot avail as long as the ounes exists? For when he is under an ounes, there is no need for the submission of a moda'ah. And there is no remedy for this except that they give him the money and afterwards he divorces her of his own will, or that he retracts from his refusal and says that it is his will to divorce her with complete will. And also in this there is reason to doubt, for if we judge an ounes of money like an ounes of the body, such as where they beat him so that he should divorce her, even if he says a thousand times that he divorces willingly, behold he is under an ounes by the beatings to say so. And more than this, the Maharik (shoresh 63) ruled regarding one whom they placed in prison so that he would divorce his wife, and he was released from prison, and afterwards they requested of him to give a get—if it is still in their power to imprison him if he does not divorce as they imprisoned him previously, because of this it is considered an ounes, and it is not effective until they remove from him this ounes, so that he will be secure that they will not imprison him even if he does not divorce; see there. And if we say that an ounes of money is exactly like an ounes of the body, behold they must remove from him this ounes of his. However, in truth, it does not seem correct to equate them to one another completely, and it requires further study for the law; and see in section 26.

If the duress was not upon the divorcer but upon others, such as if they beat another person and by his divorcing his wife the other was saved from the beatings, this is not considered duress. For it is called duress when the duress is upon his own body, and not when it is upon another, for behold he acts of his own will; even though his mercy was stirred because of the suffering of the other, nevertheless the get is of his own will (ibid. in the name of Tashbetz). Except in the case of a father regarding a son or a son regarding a father, which is called duress from one to the other like one body (Beit Yosef). And there are those who disagree even in this (Tashbetz), and in my humble opinion one should be stringent in this.

Any coercion is only when they mention the get in relation to the coercion, such that they say to him: "If you do not divorce, we will beat you" or "we will take your money," and the like. However, if the coercion does not pertain to the get, where they coerce him to do something else, and the husband of his own accord—in order to be saved from the coercion—says that he will divorce her, knowing that through this the coercion will be removed from him, seemingly it is not called coercion regarding the get since he divorces of his own accord. However, this is specifically when the coercion is according to the law regarding the other matter; but if they coerce him not according to the law regarding another matter, and out of that coercion he divorced, it is possible that it is a coerced get, and it requires further study (ibid. in the name of the Rashba). And see what I wrote in siman 154, section 13, and in the Rivash, siman 127.

And know that our teacher, the Rema, wrote in section 4, and this is his wording: But if he accepted upon himself penalties if he does not divorce, it is not called duress since he made his get dependent on another matter, and he can pay the penalties and not divorce; and there are those who are stringent even in such a case (Rashba), and it is good to be concerned ab initio and to exempt him from the penalty, but if he already divorced because of this etc. the get is valid since from the beginning they did not coerce him for this. Thus far his words. And I am very much wondered that he made a dispute between the opinions, for it is explicitly explained in the great book of our teacher, the Beit Yosef, that they do not disagree at all, and the first opinion is when he did not retract from the get, and the second opinion is from the responsa of the Rashba where it is explicitly explained that he retracted from the get and the penalty, but was forced because of the penalty, see there. And this is what we explained in section 23, and the Rashba explicitly invalidates in such a case, see there. And so it is explicitly implied from the words of our teacher, the Beit Yosef, there, that they do not disagree, see there.

It appears to me that his opinion is this: that when he did not retract, it certainly is not called anes according to all opinions, even though he is compelled because of the money he deposited for the fine and the like, since he established the fine of his own will. The two opinions he brought are when the divorcer retracted, but the third party does not want to return the fine to him unless he divorces her, and he divorced her. The "there are those who are stringent" is the Rashba whom we cited, and the first opinion which is lenient is not the author of the opinion we wrote in section 23, but rather it is a responsum from the Maharik brought by our teacher, the Beit Yosef. This is his wording: If he deposited money in the hand of a third party for this, and the third party does not want to give the money until he divorces, it is not called anes, etc. Thus far his words. It is in the Maharik, root 63. Our teacher, the Rema, explains that it deals with one who retracted. This is also explained from the words of the Levush at the end of this siman, who brought this responsum in this language: And some say that even in this it is not anes, for they wrote: one who deposited money in the hand of a third party so that he would divorce, and he wants to retract, and the third party does not want to return the money to him until he divorces, it is not called anes; for it is only called anes when the anes comes from others, and not when he brought the anes upon himself. See in the Maharik, root 63. Thus far the words of the Levush.

And as for the law, I am astonished how he decided post facto against the opinion of the Rashba, who invalidates it entirely. This is the wording of the Rashba: You asked regarding Reuven, the husband of Leah, where the relatives of Leah were in agreement that Reuven should divorce Leah his wife, and they agreed with one another upon a penalty of one thousand dinars and that he should divorce at a fixed time; and afterward Reuven regretted it and refused the matter, and they warned him by means of the penalty until he went to the treasurer to compromise with him and he did not accept, and due to this fear he divorced, except that he was not expert enough to deliver a moda'ah—whether we judge this get as a coerced get. Answer: It appears to me that this get is coerced and invalid as long as they know of his duress, even though he did not deliver a moda'ah, etc. Thus far his words. And even if the Maharik explicitly disagreed with the Rashba, it is difficult to rule against the opinion of the Rashba, and especially since the Maharik did not cite him at all; and perforce, either he did not see the words of the Rashba, or his intention is not for a case where he retracted and gave under compulsion. And that which our teacher, the Rema, cited in this matter, that even if he divorced by power of an oath it is not called duress when he swore to divorce—and this is from a responsum of the Ritva cited by our teacher, the Beit Yosef, at the end of siman 154—this too is irrelevant to this case, for there too it does not deal with a case where he retracted, but rather that he swore to divorce and divorced her, and the Ritva says that it is not called duress since he swore of his own will, see there, and more will be explained regarding this. But what relevance is this to one who retracted regarding the get and regarding the penalty, and they compelled him because of the penalty to give a get? Behold, you have no greater duress than this. And from the words of the Levush there it implies that he distinguishes between whether he set a time for the divorce or did not set a time, and it is not at all clear (and also the Rema does not hold so, as the Beit Shmuel wrote in subsection 8).

Indeed, from the plain meaning of his wording, it implies that it deals with a case where he did not retract, but in this itself there is reason for concern; since he deposited for a fine if he does not divorce, this itself appears like duress. And so it appears explicitly from one of the great later authorities who investigated that according to the words of our teacher, the Rema, how can they make compromises regarding a get and deposit securities for a fine (see Tuv Gittin). However, according to this, I do not know who is the one who is stringent in this matter of which he wrote "and there are those who are stringent." And one cannot say that his intention is regarding those who are stringent to give a get when he swore to give a get because it appears like duress, for certainly they also admit in a monetary fine; for it is well-understood that regarding an oath one can say that he is compelled because of his oath, but regarding a monetary fine he is not compelled if his desire is to lose his money. And the primary rule for the law is as I wrote in section 23, for so it is explained explicitly from the Gemara that we brought in section 23, and further will be explained regarding this before us with the help of Heaven.

Our teacher, the Beit Yosef, wrote in section 4: If the husband swore to give a get, they must release him from it beforehand so that it does not appear like duress; however, he may give a guarantee if he wishes, as this does not appear like duress. Thus far his words. Our teacher, the Rema, wrote: And the same applies if he performed a kinyan to divorce, etc., and even if he divorced due to an oath that he made of his own accord to divorce, the get is valid since they did not coerce him into it from the beginning. Thus far his words. The explanation of the matters is that there are those who were stringent regarding one who swore to divorce, that it is similar to duress. And it is not similar to what the sages, of blessed memory, said (46b): "The fruits of the world are konam upon me if I do not divorce you," where it is explained that this is not duress; this is because he made his vow dependent on another matter, on the fruits, and this is not duress because it is within his power not to eat the fruits and not to divorce. But in one who swore to divorce, where he made the get dependent on his oath, it is similar to duress (Beit Yosef in the name of the Maharam). Therefore, when he gives a monetary guarantee or another thing, it is similar to what the sages, of blessed memory, said, and it is not duress at all. However, the Ritva in a responsum (brought in the Beit Yosef at the end of siman 154) explained explicitly that those who are stringent in this do not do so because of the essential law, for certainly anything a person accepts upon himself of his own will is not duress, like the konam of fruits in the Gemara; rather, they were stringent in this initially, but after the fact there is no concern in this. And so ruled Maharal ibn Habib (ibid. in the Beit Yosef). And this is what our teacher, the Rema, wrote, that if he divorced due to an oath, the get is valid. And from all this there is clear proof for what we wrote above. And that which he wrote, "if he performed a kinyan to divorce," this is obvious that it is only a mere stringency, for a kinyan has no reasoning in this, as the Rambam wrote in chapter 5 of Sale, law 11; see there. And if he accepted a penalty with a kinyan, this penalty also does not take effect, for it is like "acquire you and a donkey" (Terumat HaDeshen siman 173). However, regarding "acquire you and a donkey," we hold that he acquires half, as is written in Choshen Mishpat siman 210, and so ruled the Rambam in chapter 22 of Sale; however, regarding the get, this is nothing (only regarding the essence of the matter, that the Terumat HaDeshen compares this to "acquire you and a donkey," this requires further study, and delve into it).

And behold, the poskim in the orders of Gittin spoke only of one who swore to divorce, but regarding one who swore not to divorce, they did not speak at all. In truth, there is more concern in this than in one who swore to divorce, for according to the one who holds that any matter which the Merciful One said "do not do," if one did it, it is not effective, there is a great concern in this that the get is invalid. This matter is known, that this halakha of "if one did it, it is not effective" has not been legally decided whether it is effective or not effective. However, even this is settled, for our teachers the authors of the Tosafot wrote (Temurah 6a) that regarding one who swore not to divorce, even according to the one who holds "if one did it, it is not effective," here it is effective, since this is not a prohibition that the Torah decreed upon him, but rather he fabricated it from his own heart; see there. Nevertheless, the poskim should have been concerned about this, for several of the Rishonim disagree on this, and such appears to be the opinion of the Rambam, of blessed memory (see Mishneh LaMelekh, chapter 9 of Laws of Lender and Borrower). We have already elaborated on this in Choshen Mishpat, siman 208, section 3; see there. Our teacher, the Rema, contradicts himself in this from Choshen Mishpat there to what he wrote in Yoreh Deah, siman 230, and there we explained this with the help of Heaven. Therefore, we are accustomed in the arrangement of the get that the one divorcing shall say that he did not swear to divorce, and likewise that he did not swear not to divorce, etc. One of the great ones in the generation before us has already been awakened to this (Chatam Sofer):

Some say that specifically the delivery of an actual mada'ah nullifies the get, but when he did not deliver a mada'ah explicitly but rather revealed his intention to deliver a mada'ah, this is nothing (Beit Shmuel, subsection 1). And behold, this is certainly a settled halacha, that a revelation of intention regarding a get is of no consequence, as was written in siman 141. However, it can be said that specifically after the writing of the get a revelation of intention is not effective unless he actually nullified it, for a revelation of intention through speech does not come and nullify an action; but before the writing, it is possible that even a revelation of intention is effective (Bach). And even though before the get reaches the hand of the woman it is not yet called an action (Tosafot 32b, s.v. "Rabbi Shimon"), nevertheless, regarding revelation of intention perhaps it is called an action. And so it is implied from the language of the Shas (Bava Batra 40b) that a mada'ah of a get is a mere revelation of the matter; however, there it is only regarding the matter that one does not need to know his duress, for it is a revelation of the matter that since he delivered a mada'ah, he is presumably under duress (and so wrote the Rashbam there). But forever the mada'ah must be delivered explicitly. And particularly according to what was written in siman 42, section 10, that regarding gittin and kiddushin, which depend only upon witnesses, we do not follow the thoughts of his heart at all, and it is not similar to monetary laws where witnesses were only created for falsehood and one must know the agreements of his heart, which is not the case in gittin and kiddushin. And for this reason we explained there that therefore the laws of asmakhta do not apply to gittin and kiddushin, and for this reason the Sages of blessed memory ruled that a revelation of intention regarding a get is of no consequence. However, we have already explained there that the Rishonim who labored to find another reason regarding gittin and kiddushin as to why asmakhta does not apply to them do not hold of this general rule, see there. And nevertheless, regarding revelation of intention, it is explained by several poskim that they did not concern themselves with it even before the writing of the get, as is clearly apparent from the commentary of the Rashbam. However, in practice, the matter requires further study (according to Pitchei Teshuva, subsection 1), and in a time of pressing need one may be lenient in this since the Beit Shmuel ruled so, and so it is explained from the Rashbam.

It has already been explained in section 6 that even if he received money, we do not say that he consented, see there. However, from the words of the Rashbam there, who wrote that since he does not receive money for this get that he gives, if it were true that he is satisfied, why would he need to issue a moda'a, etc. Thus far his words. This implies somewhat that if he receives money, it is not a moda'a in a case where we do not know of his duress, see there. And from the responsa of the Rashba (cited in the Beit Yosef), who wrote that this get is coerced and invalid whenever they know of his duress even though he did not issue a moda'a, for the issuing of a moda'a is only where he takes money, etc., and they hung him and he divorced, it is not a divorce for there is no money, and if you wish to say, etc., that since he took upon himself a fine of a thousand dinars and by giving the get he gained this money it is like receiving money—it is not so, for this is not like receiving money but like being saved from a loss of money, and it is much worse, etc. Thus far his words. This implies explicitly that if he receives money of profit, it is a get even though he is under duress if he did not issue a moda'a. And it implies from the words of these our teachers that whether he issued a moda'a and we do not know of his duress, or whether we know of his duress and he did not issue a moda'a, the receiving of money is effective. And according to this, it can be said that what our teacher, the Rema, wrote in section 8, that the giving of money is not effective, this is specifically where we know of his duress and he issued a moda'a, but if one of them is missing, the giving of money is effective and his law is like a sale. Nevertheless, regarding the law, it appears to me that so it is: that if the issuing of the moda'a was regarding a monetary matter, or if the duress was from the side of a monetary matter, certainly whenever they gave him money we say that he consented. But if it was physical duress and they did not remove the duress from him, certainly the giving of money is not effective, and even if he says that he consented for the sake of the money as long as the duress is still upon him. And likewise, if he issued a moda'a and we do not know of his duress, but according to the estimation the moda'a was from the side of another matter and not due to a monetary matter, the giving of money is also not effective unless he says explicitly that he consented for the sake of the money; for since there is no revealed duress upon him, as soon as he says that he consents, if he nullified his moda'a it is effective even without the giving of money, and if they gave him money, perhaps his saying "I want to" is effective even when he did not explicitly nullify the moda'a that he issued (and see Be'er Sheva subsection 14 and Pitchei Teshuva subsection 16, and what appears correct to me I have written, and examine it closely).