Siman 137

The Torah called the get a "scroll of severance," and therefore the get must separate between them so that she does not remain bound to him in matters of marriage at all. Therefore, one who divorces his wife and says to her at the time of the giving of the get, "Behold, you are permitted to any man except for so-and-so," regarding whom she shall remain under the prohibition of a married woman, or "except to so-and-so"—for "except" and "but" have one meaning—and similarly when he said "aside from so-and-so," it is not a get and she is forbidden to marry. However, she is disqualified from the priesthood; if he is a kohen, he is forbidden to take her back, and similarly if he dies, she is forbidden to a kohen, for regarding the priesthood even a "scent of a get" disqualifies, as I wrote in siman 6, see there. And we say this explicitly in the Shas (82b). Therefore, even though in the Yerushalmi (Chapter 9, end of Halacha 1) there is a dispute regarding this, in our Shas it is a settled halacha that a scent of a get disqualifies for the priesthood (the Beit Shmuel, subsection 1, wrote that in the Yerushalmi it is stated that it is not a get even for the priesthood, see there; but in truth, even in the Yerushalmi there is a dispute regarding this, see there and in the Rashba there; the intention is that there is found one who does not hold so, and delve into this).

This matter of "except for so-and-so," if he wrote this in the get, the get is invalid even if he wrote it after the toref, and it has no remedy at all, as will be explained in siman 147. And even if he said this verbally before the writing of the toref, it is also invalid; the nature of its invalidity, whether it is completely invalid or a matter of doubt, will be explained there with the help of Heaven. Conversely, if he wrote the get properly, and after the writing but before the giving he said to her that it is not his will to permit her to so-and-so, but at the time of giving he did not mention this and said to her without specification, "Behold, you are permitted to every man," the get is completely valid. However, if he said it to her at the time of giving, it is not completely disqualified. And how shall he act? Our sages of blessed memory said there that he should take it from her and give it to her again and say to her, "Behold, you are permitted to every man." The Rishonim explained that he must specifically say this phrasing, but if he says, "Behold, this is your get," it is not effective; for since he previously said "except for so-and-so," one could say that now his intention is also thus. Therefore, he must explicitly say, "Behold, you are permitted to every man," in order to uproot his initial words (Ran). This is also implied from the wording of the Tur. But the Rambam, of blessed memory, in chapter 8, law 17, wrote that it is sufficient to say, "Behold, this is your get," see there. And he holds that the Tanna did not record this phrasing specifically, and one need not fear that his intention is according to his initial words, for if so, for what purpose did he go back and take it from her? Certainly his intention is to permit her to every man.

One should not ask why he must take it from her and return it to her and say at the time of its return "Behold you are etc." and why he should not say it to her while the get is in her hand from the first giving, as in the case where he gave it to her while she was sleeping or where he gave it to her as a promissory note, where he must say to her afterward "Behold you are etc." and does not need to take it from her, as will be explained in siman 138. For they already asked this in the Gemara there (84b) and answered that it is not similar to there; for there, the first giving is nothing, but here, the first giving was effective in that she is disqualified from the priesthood as has been written. Therefore, if he does not take it back from her, the statement is not effective, for she has already acquired it for the disqualification of the priesthood; but there, she did not acquire it for anything (Rashi). And even though, on the contrary, since the first giving acquired it for the matter of disqualification from the priesthood, the power of this get has been weakened, and how can he return and divorce with it? For a woman is not divorced twice with one get. For it can be said that certainly if he had given it to her only for disqualification from the priesthood, we would say so; but he gave it to her so that she would be permitted to any man, and these words of his were not fulfilled because since he said "except for so-and-so," this is not "cutting." Therefore, the first giving is not yet completed and it is like one giving, except that since there was nevertheless a benefit in the giving regarding the matter of disqualification from the priesthood, for this reason it is not sufficient without taking it back (I learned this from the words of the Rashba in his novellae there). (And that which the Gemara said "since she acquired it" is not literal, for if not so, what benefit is there in the return?)

All this is specifically when he says "except for so-and-so," but when he says "on condition that you do not marry so-and-so," since he did not speak with the language of "except," which would be a reservation in the get, but rather with the language of a condition, it is like all conditions, such as "on condition that you give me two hundred zuz," and the get is valid. This is the opinion of the Rambam, the Rosh, and the Tur, for so implies explicitly the conclusion of the Shas (beginning of chapter 9). And it is not only necessary to say when he says "on condition that you do not marry him," where he only conditioned regarding marriage, but regarding zanat she would not be considered a married woman to him and it is a complete cutting off from his marriage; but even if he said to her "on condition that you are not intimate with him" or "on condition that you do not belong to him," such that she is not permitted to him in any manner, nevertheless, since he spoke with the language of a condition, this is not a reservation in the get but a mere condition like all conditions. And see what I wrote in section 10.

However, there are some of our teachers who were stringent in this, and they hold that it is not explicitly proven from the Shas that this is held as absolute halacha, and it is a legal doubt regarding "on condition," and we follow the stringency (Rashba in the name of Ramban and Ramah and Rabbeinu Yerucham). And even regarding "on condition that you do not marry," it is a doubt, and certainly one must follow the stringency in a prohibition of a married woman. Therefore, when a husband suspects someone of setting his eyes upon his wife, he should be careful not to say anything at the time of giving the get, neither with the language of "except" nor with the language of a condition. Rather, he should relate this matter to the beit din, and they shall protest against them so that he does not marry her when this one divorces her. Also the Rambam, of blessed memory, who validates "on condition that you do not marry so-and-so," holds that this is only with a set time, until fifty years or the like; but if it is unspecified, which implies forever, the get is invalid. And there are those who disagree with him, and it will be explained in siman 143 with the help of Heaven.

If this "so-and-so" of whom he said "except for so-and-so" was someone for whom kiddushin do not take effect with her, such as if she is an ervah to him from those liable for karet, or even from those liable for negative commandments for whom kiddushin do not take effect, like a slave or the like, the get is valid. For this is not a reservation in the get, since even without his reservation, that so-and-so has no kiddushin with her, for "severance" is only relevant to something that has "becoming" (Yerushalmi). Therefore, if he only has the capacity for kiddushin to take effect with her, even though she is forbidden to him—whether from the prohibitions of the priesthood, such as a widow to a Kohen Gadol, a divorcee to a common Kohen, or a zonah and a chalalah; or from the prohibitions of all Israel from those liable for negative commandments, such as a mamzer, a Netin, an Ammonite or Moabite convert, an Egyptian or an Edomite—since he has the capacity for kiddushin to take effect with her, it is a reservation and the get is invalid. And this is an explicit Mishnah (85a).

And if this certain person was a minor, now his kiddushin do not take effect, only when he grows up it becomes a reservation and the get is invalid. This is the opinion of most of the poskim, and some say that she is doubtfully divorced. This dispute depends on the version of the Gemara there, whether the inquiry was resolved or not. And similarly, if he said to her, "except for one who is destined to be born," who is not yet in the world, it is an inquiry that was not resolved according to all opinions. And even if he reserved regarding a fetus that will be born, if it will be a male, it is a doubt. And similarly, if he reserved the husband of her sister, for now she is an ervah to him, and if her sister dies he is able to marry her, it is an inquiry that was not resolved according to all opinions. And it is not similar to the reservation of his brother, which is considered there in the Mishnah, for he too is fit if this one dies without children, for he must perform yibbum and it is not a certain reservation. For certainly it is so: first, since he divorces her, she will not be able to come to a state of yibbum and remains under the prohibition of a brother's wife; and furthermore, since he will die, then she is permitted to his brother, and all the days of his life she is prohibited to his brother, consequently it is not a get, for it is like "on condition that you do not drink wine all the days of my life," which is not kiritut according to one sugya in the Gemara (Yoma 13b). And even though according to the law we do not rule so, as I wrote in siman 143, nevertheless here it is worse, since all the days of his life this is not a reservation in the get, which is not the case with the husband of her sister (it appears to me).

And so too if he said to her, "Except for your acts of zenut," meaning that she is permitted to marry but regarding zenut her status shall be as a married woman, it is likewise a doubt; for even so, she is bound to him regarding zenut, or perhaps since she is separated from him regarding marriage, this is not a reservation. And so too if he said to her, "Except for intercourse in an unnatural manner," it is likewise a doubt. And so too if he said to her, "Except for your inheritance," "Except for your terumah," "Except for the annulment of your vows," meaning that regarding the status of a wife he divorces her entirely, but he reserves that he shall inherit from her when she dies, or if he were a kohen that she may eat terumah (Tosafot), or that it shall be within his power to annul her vows, it is likewise a doubt. And so too if he reserved, "Except for a document and intercourse," meaning that she may only be betrothed through money, it is likewise a doubt; for in all of these, it was an inquiry that was not resolved in the Gemara there.

And know that in the Yerushalmi (Chapter 7, Halacha 3) it is implied that if he divorced her and reserved for himself her handiwork or the consumption of her produce, it is called a reservation in the get. According to this, it appears that it would be a doubt like all the doubts we have explained. However, in our Shas, these are not considered at all, and the Shas only considers matters of Torah law. It is possible that since her handiwork and produce are only by rabbinic enactment, this is not a reservation at all and they are nothing more than a mere monetary condition, and it requires further study for the law (and see there in the Yerushalmi Chapter 9, Halacha 2 in the Korban HaEdah, beginning with "Rather"). It is also possible that regarding reservation, even the Yerushalmi admits that it would not be a reservation, for in the Yerushalmi there it spoke regarding another matter, see there. Nevertheless, for the law, one should be stringent.

And that which we wrote, that if he made a reservation regarding zenut it is a doubt, nevertheless, the opposite—when he made a reservation regarding marriage and permitted her in zenut—this is not a doubt but a certain reservation (Beit Shmuel, subsection 5), for the essence is marriage. However, when he made a reservation for someone who is an ervah to her, which is not a reservation as we have written, even if he made a reservation for himself regarding zenut—since zenut is also applicable to him—it is not a reservation (ibid.), for his entire reservation is only for zenut, as marriage is not applicable to him. Yet according to the conclusion of the Gemara there, there is much to deliberate on this (as it says there, perhaps if he transgressed and married, and see the Beit Shmuel, and it requires further study, and examine it closely):

If he said to her: "Behold, you are permitted to any man except for Reuven and Shimon," and he then took the get back from her and delivered it to her and said to her: "Behold, you are permitted to Reuven and Shimon," she is a safek divorcee. For it is a doubt whether his intention was even for Reuven and Shimon, or perhaps his intention now is the reverse of the matter—that he permitted her to Reuven and Shimon and forbade her to the entire world (Gittin 82b). And it appears that even if he says afterward what his intention was, it is of no avail, for so it implies in the Shas, and in all cases it remains a safek. And even though according to the opinion of the Rambam in chapter 8 it is a certain get (for he ruled according to the "if you will say" following the method of the Geonim), nevertheless, most of the poskim disagree with him. And in the Shulchan Aruch his opinion was not brought at all, for it is impossible to be lenient regarding the prohibition of a married woman against the opinion of many of our teachers, the Rishonim.

And even according to the opinion of the Rambam, of blessed memory, nevertheless, if the second time when he gave it to her he said to her, "Behold you are permitted to Shimon," it is a doubt, for perhaps he did not permit her to Reuven, or it is possible that his intention was also for Reuven, and that which he mentioned Shimon alone was because he mentioned him previously at the end, and since he nullified his last statement, certainly the first; therefore it is a doubt. And even if he said, "even to Shimon," it is also a doubt whether his intention was "even to Shimon" and certainly to Reuven, or "even to Shimon" he permits her among the rest of the world and Reuven remains in his prohibition. And if he said afterwards in his second delivery, "to Reuven," the Rambam ruled that it is not a definite get, for he only permitted her to Reuven and not to Shimon (also according to the aforementioned approach), for specifically when he mentioned Shimon the latter, one can say that in his intention certainly Reuven the first, which is not the case for the opposite. But according to the opinion of most of the poskim, it is a doubt in all these laws that we have explained. And similarly, if in his second delivery he said, "even to Reuven," it is also a doubt just as with "even to Shimon" (Tosafot ibid. 83a). And so it implies from the Rambam there, law 8, see there.

If he divorced her for a future time, for example, if he said to her, "Behold you are divorced after thirty days," she is divorced when the time arrives, and there are many specific laws regarding this which will be explained in siman 146. However, the opposite—where he divorced her for the present time and not for the future—is subject to a dispute among the poskim. This is the wording of the Rambam, of blessed memory, in chapter 8, law 9: If he made a condition with her and said, "Today you are not my wife, but tomorrow you are my wife," she is not divorced, even though he severed [the bond] between him and her today; therefore, they write in gittin, "from this day and forever." Thus far his words. And this enactment is found in the Gemara (85b). And even though previously there (83b) there was an inquiry and they resolved it that since it was severed, it is severed and she is divorced forever, and for this reason the Rosh, of blessed memory, indeed ruled that she is completely divorced, and that which they enacted in the get "from this day and forever" to exclude this law, as it says there, this is for the "shufra" of the get so that they should not spread rumors, but according to the strict law this is not required, and so Rashi explained there; nevertheless, the Rambam, of blessed memory, did not hold so, but rather held that since the Shas says "to exclude this law," it implies that it is a complete halakha. And so it is implied from the Rif, of blessed memory. Consequently, since there is a dispute of the poskim in this, it is a legal doubt and she is doubtfully divorced. And this is what our teacher, the Beit Yosef, wrote in section 5: If he said to her, "Behold this is your get, and behold you are divorced from me today, and tomorrow you are my wife," she is doubtfully divorced. Thus far his words. And so the Rishonim agreed (see the Ran and Maggid Mishneh there). And there is one who wishes to say that the doubt is because we do not know what his intention was—whether to divorce her today with a complete divorce and tomorrow he would betroth her, or that she should not remain divorced at all—but there is no basis for these words; rather, the doubt is because of the opinions of the poskim regarding the sugyot of the Shas (and this is the intention of the Chelkat Mechokek, subsection 8). And in the Yerushalmi, chapter 3 of Kiddushin, halakha 1, it is explicitly like the Rambam; see there.