Siman 145

There is one of the great authorities who asked regarding a shekhiv mera who gives a get to his wife and his intent is that she not be bound to a yavam, and it turns out that he divorces her out of love: from where did the sages know that it is a get? For in the Torah, in the portion of get, it is written: "And it shall be if she finds no favor etc." and perhaps the Torah only commanded the permission of a get when he divorces her out of hatred, because he hates her, and not when he divorces her out of love (Levush in the Responsa of Maharam of Lublin, siman 123, and his answer is forced, see there). However, in truth there is no question in this at all. And it is not only according to those who hold that even Beit Shammai, who said that one should not divorce unless he found in her a matter of immorality, [hold that] this is neither a mitzvah nor an obligation but merely good advice (Mishneh LaMelekh chapter 10, halakhah 21); but even according to what I wrote in siman 119, section 5, that it does not appear so from all the poskim and from the Shas and from the Yerushalmi, nevertheless, it was explained there in section 2 that this applies to a divorce against her will and not when he divorces her with her consent (so wrote the Beit Yosef there). And a clear proof for this is that the Torah also deals with a case where she desires the divorce, for we expound "and he shall send her" to teach that she may appoint a messenger, and it is obvious that she would not appoint a messenger when she does not desire the divorce (my brother-in-law, the great Gaon, author of Ha'amek She'elah). But from this there is no clear proof, as one could say it deals with a case where he hates her and she also hates him, and therefore she appoints a messenger, and the nature of the matter is such, as "water reflects the face to the face," and this reasoning exists in the Gemara (Yevamot 117a). However, this matter was already clarified from the days of the early prophets, for everyone who went out to the wars of the House of David would write a get of severance for his wife, and we expound it from a verse (Shabbat 56a). And they did so so that they would not remain agunot. Furthermore, it is explained at the end of Gittin that even according to Beit Shammai, who hold that one should not divorce unless he found in her a matter of immorality, nevertheless, if he transgressed and divorced, what he did is done. This shows that regarding the validity of the get, there is no difference why he divorces her, and if she was divorced, the get is valid; rather, that initially the Torah warned not to do so. And it must be understood how it is relevant from the Torah to distinguish between initially and after the fact? Rather, it is certainly so that regarding the essence of the get, there is no difference whether he divorces her due to immorality or due to another matter, and that which the Torah was particular about was not because of the essence of the get, but because of her insult. And in truth, according to Beit Shammai, he committed a prohibition when he divorced her against her will without a matter of immorality, and likewise according to Beit Hillel without "spoiling his dish," as I wrote at the beginning of siman 119. And consequently, when it is her will to be divorced and she has no insult in the divorce, he may divorce her even initially, even when he divorces her out of love, for regarding the essence of the get there is no difference for whatever reason he divorces her (and also proof from our teacher Moses, of blessed memory, who divorced Zipporah according to the explanation of Onkelos on "after her being sent away").

It is a self-evident matter that even though the shekhiv mera grants a divorce out of his fear that perhaps he will die, nevertheless the get must take effect during his lifetime, for there is no get after death. Therefore, we learned in our Mishnah (72a): "This is your get if I die," "This is your get from this illness of mine," "This is your get after death"—he has said nothing. "From today if I die," "From now if I die"—this is a get. "From today and after death"—it is a get and not a get, and if he dies she performs chalitzah and does not perform yibbum. Thus far the wording of the Mishnah. And in the Tosefta (Chapter 5) it is taught: "This is your get from today if I die," "From this illness of mine if I die," "From this illness of mine, this is your get from today"—his words stand, etc. Thus far the wording of the Tosefta. (And from here it is difficult for those who require the laws of conditions for "from now," and it will be explained in section 18).

And behold, regarding "this is your get after death," the reason is simple: that it is not a get at all, and if he dies she must perform yibbum, for there is no get after death. And similarly, regarding "this is your get from this illness," it implies from this illness and onward, and since he died from the illness, it turns out that the get does not take effect until after death (Rashi). And regarding "this is your get if I die," it also implies that he divorces her after death. And even though the language "if I die" does not necessitate that the intention is specifically after death—for behold, regarding "from today if I die" it is a get, and if you were to think that its meaning is specifically after death, let the law be like "from today and after death"—nevertheless, "if I die" implies two meanings: it implies "as from today," and he is saying this: "this is your get from now if I die," and it implies according to its plain meaning, "this is your get if I die," and then the get shall take effect. Therefore, when he says explicitly "from today if I die," perforce its meaning is from today; but when he did not say "from today," it is considered as if he said to her "after death" (Gemara), for if his intention were from today, he would have said so. Therefore, it appears to me that if he claims after the giving of the get that his intention was from today, his claim is a valid claim and we follow the stringency, and if he dies she performs chalitzah and does not perform yibbum, and if he was a kohen she is forbidden to return to him. And even though regarding all conditions this language is certainly not like "from now"—such as where he says "behold this is your get if you give me 200 zuz" and the like, as written in siman 143—nevertheless, here it is different, for this is not a condition but a continuation of time (Beit Shmuel, subsection 1). Furthermore, in this case it is a near certainty that he knew there is no get after death. Therefore, it appears to me that we follow his claim for stringency, as I have written.

Some say that even in these three that were explained—"this is your get if I die," "this is your get from this illness," "this is your get after death"—it is a doubt. The reason is that it was already explained in siman 143 that according to Rabbi Yosi, who holds "the date of the document proves" that it is from today, every get and document in which a date is written is as if "from today" were written in it. According to this, for the poskim who rule according to Rabbi Yosi, the law in all of these is like "from today if I die" and like "from today and after death," and it is a get and not a get. Behold, according to the opinion we explained in the previous siman, section 19, regarding "this is your get after death," even according to Rabbi Yosi we do not say "the date of the document proves." We also explained there several details regarding this. Similarly, we explained there in section 13 that apparently, since it is written in the get "from this day and forever," this itself is like "from today"; see there what we wrote regarding this. In any event, it does not emerge from the status of doubt, and in all cases she performs chalitzah and does not perform yibbum (and so wrote the Beit Yosef, see there).

Regarding "from today if I die," where it is a get, the reason is simple as has been written; and all the more so regarding "from now," for regarding "from today" one could say it means the end of the day, and this will be further explained. And regarding "from today and after death," where it is a get and not a get, the reason is that we are in doubt regarding his intent: whether he intended it as a condition, like "from today if I die," and since he died the condition was fulfilled and it turns out to be a get from the time of its delivery; or whether he retracted from "from today" and said "after death," thereby nullifying what he said "from today," and it is not a get. Therefore, she performs chalitzah and does not perform yibbum. And it is not similar to what was written in Choshen Mishpat siman 257 regarding a gift when one says "from today and after death," where there is no doubt, for it is certainly so; for there, there are two matters, the principal and the usufruct, and this is what he meant: acquire the principal from today and the usufruct after death, as was written there. But regarding a get this is not applicable; therefore, it is a doubt whether it is a condition or a retraction. And there is one who says that only with "from today and after death" is it a doubt, but not with "from now and after death" (the Tur in the name of the Ramah). However, it does not appear so from all the poskim, and also in the Shulchan Aruch this opinion was not brought. And so it appears explicitly in the Yerushalmi (chapter 7, end of halakhah 3, which says regarding hefker that when one says "from now after thirty days" it depends on the dispute of Rabbi and the Rabbanan, see there).

There are some of our teachers who wrote that if he said "from today if I die," and he died on that same day, it is a matter of doubt, for perhaps he only intended for the taking effect of the get to be at the end of the day (Rabbeinu Tam in Tosafot ibid.). And some say that "from today" is like "from now," and his intention is that it should be a get immediately, for presumably he gives it for this reason, as he fears lest he die; and should he not fear lest he die on that very day? Rather, certainly he meant immediately. Nevertheless, it is proper to be stringent (Tosafot ibid. in the name of Rabbeinu Elchanan). This is what our teacher, the Beit Yosef, wrote in section 2, that it is better that he say "from now" than that he say "from today," for if he said "from today" and died within the day, there is reason to doubt that perhaps his intention was only for the end of the day, and there is no get after death. Thus far his words. And even though regarding one who says "write it after a year," they write it immediately after the year as was written in the previous siman, and it was explained there that "after a year" means a month after the year, and why do we not concern ourselves that his intention was for the end of the month (Beit Shmuel, subsection 5)? For it can be said that anyone who divorces due to death, there is a concern that he delays his get as much as he can until the moment before his death, as will be explained, and it did not enter his mind that he would die today and before the end of the day, as he felt in himself that he still had life. And although it is an extra stringency, nevertheless, Heaven forbid to be lenient in a matter that Rabbeinu Tam was in doubt about.

And even in a case where he says "from now" and he died on that same day, where there is no reason to doubt the language, nevertheless, it is necessary that witnesses testify that she received the get during his lifetime. And even though regarding every get we do not require witnesses to the delivery and witnesses to the signature are sufficient—and this was the enactment of Rabban Gamliel, that witnesses should sign on the get, as written in siman 120 and 133—nevertheless, here it is impossible to rely on the witnesses to the signature alone. Since from the date of the get her permission is not evident until the following day, for hours are not written in a get, and it is possible that it was written close to evening and he died in the middle of the day. Therefore, she must bring witnesses to the delivery before us [to testify] that she received it before he died (Bach and Beit Shmuel subsection 6). And something similar to this was explained in Chelkat Mechokek at the end of siman 240, see there; and so wrote the Tur:

And know that many of our teachers, the Tosafot, and Rabbeinu Chananel, and the Rosh, and the Ran, and the Riaz, and the Mordechai, and the Maharam of Rothenburg (Teshuvot Maimoni siman 30) wrote that this which he says, "from today if I die" or "from now if I die," his intention is not that the get should take effect immediately upon his death, but rather that it should take effect one hour prior to his death. And they hold that this is what they said in the Gemara (72b) that the intervening days she is like a definitely married woman or like a doubtfully married woman, for it is as if he says that the get shall take effect from the time that I am in the world, meaning, close to his death. And according to this, if the get was torn before he died, the get is invalid (Mordechai and Teshuvot Maimoni ibid.). And likewise, it is necessary that the get be placed in her domain during the hour close to death, and if it is placed in the domain of another, the get is not valid, and if she married based on this get, the children are mamzerim by rabbinic law (ibid.). And it is not similar to all other conditions, where when he says "from today" or "from now" the get takes effect immediately if the condition is fulfilled; for here it is different, since the entire reason he divorces her is due to the fear of death, he delays the get with all his power until close to his death. But Rashi, and the Rambam, and the Tur do not hold so, and they hold that "from today if I die" is like all other conditions, as is evident from their words.

Therefore, there is much to wonder about our teachers, the authors of the Shulchan Aruch, who did not mention this opinion at all. Our teacher, the Rema, in his book Darkhei Moshe, letter 1, wrote, and this is his wording: In the Mordechai in the name of the Maharam, he wrote that the get must exist at the time of the husband's death, and if it did not exist, she must leave; and at the end of siman 143 it was explained that many poskim disagree, etc. Thus far his words. And I wonder greatly, for is it not also the opinion of the Tosafot in the name of Rabbeinu Tam, and Rabbeinu Chananel, and the Rosh, and the Ran, and the Riaz, that it is necessarily so? For since they explained that it is as if he said "from the time I am in the world," it follows that the get must exist and be in her possession adjacent to his death. On the contrary, more than the opinion of Rashi, the Rambam, and the Tur, we have not seen anyone who disagrees on this. And more than this, one must wonder about the Tur, how he did not mention the opinion of his father, the Rosh, of blessed memory, regarding this. Furthermore, in siman 148, the Tur wrote regarding "from today if I die" that the intervening days are treated as a case of a doubtful married woman, and this follows this approach; if so, why did he not mention that the get must exist until adjacent to death? And in the Shulchan Aruch, even there he did not mention this as a law unto itself, but only regarding all conditions, see there (see Beit Shmuel, subsection 3, who was aroused by this, and what he wrote that this is also in the name of the Tur, I do not know from where he has this).

It appears to me that their reasoning is because it was taught in the Tosefta (chapter 5): "This is your get from today if I die," the days in between he is entitled to her findings, etc., these are the words of Rabbi Yehuda; Rabbi Meir says it is a doubt; Rabbi Yosi says her cohabitation is in suspense; and the Sages say she is divorced in all respects, provided that he dies. Thus far its words. And the halacha follows the Sages. According to this, they acted correctly by not mentioning this law, for even according to the early authorities who interpret differently than Rashi there in the sugya, nevertheless, for the halacha we hold like the Sages, and she is divorced from the first moment if he dies. This is what our teacher, the Rema, wrote in the Darchei Moshe, that most poskim disagree on this and only the Maharam holds so, but the rest of our teachers do not hold so, for we hold like the Sages of the Tosefta. And even though in the Gemara (74a) the version is that the Sages say "she is divorced and not divorced," nevertheless, according to the version of the Tosefta it is not so, and it is possible that such was their version in the Gemara. The Rambam wrote similarly in chapter 9, law 19, and this is his wording: And in all these conditions, all the days from the giving of the get until he dies and the condition is fulfilled, she is divorced in all respects, provided that she does not seclude herself with him. Thus far his words. Behold, it is explicit like the version of the Tosefta, and such is the version of the Rif according to what the Rosh wrote in chapter 7, siman 4 (however, regarding the Tur it requires further study, for the Rosh did not agree to this, see there, and he follows the system of his teacher, the Maharam of Rothenburg, and there in Teshuvot Maimoniyot siman 30 the responsum is to the Rosh, see there).

And behold, in practice, one should certainly be stringent that the get be intact and in her possession until he dies. However, post facto, it appears to me that one may be lenient and rely on all these authorities for the reason we have written. Some of the great later authorities were stringent in this even post facto, and some were lenient; the Radvaz is also among those who are lenient, and one may rely on them post facto. Furthermore, it appears to me that in these days of ours, when it is customary to translate also into the vernacular, and the sick man says explicitly that he divorces her from this moment, there is certainly no concern in this. For indeed, one must understand the primary explanation of these teachers of ours who explained that it is as if he says "from the time that I am in the world"—and how is this possible, for behold, he said "from today"? Rather, this must be the explanation: "from today that I am alive" and not "from today" literally. Therefore, when he says explicitly "from now," and all the more so when he specifies in the vernacular, one may certainly rely post facto on the great authorities who permit (so it appears to me), and all the more so according to our custom not to use conditions at all, as will be explained.

And there are those who are even more stringent regarding other conditions with "from now," requiring that the get be complete until the fulfillment of the condition and that it be in her possession (Mahari Mintz in Seder HaGet and the Maharik). Their words were rejected, as I wrote at the beginning of siman 143, for it is explicitly explained in the Rambam at the beginning of chapter 8 and in the Tur and Shulchan Aruch there the opposite of this. It is possible that their intention was regarding a condition of "if I do not come within thirty days" and the like, where the condition is over a duration of time and his intention is for after the time as much as possible, and it is like "from today if I die." Nevertheless, there is no primary basis for these words, and only ab initio is it proper to be stringent even in this. But post facto there is no concern even according to those who are stringent regarding "from today if I die," and all the more so as we explained that even there one should be lenient post facto.

The Rambam wrote that a shekhiv mera who wrote a get for his wife and divorced her and recovered cannot retract it, for his get is not like his gift; for if you say he may retract it, they will say his get effects the divorce after death like his gift, which does not effect acquisition until after death. Thus far his words. He means to say that regarding the gift of a shekhiv mera, we maintain that if he gives all his property and recovers, he may retract, and regarding one who commands due to death, even with a partial gift, if he recovers he may retract, since he only gives due to the fear of death. And with a get, it is as if he explicitly stated it was due to death, for it is revealed to all why he gives her the get. And we should have said that if he recovers the get is void even if he gave it to her without specification; nevertheless, so that they should not say that the acquisition of the get is after death like the acquisition of a gift, therefore if he recovers he cannot retract. And anyone who betroths or divorces does so according to the will of the sages (Gemara 73a), and since the sages said so, he also resolves in his heart to divorce in any event, even if he should recover from his illness, as I wrote at the beginning of siman 144; see there.

And behold, from the words of the Rambam it appears simple that we are dealing with a shechiv mera who divorced without specification, without the condition of "from today if I die," according to the method of Rashi in the Gemara there. And so wrote our teacher, the Beit Yosef, in section 4, and this is his wording: A shechiv mera who divorced without specification, without the condition of "from today if I die," we do not say his unspecified intent is like his explicit intent as we say regarding a gift, for a get is different; and if he recovered, he cannot retract. Thus far his words. However, the Tur wrote in this wording: And where he said "from now," such that it is a get, even if he did not die in his illness but rather recovered, it is a get, even though regarding a gift it is not so, but rather as soon as he recovers the gift is void; regarding a get it is a get unless he explicitly specifies that if he recovers it shall not be a get, therefore he must say "if I do not die it shall not be a get" etc. Thus far his words. It is explicitly clear that he is dealing even with "from now if I die," and this is the method of the Tosafot in the Gemara there (and so it appears from the Bach, see there; and the words of the Beit Yosef in Bedek HaBayit require further study, and examine this). And his words are puzzling, for even according to the Tosafot there, it is only when he recovered and afterwards died from that same illness, and not when he recovered completely, as is clear from their words. And the Tur said in any case that he cannot retract, unless we say that his intention is also such, that he died afterwards, or that his intention was not when he said "from now if I die" but rather "from now" without specification; and even though if so he should have said "divorced without specification," yet because until now he only mentioned the language of "if I die" and "from now if I die" and did not mention the language of a get without specification, therefore he wrote also in this the language of "from now."

And there is a doubt, since it has been explained that by the letter of the law the shechiv mera should have been able to retract, except for the reason that they should not say there is a get after death as I have written; if so, if he divorced with "from now" as is our custom, and he divorced without specification, we should have said if he recovered he retracts. And furthermore, every get is like "from now," for behold, it is written in it "from this day and forever," and in the time of the Shas the version was already so. And conversely, one must also ask: how is it possible to say that by the letter of the law if he recovered he retracts, for behold, in the get it is written "and forever"? And in truth, it appears clear, since the poskiim did not happen to mention this matter—that in one who says "from now" he can retract—it proves that in any case he cannot retract. And specifically according to the words of the Tur that we explained in the previous section. And the reason is simple: for there would still be a concern that they will say that "from today and after death" is a get (see Beit Shmuel sub-section 7). And the Shas, which found it necessary to state this reason that they should not say there is a get after death, this is according to the essential law of the writing of the get, where one does not need to write "and forever"; but according to what they practiced to write "and forever," one does not need this reason. And so it can be said regarding the intent of the Rambam. Or perhaps from the writing of the version of the get there is no proof and there would still be a rumor; and it is also possible to say that if he recovered he retracts, for behold it is a general version and not that the husband commanded him to write so, and as we mentioned this reasoning in siman 144, section 14, see there.

The Rambam wrote in chapter 9, law 20: A sick person who wished to divorce his wife on a condition when he dies, so that she does not fall before a yavam, and if he recovered she would not be divorced, and he did not wish to divorce her from now so that his mind would not be disturbed, this is what he writes in the get after writing the essential part, or he says to her when giving the get: "If I do not die, it shall not be a get, and if I die, it shall be a get, and if I do not die, it shall not be a get," so that it will be a double condition, and the positive precedes the negative, and he should not first open his mouth for misfortune; and if he dies, she shall be divorced when he dies, provided that the get reaches her hand before death. Thus far his words. And it is from the Gemara (75b), see there.

The explanation of his words is that when a shekhiv mera desires to divorce "from now," he needs nothing else but to say to her: "from now, if I die." The Rambam holds that with "from now," one does not need any of the laws of conditions, as he wrote in chapter 6 of Ishut and as we explained in siman 38. However, if it is not his desire to divorce "from now," but rather prior to his death, then he requires the laws of conditions: for the doubling of the condition and for the positive to precede the negative. The positive is "if I die, it shall be a get," for even though they certainly do not desire that he die, nevertheless, regarding the subject of the matter—namely, the fulfillment of the get—it is when he dies, and one does not follow the desire in this (see Taz in the introduction to Yoreh Deah). According to this, it would be sufficient for him to say "if I die, if I do not die," but in order not to open his mouth to Satan, he first says "if I do not die." This is not part of the essence of the condition, for afterward he says "if I die, if I do not die." And one cannot say: what did you see to cast this "if I die" onto the "if I do not die" that follows it? Let us cast it onto the "if I do not die" that precedes it, and it would be a negative preceding a positive. For it can be said that the essence of why we require the positive to precede the negative is so that he does not conclude with the positive, for a person is held by the conclusion of his words. Therefore, since he concludes with the negative, we are not concerned that he opened with the negative (Ran, chapter 7).

But the essence of his words is perplexing, for without "from now," how would it be a get? For we hold that regarding "this is your get if I die," it is a get after death. And they answered regarding this that the doubling [of the condition] removes it from the status of "after death," for when he does not double it, he holds that this is like saying "after death," and because of this he does not double it, as there is no need to double in a case of "after death." But when he doubles it, he reveals his intent that he is saying this as a condition according to the laws of conditions, and when the condition is fulfilled it becomes a get (the Maggid Mishneh). For we have already explained in section 3 according to the Gemara that the phrasing "if I die" implies two meanings, and it is not necessarily only "after death," and by doubling the condition it is proven that this is nothing other than a condition, and the taking effect of the get is prior to his death. And it is impossible to say "from now," for with "from now" one does not need the laws of conditions, and with "if I die" alone it is not a condition but rather a continuation of time, as I wrote there. And from the Tosefta that we cited in section 2, it is explicitly proven that one does not need the laws of conditions with "from now," for we learned there: "This is your get from today if I die from this illness, if I die from this illness this is your get from today," his words stand, see there. And behold, "this is your get from today if I die" is the act prior to the condition, and in the laws of conditions the condition must be prior to the act; rather, it is certainly as we said. And indeed, from this Tosefta it is difficult for the Geonim who require the laws of conditions even with "from now," for it is reasonable to say regarding the Mishnah that it was not stated precisely, but in the Tosefta where we learned a statement and its converse, it is difficult.

But the Tur wrote that one must say: "If I do not die, it shall not be a get, and if I die, it shall be a get from now, and if I do not die, it shall not be a get," and then it is void when he recovers. And if he desires that it should not be void immediately when he recovers, but rather until a certain time, he should say: "If I die by such-and-such a time, it shall be a get from now, and if I do not die by such-and-such a time, it shall not be a get." Thus far his words. And so wrote the Shulchan Aruch in section 5, and so wrote the Ramban, the Rashba, and the Maggid Mishneh, of blessed memory. And they hold that even with "from now," one requires the laws of conditions, and they were not concerned with the Tosefta that we cited. Furthermore, they already wrote that according to the essential law, we maintain that one does not require a double condition at all, nor all the laws of conditions (Rashba and Ran), for we do not maintain like Rabbi Meir; it is only a mere stringency that the sages of the Talmud applied to gittin, and therefore they were stringent even with "from now." And so the simple custom is to say "from now," and if he did not say "from now," it is a doubt, and she performs chalitzah and does not perform yibbum, for most of the poskim disagree with the Rambam, of blessed memory. And in the Seder HaGet it will be explained that one should not state any condition before the writing of the get; see there. And our teacher, the Rema, wrote that one should not say the language "if I will die, if I will not die," but rather "if I died, if I did not die," for this is the language of the sages. Thus far his words. And post facto, there is no concern.

The Tur wrote: If he did not recover from his illness and also did not die due to the illness, but rather a snake bit him or a house fell upon him and he died, it is not a get, for he only stipulated regarding death in its usual manner, but an accident such as this is not common and he did not have it in mind, and it is not a get whether he said "from today if I do not recover from this illness" or if he said plainly "if I die from this illness." And Rabbeinu Chananel ruled: "from today if I die from this illness" and a house fell upon him or a snake bit him, it is not a get; but "if I do not recover from this illness" and a house fell upon him or a snake bit him, it is a get. And the Rambam wrote that if he said "if I do not recover from this illness" it is a case of a doubtfully divorced woman. But it did not seem correct to my father, the Rosh; rather, in both cases it is not a get. Thus far his words.

And behold, in the Tosefta (chapter 5) and in the Yerushalmi (chapter 7, halacha 4) it is explicit like the words of Rabbeinu Chananel and with a reasoned explanation: that if he said "if I die from this illness," and a house fell upon him or a snake bit him, the condition has not been fulfilled, for he did not die because of this illness. However, when he said "if I do not recover," he has hung the get on his recovery and not on any specific cause of death, and he did not recover; therefore, it is a get. But our Shas (73a) equates the law of the first clause to the final clause, as it says there that the final clause is difficult for the first clause, and it does not distinguish with this reasoning. This is because it holds that even if he said "if I die from this illness," the intention is not that he must die specifically because of the disease; for since his primary intention is that she should not be bound to a yavam, what does it matter to him if he died from the illness or from something else? Thus, "if I die from this illness" is like saying "if I do not recover from this illness." And if you should say that this is certainly so, but it did not occur to him that such an accident would happen to him—if so, even in the case of "if I do not recover" the law would be the same. This is the opinion of the Rosh, who ruled that in both cases it is not a get. And the Rambam ruled that in the case of "if I do not recover" it is a doubt, because he was in doubt regarding the explanation of the Shas, whether it disagrees with the Tosefta and the Yerushalmi or if they should be equated. Regarding the law, we follow the stringency like the Rambam, and so they ruled in the Shulchan Aruch, section 6:

There is one who asked a great question regarding this: behold, we maintain at the beginning of siman 144 that an uncommon accident is not taken into account, and the get is void in any condition involving an uncommon accident, as is written there. Why, then, do we maintain here that it is a doubt (Beit Shmuel, subsection 10), when the essence of the law there is derived from this very matter, as is written there? It is even more difficult according to Rabbeinu Chananel, who holds here that it is a certain get; behold, it is an uncommon accident and he does not take it into account. The answer to this is that since he deviated from the language of the sages and the language of the world, who hang the get on death, and he said "if I do not recover," presumably his intention was such, as if saying: whatever the cause may be, if only I do not recover, let it be a get. This is implied in the Yerushalmi. It is only the Rambam and the Shulchan Aruch who, due to the stringency of a married woman, were uncertain regarding the words of the Gemara and were stringent in this. It appears to me that even if he did not say "if I die from this illness" but rather said "if I die" without qualification, and a lion ate him or a snake bit him, it is not a get, for an uncommon accident is not taken into account. The Gemara and the poskim who specified "from this illness" did so because regarding "if I do not recover" one must perforce say "from this illness," therefore they specified it also regarding "if I die." But the same applies to "if I die" without qualification. This requires further deliberation for the practical law, even though the main point appears to me as I have written. You should know that this is so, for the Ramban, the Rashba, and the Ran hold that if one says "if I die from this illness" and he dies from another cause, even a common cause, it is not a get, even when he dies during this illness from which he did not recover; yet since his death was not due to the illness, it is not a get even in a common cause (see Beit Shmuel, subsection 9). If so, why did the Gemara and the poskim specify the collapse of a house or a snake bite, which are uncommon? Let them teach us a greater novelty, even in a common matter! Rather, it is certain that they specified these on account of the latter clause of "if I do not recover." Nevertheless, in practice, one should be stringent.

The Rambam wrote (ibid.): "Behold, this is your get from now if I die from this illness," and he arose and walked in the marketplace, and then fell ill and died—we assess him; if he died due to the first illness, behold, this is a get, and if not, it is not a get. And if he transitioned from illness to illness and did not arise in the marketplace, behold, this is a get and does not require assessment. Thus far his words. It is clear from his words that even if he walked in the marketplace without a staff, nevertheless, since he fell ill again and they assessed that he died from the first illness, the matter is revealed that that walking was nothing, and certainly he did not recover from that illness completely since he died from that illness (Beit Yosef). And it stands to reason that this is specifically when he fell ill immediately, but if over a period of time he fell ill, it is not a get, for it is another illness similar to the previous illness. And if he transitioned from illness to illness and did not arise and walk in the marketplace, even though he walked in his house without a staff, this is nothing. And similarly, when he walked in the marketplace with a staff, this is nothing. And I learned this from the words of the Rambam in chapter 4 of Laws of a Murderer, where he wrote there, and this is his wording: "That which is stated in the Torah 'upon his staff' does not mean that he walks while leaning on a bed or on another person, for even one who is leaning toward death can walk on a staff; 'his staff' was only stated to mean that he walks with the staff of his health and will not need another force to lean upon." Thus far his words. And so Onkelos translated, and so we learned in the Mechilta on this verse, see there. And in the verse it is written: "If he shall arise and walk outside upon his staff, then the one who struck him shall be cleared." And since the intention is "upon the staff of his health," it follows that leaning on a bed or on another person, even outside, is nothing. And this is the approach of the Rambam. And even though in the Gemara (72b) it says explicitly that when walking outside on a staff one requires assessment, and it is explicitly clear that if he walked without a staff outside assessment does not help, the Rambam holds that this is not according to the conclusion of the Gemara (for this is only according to Rav Huna and not according to the conclusion, as Rabbah and Rava do not hold like Rav Huna; and even though the Rambam himself explains that it refers to an unspecified case, as is proven from his words that we brought in section 13, nevertheless he holds that this law also applies to 'from today if I die from this illness,' and like the opinion of the Ramban brought by the Ran in the sugya, see there; and so it appears to be the opinion of the Rif and the Rosh, who did not bring this sugya of the staff at all, see there and examine carefully).

But the Tur wrote, and this is his wording: If he arose from his illness and walked in the marketplace without a staff like healthy people, even if he relapsed and fell ill and died from the first illness, the get is void since he was healed in the interim. If he did not walk in the marketplace, even if he transitioned from illness to illness and walked in the interim in his house without a staff, this is a get and does not require an assessment, for he certainly died from this illness. And if he arose and walked in the marketplace on his staff, if he did not transition from illness to illness but rather his illness grew heavy upon him and he died, even if it lightened in the interim, it does not require an assessment, for he certainly died from the first illness. And if he transitioned from illness to illness, since he arose and walked in the marketplace on his staff, we assess him; if he died from the first illness, this is a get, and if not, it is not a get. Thus far his words. And I wonder at our teacher, the Beit Yosef, who in his great work wrote that the path of the Tur is the straight path, yet in the Shulchan Aruch, section 6, he did not mention his opinion at all, and it requires further study. And some say further that even in a case of transitioning from illness to illness where he did not walk in the marketplace, it requires an assessment, for since he said "from today if I die from this illness," perhaps the other illness contains nothing of the first sickness and it is not a get; therefore it requires an assessment from doctors whether it contains something of the first sickness or not (Beit Yosef in the name of the Rashba). However, if the first sickness was heavy and did not depart, even though he fell into another sickness, it does not require an assessment since from the first one as well it was fitting to die (ibid.).

Our teacher, the Beit Yosef, wrote in section 8 that any place where one gave a get and said, "From today if I die," without specification, and he recovered, his get is void. We do not say that he meant "at any time before I die," but rather he meant "if I die from this illness." However, a healthy person who said, "From today if I die," certainly meant whenever he dies during her lifetime, and whenever he dies, she is divorced. Thus far his words. And even though, if so, what kind of condition is this, for it is obvious that he will die at some time? For it can be said that we find a condition of this sort, such as "if the sun emerges from its sheath" in the previous siman (Ran).

And that which we said regarding a shekhiv mera, and also regarding "if I die" without specification, that when he recovers his get is void—this is when he recovers completely, strong in his body as before. But when he has not recovered completely, even though he walked in the marketplace without a staff, and even if he died from another illness, it is a get. And an assessment is only relevant when he said "from this illness," but without "from this illness," as long as he has not recovered completely, an assessment is not required and it is a get (the Ramban and Rabbeinu Yerucham, see the Beit Yosef and the Beit Shmuel subsection 12). And there are those who disagree on this (ibid. in the name of the Maggid Mishneh), and so it appears from the wording of the Tur, see there.

He further wrote in section 9 good advice according to the great ones of the world to be concerned for deceivers regarding a get of a shekhiv mera, that he should say "if I die from now until such-and-such a day," which is included in "it shall be a get," and he should not say "if I die from this illness," so that the condition would be dependent on the illness, lest an improper person come and influence the doctor to say that he did not die from that illness but from another illness to which it shifted, and he will cast aspersions on the get. Thus far his words. And this is only according to the first opinion in the previous section, for according to the "there are those who disagree," there is no distinction, for even if he did not say "from this illness," it is as if he said it (see Beit Shmuel subsection 12). However, according to the first opinion there is a concern, even according to the opinion of the Rambam, for where it shifted from illness to illness an assessment is not required, for this is because we say that certainly something of the first illness remained in him, and there is a concern that he will influence the doctor to say that nothing of it remained in him at all (ibid. subsection 15).

And know that there are some of our teachers who wrote that in this time we are not experts in the assessment of whether he died from the first illness or not (Responsa Maimoni, siman 30). Therefore, our teacher, the Rema, wrote in section 9 that one should not rely on the assessments of the doctors in this time. Furthermore, it has already been explained that there is a dispute among the Rishonim whether "from now" requires a double condition and all the laws of conditions or not, and one must follow the stringency in all matters regarding the prohibition of a married woman.

And because there are in a get of a shekhiv mera several complexities and complications regarding a get with a condition, the Mordekhai (Chapter 7) wrote that Ri of Paris always endeavored regarding a get of a shekhiv mera not to make it with a condition, but rather to give a get without specification. And if it is because they desire that when he recovers they shall marry one another, they should accept upon themselves a fine according to the enactment of the communities, like the binding conditions customary among us, or give pledges that when he recovers they shall return and marry one another. And so wrote our teacher, the Rema, that it is proper to do so and to endeavor in this, unless he is a kohen, for then it is necessary to make a get with a condition, for if not so, she would be forbidden to return to him. And likewise, if the sick person desires only a get with a condition, they should not endeavor much with him that he give a get without a condition, because there is concern that due to the distress his mind will become unsettled. And one must deliberate much on this, for the sages were very concerned about the unsettling of the sick person's mind, and the wise man's eyes are in his head to know the nature of the sick person and his situation.

This enactment that we have written is called in the poskim by the name of the enactment of the Ri of Paris. And in the opinion of the Tosafot (Shabbat 56a; Gittin 73b), they also did this in the wars of the House of David, for they wrote for their wives a complete get so that if he died in the war she would not be bound to a yavam. However, they did this in private so it would not be publicized, and upon their return from war they remarried one another. And for this reason, Bathsheba was permitted to David, for Uriah had divorced her (see Maharsha at the end of Gittin, s.v. "Lema'an yedu hadorot"). And the matter is simple that if after he recovered the woman does not desire to marry him, she pays the fine or from the pledges, and he does not have the power to void the get after she was divorced without specification and they tore the get. And it has been nearly three hundred years since one of the great figures arose and challenged this, saying that this fact that they bind themselves afterward is considered as if he stipulated that "if I do not die, it shall not be a get." But the sages of the generation rose against him and nullified his words, and they decreed a decree not to cast aspersions on this, and they were very much correct in this. And the primary reason of that great figure was because of the assessment (umdana) that certainly if he knew she would not consent to return to him, he would not have divorced her. But we have already explained in siman 42 that regarding gittin and kiddushin we do not follow an assessment. And for this reason we maintain that a revelation of intent (gilluy da'ata) regarding a get is of no consequence, and therefore the laws of asmakhta do not apply to gittin. And the reason is that regarding gittin and kiddushin, whose primary existence is only through witnesses and between him and her it is not effective, we follow only the action and the speech of the mouth and not after the thoughts in the heart, which is the primary reason for assessment and asmakhta. This is not the case regarding monetary laws, where witnesses were only created for falsehood (and even according to what the Tosafot wrote at the beginning of the fourth chapter of Gittin, s.v. "Man de'amar," see there at the end of the discussion, it also does not apply here, for we cannot know his mind on our own; and also it is not similar to what the Beit Shmuel wrote in siman 42, subsection 12 in the name of the Mordechai, for there it is like actual proof, and even in that the Rashba disagrees, see there. And I am very much astonished at the Gaon, the author of Mishkenot Yaakov, siman 34, who emboldened his heart to strengthen the words of the Maharam Lublin against all the great figures of the generation, and all his words according to what I have written are completely rejected. And so wrote the Beit Shmuel, subsection 16, and the Bach, siman 148, and Heaven forbid to disagree on this; and delve into it).

A woman who was divorced on a condition, as has been explained, and the husband died, does not need to mourn for him, for she has already separated from him. Nevertheless, there is no prohibition in the matter if it is her desire to weep for him and to go out after his bier (the Rema). And we do not fear that they will say she is a widow and not a divorcee and permit her to a kohen (Beit Shmuel, subsection 17), for the matter of the get was publicized. This is not similar to what was written in siman 17, that we do not allow an agunah to mourn as long as we do not know clearly that he died, for there we fear perhaps he did not die and she is still a married woman. Nevertheless, even here it seems to me that only to weep and to follow after his bier do we allow her; but if it is her desire to observe the seven days of mourning and the thirty, we prevent her, so that it should not come to a ruinous outcome, for when they see that she conducts herself entirely as his wife, they will say that the get was disqualified and she is a widow and not a divorcee, and they will permit her to a kohen.

The Tur and the Shulchan Aruch wrote that if a healthy person gave a get to someone and said to him, "Acquire this get on behalf of my wife so that she does not fall before a yavam," and he died before it reached her hand, she is a doubtfully divorced woman and performs chalitzah but does not perform yibbum. Thus far their words. (And this is an unresolved inquiry in Yevamot at the end of chapter 15). The doubt is whether we say it is a benefit for her, and one may acquire something for a person in their absence, or perhaps she loves the yavam and her desire is to perform yibbum, and this is not a benefit for her. Based on this, the Maharshal wrote in Yam Shel Shelomo, Yevamot chapter 15, siman 21, and this is his wording: And ostensibly it would appear that nowadays, when we do not practice yibbum, it is certainly a benefit for her. However, since I have written that if both of them intend for the mitzvah we do not protest against them, if so, even nowadays there is reason for concern. However, in places where the takkanah of Rabbeinu Gershom, of blessed memory, has spread not to marry two wives and not to divorce against her will, it is certainly a benefit for her, for there is no reason to say she would look forward to the possibility that his wife might die and he would marry her. Nevertheless, I did not have the heart to be lenient ab initio to divorce her through another, but post facto she is divorced and exempt from chalitzah. Thus far his words. And all the more so in the case of a minor yavam, as the Mordechai wrote there in the name of the Aviassaf and in the name of Rabbeinu Tam, that post facto she is exempt from chalitzah; see there. And the Taz wrote likewise with simplicity, that nowadays it is a benefit for her, and specifically when he grants it on condition, for otherwise it is not a benefit for her, as perhaps he will not die and will not remarry her, and it is certainly a disadvantage for her (Pitchei Teshuvah from the Radvaz). And know that regarding what the Tur and the Shulchan Aruch wrote, that if he died before it reached her hand she is a doubtfully divorced woman, it is explicitly clear that if it reached her hand before he died, she is divorced. And even though he did not make him an agent for delivery, it is because his primary intention was indeed that it should reach her hand, but because he feared perhaps he would die beforehand, he therefore said to him, "Acquire it for her." But certainly his intention was not that he should not be an agent for delivery, and we are witnesses that such was not his intention. And see what I wrote in siman 140, section 16.