Siman 148

A person should not divorce his wife with an old get. And what is an old get? Any get where he was secluded with her after he wrote it for her (Mishnah 79b). It is a decree lest they say her get preceded her son (Gemara), for perhaps he will keep the get in his hand between the writing and the giving for two or three years, and she will have children from him during that time, and afterwards he will divorce her with it. Years later, when the matter is forgotten, they will see the date of the get precedes the birth of the son and they will believe that it was given to her from the time of the writing, and they will say they were born from an unmarried woman, and it would be a blemish for the offspring (Rashi). And even though the offspring is kosher from an unmarried woman, nevertheless, it is a great disgrace for people.

If she was divorced with an old get, she may marry ab initio (Gemara), and it is not similar to all rabbinic disqualifications, as this is nothing more than a concern of a slight rumor, for even if a child is born from an unmarried woman, there is no disqualification in him, as has been written. Rashi explained that when she was divorced and her husband went to the countries across the sea, she may marry ab initio, see there. It is clear from his words that we only do not trouble her to obtain a get from him from afar, but if he is here, we do not allow her to marry until he gives her another get, and we compel him to this. However, from the Rambam, chapter 3, law 5, and from the Tur, it does not appear so (see Beit Yosef).

And there is a question regarding this: for even without this, it is a pasul get because it is predated (see the Chelkat Mechokek there and see Tosafot 27b, beginning with "This is the version") and one must say that he should send her the get via a messenger, for it is kosher as written in siman 127, see there (and so wrote the Rashba). However, the Tur wrote the opposite, and this is his wording: And if she was divorced with it, she may marry lechatchilah, provided that he gave the get from his hand to her hand as I explained above. Thus far his words. And his intention is to what he wrote in siman 141, and this is his wording: A husband who wrote a get for his wife and afterwards secluded himself with her, where we establish that she should not be divorced with it as will follow in siman 148, and if she was divorced with it she may marry lechatchilah—this is specifically when the get was in the hand of the husband and he gave it from his hand to her hand; but if he sent it to her via a messenger and secluded himself with her after he gave it into the hand of the messenger, and the messenger gave it to her, she may not marry with it, and if she married, she does not go out. Thus far the wording of the Tur there. And the reason was explained by the Rosh (chapter 8, section 8) in the name of the Ramah: that certainly lechatchilah the sages were concerned that he should not give it to her after the seclusion lest they say her get preceded her son; but if he gave it to her, she may marry lechatchilah, for if it were that he had relations with her, he would be concerned for the blemish of his children and would write her another get. But when he delivered it to a messenger before the seclusion and the messenger delivered it to her after the seclusion, she may not marry lechatchilah, for if the messenger had consulted with him, he would have indeed given another get, see there. And if so, it is predated. And also, one cannot say that he holds like the opinion we brought in siman 127, section 30, that a predated get is only when it was written at an earlier time or written by day and signed at night, but when it was written and signed on one day, even if it was delayed a long time in the hand of the husband, this is not predated—and this is the opinion of the Rambam, of blessed memory, as written there—for there in section 31 we clarified that the Rosh and the Tur hold that this too is predated, see there.

And there is one who wishes to say that their intention is not literally "from his hand to her hand," but rather that he should now send it to her via a messenger, and the essence of their intention is that the get was in his hand after the seclusion (Korban Netanel there). But the language does not imply this, and in such a case they should not have left the matter closed but should have specified. And there is one who says that their intention is that if he already gave her the get, she may marry, because regarding a post-dated get, the Rosh and the Tur also hold in siman 127 that it is valid in a time of pressing need (Beit Shmuel at the end of subsection 5). But it is impossible to say so, for there the Tur wrote explicitly only when it is impossible to obtain another get, and here they wrote explicitly that she may marry ab initio, and they did not mention at all the opinion of Rashi that we cited regarding one who went to a distant land (and so wrote the Korban Netanel there, letter 34). And some say that it deals with a case where it is not post-dated, where he secluded himself with her on that same day prior to the giving (Bach in Kuntres Acharon and Tosafot Yom Tov). And even though in such a case the decree—lest they say her get preceded her son—is not applicable, they nevertheless decreed in this case as well lest he keep it with him for a long time (ibid.). But these are forced matters, for if so, they should have specified that only in such a case may she marry ab initio; and since they left their words closed, it is clear that their intention is in every case. Furthermore, from where do we have the authority to say this, that we should decree a decree upon a decree (Beit Shmuel ibid.)?

And it appears to me regarding their intent, when we examine the essence of the law of an old get, for did the sages of blessed memory not say (18a) that a person does not bring forward misfortune upon himself? Meaning, that it is not common for a husband to write a get and keep it with him for many days; rather, it certainly deals with a case where he prepared the get to send it via a messenger, and a circumstance occurred where it was delayed with the messenger for many days, and in the meantime he secluded himself with her. And in a get sent via a messenger, there is no concern of being antedated. For this reason, the Rosh and the Tur said that when he arrives to deliver it to her, he should take it into his hand and deliver it to her, and not that the messenger should deliver it to her, for the reason that has been explained. And so it is precise in the wording of the Rosh and the Tur in siman 141, see there. And now, the issue of antedating is not relevant, for the disqualification of an antedated document is due to zenut and produce, as I wrote in siman 127, and when it is sent via a messenger, there is a report of this as I wrote there, and the report is for its time. But over the course of years, when they see the time of the get and the matter is forgotten, they will say her get preceded her son.

This is the wording of the Rambam, of blessed memory, in chapter 3: One who wrote a get to divorce his wife and reconsidered and did not divorce her, and secluded himself with her after writing it, he should not divorce her with that same get another time when he desires to divorce her; and if he divorced her with that old get, she is divorced and may marry with it ab initio, for it was written for her sake and he has now given it to her with witnesses according to its law. And why should he not divorce her with it ab initio? A decree, lest they say her get preceded her son. Thus far his words. And so wrote the Shulchan Aruch in section 1. And the Rambam lengthened his wording to answer what we questioned, that a person does not bring forward misfortune upon himself; and for this he says that at the time he wrote it, his intention was truly to divorce her, but afterwards he reconsidered and was with her together in the manner of a husband and wife, and afterwards over a period of time it entered his mind to divorce her. And there is no disqualification of an antedated document in it, for he follows his own reasoning that anything written and signed without an antedated date, even if it was delayed between writing and giving, there is no concern of an antedated document in this, as he wrote at the beginning of chapter 2, see there. And we brought this in siman 127, section 30. And for this he was precise in his wording, "for it was written etc.," meaning that there is no disqualification in it. And according to his opinion, he can deliver the get to her either by himself or by a messenger. But the Rashba, of blessed memory, wrote specifically to deliver by a messenger due to the concern of an antedated document as we explained. And it results that there are three disputes in the matter: according to the Rosh and the Tur there is no permission except to deliver by himself, and according to the Rashba only by a messenger, and according to the Rambam he can do as he wishes.

However, one must ask a great question according to the opinion of the Rambam, for he himself wrote in chapter 9 that in any case where he was seen with her between the writing and the giving, even if he did not sequester with her, we concern ourselves with the nullification of the get, and this is the concern of "perhaps he reconciled" mentioned in the Gemara, as we explained in siman 144. And all the more so here, when he sequestered with her, that there is reason to concern ourselves with the nullification of the get. And it is well that this is not a difficulty for the Tur, for he explains "perhaps he reconciled" as "perhaps he sequestered with her" and it becomes an "old get" according to the explanation of Rashi, as the Tur wrote in siman 144. But for the Rambam it is difficult. And the answer to this is that this concern only applies when the get is already in her hand, but when after the sequestration he delivers it to her himself or through his agent, behold, there is no concern that perhaps he nullified it, for if he had nullified it, he would not have delivered it to her (Beit Shmuel, subsection 1).

And know that there is one who says that it is explained from the Yerushalmi that if he divorced her because of an unseemly matter, there is no concern of a get yashan because she is repulsive in his eyes and he will not cohabit with her (ibid. subsection 4). But it is not so, for the Yerushalmi only said that this is the reasoning of Beit Shammai, who were not concerned with a get yashan because they hold that one may not divorce his wife unless he found in her an unseemly matter. But according to Beit Hillel, it was a decree of the sages in every case, for not everyone knows for what reason he divorced her (and so wrote the Tosafot Yom Tov).

We have already written that from the wording of the Rambam, the Tur, and the Shulchan Aruch, it is explained that when she was divorced with an old get, she may marry ab initio even if the husband is here. However, Rashi, of blessed memory, wrote specifically when the husband went to a province across the sea, but if he is in the city or in another nearby city, one must strive to obtain another get (and so wrote the Ran, see there). In practice, one should be stringent like the opinion of Rashi (Yam Shel Shlomo, chapter 8, siman 11).

The Tur wrote that in any case where one wrote a get for his wife "from now if I die," he may not be secluded with her except in the presence of witnesses, for we establish the law like Rabbi Yosei, that the days between the get and death she is of uncertain divorce status, as we are in doubt whether the get takes effect immediately or at the time of death. Therefore, she is like his wife and he is obligated in her maintenance, but one who cohabits with her is liable for a suspended guilt offering since she is like one of uncertain divorce status. Therefore, he may not be secluded with her, for if the get does not take effect until the time of death, it is an "old get," and if it takes effect immediately, he is like any man who is secluded with his divorcee, who requires a get from him. Therefore, if she was secluded with him, she requires a second get due to doubt. And this is specifically from marriage, where he is intimate with her, but from betrothal, no. And this is provided that two witnesses together saw that they were secluded, but if one saw in the morning and one saw in the evening, they do not combine. And if he explicitly stated that the get shall not take effect until the time of death and was secluded with her in the meantime before witnesses, or if he gave her a get on a condition and it has not yet been fulfilled, then there is no concern that perhaps he cohabited for the sake of kiddushin. Nevertheless, she should not be divorced with it ab initio, but if she was divorced with it, she may marry even ab initio. And he may be secluded with her even based on one witness, even if it is a slave or a maidservant, except for her maidservant because she is intimate with her. Thus far his words.

And behold, that which he wrote that we establish the law like Rabbi Yosei, that the days between the get and death she is in a state of doubtful divorce, we have already explained in siman 145, section 10, that this is according to the version in the Gemara (74a) that the sages also hold like Rabbi Yosei, see there. However, the Rif and the Rambam, whose version is according to the Tosefta that the sages hold she is completely divorced, the law is not like Rabbi Yosei. Therefore, the Rambam did not mention this law, and similarly in the Shulchan Aruch this was not mentioned, as we explained there that he holds like the version of the Rambam, see there. And the Tur follows the system of his father, the Rosh, there, who agrees with our version, see there. And that which he wrote that one who cohabits with her is liable for an asham talui, so it is stated there in the Gemara, because we are in doubt regarding the time of cohabitation whether she is divorced, for perhaps this is the hour adjacent to death, or perhaps this hour has not yet arrived and she is a married woman. Therefore, if he dies, the one who cohabited is liable for an asham talui, and if he does not die, he shall bring a chatat (Rashi). And there are those who say that they hold that for an asham talui one does not require a piece from two pieces (Tosafot there). And regarding the Tur, it is difficult to say so, for certainly we establish the law like the one who holds that we require a piece from two pieces, as is proven by the discussion of the Gemara in Keritot (18a), and so the Rambam ruled in chapter 8 of Shegagot. Therefore, it appears to me that the Tur holds like the Rambam there, that the reason we require two pieces is because for an asham talui the prohibition must be established, and a doubtfully divorced woman is called an established prohibition, for until now she was under the presumption of being a married woman. And proof for this is from the words of the Rambam there in law 3, who wrote: And similarly, anyone who cohabits with a married woman where one witness says her husband died and one says her husband did not die, he is liable for an asham talui. And the same applies to a doubtfully divorced woman, for the prohibition was established. (And the Tosafot, it must be said that they wrote according to the one who holds in Keritot there that the reason is because it is possible to clarify his prohibition, and here at this hour it is impossible to clarify, as is understood; or they wrote according to the one who holds the reason is because there is a source in the Scripture; and the first is primary, for so hold Rav Zera and Rava, see there and examine carefully).

And know that this explanation that we have written is according to the commentary of Rashi there, but from the wording of the Tur it implies that the doubt is simple, for we are in doubt regarding this phrasing whether he meant "immediately" or that the get should take effect adjacent to his death. And thus wrote the Rashba, the Rosh, and the Ran. Therefore, one who cohabits with her is liable for an asham talui. And it must be said that the doubt does not depend on his intention, for if so, it would be possible to ask him what his intention was; rather, the doubt is in this phrasing according to everyone, and he is not believed to say that he intended this or that. (And the Tur follows the approach of the Tosafot, that it is not dealing with one who says "from the time that I am in the world" as Rashi explained, but rather that it refers to "from today if I die." And one must look further into the Tur, for according to this it must be said that Rabbi Yehuda holds there is bereirah, as the Tosafot and the Rashba wrote there, as is proven in Gittin 25b, see there. And we rule that in Torah matters there is no bereirah. And it must be said that in a matter dependent on the will of others there is bereirah, and it requires further study.)

And that which he wrote regarding the reason that he may not sequester himself—either because of an "old get" or because we are concerned for kiddushin—is simple. And that which he distinguished between from erusin and from nisuin, this is regarding the concern for kiddushin, for the concern of an "old get" applies even from erusin. Similarly, that which required witnesses is not necessary for an "old get." And the distinction between erusin and nisuin is that in nisuin, since he is intimate with her, we say "the witnesses of sequestration are themselves the witnesses of cohabitation," but in erusin we do not say this. However, when we know that she had cohabitation, even in erusin we say that he cohabited for the sake of kiddushin, and it will be explained in siman 149. Therefore, he required two witnesses together according to the law of witnesses for kiddushin, for "separated testimony" where one saw before and the second afterward is not effective. And we also require that he and she see the witnesses, because a person knows that kiddushin without witnesses is nothing, and he certainly cohabited only for the sake of zenut (Beit Yosef). And even if he saw them and she did not see them, there is no concern for kiddushin (ibid.), for in kiddushin we require the intent of both for kiddushin, and since she did not see them, she only intended for zenut. And also that which he wrote, that if he explicitly specified that the get shall not take effect until near death, even if he sequestered himself with her before witnesses there is no concern for kiddushin, it is simple, for she is still a married woman. And even though one could say that it entered their minds that perhaps this is the hour close to death and the get took effect and he is betrothing her, nevertheless, to such an extent we do not have to be concerned.

However, that which he wrote, that even when one gave a get on a condition and it has not yet been fulfilled there is no concern of kiddushin, is astonishing. Why is there no concern of kiddushin here? Is it not possible that they think the condition will be fulfilled and the get will be validated, and he has intercourse with her for the sake of kiddushin? Indeed, the Rambam holds so, as will be explained with the help of Heaven. Our teacher, the Beit Yosef, wrote that the Tur is dealing with a condition of "if," where the get does not take effect until the fulfillment of the condition, and until the fulfillment she is a completely married woman and the concern of kiddushin is not relevant; but with a condition of "from now," the concern of kiddushin is relevant. And the Tur does not hold like the Rambam at the beginning of chapter 8, that even with a condition of "if," if she married before the fulfillment of the condition she does not leave, see there. This requires further study: first, if so, the Tur should not have left the matters unspecified; and furthermore, it appears explicitly that the Tur also holds like the Rambam in this, for he brought his words at the end of siman 143 and did not dispute him. We have also explained this there in section 21 (and the Chelkat Mechokek in subsection 7 also wrote that the Tur holds like the Rambam regarding a condition of "if," see there).

Therefore, it appears to me that the Tur has a different opinion in this matter, and he holds that the concern of kiddushin is only either when she was completely divorced, like that of siman 149, or when there is reason to say that the get has already been fulfilled, such as in the case of "from today if I die," where there is a doubt that perhaps the get took effect immediately and he cohabited with her for the sake of kiddushin. And even though there is a doubt that perhaps he will not die and she is not divorced, nevertheless, the doubt does not depend on them, and he fears perhaps he will die and she is divorced from now on, and therefore he cohabits with her for the sake of kiddushin. But regarding a get that is dependent on a condition, it is not relevant at all to say that he cohabits with her for the sake of kiddushin, for whichever way you look at it: if they desire kiddushin, they will not fulfill the condition, and automatically the get is nothing. And we are dealing with an ordinary condition where the matter depends on him or on her, and it is obvious that if they desire not to separate, who is forcing them to this? Rather, certainly since the condition was fulfilled, it proves that they desire divorce, and automatically that which he cohabited with her is nothing but mere zenut, and there is nothing here but a concern of an old get.

And also regarding what he wrote, "and nevertheless she should not be divorced with it ab initio, but if she was divorced with it she may marry even ab initio," thus far his words, the reason is that such is its law regarding the concern of a "get yashan" as has been explained. However, our teacher, the Beit Yosef, raised a difficulty regarding his wording where he wrote "she should not be divorced with it" etc., for she has already received the get, and what relevance is there to "she should not be divorced with it"? See there. And others further raised a difficulty against him regarding what he ruled, that if she was divorced with it she may marry ab initio, for this contradicts what he himself wrote at the beginning of this siman, that it is only valid when he delivers it to her now from his hand to her hand (Beit Shmuel, subsection 7). And it appears to me that one difficulty is answered by the other, and on the contrary, that is why he was precise to say "she should not be divorced" etc. "and if she was divorced" etc., and he means to say that the fact that the get is in her hand is of no effect, for he must deliver it to her now. And regarding this he says, "she should not be divorced with it ab initio," meaning even if he takes the get from her hand and delivers it to her, even this should not be done ab initio. "And if she was divorced with it," meaning that he performed an action and took the get from her and delivered it to her now, she may marry ab initio according to the law of a "get yashan" which he explained at the beginning of the siman.

But the Rambam, of blessed memory, wrote in chapter 8, law 2, and this is his wording: Anyone who divorces on a condition, whether he said "from now" or whether he said "if it will be" or "if it will not be," behold, he may not be secluded with his wife as long as the condition has not been fulfilled except in the presence of a witness, even a slave and even a maidservant, except for her maidservant or her small son, because she is not ashamed to engage in relations in their presence. And the matter is known that if he was secluded with her in the presence of two witnesses as one, even if the condition was fulfilled afterward, behold, she is of uncertain divorce, lest he cohabited and nullified the get, as will be explained in these laws. Thus far his words. And his intention is for what he wrote in chapter 10, that one who divorces his wife and returns and cohabits with her or they were secluded in the presence of witnesses, we concern ourselves with kiddushin (the Maggid Mishneh), and it will be explained in the next siman with the help of Heaven. And our teacher, the Beit Yosef, wrote in section 2 exactly like the wording of the Rambam, and only added to say that he and she saw the witnesses, see there, and we have already explained this in the wording of the Tur.

And in truth, one must wonder about this: how can we be concerned for kiddushin, for if so, who forces them to fulfill the condition? And it is a strained explanation to say that it deals with a condition that is not dependent upon them, for it says "anyone who divorces on a condition," which implies explicitly any condition. And it must be said that his reasoning is this: since we see that the sages of blessed memory were concerned in the case of "from today if I die" for the concern of kiddushin—even though previously they desired the get in order to exempt her from yibbum, nevertheless perhaps afterwards they were moved by love to betroth her anew and were not concerned for what would happen later—so too there is reason to be concerned in all conditions that now, in their joining together, they retracted and their intention was for kiddushin, and afterwards, in their distancing, they remained with their original intent to fulfill the condition. And even though this is of no benefit since he already betrothed her, nevertheless they might think that there would be a benefit in this; and in matters of a married woman, they were concerned even for a slight concern. And know that regarding the guarding of a shomer, it is sufficient even with one who exits and enters, and he does not need to sit there the entire day; however, at night it appears that excellent guarding is required. And regarding a sick person, guarding is required even if he is very ill and even when he is a gosses. And a minor boy and a minor girl who know the taste of intercourse, such as those who are twelve years old, are considered a shomer for this matter.