Siman 151

The sages taught in the Mishnah (80a): If a scribe wrote a get for the man and a receipt for the woman, and he erred and gave the get to the woman and the receipt to the man, and they gave them to one another—for the scribe wrote the get to deliver it to the man so that he would deliver it to his wife, and the receipt he wrote for the woman to deliver to her, so that when the husband pays her ketubah she would deliver the receipt to him as proof (see there in Tosafot s.v. <i>katav</i>)—and the scribe erred and delivered the get to the woman and the receipt to the man, and they did not open them to see them, and the husband delivered the receipt to the woman in place of the get, and the woman delivered the get to the husband in place of the receipt, and after some time it was found that the get was in the possession of the man and the receipt was in the possession of the woman, and she married another, she must leave this one and this one, and she requires a get from this one and this one. And all thirteen consequences that we enumerated in siman 17, section 257, and all that we wrote in the previous siman, section 5, apply in this case. And in this, she is close to negligence, for they should have read them (Yevamot 91b).

And specifically when the husband contested this before she married another, but if he did not contest until after she married, we do not pay heed to this, and we say that they made a conspiracy between them to remove her from her second husband to return her to him, and he now gave her the voucher and she gave him the get to show that they were swapped with one another. And even though in truth he will not gain from this even according to the conspiracy, for she has also become forbidden to him as has been written, nevertheless, sometimes he does not take to heart to know that she has become forbidden to him and he makes a conspiracy. And it appears from the Shas and the poskim that they insisted upon this, and they are not granted credibility even if they swear that the truth is with them, unless they bring witnesses. And thus our sages, of blessed memory, said there: It is not within his power to destroy the right of the second [husband]. And certainly if it were as they say, he would not have been silent from the outset before she married, and he would not have allowed her to marry. And he is not believed to say that they did not open it until after she married, for such is not the way of the world (see there in Tosafot chapter 1).

There is a question regarding this: how is it possible for an exchange to occur between a get and a shover, for do we not maintain that the witnesses are obligated to read the get before the giving, as is written in siman 135? The answer to this is, for example, that they read it, and from the reading until the giving a small amount of time elapsed, and in the meantime, this was exchanged for that; so wrote the Rishonim. It appears to me that for this reason the Mishnah was precise to attribute the error to the scribe, because such is the custom even among us: that after the reading and after the questions that are asked of the scribe and the witnesses, the get is handed to the scribe so that he may fold it. It is the way of the husband and the wife to be precise before the divorce regarding the calculation of the ketubah, and therefore she prepares the shover, and the scribe wrote both of them. It then happened that when the scribe folded the get, and the shover was also folded by him, he erred by exchanging the papers for one another. And the reading after the giving is not a hindrance, as is written there.

It is not specifically when she married another, for the same law applies if she became betrothed (Bach and Beit Shmuel). And we do not even require a get for her from her first husband so that she may be permitted to the second, for the sages did not believe him at all (ibid.). And so it appears to me that if he is a kohen, he is not believed to take her back even before she married another, for in this too there is concern of a conspiracy that they are retracting the get; therefore, we do not allow him to take her back. However, she requires another get, for she has made herself a forbidden entity upon herself when she says she has not yet been divorced. Furthermore, as long as she has not yet married or become betrothed to another, they are believed regarding this matter, that she may not marry another with this get (and also he himself, if he protests, we compel him to give another get).

And know that this which we wrote, that the reason they are not believed once she has married is due to collusion, so wrote Rashi and the Ran, of blessed memory. And it is necessary to say so according to the language of the Mishnah, for the get emerges from the hand of the man and the shover from the hand of the woman, and we do not believe them after she has married another; perforce we say that they subsequently handed them to one another based on collusion. According to this, the wording of the Rambam and the Shulchan Aruch is difficult. This is the wording of the Rambam in chapter 10, law 11: If the scribe wrote and erred, and gave the get to the woman and the shover to the man etc., and if she married and afterwards the husband produced the get and said she is not yet divorced, for the get is in my hand and did not reach her hand, we do not listen to him to forbid her to her husband; rather, she remains under the presumption of being a divorcee, and the get fell from her hand and he found it, and behold he comes to forbid her to the second husband. Thus far his words. And it is clear from his words that only he says so and not the woman, for if it were not so, why must he attribute it to falling? Let us say that she handed it to him. Yet from the language of the Mishnah it is explicitly clear that both of them are making this claim.

And it appears to me that the Rambam does not hold of the reason of collusion, for what would he gain by this, seeing as she is forbidden to him? And he does not hold of the resolution that we wrote in section 2, that he would not take it to heart, for if we were to say so, several laws of migo and the like would be altered. And it was also difficult for the Rambam how it is possible to interpret in the Mishnah that before she was married the switch was seen, for if so, how was she married to the other, concerning which we learned "she must leave this one and this one"? For you have no promiscuous woman who would do such a thing. Furthermore, in the Gemara Yevamot (91b) we say regarding the reason she must leave this one and this one that she should have had the get read to her, as I wrote in section 1; and according to what was written, she married intentionally, for the switch was revealed before she married, so why do we need the reason of a penalty?

Therefore, the Rambam explains it in a different manner, for behold, that which we distinguished between before she married and afterward is not the view of everyone, and only Rabbi Eliezer holds thus in the Mishnah, and the First Tanna disagrees with him; and we rule like Rabbi Eliezer, as the Rif and the Rosh wrote, see there. And the Yerushalmi asks: what are we dealing with? If we say it was clarified that there was an error and an exchange, how could Rabbi Eliezer disagree? And if it was clarified that there was no error, how could the First Tanna disagree? And it answers that we are dealing with an unspecified case, see there; meaning, we do not know anything except that the husband says so. According to this, we are not dealing at all with a case where she also supports him, but rather he says it was exchanged by error and it is impossible to clarify the matter, such as if the receipt is no longer in existence. Therefore, the First Tanna says that he is believed, for his claim is a claim that could be so, and therefore even if she married previously, we penalize her, for she should have given the get immediately after receiving it to the witnesses so they could read it, and then there would have been no room for him to protest. Since she did not do so, we penalize her, as is stated in Yevamot. And Rabbi Eliezer holds that if he protested after she married, we do not pay him heed. And the Rambam explained in the Commentary on the Mishnah that if so, everyone would cast a slur in order to remove her from her second husband; and even though she did not act properly in that she did not give it to be read after her receipt of it, nevertheless, we should not remove her from her husband because of this. And that which we learned in the Mishnah, "and after a time, behold the get emerges from the hand of the man and the receipt from the hand of the woman," the intention is not that the truth is so, that it was clarified to us thus, but rather he says so—that because the scribe had the get and the receipt with him, the exchange could have happened. And this is what the Yerushalmi explains as "unspecified," and it means that which we learned, "and after a time etc.," the intention is not that it was clarified, but rather unspecified, that he says so. And regarding this, the Rambam says that even if he shows the get before us, we say that the get fell from her hand and he found it. But if she also says so and produces the receipt before us, certainly she must leave this one and that one, and we do not hang it on a conspiracy (see Bava Batra 172b that we do not fear the falling of a document belonging to an individual, and this is difficult for the Rambam; and one can say that he holds like the explanation of Rabbeinu Chananel brought by the Rashbam there, that the one who lost it would cry out, see there; and this is only relevant to a monetary document, but regarding a get, why would she have to cry out? And see Tosafot Yevamot 116a, beginning with "Le-mai," and delve into this).

And know that regarding what we wrote, that even if she became betrothed her law is like one who was married, in the Yerushalmi there is a dispute regarding this and it decides accordingly, see there. And the commentators of the Yerushalmi wish to say that according to our Shas and according to the Rambam it is not so, but there is no necessity for this. And so wrote the Rashba, of blessed memory, that the same law applies if she became betrothed, and so wrote the Acharonim.