Siman 153

In siman 132 it was explained regarding an agent who brought a get and it was lost from him and he found it, that if he found it immediately it is valid, and if not, we are concerned that perhaps it belongs to another man whose names are identical, and there is no permission except when caravans are not common and two Yosef ben Shimon are not established, or that the agent gives a most distinctive sign, such as "there is a hole in it next to such-and-hers letter," and this is a sign more distinctive than the signs with which one returns a lost object, which is called a medium sign, and regarding a lost object it is called a distinctive sign in the Rambam and the rest of the poskim, and we explained this in Choshen Mishpat siman 267 section 5, see there. And this is when the agent lost it. But in this siman it will be explained regarding a get found in the marketplace where there is no agent here to say that he lost it, but rather the husband and the wife are divided: the husband says "it fell from me, for I wrote it and changed my mind and decided not to give it to her, and she is still a married woman," and the wife says "he already delivered the get to me and I am divorced, and it fell from me," and there are no witnesses here through whom the matter may be clarified.

And so our Sages, of blessed memory, said (Bava Metzia 28a): If he states the simanim of the get and she states the simanim of the get, it shall be given to her. This is specifically with a siman muvhak, such as "there is a hole next to such-and-such a letter," for from this it is clarified that the get was in her hand, for if not so, how would she know? But regarding other simanim, it is possible that she saw them at the time the husband held it in his hand. Similarly, if they give a siman regarding the string that the get was tied with, and she says precisely how long the string is, it shall be given to her. But if she says the get is long or short, or the string is white or black and the like, it is nothing. And the Rif wrote that specifically "a hole next to such-and-such a letter" or the length of the string [is effective], but not another siman, see there. And it implies that even if she says precisely the length and width of the get, it is not a siman. This is explained in the Gemara ibid., where we learn: If we say by the measure of its length and width, perhaps while he was holding it, she saw it, see there. And it is not similar to the length of the string, for it is not the way to unwind the string at the time he spreads the get in his hand. Furthermore, it is explained there that when they give a siman on the vessel that the get was placed in—that he says "in a chafisah" and she says "in a chafisah," and it is a leather bag—it shall be given to him. What is the reason? Because she knows that whatever he has, he places in a chafisah. And the commentators (Ran and Nimukei Yosef) wrote that when she gives a poor siman on the get and it is impossible to return it to her, we give it neither to him nor to her, even if he gives a siman muvhak, for regarding him it is not proof, since he wrote it. But this is regarding simanim on its body; however, regarding simanim external to its body, such as if he says it was placed in a chafisah, we return it to him, because this proves that it was still with him. And one cannot say that she placed it in her chafisah, for it is not the way of a woman to place it in a chafisah, and she guards it with superior guarding because she wants to be married with it; therefore, this is a siman only for him and not for her (ibid.).

And there is a question regarding this: why do we not return the get to her, for behold, a woman who said to her husband, "You divorced me," is believed even when there is no get before us at all, and all the more so when there is also a get? And the answer to this is that, on the contrary, when there is a get, it is even worse; for the reason she is believed is because of the presumption that a woman does not embolden her face in the presence of her husband, but when there is a get, she emboldens and emboldens (Tosafot ibid. 18b, s.v. "ein," and so they wrote in Gittin 27b). And this is like in the previous siman: when there are witnesses, she emboldens and emboldens, and so too with a get.

And there is a further question regarding this: why do we not return the get to him when she does not state a distinctive siman? It is understandable if he also does not state a distinctive siman, for there is certainly reason to fear that perhaps he will divorce her with it, and perhaps it is another get where their names are identical, as in siman 132. But when he says there is a hole in it next to such-and-such a letter, why should we not return it to him so he may do with it as he pleases? The answer to this is because we fear that perhaps it fell from her, and she needs the get to collect her ketubah from him in a place where they do not write a ketubah, like that which we learned in a Mishnah (Ketubot 89b): If she produced a get and there is no ketubah with it, she collects her ketubah. And if we return it to him, he will stand on the premise that she was already divorced, and when she claims her ketubah, he will say, "I paid you, and the proof is that the get is in my hand, for you returned the get to me after you received your ketubah" (Rashi, Gittin 27a). And in the course of time, the matter will be forgotten—that the get was found and returned to him—and she will not be able to clarify the event as it was (see Beit Shmuel, subsection 1).

There is another question regarding this: why did we say that if he found it in a pouch he should return it to him and he may do with it as he pleases, even to divorce with it, for behold there is no mubaq sign here, and we should suspect perhaps it belongs to another as in siman 132? The answer to this is that in truth we must say that there are no caravans frequently found here and two people named Yosef ben Shimon were not established (Tosafot Gittin 28a, see there). And in the previous law, we do not return it to him even in such a case for the reason we wrote, perhaps he desires to cause her to lose her ketubah. And some say that in truth, that which we give it to him, the intention is not that he is permitted to divorce her with it, but rather to say that we do not give it to her (the Rosh, chapter 2 of Bava Metzia, siman 14, see there).

And that which we learned (ibid. 18a and Gittin ibid.): If one found a woman's get in the marketplace, when the husband admits, he should return it to the woman; if the husband does not admit, he should return it neither to this one nor to that one. The Rif, of blessed memory, wrote there that this deals with a case where she did not provide a distinctive siman, see there. And it was established in the Gemara, for example, where there is no concern that perhaps it is another get, such as where caravans are not frequent and they were not established. And when the husband admits, he should return it to the woman, whether he admits that he still needs to give it to her (as appears from Rashi's commentary)—he should return it to the woman, meaning give it to her now as a divorce by the husband's command—or whether he admits that he already gave it to her and it fell from her (Tosafot Gittin 27b, s.v. "bizman," see there). And even so, he is not believed when there is reason to fear another get. And even though there is one who holds that a husband who says "I divorced my wife" is believed, this is for the future and not retroactively; and when he speaks retroactively, he is not believed even regarding the future (ibid., and it requires further study, for even in this there is a dispute in Bava Batra 134b; and if their intention is that we hold he is believed, it is more difficult, for there we conclude that he is not believed, as I wrote in siman 152, and it requires great study). Therefore, in such a case as well, they should return it to her as a divorce. And if it is difficult, why do we need all this, for a woman who says to her husband "you divorced me" is believed? For we already wrote that when there is a get she is not believed, for she would indeed be emboldened. Furthermore, she is only believed when the husband denies her, on the grounds that she would not be emboldened, but not when he assists her, as I wrote there. And this, that when the husband does not admit, he should return it neither to this one nor to that one—the reason is simple: to her it is impossible to return it since she does not provide a distinctive siman, and on the grounds of her being believed it is also impossible to return it to her, for when there is a get she is emboldened, as I wrote. And to the husband it is impossible to return it, even though there is no concern here that perhaps it is another get, nevertheless, because of the concern that perhaps his desire is to make her lose her ketubah, as I wrote in section 4.

All this is according to the opinion of the Rif, and so it appears to be the opinion of the Rambam in the eighteenth chapter of Gezeilah, who wrote: If one found women's gittin, at a time when the husband admits it, he shall return it to the woman; if the husband does not admit it, if the woman gave a distinctive siman, it shall be given to her, and if not, he shall return it neither to this one nor to that one. If the husband said "it fell from me" and gave its simanim, and the woman says "it fell from me" and gave its simanim, it shall be given to her, provided that she gives a distinctive siman, such as if she said there is a hole next to such-and-such a letter, for if it had not reached her hand she would not have known. If he says the simanim of the thread with which the get is tied, and she says the simanim of the thread, it shall be given to her, provided that she says a distinctive siman, such as the length of the measurement of the thread; but if she said it is red or black, this is not a distinctive siman. If he says it was placed in a pouch and she says it was placed in a pouch, it shall be given to him, for this is not a distinctive siman. Thus far his words. And that which he did not explain—that at a time when the husband admits it, he shall return it to the woman, is in a place where there is no concern for another get because two people named Yosef ben Shimon were not established and caravans are not common—he relied in these laws on what he wrote in the third chapter of Gerushin regarding a messenger when he lost a get (the Maggid Mishneh).

Furthermore, it appears in my humble opinion that the Rambam holds that here there is no need to be concerned for another get, and even though he himself ruled in chapter 12 of Hilkhot Gerushin that a husband who says "I have divorced my wife" is not believed even if she admits to his words, he holds that this is when there is no get before us. However, when there is a get before us and the man and the woman say that she has already been divorced, we have no reason to be concerned for another get. This is specifically when she is also before us and says so. Therefore, the Rambam, who is dealing here with a case where she is before us—as is proven from his words where he wrote "if she gave a distinctive sign," etc., and it is clear that she is before us and claims that she has already been divorced—consequently, the term "admits" means that he admits to her words. But in the Gemara there, where it was necessary to establish it when there is no concern of another get, that is because the wording of the Baraita does not prove that she is before us, see there. And "at a time when he admits" does not mean that he admits to her words, but rather that he admits regarding this get that it is his, and consequently one cannot rely on his speech as I have written. Furthermore, perforce the intention is like the explanation of Rashi, that he admits he must give it to her, for she is not here that we should say he admits to her words, and consequently there is reason to be concerned for another get. (And perhaps because of this Rashi was compelled to explain thus, and that which concludes "the husband does not admit," etc., the explanation is not that she is here, but rather that we do not have to seek her out and deliver it to her because it is impossible to return it to her). (And the Tosafot would explain that she is here, see there).

And the Rosh, of blessed memory, has a different approach in all this, as he wrote (in the second chapter of Bava Metzia, siman 14) that when he says "it fell from me" and she says "it fell from me," she is believed if she only provides a medium siman with which one returns a lost object. And the Shas there did not mean specifically "there is a hole next to such-and-such a letter," and it only intended to exclude inferior simanim like "white" or "red." And likewise, if she provides a siman of the measurement of the length and width of the get, we return it to her. And that which is implied there, that we do not return it to her with this, that is when she did not specify the measurement precisely. And his reasoning is that we hold that a woman who says to her husband "you divorced me" is believed, and if it is because when there is a get she would be emboldened, since the simanim support her, the get is not a contradiction to her words. Therefore, to return it to the husband so that he may divorce her with it, we require a clear siman like a hole next to such-and-such a letter, as with a messenger in siman 132; but to return it to her when she says she was already divorced, she is believed even with a medium siman as with all lost objects. And behold, when he says "in a case" and she says "in a case," were it not for the reason that she knows that whatever he has he places in a case, they would return it to her even though this is not a clear siman. And that which we return it to him is not to divorce her with it, for certainly he cannot divorce her with this get since he did not provide a clear siman, but rather the intention is that it should not be given to her (ibid.):

And according to his words, that which was taught in a baraita, "if one found a get of a woman in the marketplace, at a time when the husband admits [to having given it], he should return it to the woman," refers to a case where she does not provide even a middle-tier siman (and this is his intention in the first chapter there, page 45, and examine this closely). And that which they established in the Gemara (ibid. 18b and Gittin ibid.) regarding a siman of a hole next to a certain letter, this is when he provides the siman because he wishes to divorce her with it now. But when she provides a siman and says that she was already divorced and it fell from her, a middle-tier siman is sufficient. And it can also be explained that even if he admits she was already divorced, it is also nothing, since if she did not provide any siman she is not believed; and also he who says "I divorced her" is not believed, for so we rule. Therefore, it specifically requires a hole next to a certain letter, or when they were not established and caravans are not common, see there.

The words of the Tur and the Shulchan Aruch are wondrous regarding this matter, and this is the wording of the Tur: One who finds a get for a woman in the marketplace, if the woman provides a siman, such as saying there is a hole next to such-and-such a letter, and she says that she was already divorced with it and it fell from her, he should return it to her even if the husband denies it and says that it fell from him and he never divorced her, but rather he commanded it to be written and had not yet given it, even if he also provides a siman for it. And if she does not provide a siman for it and the husband denies it, he shall not give it to him nor to her. Thus far his words. And this is exactly like the system of the Rif and the Rambam, that we require specifically a siman muvhak.

And afterwards he wrote, and this is his wording: And if the husband admits that he wrote it and says they should give it to her to be divorced, if it was found in a place and at a time when it is appropriate to return it, such that there is no concern that it fell from another, as I explained above (siman 132, that he found it immediately or that there is no mark of identification and they were not established), they should give it to her and she is divorced with it from now; and if not, they shall not give it to her. Thus far his words. And this accords with all the opinions as we have explained, except that according to the Rif it deals with a case where she does not give a distinctive mark, and according to the Rosh when she does not even give an intermediate mark; and only from the arrangement of his previous wording does it appear that his intention is like the Rif, as is understood (and this is like the explanation of Rashi, that he admits to give it to be divorced, as I wrote).

And afterwards he wrote, and this is his wording: And if he admits that she was divorced with it and she requests it from him to collect her ketubah with it, like that which we learned in a Mishnah: If she produced a get and there is no ketubah with it, she collects her ketubah; and he says that he already paid her and she returned it to him and it fell from him, he returns it to her even if she does not say there is a hole next to such-and-such a letter, only when she says a siman muvhak (regarding a lost object it is a siman muvhak), such as if she says so-and-so many finger-breadths are in the length of the get or in its width, or if she says the measurement of the string tied to it. But if she said the get was long or short and she does not specify its measurement, or the string is white or black, or if she said it was placed in a hafisa or in a deluskema, it is not a siman to return it to her by its means. Thus far his words. And these matters are according to the approach of the Rosh and not the Rif. And some say that what he wrote, "even if she does not say there is a hole etc.," refers back to the beginning of the siman and is according to the approach of the Rosh (Bach and Beit Shmuel, subsection 5). And these matters are astonishing, for if so, why did he lengthen the explanation so much? And besides the forced reading of the language, why must he mention the matter of the ketubah, for it follows automatically that when they return the get to her she will collect her ketubah? And furthermore, there are many more precise difficulties according to this.

Therefore, it appears that regarding the law, the Tur holds like the Rif, that to believe her that she was divorced, specifically a hole next to a certain letter is required; for since there is a get, she would certainly be emboldened, and against this, the Tur views the approach of the Sugya in Bava Metzia there as not specifically requiring a hole next to a certain letter, for it only excludes "white and red" which are inferior simanim, and this is like the Rosh. Therefore, he adopted for himself a different approach in all this: that certainly the Baraita of "one who finds a woman's get in the marketplace when the husband admits" should be interpreted like the Rif, for so it appears to him regarding the law, and not like the Rosh. And the Sugya in Bava Metzia should be interpreted like the Rosh, but it is not dealing there with the matter of permitting a married woman, for in this both agree, and the dispute between the man and the woman is only regarding the matter of the ketubah. Therefore, this law is like other monetary laws where a medium siman is sufficient (the Gra, subsection 1 and subsection 4). And if it is difficult, for in any case regarding the prohibition how are they believed, it can be said that it deals with a case where there are witnesses that she was divorced, or they found it immediately, or there is no "here today and gone tomorrow" and they were not established, and the dispute between them is only regarding the ketubah. And our teacher, the Beit Yosef, copied only the words of the Tur in the Shulchan Aruch, and even in his great work he did not explain it, see there (and the words of the Gra in subsection 7 require a bit of study, for according to the Tur this is not necessary at all, and the Rosh according to his approach required this, see there and examine carefully).