The Function of Netina within the Geirushin Ceremony, Part I
GEMARA GITTIN 5772
By Rav Moshe Taragin
The Function of Netina within the Geirushin Ceremony
The Gemara in Gittin (21a) notes that an eved (servant) cannot serve as a chatzer (literally, courtyard; the term is used for any piece of property through which one seeks to make a kinyan) to receive the get on behalf of the woman, since he is mobile. Though, in general, a person's chatzer may indeed acquire items on his behalf, the chatzer must be stationary. An ambulatory chatzer (known as "chatzer mehalekhet") is invalid to represent a person in acquiring objects. Having invalidated using an eved, the Gemara considers a classic kinyan chatzer, with one caveat - the chatzer still belongs to the husband. What would happen, the Gemara poses, if the husband places the get into his own chatzer and transfers the chatzer (along with the get) to his wife? The Gemara ultimately validates this form of transfer, forcing us to reevaluate the function of netina and what types of netina are acceptable; after all, this case is hardly a conventional form of netina (as the husband did not directly hand the get to his wife).
In general, the transfer of a legal document does not appear to be an essential part of the contract's efficacy. The section in Yirmiyahu 32 (briefly cited by the Gemara on 22b) which serves as a template for the halakhic system of shtarot, makes no mention of the actual physical transfer of the document. Obviously, at some stage (after signing) the document must be delivered to the intended party, for whom it possesses some utility. For example, at some point the borrower should hand the shtar to the lender, so that the latter may employ the document to assist him in extracting money in any future litigation. The transfer, however, seems purely utilitarian, without any halakhic import. By stark contrast, when describing the process of divorce, the Torah (Devarim 24:1, 3) specifically mentions the delivery: "Ve-natan be-yadah" — "He must place it in her hand." Two gemarot corroborate the significance of such a delivery. Both Gittin 24a and Gittin 78a invalidate transfers initiated by the woman. The more unequivocal example in 78a discusses a situation in which a man sticks the get into his back pocket and instructs his wife to remove the get on her own. As no active netina occurs, the get is invalid: this situation is designated as an instance of "teli gitteikh mei-al gabbei karka" - a case of a woman retrieving the get from the ground, without directly receiving it from her husband. This case merely reinforces the emphasis the Torah places upon the delivery of the get. How may we describe this function? Which situations comprise a valid delivery? Are there any dissenting opinions which may not endorse the need for an active and physical delivery?
We will tackle the last question first. The Gemara on 77b discusses the case of a man who is about to pass away, but who wants to transfer a get to his wife. The get is not with his person, but it is lying in his chatzer. Rava instructs the woman to acquire the chatzer (within which the get is contained), and thereby her divorce will be valid. Most opinions claim that by acquiring the chatzer she gains possession of the get through a kinyan chatzer (similar to the scenario on Gittin 21a). Just as she can receive the get with her physical hand, she may also receive it with her newly acquired chatzer. Rashi, however, offers a different reading: by acquiring the chatzer, she acquires the get through a kinyan agav. Kinyan agav is a VERY unique kinyan which allows one to execute an act of kinyan upon a piece of land and thereby automatically receive other, portable items without actually executing any separate act of kinyan upon them. For example, I can sell you my field and stipulate that by performing an improvement upon the field (kinyan chazaka) you will also acquire ownership of certain items of food (even though the food is not physically stationed in the field). In this instance, by performing a kinyan chazaka upon the field, the woman incidentally acquires the get and becomes divorced. It would appear that Rashi validates divorcing a wife through kinyan agav, even though it does not consist of any physical delivery of the get to the woman. Many claim that Rashi dismisses the role of netina and allows for a woman to be divorced as long as she acquires legal ownership of the get in a halakhically recognized manner. Rashi may read the invalidation of 77a, where a woman snatches her own get from her husband's pocket, in a slightly different manner. Thus, according to Rashi, the Torah does not require an active delivery of the get (hence, it allows divorce through kinyan agav); instead, it demands that the husband initiate the legal transfer. By snatching the get, the woman launches the transfer and indeed executes it entirely. In the case of 77b and kinyan agav, the husband initiates the transfer of the get by stipulating his desire to 'bundle' the get with the land through kinyan agav. Even though he does not actually, physically deliver the get to his wife, he has performed netina by driving the process. Rashi does not require an active netina; rather, he demands that the husband, and not the wife, propel the legal transfer. A careful reading of Torat Gittin (the sefer written by Rabbi Yaakov of Lisa, author of the Netivot Ha-mishpat) suggests a similar approach.
The one gemara which seems difficult to harmonize with Rashi’s view appears on 21b. This gemara discusses a case in which one who wrote a get on a plant growing in a vase that is legally considered attached to the ground (since the pot contains holes and draws its nourishment from the ground). Being that one may not 'cut' or in any way 'prune' a get after its composition, instead of cutting the leaf upon which the get is written, the gemara demands that the vase containing the plant be lifted and physically delivered to the woman. According to Rashi, who maintains that no physical delivery is necessary, we may question the gemara's insistence upon this form of transfer. Why not simply transfer this pot (considered land since it is biologically attached to the land) through money payments (kesef) or chazaka (performing some improvement upon the plant)? Either of these actions will legally transfer the potted plant - even though neither involves performing any physical action upon the get.
Based upon this gemara, the more direct reading of the two gemarot which established the concern of "teli gitteikh" and the more logical reading of the pasuk in Ki Tetze, most Rishonim disagree with Rashi and require some form of netina. In fact, we have already encountered a very extreme formulation regarding the role of netina. Shiur #11 presented the position of the Ketzot Ha-choshen that netina is not just necessary, but sufficient on its own: as opposed to standard contracts which must be legally transferred, a get must ONLY be physically delivered, even if the legal transfer is impossible. The Ketzot bases his comments upon the gemara (20a) which allows the drafting of a get upon materials which are forbidden, even though ostensibly these materials cannot be legally transferred. According to the Ketzot, the act of netina shoulders the entire process of geirushin and plays the pivotal role within the overall process.
Recognizing that many disagree with the extreme version of the Ketzot, we must still acknowledge that netina plays a significant role in the process of geirushin. What function does it perform? This question returns us to our point of departure: the strange forms of netina which appear on 21a and 77b-78a.
The Ramma (cited in the manuscript of the Ritva to Gittin 78a) develops a concept which he employs to explain many of these strange netinot. For example, the mishna (78a) describes a situation in which a person places a get into the hands of his sleeping wife. At that point she is not divorced, because while asleep she is not capable of acquiring the get. Not only must the divorce be delayed until she awakes, but the husband must communicate his intent to divorce as well when she awakes. The mishna recognizes the need for a legal acquisition and some form of communication between the husband and the wife. It accommodates each of these criteria by delaying the application of the get until she awakes and by forcing the husband to articulate his intentions to his conscious wife. At no point does the gemara seem concerned by the lack of physical netina; netina cannot be culminated to a sleeping woman, yet the husband does not reissue the get when she awakes. Seemingly, this process is executed without a complete netina.
To clarify this case the Rama develops a notion termed "netina arikheta" - gradual netina. He effectively divides the process into two segments, which can occur at different phases. Many of the conditions necessary for a valid netina do not have to be in place during the first stage and can emerge at a later point. For example, in the case of the sleeping woman, the first stage of the netina occurs when the husband actually places the get into her hands. Even though she is incapable of receiving the get, since she is sleeping, the first stage of netina has been successfully completed. The second stage of the netina occurs when she awakes and retains the get which had been placed in her hands. In a similar vein, the Rama traces a two-staged netina in the gemara (21a). Originally, the husband places the get into his field. At this point, the first phase of the netina - the hand-off of the husband - has occurred; even though she has not yet received the get, the husband has placed the get in an area earmarked for his wife. At a later stage, the woman will actually acquire the chatzer and achieve ownership of the get.
According to the Ramma, netina may thus be divided into two stages:
1) A delivery of the husband which is oriented to the woman (to her while she is asleep or to a chatzer which will ultimately become hers)
2) The final receipt by the woman
Iy"H, in next week's shiur, we will explore a different strategy toward solving this dilemma, and by contrasting it with the Ramma's opinion, we will hopefully arrive at two different views regarding the role of netina within the geirushin process.