The Function of Netina within the Geirushin Ceremony, Part II
GEMARA GITTIN 5772
By Rav Moshe Taragin
The Function of Netina within the Geirushin Ceremony, Part II
The previous shiur analyzed the role which the physical delivery of the get plays within the overall process. In so doing, we introduced several cases which do not seem to conform to standard patterns of netina. We encountered a position (one understanding of Rashi) that in actuality no physical delivery is necessary. Assuming, though, that a physical hand-off must be executed, we questioned the role such an act would play. In previous shiurim, we have mentioned the position of the Ketzot Ha-choshen that a husband must ONLY DELIVER the get but does not have to actually conduct a legal transfer. Obviously, the Ketzot feels that the netina is the primary and exclusive component of the geirushin process. Assuming, however, against the Ketzot, that indeed the netina serves a function which accompanies the kinyan, we must question the nature of this role.
We began this examination by presenting the position of the Ramma regarding a netina arikheta. The Ramma claims that the delivery can be 'staged': it can begin with the dispensing by the husband, even though conditions are not yet 'ripe' for the woman's receipt. As long as these conditions eventually materialize, the staged process of netina - or netina arikheta – is valid.
The Imrei Moshe (Chapter 20) adopts a different explanation, which tacitly rejects the premise of the Ramma. He develops his concept from two very interesting but controversial positions asserted by the Rambam. The sixth chapter of Gittin suggests different models for a shali'ach within the delivery of a get. The two classic templates for shali'ach are sheli'ach holakha and sheli'ach kabbala. In the first instance, the shali'ach represents the husband in delivering the get to the woman; until he places the document in her hands, the divorce has not yet been executed. In the latter instance, the shali'ach represents the woman; as soon as the husband deposits the get into the agent's hands, the divorce has been consummated, since we consider his receipt as representative of the woman's. However, the Gemara presents a third form of shelichut, that of a sheli'ach hava'a. In this case, the divorce process concludes only when the get reaches the hands of the woman. Though in this regard this shali'ach exhibits similarities to a sheli'ach holakha, it is clear from the Rambam's understanding that we cannot classify him as a standard sheli'ach holakha. For example, the Rambam does not grant this shali'ach the same degree of reliability in affirming the document (by declaring "be-fanai nikhtav u-vefanai nechtam") as a sheli'ach holakha enjoys (see Gittin 2a). Unlike a sheli'ach holakha, who is appointed by the husband, this shali'ach is appointed by the woman. Evidently, a sheli'ach hava'a is a cross between or blend of the two classic forms of shelichut.
The Imrei Moshe explains that a sheli'ach hava'a plays different roles regarding different aspects of the geirushin process. A get must be legally transferred and also must be physically delivered (kinyan and netina, respectively); however, the two dimensions may be split: they do not have to occur simultaneously. The shali'ach serves as a representative of the woman regarding the netina and an agent of the husband regarding the kinyan. Said otherwise, the netina occurs when the husband deposits the get into this shali'ach's hands. As a sheli'ach kabbala for the woman (and appointed by the woman), he is authorized to represent her in receiving the get and completing the netina. However, the geirushin is still incomplete because the necessary legal transfer has yet to occur. In this area, the shali'ach acts as the agent of the husband; he locates the woman and enacts the legal transfer of the get, thus concluding the multi-faceted process of geirushin. The novelty of this halakha rests in the ability to split the netina from the kinyan. First, the netina occurs when the shali'ach receives the get from the husband. Subsequently, when the shali'ach legally transfers the get to the woman, the kinyan is executed.
The second case which the Imrei Moshe addresses is even more spectacular than the situation of sheli'ach hava'a. The Gemara (21a) disqualifies a servant from serving as a chatzer and receiving a get since he is mobile, and a chatzer must be stationary. Though the Rambam cites this halakha, he adds one very important clause. First, he writes that if the husband were to place the get on his servant's person, the woman could not acquire the servant and seek to simultaneously acquire the get, since this form of chatzer is invalid. The initial part of the Rambam's ruling is consistent with the aforementioned gemara; however, he adds that when the woman takes possession of the get from the slave, the geirushin is concluded. The Imrei Moshe questions the presence of a netina in this case: the transfer of the get from husband to servant could not possibly entail netina since as a chatzer mehalekhet, the servant cannot possibly act as a halakhic chatzer.
Based upon his theory, the Imrei Moshe explains that the Rambam’s scenario presents an additional example of splitting the netina from the kinyan. The eved in no way contributes to the kinyan, since he is mobile and disqualified from serving as chatzer. Indeed the kinyan (as well as the consummation of the geirushin) is delayed until the woman achieves physical possession of the actual get. However, the netina takes place prior to the kinyan, when the eved receives the get from the husband. Netina can be performed even though the get is delivered to an area which cannot facilitate kinyan. In truth, the eved (as he is mobile) cannot accommodate a kinyan, but HE CAN contribute to a netina. This case produces the second innovative point of the Imrei Moshe: not only can netina and kinyan be split, but the standards for one do not govern the execution of the other. Netina can be performed by delivering the get to an ambulatory servant, even though that servant could not have facilitated a kinyan. In fact, this concept underlies both the gemara on 21a and the mishna on 78a. The first gemara discusses a situation in which the husband physically places the get in a stationary chatzer and then legally transfers the chatzer to the woman. As the new owner of the chatzer, the woman certainly enjoys legal ownership upon the get lying in that chatzer. However, no netina appears to have been performed. Evidently, the netina precedes the kinyan and can be executed even though the kinyan standards are lacking. The woman does not own the chatzer at the point that her husband physically delivers it and cannot acquire objects lying in that chatzer. Nevertheless, as the chatzer is already intended to be hers, physical delivery of the get into that location by the husband would represent a valid netina. Kinyan chatzer must be performed with a chatzer already owned by the purchaser of the item. Netina, though, can occur as long as the delivery is directed to an area earmarked for the recipient of the delivered item.
Likewise, the mishna on 78a evokes the Imrei Moshe's principle. A sleeping woman is in no condition to legally acquire a get; such a kinyan is delayed until she awakes and assumes possession. However, when the husband physically places a get into the hands of his sleeping wife, he has executed a valid netina and the geirushin is complete once the kinyan emerges without need for a subsequent 'repeat' netina. Again we witness the two aspects of the Imrei Moshe's theory:
1) The netina can be split from the kinyan without their occurring simultaneously.
2) The standards of kinyan do not necessarily govern the act of netina.
In a general sense, the Imrei Moshe and the Ramma each respond to the questionable examples of 21a and 77b-78a. However, they differ on two major fronts. The Ramma is unwilling to sever the netina entirely from the kinyan. He is therefore forced to stretch the netina so that it starts before the kinyan develops but concludes when the kinyan kicks in. He envisions a tight fusion between the kinyan and the netina and would not tolerate a situation in which the netina is completed before the kinyan commences. The Imrei Moshe is not concerned with this potential split. Evidently, he is willing to assign an INDEPENDENT function to the netina unconnected with the kinyan; hence, they do not have to be performed simultaneously.
This difference is significant in assessing the relationship between the kinyan and the netina. By adding a requirement of netina, does the Torah redefine the type of kinyan which must be enacted? Or does the Torah mandate a separate requirement of netina in addition to the kinyan? The Imrei Moshe clearly supports the latter opinion, while the Ramma would still accommodate a perspective which unites the kinyan and the netina.
Yet another factor clearly distinguishes the two perspectives. Because he is wary of dislocating the netina from the kinyan, the Ramma establishes the concept of an extended netina. Essentially, he concedes the point that netina does not have to be an immediate process but can take place in stages - stages which separate the delivery of the husband from the receipt of the woman. The husband can place the get into the hands of his sleeping wife, STARTING the netina, while allowing the kabbala to conclude only when she awakes - EVEN IN HIS ABSENCE. The Imrei Moshe may not agree that a netina can be performed in so gradual a manner. He may demand an immediate, condensed netina; hence, he is forced to establish lenient (vis-Ã -vis kinyan) criteria to allow the netina to be completed at the very moment the husband makes his delivery, even before any kinyan is established.
What forced the Imrei Moshe to demand such an integrated netina? This question strikes at the very heart of the role which netina may play. Said otherwise, which view pertaining to the function of netina may mandate that it be completed the very moment it is enacted?
Answering this question requires some background discussion regarding the need for written text in the process of geirushin. The Yerushalmi in Kiddushin (1:1) claims that non-Jews may divorce their wives by merely verbally communicating the terms of separation. As they are not governed by "Ve-khatav lah," they do not have to draft a legal contract. This halakha poses an intriguing question: how different is a Jewish divorce from a non-Jew one? Indeed, a legally written document is indispensable for a Jewish divorce. However, when delivering the text, is some form of communication also occurring? After all, the dismantling of a marriage is not a purely legal or financial transition which can be mediated purely by a legal document. Does Halakha demand - in addition to a legal document detailing the divorce - some form of personal communication between husband and wife about the breakup of their marriage?
If, indeed, we were to recognize the need for some interpersonal communication between husband and wife announcing the separation, we may view the actual statement of "Harei at megureshet" ("You are hereby divorced") as the supplier of this interpersonal communication. The mishna on 78a addresses the need for some form of amira (statement), but the function of such an amira is hotly debated by the Rishonim. Alternatively, we may view the actual DELIVERY of the document as sending some symbolic message to the woman. In general, transfer of a document is meaningless because a shtar serves a purely financial or formal role - it encapsulates transfer of land or establishment of debt and it must be deposited in the possession of the individual for whom it has utility (the new owner of the land or the creditor in the case of debt). By contrast, a get serves a dual purpose: it both declares the legal change which occurs (in a manner similar to that of a standard legal document) but also communicates the breakup of an interpersonal relationship. The symbolism of depositing the document announcing this departure is crucial in communicating this separation.
In other words, the role of netina (in addition to kinyan) may be to provide the communication necessary to annul a marriage.
It may be this additional role that netina plays which prevents the Imrei Moshe from adopting the Ramma’s disjointed netina. If, indeed, the netina is meant to communicate a message from husband to wife, we cannot sever the delivery from the receipt. The communication is provided by the symbolism of delivering a bill announcing separation, and the husband - through his deposit of this document - must speak DIRECTLY to his wife. Unable to embrace a netina arikheta, the Imrei Moshe is forced to pose a different solution: the netina can occur independent of the legal kinyan and does not have to conform to the standards of kinyan. The woman can only acquire legal title of the document if it is placed in a chatzer which is hers. However, depositing a document into an area which is designated to be hers can be seen as a form of communication of the relationship's breakup.
Having appreciated the different tensions forcing the Ramma and Imrei Moshe to posit different solutions to the non-conventional netinot described in the Gemara, we were able to speculate about the function which netina may serve. The Ramma’s netina arikheta may be unacceptable to the Imrei Moshe since he views netina as a form of symbolic communication. Divorcing a wife requires such interpersonal activity. A non-Jew only communicates (without drafting a legal shtar), and he communicates with words (without even writing it on a piece of paper). By contrast, a Jew:
1) Must enact a legal document, and
2) Must communicate through a more elegant manner - the symbolic delivery of the document of separation.
To ensure that the delivery will remain direct and personal, the Imrei Moshe cannot embrace the netina arikheta of the Ramma, and therefore answers the puzzling scenarios of the Gemara in a different manner.
Having ascribed an essential (and independent) role to the actual delivery, we may consider a few halakhot and gemarot which echo this notion:
1) The gemara on 86b cites a debate between Abbayei and Rav Yirmiya about delivering a get to a woman lishma - with specific intent to divorce her. Several earlier gemarot (which will, iy"H, be addressed in later shiurim) derive the law that a get must be composed lishma - specifically to divorce the intended woman. A man cannot divorce his wife with a get containing the appropriate names but written for another couple (with identical names). Furthermore, according to Rav Yirmiya, a man cannot deliver a get without knowing that THIS actual document is divorcing his wife (see the gemara for the exact details of this predicament). Abbayei rejects Rav Yirmiya's claim, limiting the need for lishma only to the writing of the get. Apparently, Rav Yirmiya’s position is based upon attributing a crucial role to the delivery – hence, it must be performed lishma. If we view the delivery as a form of communication, we may easily understand Rav Yirmiya's demand that the communication be woman-specific.
2) A similar issue arises in the gemara (20b) which allows a man to draft a get upon a golden plate and deliver the plate to his wife while stipulating that the plate be received as payment for the ketuba. The Rashba questions this endorsement, since the background to the text (the gold plate) is not delivered as a get! This question, as well, assumes that it is necessary for the delivery to be for the purpose of divorce, not just a legal transfer of the document which the delivery merely facilitates.
3) Quite possibly, the machloket between Rabbi Mei'ir and Rabbi Elazar about the schedule of eidim pertains to our question. Should eidim witness the signing of the document, or the actual netina - eidei chatima kartei or eidei mesira kartei? Rabbi Elazar, who highlights the netina, may claim that inasmuch as the netina is an essential part of the divorce, the eidim must be on hand to witness its delivery and the communication which it provides. Rabbi Mei'ir - for his part - may view a get more along the lines of classic legal documents, in which the signing is crucial in establishing the legality of this document. Hence, it is the signing, and not necessarily the delivery, which must be witnessed.
Note: in two weeks' time, we will, iy"H, address the disqualification of 'cutting' a document after drafting it. This topic, as well, will underscore the role of the netina, especially with regard to the prior composition of the document.
Sources and questions for next week's shiur:
Topic: Conveying Ownership of a Get to a Woman
- Gittin 21a, “Rava stated, ‘amar Rava katav lah get…’” to the end of the amud.
- Gittin 77b, “ha’hu shekhiv mera… ahai ma’aseh amerah.” Commentaries: Rashi, Tosafot s.v. “mah”; Ran on the Rif (39b), s.v. “ve-ha”, toward the end, “u-mikol makom mi-din chatzerah hi mitgareshet…”
- Rashba 21, s.v. “ha”
- Is there a distinction between utilizing a kinyan agav (“transaction of ownership by force of” – a secondary kinyan effected together with a separate, primary act of kinyan) and utilizing kinyan chatzer (“kinyan by means of [real estate] property”) when conveying ownership of a get to a woman? What is this distinction and what are the reasons for it?
- Does Rashi on daf 77b indeed understand that kinyan agav alone is sufficient in issuing a get?
- At the end of daf 21b: What is the significance of a father receiving his minor daughter’s getwithout her consent, if in the instance of issuing a get by means of kinyan chatzer this is not effective independent of the woman’s consent (“bein mi-da’atah, bein ba’al korhah”).