A Lost Get (27a-28a)

  • Harav Mosheh Lichtenstein
  1. 27a-28a (Mishna to Mishna)
  2. Bava Metzia 12b, Mishna and Gemara until “Hanei rei’i;” Rambam and Raavad, Hilkhot Gezeila Ve-aveida 18:14.
  3. Ramban, Gittin (Hashmatot, 9a), s.v.  “Im,” “Aval le-fi dati… be-alma ein chosheshin;” Ran (14a, Rif), “U-lfi ma she-katav be-huchzeku nammei… be-samukh be-siyata di-shmaya.”
  4. Ketzot Ha-choshen 65:9.
  1. Why do we require two conditions in order to suspend a lost get?  Why does one of the conditions not suffice in order to be concerned about the get being mixed up with another?
  2. What significance does being lost have upon the power of the document?
  3. Why are identifying marks effective for returning a lost get and validating it?
The Argument of Rabba and Rabbi Zeira
The Mishna sets down the rule that if a get is lost, “if one finds it immediately, it is valid, and if not, it is invalid; if one finds it in a sack or box, if he recognizes it, it is valid.”  Thus, one cannot use a lost get unless there is a strong foundation for the assumption that the get which has been found is the same as the get which was lost; this appears simple and straightforward.  However, in light of the Gemara’s citation of a beraita which disregards the limitations cited in the Mishna, and in light of the Amoraic answers which come to resolve the contradiction between the two sources, we find ourselves with a passage which requires some analysis.  Essentially, Rabba requires two conditions (that caravans frequent the town and that two men with the same name, e.g. Yosef ben Shimon, live in the town) in order to raise doubts and discredit a lost and found get, while Rabbi Zeira (according to the latter version), prevents the use of the get even if only the condition of being a place frequented by caravans is met, without any need to establish that there are two men in the area named Yosef ben Shimon. 
Rabba’s position is difficult, because if the concern is that a statistical chance exists that the get belongs to another person with the same name (whose wife has the same name as his wife), why it is not enough that there is a legitimate concern that the get has been written for someone else?  This is far more feasible in a location frequented by caravans than a quiet place not teeming with people.[1]  Since this is so, why is not enough to fulfill the lone condition that caravans frequent the place, as Rabbi Zeira posits.  At the very least, we should do away with the second condition of two couples living in this place with the same names, because we only need the presence of caravans in order to assume that there may be another Yosef ben Shimon, something which is a given in this case.
In light of this, it is worth trying to understand Rabba’s view based on the assumption that there is another issue which relates to the lost get, aside from the practical concern of the existence of another Yosef ben Shimon.  In order to understand this issue, we must analyze the passage by checking additional sources, which may shed some light on the status of a lost document.
Lost Documents
In fact, much of the second half of the first chapter of Bava Metzia talks about lost documents and under what conditions one is permitted or prohibited to return them.  Indeed, the Rambam and the Raavad argue about a document returned to a creditor in opposition to the rules mentioned in these passages.  The Rambam rules:
Whenever the law is that a legal document should not be returned and the document is nevertheless returned, the document is considered acceptable and may be used to expropriate property.  These documents should not be taken away from their owners.  We assume that they are acceptable, and we harbor no suspicions about them. (Hilkhot Gezeila Ve-aveida 18:14)
The Raavad notes:
This law is not reliable: if it has been established, in court or even by witnesses, that these have fallen, we do not take action based on them.
This indicates that according to the view of the Rambam, a document does not lose its power or significance as a document because it has been lost; rather, it is like any other lost object.  Just as a lost ball is still a ball, the same logic applies.  The possession of the document has changed, and there is a question of who controls it, but the same logic applies: when it is lost, we do not return it to the creditor, because he is no longer the possessor, and as with any monetary doubt, we choose inaction, and we do not change the existing status.  However, if the status changes on its own, due to the documents’ recovery, the creditor once again is the possessor, and he may collect with this document in his hand, and the fact that the document was once lost means nothing. 
The Raavad, on the other hand, believes that we are not talking about passing an object from hand to hand, since a document is not like other objects.  Unlike other solid objects, the main thrust of the document is telling a story, and returning the object to the lender cannot resolve the doubts which will arise in relation to the significance of the document. 
The document’s fall (i.e. its having been lost for some time and only later found) and the consequent lack of knowledge as to who really possesses it should give us sufficient reason to discredit the essence of the narrative which unfolds in it.  We do not know whether the document informs us that the borrower owes the lender a debt and has not yet repaid it; perhaps it indicates that there was a repayment, and the borrower took the document as evidence of this fact.  If the document was under the lender’s control and fell from his possession, the first interpretation is the correct one; the reverse is true if it fell from the borrower’s hand.  It turns out that the entire narrative which unfolds in the document is predicated on the issue of possession, and without the presence of the document in the hand of one of the sides, any story it might tell is enshrouded in the fog of doubt.  Therefore, a fallen document is deficient. 
Thus, we may say that the Raavad’s position is certainly well-understood in the context of doubts which arise concerning the identity of the writer of a fallen document. Nevertheless, the Gemara goes even further and raises doubts and speculations about lost documents which go beyond the question of the identity of the writer alone, since the status of the document as a document has been undermined by its fall.
This is explained in the beginning of the passage of fallen documents, in Bava Metzia 12b.  There we clearly see that we are concerned about predating when it comes to a fallen document and we are not concerned about it with a regular document, despite the fact that there is no link between its falling and the possibility that the document was predated at the time of its composition.[2]  The meaning of this is that the fallen document loses its power and force by falling; in other words: “it is degraded by its falling.”
The possession of the document does not create presumption of ownership, as with any regular object; rather, the fact that the document is located in the hand of a specific person is part of the very narrative of the document.  The telling of the story is conditioned on the possession of the document, because if the document is located in the hand of the borrower, it tells a totally different story from that which it tells when the lender holds it, as we have seen.
One may say that the determination of Reish Lakish (Gittin 3a), “the signatures of witnesses upon a document are just as reliable as if their testimony has been cross-examined in court” is conditional — unlike regular testimony — upon the document’s presence in the lender’s possession, because the document is written before the act, and the witnesses do not see the actual act.  They only write the document for future use, and if so, come what may, the manner in which we understand the mechanism of testimony bound up in this document requires us to say (and we do not have the space to discuss this adequately here) that this mechanism is dependent upon possession.
Naturally, the same applies to other laws which are unique to a paper’s status as a “document”, namely that we authorize and legitimize it without addressing other concerns which may arise — e.g. predating, conspiracy and fraud etc. — based on possession of the document, because if the document is not in the hand of its rightful owner, it is not a document; in such a case, it is merely words written out on paper, and it is missing the legal protections given to a “document”.  Therefore, we are once again concerned about all of these above-mentioned suspicions when it comes to a document undermined by its falling, despite the fact that we are not concerned about them when it comes to a document in good standing.  This is the reason that the Gemara there believes that one should be concerned, regarding fallen documents, about issues of forgery or predating (see ibid. 12b-13a), despite the fact that generally we are not concerned about these issues.  The Ramban discusses this in the beginning of Gittin,[3] and this is what he writes:
However, according to my view, this seems to support our position: concerning every fallen document, we say that, once it falls, it is discredited, and we are concerned about everything which one may be concerned about, and as we ask there throughout the entire chapter…
Even if these are things which we are not concerned about in another case, we are concerned about them if it has fallen.  The sages there are compelled to concede that we must be concerned about forgery in this case, because once it falls, it is discredited, even though generally we dismiss such concerns…
Explaining Rabba’s View
Now we can return to the explanation of Rabba’s view in our passage.  In light of the above-mentioned reasoning, it appears that the need for two conditions is not designed to increase the chances of the existence of another Yosef ben Shimon in the picture; rather, the two conditions are connected to two different factors.  The first factor is the determination of the fact that the get has been lost and discredited by its falling, while the second factor is the concern for the existence of another person with the same name.
Now, we know directly from the agent who stands before us and is searching for the lost get that he has transported the get of a certain person — who commanded him to write a get for his wife — and that the agent has lost this get.  Concerning his namesake, the second Yosef ben Shimon, we have no reason to believe that he wanted to divorce his wife by sending her a get and that the agent lost his get.  Thus, we would not suspect that this found get is not the lost get of the first one were it not for the unsoundness which has been imparted upon the get by its falling.
The presumption of the existence of another Yosef ben Shimon is not enough to challenge the get, because its documentary power is still intact (written on behalf of the husband who ordered it), and we do not concern ourselves with suspicions which may arise about the document were it not considered lost and to have slipped from the hands of its owner. 
However, in order to define it as fallen document which has slipped from the hands of its owner, one must distinguish based on the location: was the get dropped in a place frequented by the public or a place unfrequented by the public?  If one loses an object in an alley near his house, we will not consider it a lost object even if it is not found on his actual property, because no one would take it from there; the object will be returned to him even though it is sitting in a public domain.
Similar to this, if one were to lose a get — which is a personal document, intimately connected to the couple by their names — in a place where the public does not tread, it would not be considered a lost object.  Consider an analogy: if a ketuba or wedding invitation with the name of Mosheh and Michal Lichtenstein is dropped in the streets of Alon Shevut, it is not totally lost, because the paper will definitely be returned to the proper address.  This is not true if the same object is dropped in the boulevards of a city. 
Therefore, defining a document as “fallen” or found is dependent on location: is this a place frequented by the public or not?  The presence of the masses in this place is the determinative factor.  However, in the view of Rabba, this is not sufficient.  Even if the determination that the document is “fallen” is correct, this is not enough to invalidate it — who cares that this is a fallen get?  This is only relevant when a real problem arises and challenges the document.  In other words, a fallen document is not necessarily invalid; it is merely shaky, and one may use it as long as no concern rises against it. 
Therefore, if there are two men named Yosef ben Shimon in the city, this raises questions, and it is impossible to use the document; but if there are not two men named Yosef ben Shimon in the city, there is no such concern, and the document is valid despite the fact that it is defined as “fallen”.  What arises from this is that the two conditions of Rabba relate to two different elements: the fact that the get has been dropped in a place where caravans are common determines that document acquires “fallen” status and becomes a lost get.  This allows the taint of unsoundness to attach itself to the get.  The other condition creates the concern that the get belongs to another person, not to the one who stands before us. 
Explaining Rabbi Zeira’s View
In light of this, we should ask what the view of Rabbi Zeira is (according to the latter version), because it may be understood in one of two ways.
On the one hand, one may understand Rabbi Zeira’s view as maintaining that everything is dependent on the possibility of the existence of another Yosef ben Shimon, and all of the parameters are merely statistical.  Therefore it is sufficient that caravans are common in order to arrive at the inherent concern that there is another person who has the same name. 
On the other hand, it certainly may be that he accepts the principle of Rabba, that one must define the get as lost in order to suspend it, which requires the presence of caravans in order to “lose” it even without any need for an additional basis of concern.    
It appears that the Rishonim argue about this in terms of the obvious ramification which springs from this question, and it is the following: without the presence of caravans, does Rabbi Zeira worry about a circumstance in which we know of the existence of a namesake?
In the Gemara, it is explicitly stated that Rabba requires two conditions and that Rabbi Zeira has a doubt about the condition of caravans, but the passage does not deal with the view of Rabbi Zeira in the opposite case: it is established that there are two men named Yosef ben Shimon in this location, but it has no caravanserai. 
This question is dependent on the doubt which we have raised in understanding the view of Rabbi Zeira: if we must investigate in order to determine the statistical probability of the presence of namesakes, then one should learn a fortiori from the issue of the presence of caravans — which invalidates the get even though it is not known definitively that another Yosef ben Shimon is among them — to the case that the existence of namesakes is known certainly.  Thus, there should be no doubt that Rabbi Zeira would suspend a lost get[4] in such a situation.
On the other hand, if we are concerned about issues such as namesakes only when the get is defined as lost, and for this reason there is a need for the place to be frequented by caravans, then one cannot derive a fortiori from caravan frequency and apply it to the established presence of namesakes; as long as caravans do not frequent the location, the get keeps its status as valid.
The Rishonim argue about this point exactly: while the Ritva assumes that Rabbi Zeira invalidates the get when namesakes are established (“for either are concerned — frequency of caravans or the establishment [of namesakes]”[5]), the Ran is not convinced about this and claims that there is no compulsion to compare caravan frequency to the known presence of namesakes, because one may not derive one case from the other (“for one may say that there is more reason to be concerned when caravans do not frequent the place, even though we have not established [namesakes] than there is to be concerned when we have established [namesakes] if caravans are uncommon”[6]).
In conclusion, we may summarize as follows: a fallen document is deficient due to the very severing of the link between it and the holder of the document.  This is due to the characteristic nature of the document: its narrative and its possession are intimately connected, like fire and flame, and one does not exist without the other.  As long as the document has not fallen, the Torah endorses the document and imbues it with the power of testimony, and we are not concerned about any and all types of claims and the concerns which may come up to undermine it.
However, if the document is undermined in its falling and the package comes apart, the document no longer has the power to answer whatever challenges it.  Therefore, Rabba requires both conditions — caravan frequency and the presence of namesakes — in order to suspend the document: the first condition comes to determine that the get is indeed lost and is out of the owner’s grasp, and the presence of another Yosef ben Shimon in the city creates the actual doubt concerning the get, neutralizing it. 
In the view of Rabbi Zeira, who takes issue with Rabba’s view, there may be two possibilities.  It is possible the issue of falling is unnecessary; even without “the unsoundness” of the get’s fall, one must be concerned in a case of significant doubt.  If so, it would be enough to have one of Rabba’s conditions in order to invalidate the get, based on the assumption that either way, doubt is created as to the identity of the owner of the get.  On the other hand, one may also claim that falling is necessary; Rabbi Zeira sets aside the additional need of establishing the existence of two men named Yosef ben Shimon in the city in order to discredit the get, and he claims that the very fact of falling is enough for this purpose.
Were we to stop at this point and conclude this unit, our work would be easier.  However, we cannot ignore the conclusion of the passage, which determines that a fallen get has a solution, which is returning it based on sufficient identifying marks.  In light of this, we must return and evaluate what has been presented here.  Were the only problem of the lost get the question of whom it was written for, it would be possible to settle this by presenting identifying marks, as with all other doubts of identification in halakha; using these marks is a sufficient criteria.
However, if we assume that in the actual falling, the document is discredited and loses something of its existence as a document, then it appears apparently that identifying marks would not have the power to fix this, and still one should see it as lost (and discredited) and found, and the finding of the document after some time cannot annul the defect of its having fallen.
According to Rabba, the problem is indeed not as difficult, because he does not invalidate the lost get because of the unsoundness alone; he joins it to the actual concern which is raised against the document, and therefore according to his view, the marks have the power to help, because they remove the concern of namesakes, and it is like a lost get in a place that the caravans frequent but two men named Yosef ben Shimon are not known to reside.
However, according to Rabbi Zeira, this is dependent on which understanding we will take in his view: if we will advocate the Ritva’s position, that the falling does not undermine the status of the get, but only raises a concern, then it is not difficult at all, because the marks remove the concern and it is possible to use the get; however, if we will follow the Ran’s path, it will reanimate this question with greater power and greater force — the document has become “fallen” and deficient, and what will it help if it is found again?
The truth of the matter is that our great teacher, the Ketzot Ha-chosen (75:9), grapples with this question, and it perplexes him. 
The précis of his solution is that indeed the lost document is deficient in an inherent way, but if the document has a mark, it is not considered lost even if it leaves the possession of the writer, because by way of the mark it will return definitely to its owners.  In fact, a get with a mark, even if it is lost, is not truly lost, and it is as if the owners have a thread or string attached to the document by which it will return to them with certainty.  Just as we said that in a place not frequented by caravans, the get is not actually lost, the same is true of identifying marks.
However, this answer is problematic, both in terms of logic and based on the passage.  First of all, the determination on its own is not self-evident at all - it appears clear that this should only apply in relation to a determinative mark, not in relation to a non-determinative mark, while our passage deals with the possibility that even a non-determinative mark will help.
Moreover, the passage quotes the view of Rabba bar-bar Channa, who believes that one may return a get to a rabbinical scholar by recognition of the eye, without any mark,[7] and in this case, certainly the claim of there not being a lost object at all is not relevant.
On the other hand, the understanding that the fallen document is defective does not come only from our passage; it is based on the passage in Bava Metzia and the basic assumptions concerning documents, that they cannot be summarily rejected. Therefore, the problem of the relationship between them and the ability to return with identifying marks remains as is.
The conclusion of the Ketzot himself is that we have not resolved the doubt and we have not reached a definitive answer.  This is what he writes:
It is possible that we do not say that since it has fallen, it is unsound, and because one was not careful to keep it, it has been paid back, except where there is no mark for the lender, but when there is a mark on it for the lender, the lender may rely on the mark, and therefore it has not been undermined by falling, because due to the mark which he has on it, he was not so careful about it.  However, this still requires further analysis. 
For next week:
Identifying Marks (27a-27b), By Harav Aharon Lichtenstein ztz”l
1. Bava Metzia 27a-28a, “Ibbaya lehu… de-leiteih damei ve-yaniach.”
2. Gittin 27a, “Ha-mevi get… li-zman merubbeh;” 27b, “Rav Ashi amar… i de-rabbanan.”
3.  Bava Metzia 27b; Raavad (Shitta Mekubbetzet), s.v. “Ve-zeh lashon ha-Raavad.”
4.  Rambam, Hilkhot Geirushin 3:11.
5.  Rambam, Hilkhot Gezeila Ve-aveida 13:1-5.
  1. What are distinctive marks (simanim muvhakim)?
  2. For what issue may we rely on non-distinctive marks?
  3. Is it feasible to rely on marks for biblical issues even if identifying marks are not of biblical origin?

[1] Transposing this to our modern reality, one may say that it is definitely conceivable that two men with the same name may traverse the Central Bus Station or the Coastal Highway, but in Alon Shevut or Kfar Haroeh, the odds of this are very low.
[2] However, Rashi (ad loc.) does connect the fact of falling with the concern of predating.
[3] Chiddushei Ha-Ramban, Hashmatot, Gittin 9a, s.v. “Im.”
[4] However, see what the Rashba writes (27b, s.v. “Ikka de-amrei”): he believes that a greater statistical concern is created by caravan frequency than by the established presence of namesakes, because it may be that there are many men named Yosef ben Shimon in a place which caravans frequent.  Nevertheless, the view of the Ritva seems more reasonable: there is more of a reason to be concerned about two men named Yosef ben Shimon who are known to reside in the city than to be concerned about the presence of caravans filled with unknowns.  A namesake in the hand is worth two in the bush or, for that matter, the caravans.
[5] 27a, s.v. “U-linyan pesak halakha,” beginning.
[6] 14a, Rif.
[7] From the passage, it is not clear what the status of the get is if it was returned to him based on the recognition of his eye or based on a mark which is not definitive, but in any case there is certainly no need for a definitive mark, and Rabba bar-bar Channa believes that recognition of the eye is enough.  This is the halakhic ruling in Shulchan Arukh (EH 132:4).