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Week 86 - Thursday - 19 July 2001

GITTIN: CHAPTER 7: MISHNAH 3

"This is your get if I die," "This is your get if I die from this illness," "This is your get after death" - he did not say anything. "From today if I die," "From now if I die" - then this is a get. "From today and after death" - it is a get and it is not a get; if he dies, she performs halitzah but does not contract levirate marriage. "This is your get from today if I die from this illness," and he got up and he walked about in the street, fell ill and died - they assess him: if he died from the first illness - then it is a get, and if not - it is not a get.

Kehati

It was taught at the end of chapter 1 (1:6) "One who says, 'Give this get to my wife," and he died - they may not give it after death," because "a get cannot be given posthumously." Based on this, our mishnah teaches that one who gives a get to his wife and says to her, "This will be your get after my death," or he uses other expressions which imply that the get will only take effect after he dies, the get is not valid, because a get cannot be given posthumously. If, however, he uses an expression which implies that when he dies the get will take effect retroactively from the time that he gave it to her, then the get is valid.

If a husband gives a get to his wife and says to her, "This is your get if I die," or if he was ill and he said to her, "This is your get if I die from this illness" - it is as if he said to her, This is your get after death" - since these expressions imply that the get will not take effect before he dies, and therefore, he did not say anything - because a get cannot be given posthumously.

But if he said to his wife, "This is your get From today if I die," or if he said, "This is your get From now if I die" - since these expressions imply that if he dies, the get takes effect from today, or from now, then this is a - valid - get - because "if I die," is a condition, on whose fulfillment the get will become valid retroactively, from his lifetime, freeing his wife from the obligation of the levirate marriage if he has no offspring.

And if he says to her, "This is your get From today and after death" - it is a get and it is not a get- we are in doubt whether the words "and after death," were meant to be a condition, i.e., "if I die," in which case the get is valid, just as when one says, "From today if I die," or whether the words "and after death" were a retraction of "from today," meaning instead that the get would only be effective posthumously, in which case the get is invalid as taught above (Gemara); therefore, if he - the husband, dies - childless, she performs halitzah - in case the get is invalid, but does not contract levirate marriage - since the get may be valid and she is divorced, in which case she is forbidden, under pain of karet to marry her ex-husband's brother.

If an ill person says to his wife, "This is your get from today if I die from this illness" - he gives her a get, stipulating that if he dies from his present illness, the get will take effect retroactively from the day on which it was given, and he got up - he recovered from his illness, and he walked about in the street, - people saw him about - and he fell ill - again, and died - they assess him: they look into his illnesses, and - if he died from the first illness - he did not fully recover from his first illness, even though he got up and walked about afterwards, or even if he died from his second illness, but it was the consequence of the first illness (Rashba and Ran; see also Tosefot Rabbi Akiva Eiger), then it is a get - for his condition was fulfilled, and if not - if he did not die as a result of the first illness, but rather as a result of the second illness it is not a get - for his condition was not fulfilled.

GITTIN: CHAPTER 7: MISHNAH 4

She must not be in his company except in the presence of witnesses, even a servant, even a maidservant, except for her own maidservant, because she is over-familiar with her maidservant. What is she during these days? Rabbi Yehudah says, As a married woman in every respect. Rabbi Yose says, She is divorced and she is not divorced.

Kehati

Our mishnah is a continuation of the previous mishnah, and discusses the interim status of the woman whose husband divorces her conditionally, stipulating, "This is your get from today if I die," from the day in which the get is given until the condition is fulfilled.

She - the woman whose husband gives her a get, stipulating, "This is your get from today if I die," i.e., he divorces her conditionally, must not be in his company except in the presence of witnesses - because we fear that he might have sexual relations with her for the purpose of effecting kiddushin, in which case she will require a second get, or she may not consort with him in order not to violate the prohibition of being in the company of an unmarried woman (Rashi); she is permitted, however, to be in his company in the presence of only one witness, even a servant, even a maidservant, except for her own maidservant - she may not be in her husband's company in the presence of her maidservant, because she is over-familiar with her maidservant - she makes light of her maidservant, and is not ashamed to engage in sexual relations with her husband in her presence.

What is she - what is the legal status of the wife, during these days - the days between the giving of the get and the fulfillment of the condition, i.e., when her husband dies? According to Tosafot, this is a continuation of the first section of the mishnah, i.e., when the husband said "this is your get from today if I die." According to another opinion, this is not a continuation of the first section, but rather refers to the case of a wife whose husband said to her, "Here is your get, and be divorced with it from the time that I am in the world, i.e., just before I die, if I die" (Rashi; Bartenura),

Rabbi Yehudah says, As a married woman in every respect - her legal status is that of a married woman, since the get only takes effect close to his death, and until then she is his wife. According to Tosafot's interpretation (above), even though the husband said "From today if I die," Rabbi Yehudah holds that the husband intended the get to take effect only shortly before his death.

Rabbi Yose says, She is divorced and she is not divorced - according to Rashi, Rabbi Yose holds that we are constantly in doubt as to whether this is the hour before his death, and she is divorced, and one who has relations with her, while unaware of her status, must bring an asham taluy (guilt-offering brought when one is in doubt as to whether he committed a sinful act). According to Tosafot's, interpretation, Rabbi Yose is in doubt as to whether the husband meant the get to take effect on the day that it was given, and she is considered divorced, or to take effect from one hour before his death, and until that hour she is a married woman (Tosefot Yom Tov; Hameiri).

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