/רש"י ד"ה לפי שאין בקיאין לשמה/
Rashi explains that bnei medinat hayam are not bnei Torah and don’t know the halacha of writing a get lishmah. Therefore a shaliach must say b’fanai nichtav u’b’fanai nechtam, and then we ask him if the get was written lishmah (שיילינן), to which he responds “yes”.
Why does the get need to be written lishmah and not lishmo? Ibn Ezra explains that when the pasuk says “lah” it’s a drashah for the woman. “Ve’chatav” teaches that it should be lishmah for the husband as well. But the ikar drashah is for lishmah.
We brought down 7 questions on this Rashi:
- We do we only care about lishmah?
- Why does Rashi say that the bnei medinat hayam as not bnei Torah because of this?
- If a shaliach says b’fanai nichtav, don’t we know that he is referring to the get being lishmah?
- If we ask him about the get (שיילינן), why is b’fanai nichtav necessary?
- Is there שיילינן according to Rava?
- Why do we not say b’fanai nichtav lishmah? And why do we care about this word if we ask whether it was written lishmah right after?
- What does Rashi get this concept of שיילינן from?
/תוס' ד"ה לפי שאין בקיאין לשמה (א)/
Tosfot asks an obvious question on Rabbah’s shita: why is lishmah different than the other halachot of a get which can pasul it[1] that it should be singled out for this?
The implied answer in Tosfot is that perhaps the issue of lishmah is more common. However, they say that one should not say that there is a common problem of people using a get with the same name on it, or that a sofer who writes tofsei gittin will just fill in the names. And this applies to all of the halachot of gittin.
The Gemara on דף ט. teaches that gittin are similar to shichru’rei avadim in three ways:
1.In regards to מוליך ומביא; one must say b’fanai nichtav (Rashi).
2.An עד כותי is kasher to use.
3.If the get/shtar shichrur is made by a beit din of ovdei kochavim or signed by ovdei kochavim it is pasul.
What about lishmah? Both of these have to be written lishmah as well! It fits according to Rabbah because he includes it in מוליך ומביא, which is saying b’fanai nichtav, since Rabbah holds that we say this because of lishmah (Rashi). However, it remains a kashya on Rava[2]. Furthermore, according to both there is the problem of mechubar[3]. But Rabbah specifically teaches lishmah and not mechubar in saying b’fanai nichtav![4] So therefore we see that lishmah is the only problem according to Rabbah, and not that everything is a problem included in b’fanai nichtav just that lishmah is more common.
Rabbeinu Tam explains that those they are beki’in in hilchot gittin, but they don’t hold by the drashah of lishmah from "וכתב לה". When it says they are not beki’in, it means they are not choshesh to the drashah of lishmah. And later when the Gemara says that they learned it, it means that they accepted this drashah.
Then, Tosfot asks two questions on Rashi’s shita of "שיילינן". First of all it doesn’t seem to come up anywhere else; where does he get it from? Furthermore, it this were so, the Gemara should have said that a nafka minah between would be whether or not to apply to שיילינן.[5]
This Tosfot has two halves; the first half on the issue of why “lishmah” is singled out, and the second half on שיילינן. Why does Tosfot put these together instead of making a new דיבור המתחיל?
The Maharsha[6] explains that in the havah aminah of Tosfot, bnei medinat hayam are not beki’in in all the halachot and you wouldn’t be able to say that they are all included in b’fanai nichtav. Therefore we would have to hold like Rashi and say that they are included in שיילינן. However, once we have the maskana of Rabbeinu Tam we can explain it differently since the kashya is only on “lishmah”.
The Maharam Shif[7] essentially says like the Maharsha. He adds a clearer explanation of the maskanah according to Rabbeinu Tam, clarifying that since we are left with only a chashash on lishmah, there is no need for שיילינן. And it is clear that when the shaliach says b’fanai nichtav he is referring to lishmah.
The Tosfot HaRosh[8] brings down the opinion of the Riva which is that Rabbah doesn’t necessarily mean specifically lishmah, but also includes all the halachot of gittin. He brings a ra’aya from the Yerushalmi, that R’ Yehoshua ben Levi explains the Mishnah as being "לפי שאין בקיאין בדקדוקי גיטין". When a shaliach says b’fanai nichtav he is including all of the halachot of gittin. What it should have said is “b’fanai nichtav u’b’fanai nechtam k’mishpato (כמשפטו).” It only says lishmah here because it is more commonly an issue. Also, when the Gemara brings down Rava’s kashya on Rabbah as to why we don’t say b’fanai nechtav lishmah according to his shita, is not necessarily only worded in regards to lishmah because that is how Rabbah says it.
However, this conflicts with Tosfot’s maskana of Rabbeinu Tam! But rather, it makes more sense to say like the Riva’s shita that sofrei gittin hold by halachot and are either beki’in or not, rather than to say that they hold by this drashah or not. And that which the Gemara asks, "והא איכא מחובר" is because they were not beki’in in the other halachot but they were beki’in in regards to mechubar.
The Pnei Yehoshua[9] writes that according to Rashi, the ikar takana of b’fanai nichtav is that the shaliach should be at the writing and signing of the get. Therfore, we ask him about it, because when we can clarify the matter, there is no reason to rely on rov beki’in. Even those who say otherwise by shchita would agree due to the seriousness of arayot, as we have found that the chachamim are sometimes choshesh to the מיעוטא מן המיעוטא. It seems that for this reason we have the minhag to ask the sofer, ba’al, and edim about everything.
It seems from his words that saying b’fanai nichtav is only a hachanah for שיילינן. Asking about the get is the real ikar takana. Saying b’fanai nichtav is not a halacha, but a way of making a witness for the writing and signing of the get. It is also apparent from his words that שיילינן is not a din in gittin but a halacha for beit din.
The Rashba[10] has a kashya. The Gemara on דף ג. teaches that Rabbah is afraid that if a shaliach would be required to say “b’fanai nichtav u’b’fanai nechtam lishmah”, it might be too many words and he could forget to say something, thereby changing that which the chachamim established to be said; "יהוי משנה ממטבע שטבעו חכמים בגיטין". And this fits with the one who says to say plain b’fanai nichtav because “lishmah” is included. But according to the opinion that the shaliach is supposed to say “lishmah”, even if he forgets to say it, why can’t it be fixed through שיילינן?
The Maharam Shif[11] provides an answer to this kashya. Once it has been established to say “lishmah” not doing so changes the nature of the statement of b’fanai nichtav. If so, שיילינן can’t fix it because it is not going on the same thing.
So apparently, שיילינן cannot fix b’fanai nichtav lishmah if “lishmah” was forgotten. But for b’fanai nichtav stam, שיילינן only further defines it to tell us that it is lishmah.
The Ran[12] also explains that really b’fanai nichtav should really be said with a “lishmah,” but we are afraid that perhaps the shaliach might leave it out. And since everyone normally says it and this guy didn’t say it, it would seem from his words that he is saying the get is not lishmah. Furthermore, “דהוה משנה ממטבע שטבעו חכמים”.
So in the end, once a shaliach speaks, he cant make a new testimony. B’fanai nechtav is a din in the get and it ends once the shaliach says it, whether he includes “lishmah” or not. The shlichut itself is finished according to the Gra. And שיילינן is a din in beit din according to most Rishonim. It can only fix b’fanai nechtav stam, which doesn’t say if the get is lishmah or not, by defining and explaining it. But Rashi’s shita is that שיילינן is a din in the get.
[1] "כגון מחובר, ושינה שמו ושמה, ונכתב ביום ונחתם בלילה"
[2] Rava holds "משום שאין עדים מצויין לקיימו".
[3] We learn that this applies to these both from the gzeirat hakatuv of "לה, לה" (Rashi).
[4] דף ט:
[5] Since Rava isn’t choshesh for lishmah, he wouldn’t require asking whether the get was written lishmah.
[6] בד"ה לפי שאין בקיאין וכו' והא דפירש הקונטרוס...
[7] בתוס' בד"ה לפי שאין בקיאין וכו' אלא לרבא קשה...והא דפירש הקונטרס כו' ואור"י כו'
[8] ד"ה לפי שאין בקיאין לשמה
[9] ד"ה רש"י לפי שאין בקיאין לשמה וכו' וממילא שיילינן ליה (ב)
[10] ד"ה גמ' מ"ט אמר רבה לפי שאין בקיאין לשמה
[11] בתוס' בד"ה לפי שאין בקיאין וכו'...ולפירש"י
[12] ד"ה גמ' לפי שאין בקיאין לשמה...אלא הכי קאמר
מה...אלא הכי קאמר
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