Gittin 77b: The Brisker Get

Gittin 77b: A man on his deathbed wrote a get for his wife on Friday afternoon, but did not manage to give it to her before Shabbos. On Shabbos day, he felt his end was near, so they asked Rava what to do. He said, “Go tell him to transfer to his wife ownership of the room where the get is lying, and let her go and close the door or open it, making a kinyan chazakah.”

Tosafos: Isn’t this similar to the case of the wife picking up her get from the ground, which is invalid because the husband must hand it to her? The answer is that since the get is coming from the domain of the husband to her domain, it is as if he handed it to her.

גיטין עז ע”ב: ההוא שכיב מרע דכתב לה גיטא לדביתהו בהדי פניא דמעלי שבתא ולא הספיק למיתביה לה, למחר תקף ליה עלמא, אתו לקמיה דרבא, אמר להו: זילו אמרו ליה ליקניה ניהלה לההוא דוכתא דיתיב ביה גיטא, ותיזל איהי ותיחוד ותפתח ותחזיק ביה.

תוס’: ולא הוי כמו טלי גיטיך מעל גבי קרקע דכיון שהגט בא מרשות הבעל לרשותה הוי כאילו נתנו לה.

It once happened in Brisk that a husband wanted to give his wife a get, but she was unwilling to accept it. So he devised a trick: he put the get in an envelope, dropped it on the table and said, “You got a letter from your brother.” She picked it up, opened it and discovered that it was a get. The dayan paskened that it was invalid because of “tli gitech” – the husband must hand the wife the get; she may not pick it up herself.

Reb Chaim, however, said it was not so simple. The envelope has the status of a room or courtyard, so when the husband transfers ownership to her, it is considered that he handed it to her; it makes no difference that the final act of acquisition was done by her, as in the Gemara on 77b. On the other hand, maybe here it is worse than the Gemara’s case, because she is picking up the get with her hand and can obtain it with kinyan yad (acquiring an object by virtue of hold it in one’s hand), even without the husband’s willingness to give her the envelope. This depends if kinyan yad works when there is a chatzitzah (something separating the object from the hand, in this case the envelope). Therefore, Reb Chaim concluded, the woman is sofek megureshes – she may or may not be divorced.  

Source: Rabbi Moshe Meiselman, shiur on Gittin

[Another version of this story appears in the new Chiddushei Hagrach Al Hashas, p. 246. There it does not mention that the wife was refusing the get. Also, it says that Reb Chaim’s sofek was about כליו של מוכר ברשות לוקח – whether a person can acquire an object by lifting or dragging it when it is inside a container that still belongs to the seller. This is an unresolved question in Bava Basra 85b. If she cannot acquire the get without owning the envelope, then she needs the husband to willingly give her the envelope, and it is considered as if he is handing her the get. If she can acquire the get without owning the envelope, that means she took the get herself without the husband’s giving.

The Imrei Moshe (end of Siman 21) brings this same version, and proceeds to question Reb Chaim’s logic. A get only needs to be in the wife’s hand, he says; no kinyan is necessary. So even if one cannot acquire an object while it is in the container belonging to the giver, here she is holding the get and does not need the husband’s willingness to grant her the envelope. Therefore the get should definitely be invalid.

Putting the two versions together, it emerges that there are two reasons to cast doubt on the validity of this get:

1) She picked up the get herself with kinyan yad.

2) Even if you say that kinyan yad doesn’t work due to the chatzitzah, she could be koneh the get with hagbo’oh. But that would depend (if the story took place in her house) on the question of keilav shel mocher.

According to the version that the wife was refusing the get, there is another question we could ask on Reb Chaim. What is the logic behind the possibility that the get was valid? Only because the husband had to be makneh to her the envelope, which is like a chatzer. But if she did not wish to acquire the get at all, the kinyan would not work. She picked it up and made the kinyan thinking it was a letter, but since it was actually a get, the kinyan was done on a false assumption and is therefore invalid.]  

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