Gittin 15

כבינתי לבתי והיא בשנים עשר מנה ומתה וקיימו חכמים את דבריה אמר להם בני רוכל תקברם אמם

my brooch [kevinati] to my daughter, and the brooch is worth twelve hundred dinars. And this woman subsequently died, and the Sages fulfilled her statement. Rabbi Elazar said to them that the sons of Rokhel should be buried by their mother, i.e., he cursed them. Rabbi Elazar meant that it is not possible to bring a proof from this incident, as these sons were wicked people. Consequently, when dealing with them the Sages did not act in accordance with the halakha, but allowed their mother to give this valuable piece of jewelry to their sister, circumventing the halakhot of inheritance.

תנא קמא כרבי אלעזר ורבי נתן ורבי יעקב נמי כרבי אלעזר אף על גב דמית לא אמרינן מצוה לקיים דברי המת ויש אומרים כרבנן

The Gemara states: The first tanna holds in accordance with the opinion of Rabbi Elazar, who holds that there must be an actual act of acquisition or the money still belongs to the giver. And Rabbi Natan and Rabbi Ya’akov also hold in accordance with the opinion of Rabbi Elazar. However, they add that even though the giver died one does not say: It is a mitzva to fulfill the statement of the dead. And the Sages in the clause beginning: Some say, hold in accordance with the opinion of the Rabbis, who say that the statement of a person on his deathbed effects acquisition through mere speech.

ורבי יהודה הנשיא שאמר משום רבי מאיר כרבי אלעזר מיהו היכא דמית אמרינן מצוה לקיים דברי המת וחכמים אומרים יחלוקו מספקא להו וכאן אמרו שודא עדיף ורבי שמעון הנשיא מעשה אתא לאשמועינן

And Rabbi Yehuda HaNasi, who said his opinion in the name of Rabbi Meir, holds in accordance with the opinion of Rabbi Elazar. However, he maintains that where the giver died we say: It is a mitzva to fulfill the statement of the dead. And the Rabbis say: They should divide it, because they are uncertain about the halakha in this situation. And according to the Sages in the clause beginning: Here they said, the discretion of the agent is preferable. And Rabbi Shimon HaNasi came to teach us a relevant incident but does not express an additional opinion.

אבעיא להו רבי שמעון הנשיא נשיא הוא או משמיה דנשיא קאמר תא שמע דאמר רב יוסף הלכה כרבי שמעון הנשיא ועדיין תיבעי לך נשיא הוא או דקאמר משמיה דנשיא תיקו

A dilemma was raised before those studying this issue: Is the Rabbi Shimon HaNasi mentioned here himself a Nasi, or does the baraita mean that he spoke in the name of the Nasi? The Gemara suggests: Come and hear that which Rav Yosef, who was precise in his statements, says: The halakha is in accordance with the opinion of Rabbi Shimon HaNasi. This indicates that he was an actual Nasi. But you can still raise the dilemma: Is he a Nasi, or does the baraita mean that he spoke in the name of the Nasi, as Rav Yosef may merely be quoting the above baraita? The Gemara has no answer for this question, and states that the dilemma shall stand unresolved.

גופא אמר רב יוסף הלכה כרבי שמעון הנשיא והא קיימא לן דברי שכיב מרע ככתובין וכמסורין דמו

The Gemara returns to the matter itself: Rav Yosef says: The halakha is in accordance with the opinion of Rabbi Shimon HaNasi, that the money should be returned to the heirs of the sender. The Gemara raises a difficulty: But don’t we maintain that the statement of a person on his deathbed is considered written and delivered? If so, the agent should give the money to the heirs of the recipient.

רב יוסף מוקי לה בבריא והא ליורשי משלח קאמר וקיימא לן מצוה לקיים דברי המת תני יחזרו למשלח

The Gemara answers: Rav Yosef establishes this halakha with regard to a healthy person, not someone on his deathbed. The Gemara asks: But he said that the money should be returned to the heirs of the sender, and we maintain that it is a mitzva to fulfill the statement of the dead, even if he issued these instructions when he was healthy. The Gemara answers: Emend Rabbi Shimon HaNasi’s statement and teach: Return the money to the sender, not to his heirs, as this is referring to a case where the sender had not died.

הדרן עלך המביא קמא

מתני׳ המביא גט ממדינת הים ואמר בפני נכתב אבל לא בפני נחתם בפני נחתם אבל לא בפני נכתב בפני נכתב כולו ובפני נחתם חציו בפני נכתב חציו ובפני נחתם כולו פסול

MISHNA: With regard to one who brings a bill of divorce from a country overseas and says: The bill of divorce was written in my presence but it was not signed in my presence; or if he said: It was signed in my presence but it was not written in my presence; or: All of it was written in my presence and half of it was signed in my presence, i.e., he observed the signing of only one witness; or: Half of it was written in my presence and all of it was signed in my presence, in all these cases the document is invalid.

אחד אומר בפני נכתב ואחד אומר בפני נחתם פסול שנים אומרים בפנינו נכתב ואחד אומר בפני נחתם פסול ורבי יהודה מכשיר אחד אומר בפני נכתב ושנים אומרים בפנינו נחתם כשר

If one agent bringing a bill of divorce says: It was written in my presence, and one other agent says: It was signed in my presence, it is invalid. If two agents say: It was written in our presence, and one says: It was signed in my presence, it is invalid. And Rabbi Yehuda deems the document valid. If one agent says: It was written in my presence, and two agents say: It was signed in our presence, it is valid.

גמ׳ הא תו למה לי הא תנא ליה חדא זימנא המביא גט ממדינת הים צריך שיאמר בפני נכתב ובפני נחתם אי מההיא הוה אמינא צריך ואי לא אמר כשר קא משמע לן

GEMARA: The Gemara asks with regard to the entire mishna: Why do I need all these further examples? Didn’t it teach these halakhot once, as the mishna states (2a): One who brings a bill of divorce from a country overseas is required to say: It was written in my presence and it was signed in my presence? This indicates that if one did not state this declaration, then the bill of divorce is invalid. The Gemara explains: If the halakha were derived from that mishna alone, I would say: He is required to issue this statement ab initio, but if he did not say it the bill of divorce is nevertheless valid after the fact. Therefore, this mishna teaches us that the bill of divorce is invalid.

בפני נכתב חציו ובפני נחתם כולו פסול הי חציו אלימא חציו ראשון והאמר רבי אלעזר אפילו לא כתב בו אלא שיטה אחת לשמה שוב אינו צריך אלא אמר רב אשי חציו אחרון

§ The mishna taught that if the agent said: Half of it was written in my presence and all of it was signed in my presence, the document is invalid. The Gemara asks: With regard to which half of the bill of divorce did he claim he saw written? If we say that he saw its first half written, but didn’t Rabbi Elazar say: Even if the husband or scribe wrote only one line of it for her sake, the agent is no longer required to check if the rest of the bill of divorce was written properly? Rather, Rav Ashi said: He testifies that he saw that its latter half was written, and he does not testify with regard to the first half, which is the primary section of the bill of divorce.

בפני נכתב כולו ובפני נחתם חציו פסול אמר רב חסדא ואפילו שנים מעידים על חתימת יד שני פסול מאי טעמא

§ The mishna taught that if he said: All of it was written in my presence and half of it was signed in my presence, i.e., the agent observed the signing of only one of the witnesses, it is invalid. Rav Ḥisda says: And even if two people testify to the signature of the second witness, and the court ratifies this signature, nevertheless it is invalid. What is the reason for this ruling? After all, the court has the agent’s testimony with regard to one signature and the confirmation of two witnesses for the second signature.

או כולו בקיום הגט או כולו בתקנת חכמים

The Gemara answers: The document must be authenticated either entirely through the process of the ratification of a bill of divorce, i.e., the bill of divorce must be ratified like any other legal document, by two people attesting to the validity of the signatures of both witnesses, or it must be entirely ratified via the rabbinic decree that the agent is deemed credible when he states: It was written in my presence and it was signed in my presence.

מתקיף לה רבא מי איכא מידי דאילו אמר חד כשר השתא דאיכא תרי פסול אלא אמר רבא אפילו

Rava objects to this: Is there any situation in which if one person said it, the document is valid, i.e., if the agent would have attested to the signature of the second witness the bill of divorce would be valid, and now that there are two witnesses who attest to the signatures it is invalid? Rather, Rava says: Even if

הוא ואחר מעידין על חתימת יד שני פסול מאי טעמא אתו לאיחלופי בקיום שטרות דעלמא וקא נפיק נכי ריבעא דממונא אפומא דחד סהדא

he, i.e., the agent, and another person testify with regard to the signature of the second witness, the bill of divorce is invalid. What is the reason for this? Perhaps people will come to confuse it with the typical case of ratification of legal documents, and will rely on one witness who testifies about his own signature and that of the other signatory, while another witness joins with him to testify with regard to the other signature. And as a result of this, the full sum of money, minus a quarter, will be extracted based upon the testimony of one witness. In order to ratify legal documents in general, two witnesses must testify as to the validity of each of the signatures. If the Sages were to allow one witness to testify about his own signature and another witness to join him in testifying about the other signature in the case of a bill of divorce, it may lead to the same method being employed with regard to other legal documents.

מתקיף לה רב אשי מי איכא מידי דאילו מסיק ליה איהו לכוליה דיבורא כשר השתא דאיכא חד בהדיה פסול

Rav Ashi objects to this: Is there any situation in which if he himself would complete his entire statement by saying: It was written in my presence and it was signed in my presence, the document would be valid, and now that there is another one who testifies with him, the bill of divorce is invalid?

אלא אמר רב אשי אפילו אומר אני הוא עד שני פסול מאי טעמא או כולו בקיום הגט או כולו בתקנת חכמים

Rather, Rav Ashi says that even if the agent says: I am the second witness who signed the bill of divorce, it is invalid. What is the reason for this? A bill of divorce cannot be validated by a combination of two types of credibility. It must be authenticated either entirely through the ratification of the bill of divorce, in the manner that other documents are ratified, or it must be entirely ratified via the rabbinic decree, in which case the testimony of the agent is considered equivalent to that of two people who ratify the signatures.

תנן בפני נכתב כולו בפני נחתם חציו פסול אידך חציו היכי דמי אילימא דליכא דקא מסהיד עליה כלל השתא אחד אומר בפני נכתב ואחד אומר בפני נחתם דהאי קמסהיד אכולה כתיבה והאי קמסהיד אכולה חתימה פסול חציו מיבעיא

The Gemara cites a proof for this claim: We learned in the mishna that if an agent for a bill of divorce said: All of it was written in my presence and half of it was signed in my presence, this bill of divorce is invalid. The Gemara clarifies: What are the circumstances with regard to the other half of the bill of divorce? If we say that there is no one who testifies about it at all, this is problematic: Now the mishna taught that if one agent says: It was written in my presence, and one agent says: It was signed in my presence, in which case this agent testifies with regard to all the writing and that agent testifies with regard to all the signing, it is invalid. When the agent testifies that only half of it was signed in his presence, is it necessary to say that the document is invalid?

אלא או כדרבא או כדרב אשי

Rather, the mishna must be teaching that the bill of divorce is invalid even if there is additional testimony with regard to the second signature. This novelty can be explained either in accordance with the opinion of Rava, who holds that the agent joins with another person to testify about the second signature, or in accordance with the opinion of Rav Ashi, who holds that he testifies about his own signature.

ולאפוקי מדרב חסדא

The Gemara adds: And this is to exclude the opinion of Rav Ḥisda, who declares that the document is invalid even when there is a full ratification of the second signature. Because the mishna merely alludes to the novelty in this clause, without specifying it, one may infer only the lesser novelty. Since Rav Ḥisda’s novelty is greater than that of the other two Sages, had the mishna been taught for that purpose, it should have issued an explicit statement to that effect.

אמר לך רב חסדא ולטעמיך בפני נכתב אבל לא בפני נחתם למה לי אלא לא זו אף זו קתני

The Gemara rejects this suggestion: Rav Ḥisda could have said to you: And according to your reasoning, why do I need the ruling of the mishna which states that if the agent said: It was written in my presence but it was not signed in my presence, the bill of divorce is invalid? The mishna could simply have stated: If he said: All of it was written in my presence and half of it was signed in my presence, it is invalid. One would have inferred that it is invalid all the more so if one does not testify with regard to the signature at all. Rather, one must say that the tanna teaches the mishna employing the style: Not only this but also that, i.e., each ensuing statement adds something novel.

הכא נמי לא זו אף זו קתני

If so, here too the tanna teaches the mishna employing the style: Not only this but also that. In other words, Rav Ḥisda would answer that the above inference, i.e., that the clause dealing with: It was written in my presence but it was not signed in my presence, must be teaching an additional novelty, is incorrect. This is because it is a stylistic feature of the Mishna to teach a less novel case followed by a more novel one, regardless of the fact that had it taught the more novel case first, there would have been no need to mention the less novel case at all. Therefore, there is no need to infer a special, unstated novelty from this clause at all, which means it cannot be cited as proof against Rav Ḥisda’s greater novelty.

אמר רב חסדא גידוד חמשה ומחיצה חמשה אין מצטרפין עד שיהא או כולו במחיצה או כולו בגידוד

§ Tangentially, the Gemara cites a discussion that involves a similar underlying principle. Rav Ḥisda says, with regard to Shabbat domains: An embankment, i.e., a height disparity between two surfaces, of five handbreadths and an additional partition of five handbreadths, do not join together to form a partition of ten handbreadths, which is the minimum height for a partition to enclose a private domain. A halakhic partition is regarded as being composed of ten handbreadths only if it is composed entirely of a partition, e.g., a fence, or entirely of the embankment, e.g., a pit or incline.

דרש מרימר גידוד חמשה ומחיצה חמשה מצטרפין והלכתא מצטרפין

Mareimar taught: An embankment of five handbreadths and a partition of five handbreadths do join together to form a partition of ten handbreadths. The Gemara comments: And the halakha is that they join together. Rav Ḥisda’s opinion is analogous to the aforementioned case that a bill of divorce must be either entirely upheld by the agent or entirely upheld by the ratification of its signatures, although the halakha is ruled differently in the case of Shabbat domains.

בעי אילפא ידים טהורות לחצאין או אין טהורות לחצאין היכי דמי אילימא דקא משו בי תרי מרביעית והא תנן מרביעית נוטלין לידים לאחד ואפילו לשנים

The Gemara cites another case that is based on the same principle. Ilfa raised a dilemma: With regard to ritual washing, can one’s hands be ritually pure in halves, or can they not be ritually pure in halves? The Gemara asks: What are the circumstances of this case? If we say that two people wash with the requisite one quarter-log of water, and therefore in actuality each one of them washes with only half of a quarter-log, but didn’t we learn explicitly in a mishna (Yadayim 1:1): With the amount of a quarter-log one can wash the hands of one person and even of two? A quarter-log of water suffices for one person to wash his hands before eating bread, and even two may wash their hands simultaneously with this amount, if they do so in the correct manner.

ואלא דקא משי חדא חדא ידיה והתנן הנוטל ידו אחת בנטילה ואחת בשטיפה ידיו טהורות

But rather, Ilfa is referring to a case where one washed his two hands one by one, not both hands at the same time. The Gemara asks: But didn’t we learn in a mishna (Yadayim 2:1): With regard to one who purifies one hand by washing with a vessel and one hand by immersing it in a river, his hands are ritually pure? This mishna indicates that there is no need for both hands to be washed simultaneously.

ואלא דקא משי פלגא פלגא דידיה והאמרי דבי רבי ינאי ידים אין טהורות לחצאין לא צריכא דאיכא משקה טופח

But rather, Ilfa’s dilemma refers to a case where he washes his hand in two halves, i.e., he first washes one half of his hand and next washes the second half of that same hand. The Gemara asks: But didn’t the Sages from the school of Rabbi Yannai say: Hands cannot be rendered ritually pure in halves? If so, one who washes half of his hand and pauses before washing the second half has not performed the act of washing the hands at all. The Gemara answers: No, Ilfa’s question is necessary only for a case where there is liquid that is still moist on his hand. When one washes the second half of his hand, some moisture remains on the portion of his hand that he already washed, and therefore one might think that this liquid joins with the water with which he washes the second half of his hand.

וכי איכא משקה טופח מאי הוי והתנן

The Gemara asks: And when there is liquid that rendered one’s hand moist, what of it? Is this a relevant factor? But didn’t we learn in a mishna (Teharot 8:9):