Gittin 72
רַבִּי יוֹסֵי הִיא, דְּאָמַר: מִילֵּי לָא מִימַּסְרָן לְשָׁלִיחַ.
It is the opinion of Rabbi Yosei, who says: Verbal directives cannot be delegated to an agent, and there is no concern that the scribe signed the document without the husband instructing him to do so.
וְאִי סָלְקָא דַעְתָּךְ מוֹדֶה רַבִּי יוֹסֵי בְּאוֹמֵר ״אִמְרוּ״, נָפֵיק מִינַּהּ חוּרְבָּא – דְּזִימְנִין דְּאָמַר לְהוּ לִשְׁנַיִם ״אִמְרוּ לְסוֹפֵר וְיִכְתּוֹב, וְלִפְלוֹנִי וּפְלוֹנִי וְיַחְתֹּמוּ״; וּמִשּׁוּם כִּיסּוּפָא דְּסוֹפֵר – חָיְישִׁי וּמַחְתְּמִי לֵיהּ, וּבַעַל לָא אֲמַר הָכִי.
And if it enters your mind to say that Rabbi Yosei concedes in the case of one who says: Tell another to write it, a pitfall will result from it. As sometimes, it happens that one said to two people: Tell a scribe and he will write the document and tell so-and-so and so-and-so and they will sign it. And due to the shame of the scribe, who asks: Don’t you consider me a sufficiently upright person to sign the document as a witness, the agents are concerned to avoid that disgrace and they will have one of those witnesses and the scribe sign together with him, and the husband did not say to do so. This bill of divorce is invalid because it was signed contrary to the husband’s instructions, and the agents will mistakenly think it is valid.
אֶלָּא מְחַוַּורְתָּא, רֵישָׁא רַבִּי מֵאִיר וְסֵיפָא רַבִּי יוֹסֵי.
The reason that this is not a concern must be because Rabbi Yosei holds that even if the husband says to the agents: Tell the scribe to write, the bill of divorce is not valid. Rather, it is clear that the first clause of the mishna is in accordance with the opinion of Rabbi Meir and the latter clause is in accordance with the opinion of Rabbi Yosei.
רַב אָשֵׁי אָמַר: כּוּלַּהּ רַבִּי יוֹסֵי הִיא, וְלָא מִיבַּעְיָא קָאָמַר: לָא מִבַּעְיָא הֵיכָא דְּלָא אֲמַר ״תְּנוּ״, אֶלָּא אֲפִילּוּ אֲמַר ״תְּנוּ״ – לָא. וְלָא מִיבַּעְיָא הֵיכָא דְּלָא אֲמַר לְבֵי תְלָתָא, אֶלָּא אֲפִילּוּ אֲמַר לְבֵי תְּלָתָא – לָא. וְלָא מִיבַּעְיָא הֵיכָא דְּלָא אֲמַר ״אִמְרוּ״, אֶלָּא אֲפִילּוּ אֲמַר ״אִמְרוּ״ – נָמֵי לָא.
Rav Ashi said an alternative explanation of the attribution of the mishna: The mishna in its entirety is in accordance with the opinion of Rabbi Yosei, who said that verbal directives cannot be delegated to an agent, and it is speaking utilizing the style of: It is not necessary, as follows: It is not necessary to state that the bill of divorce is not valid in a case where he did not say to the agents: Give the document to my wife; rather, even if he said to the agents: Give the bill of divorce to my wife, the document is not valid. And it is not necessary to state the halakha in a case where the husband did not say his instructions to three people; rather, even if he said his instructions to three people, no, the bill of divorce is not valid. And it is not necessary to state the halakha in a case where the husband did not say to the agents: Say my instructions to a scribe, but even if he said: Say my instructions to a scribe, the bill of divorce is also not valid.
תַּנְיָא כְּווֹתֵיהּ דְּרַב אָשֵׁי: כָּתַב סוֹפֵר לִשְׁמָהּ וְחָתְמוּ עֵדִים לִשְׁמָהּ, אַף עַל פִּי שֶׁכְּתָבוּהוּ וַחֲתָמוּהוּ וּנְתָנוּהוּ לוֹ וּנְתָנוֹ לָהּ – הֲרֵי הַגֵּט בָּטֵל, עַד שֶׁיִּשְׁמְעוּ קוֹלוֹ שֶׁיֹּאמַר לַסּוֹפֵר ״כְּתוֹב״ וְלָעֵדִים ״חֲתוֹמוּ״.
The Gemara notes: It is taught in a baraita (Tosefta 2:7–8) in accordance with the opinion of Rav Ashi that Rabbi Yosei invalidated the bill of divorce even if the husband said: Tell my instructions to a scribe, as it is taught: If the scribe wrote the bill of divorce for her sake and the witnesses signed it for her sake then even though they wrote it, and they signed it, and they gave it to the husband and he gave it to his wife, the bill of divorce is void until they hear the husband’s voice when he says to the scribe: Write the document for the sake of my wife, and to the witnesses: Sign the document for the sake of my wife.
״יִשְׁמְעוּ״ – לְאַפּוֹקֵי מִמַּאן דְּאָמַר, מוֹדֶה רַבִּי יוֹסֵי בְּאוֹמֵר: ״אִמְרוּ״. ״קוֹלוֹ״ – לְאַפּוֹקֵי מִדְּרַב כָּהֲנָא אֲמַר רַב.
The inference from the baraita is that it uses the term: Until they hear, serves to exclude the opinion of the one who said: Rabbi Yosei concedes in a case where the husband says: Say my instructions to the scribe; because the scribe and the witnesses must hear the husband themselves. Furthermore, the baraita uses the term: His voice, to exclude that which Rav Kahana says that Rav says, that a husband may issue written instructions to the scribe and witnesses. According to the baraita the instructions must be verbal.
מַתְנִי׳ ״זֶה גִּיטִּיךְ אִם מַתִּי״; ״זֶה גִּיטִּיךְ מֵחוֹלִי זֶה״; ״זֶה גִּיטִּיךְ לְאַחַר מִיתָה״ – לֹא אָמַר כְּלוּם. ״מֵהַיּוֹם אִם מַתִּי״; ״מֵעַכְשָׁיו אִם מַתִּי״ – הֲרֵי זֶה גֵּט.
MISHNA: If one says to his wife: This is your bill of divorce if I die, or: This is your bill of divorce if I die from this illness, or: This is your bill of divorce after my death, then it is as if he said nothing, since a bill of divorce is valid only if it takes effect before the husband’s death. But if the husband said to his wife: This is your bill of divorce from today if I die, or: This is your bill of divorce from now if I die, then this is a valid bill of divorce, because once he dies, the bill of divorce retroactively applies from when he made this statement.
״מֵהַיּוֹם וּלְאַחַר מִיתָה״ – גֵּט וְאֵינוֹ גֵּט; וְאִם מֵת – חוֹלֶצֶת, וְלֹא מִתְיַיבֶּמֶת.
If the husband says to his wife: This is your bill of divorce from today and after my death, then it is uncertain whether his primary intention was for the bill of divorce to take effect that day, in which case it is a valid bill of divorce, or if his primary intention was that it should take effect after his death and is therefore not valid. The halakha is that there is uncertainty whether it is a valid bill of divorce or not a valid bill of divorce. And if he dies without children his wife must perform ḥalitza, since perhaps the bill of divorce is not valid and she is bound by the levirate bond and may not remarry without first performing ḥalitza. But she may not enter into levirate marriage, since perhaps the bill of divorce is valid, and it is prohibited for a divorcée to marry her brother-in-law.
״זֶה גִּיטִּיךְ מֵהַיּוֹם, אִם מַתִּי מֵחוֹלִי זֶה״, וְעָמַד וְהָלַךְ בַּשּׁוּק, וְחָלָה וָמֵת – אוֹמְדִין אוֹתוֹ, אִם מֵחֲמַת חוֹלִי הָרִאשׁוֹן מֵת – הֲרֵי זֶה גֵּט, וְאִם לָאו – אֵינוֹ גֵּט.
If he said: This is your bill of divorce from today if I die from this illness, and he recovered, and he arose and walked in the market, but then became ill again and died, the court assesses him. If he died because of the first illness then this is a valid bill of divorce, as his conditional statement was fulfilled, but if not, i.e., if he was cured from the first illness and died from another illness, then it is not a valid bill of divorce.
גְּמָ׳ אַלְמָא ״אִם מַתִּי״ כִּ״לְאַחַר מִיתָה״ דָּמֵי, וַהֲדַר תָּנֵי: ״מֵהַיּוֹם אִם מַתִּי״; ״מֵעַכְשָׁיו אִם מַתִּי״ – אַלְמָא ״אִם מַתִּי״ לָאו כִּ״לְאַחַר מִיתָה״ דָּמֵי!
GEMARA: The mishna teaches: If one says to his wife: This is your bill of divorce if I die, then it is as if he said nothing. The Gemara deduces: Apparently, the formulation: If I die, is considered to be like the formulation: The bill of divorce will be valid only after my death. And afterward the mishna teaches: If he said: This is your bill of divorce from today if I die, or: This is your bill of divorce from now if I die, then this is a valid bill of divorce. Apparently, the formulation: If I die, is not considered to be like the formulation: The bill of divorce will be valid only after my death. As explained previously in the mishna, a bill of divorce which takes effect only after the husband’s death is not a valid bill of divorce. There is an apparent contradiction as to the meaning of the term: If I die.
אָמַר אַבָּיֵי: ״אִם מַתִּי״ – שְׁתֵּי לְשׁוֹנוֹת מַשְׁמַע; מַשְׁמַע כְּמֵעַכְשָׁיו, וּמַשְׁמַע כִּלְאַחַר מִיתָה;
Abaye said: The expression: If I die, indicates two different meanings. It indicates the same meaning as one who says: From now, i.e., that the bill of divorce will take effect after death retroactively from now. And it indicates the same meaning as one who says: After my death, i.e., that the bill of divorce will take effect only after his death.
אָמַר לָהּ ״מֵהַיּוֹם״ – כְּמַאן דְּאָמַר לָהּ ״מֵעַכְשָׁיו״ דָּמֵי, לֹא אָמַר לָהּ ״מֵהַיּוֹם״ – כְּמַאן דְּאָמַר לָהּ ״לְאַחַר מִיתָה״ דָּמֵי.
If the husband said to his wife: From today if I die, it is considered to be like one who says to her: From now, conditional upon my death. But if he did not say to her: From today, it is considered to be like one who says to her: After my death, and the bill of divorce is void because it takes effect only after his death.
״זֶה גִּיטֵּךְ אִם מַתִּי״ – לֹא אָמַר כְּלוּם: אָמַר רַב הוּנָא: וְחוֹלֶצֶת.
§ The mishna teaches that if one says to his wife: This is your bill of divorce if I die, then it is as if he said nothing. Rav Huna says: But if her husband died without children this woman must perform ḥalitza and not enter into a levirate marriage because perhaps it is a valid bill of divorce.
וְהָא ״לֹא אָמַר כְּלוּם״ קָתָנֵי! לֹא אָמַר כְּלוּם – דַּאֲסִירָא לְעָלְמָא; וּלְיָבָם נָמֵי אֲסִירָא.
The Gemara raises a challenge: But isn’t the expression: It is as if he said nothing, taught in the mishna? The Gemara answers: The mishna means that it is as if he said nothing with regard to the fact that she is still forbidden to everyone after the death of her husband, and is bound by a levirate bond. And she is also forbidden to the yavam because perhaps the bill of divorce was valid, in which case she has no levirate bond.
וְהָא מִדְּסֵיפָא חוֹלֶצֶת, מִכְּלָל דְּרֵישָׁא יַבּוֹמֵי נָמֵי מִיַּבְּמָה! מַתְנִיתִין כְּרַבָּנַן;
The Gemara raises a challenge: But since the latter clause of the mishna teaches that in those cases of uncertainty she must perform ḥalitza, by inference it appears that in the cases of the first clause she may also enter into levirate marriage, indicating that in those cases the bill of divorce is definitely not valid. The Gemara answers: This is not a challenge to Rav Huna’s opinion, as the mishna is in accordance with the opinion of the Rabbis that this kind of conditional bill of divorce is invalid and she may enter into levirate marriage.
וְרַב הוּנָא דְּאָמַר כְּרַבִּי יוֹסֵי, דְּאָמַר: זְמַנּוֹ שֶׁל שְׁטָר מוֹכִיחַ עָלָיו.
But Rav Huna was not explaining the words of the mishna; the statement that he said is in accordance with the opinion of Rabbi Yosei, who says as a principle: The date written in a document proves when it takes effect. Therefore, since the bill of divorce bears that day’s date, it takes effect immediately, even though it is not stated explicitly.
אִי רַבִּי יוֹסֵי, חֲלִיצָה נָמֵי לָא תִּיבְעֵי! וְכִי תֵּימָא מְסַפְּקָא לֵיהּ לְרַב הוּנָא אִי הִלְכְתָא כְּרַבִּי יוֹסֵי אוֹ אֵין הֲלָכָה כְּרַבִּי יוֹסֵי; וּמִי מְסַפְּקָא לֵיהּ?!
The Gemara challenges: If Rav Huna’s statement is in accordance with the opinion of Rabbi Yosei then the woman should also not require ḥalitza, as in his opinion the bill of divorce is entirely valid and there is no levirate bond at all. And if you would say that Rav Huna is uncertain if the halakha is in accordance with the opinion of Rabbi Yosei or if the halakha is not in accordance with the opinion of Rabbi Yosei, and on account of this he was stringent in accordance with both opinions, i.e., the one which requires ḥalitza and the one which forbids levirate marriage, this also presents a difficulty. But is Rav Huna in fact uncertain?
וְהָא רַבָּה בַּר אֲבוּהּ חֲלַשׁ, עוּל לְגַבֵּיהּ רַב הוּנָא וְרַב נַחְמָן; אֲמַר לֵיהּ רַב הוּנָא לְרַב נַחְמָן, בְּעִי מִינֵּיהּ מֵרַבָּה בַּר אֲבוּהּ: הֲלָכָה כְּרַבִּי יוֹסֵי, אוֹ אֵין הֲלָכָה? אֲמַר לֵיהּ: טַעְמָא דְּרַבִּי יוֹסֵי לָא יָדַעְנָא, הֲלָכָה אֶיבְעֵי מִינֵּיהּ?! אֲמַר לֵיהּ: אַתְּ בְּעִי מִינֵּיהּ הֲלָכָה, וְטַעְמֵיהּ דְּרַבִּי יוֹסֵי אֲנָא אָמֵינָא לָךְ.
But when Rabba bar Avuh was ill Rav Huna and Rav Naḥman entered to visit him. Rav Huna said to Rav Naḥman: Ask of him, Rabba bar Avuh: Is the halakha in accordance with the opinion of Rabbi Yosei or is the halakha not in accordance with his opinion? Rav Naḥman said to Rav Huna: I do not know the reason for the opinion held by Rabbi Yosei, and you ask me to ask Rabba bar Avuh the halakha? Rav Huna said to Rav Naḥman: You ask him the halakha, and I will tell you the reason for the opinion held by Rabbi Yosei afterward.
בְּעָא מִינֵּיהּ. אֲמַר לֵיהּ, הָכִי אֲמַר רַב: הֲלָכָה כְּרַבִּי יוֹסֵי. לְבָתַר דִּנְפַק אֲמַר לֵיהּ: הַיְינוּ טַעְמָא דְּרַבִּי יוֹסֵי – דְּקָסָבַר: זְמַנּוֹ שֶׁל שְׁטָר מוֹכִיחַ עָלָיו! אֶלָּא מְסַפְּקָא לֵיהּ
Rav Naḥman asked of Rabba bar Avuh what the halakha is. Rabba bar Avuh said to him: So said Rav: The halakha is in accordance with the opinion of Rabbi Yosei. After he left Rav Huna said to Rav Naḥman: This is the reason for the opinion of Rabbi Yosei, as he holds: The date written in a document proves when it takes effect. From this incident it is clear that Rav Huna holds that the halakha is in accordance with Rabbi Yosei, as Rav Huna certainly accepted the opinion that Rabba bar Avuh said in the name of Rav. Rather, it is necessary to say that Rav Huna is uncertain
אִי אָמַר רַבִּי יוֹסֵי בְּעַל פֶּה, אִי לָא אָמַר.
if Rabbi Yosei says that the date on which a document is written proves when it takes effect even when the husband stated a verbal condition as he handed it over, or if Rabbi Yosei does not say his principle in such a case.
וּמִי מְסַפְּקָא לֵיהּ?! וְהָתְנַן: ״הֲרֵי זֶה גִּיטִּיךְ אִם לֹא בָּאתִי מִכָּאן וְעַד שְׁנֵים עָשָׂר חֹדֶשׁ״, וּמֵת בְּתוֹךְ שְׁנֵים עָשָׂר חֹדֶשׁ – אֵינוֹ גֵּט. וְתָנֵי עֲלַהּ: רַבּוֹתֵינוּ הִתִּירוּהָ לְהִינָּשֵׁא.
The Gemara asks: But is Rav Huna uncertain with regard to this matter? But didn’t we learn in a mishna (76b): If one says to his wife: This is hereby your bill of divorce if I have not come back here from now until the conclusion of twelve months, and he died within twelve months, then it is not a valid bill of divorce because the bill of divorce does not take effect until the end of twelve months, which is after the husband’s death? As a result, she is bound by a levirate bond if her husband has no children. And it is taught with regard to that mishna: Our Rabbis disagree, and they rendered it permitted for her to marry, because they are of the opinion that there is no levirate bond in this case.
וְאָמְרִינַן: מַאן רַבּוֹתֵינוּ? אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: בֵּי דִינָא דִּשְׁרוֹ מִישְׁחָא; וְסָבְרִי לַהּ כְּרַבִּי יוֹסֵי, דְּאָמַר: זְמַנּוֹ שֶׁל שְׁטָר מוֹכִיחַ עָלָיו.
And we say: Who represents the opinion cited as our Rabbis? Rav Yehuda says that Shmuel says: It is the court that permitted the consumption of oil manufactured by gentiles, and they hold in accordance with the opinion of Rabbi Yosei, who says: The date written in a document proves when it takes effect. Evidently, according to Rabbi Yosei this principle applies even when the husband made a verbal condition with regard to the bill of divorce.
אֶלָּא מְסַפְּקָא לֵיהּ אִי הֲלָכָה כְּרַבִּי יוֹסֵי בְּעַל פֶּה, אוֹ אֵין הֲלָכָה.
Rather, it is necessary to say as follows: Rav Huna is uncertain if the halakha is in accordance with the opinion of Rabbi Yosei when the husband adds a verbal condition when giving the document, or if the halakha is not in accordance with Rabbi Yosei’s opinion in such a case.
וּמִי מְסַפְּקָא לֵיהּ?! וְהָאָמַר רָבָא: ״הֲרֵי זֶה גִּיטִּיךְ אִם מַתִּי״ וְ״שֶׁאֲנִי מֵת״ – הֲרֵי זֶה גֵּט. ״כְּשֶׁאָמוּת״ וּ״לְאַחַר מִיתָה״ – אֵין זֶה גֵּט.
The Gemara asks: But is Rav Huna uncertain with regard to this matter? But didn’t Rava say: If one says to his wife: This is hereby your bill of divorce if I die, or: “This is your bill of divorce when I am dead, then this is a valid bill of divorce? If he said to her: When I die, or: After my death, then this is not a valid bill of divorce.
הֵיכִי דָּמֵי? אִילֵימָא דְּאָמַר לַהּ ״מֵהַיּוֹם״, וְרַבָּנַן; צְרִיכָא לְמֵימַר?! וְהָתְנַן: ״מֵהַיּוֹם אִם מַתִּי״ – הֲרֵי זֶה גֵּט! וְאֶלָּא לָאו דְּלָא אָמַר לַהּ ״מֵהַיּוֹם״, וְרַבִּי יוֹסֵי? שְׁמַע מִינַּהּ הֲלָכָה כְּרַבִּי יוֹסֵי!
The Gemara clarifies: What are the circumstances? If we say that he said to her: This is your bill of divorce from today if I die, and Rava’s statement is in accordance with opinion of the Rabbis, which is the unattributed opinion of the mishna, is it necessary that this halakha be said by Rava, an amora? But didn’t we learn explicitly in the mishna that if he said: This is your bill of divorce from today if I die, then it is a valid bill of divorce? But rather, is it not speaking about a case where he did not say the term: From today, when he gave the bill of divorce, and Rava’s statement is in accordance with the opinion of Rabbi Yosei? Conclude from it that the halakha is in accordance with the opinion of Rabbi Yosei.
לְרָבָא פְּשִׁיטָא לֵיהּ, לְרַב הוּנָא מְסַפְּקָא לֵיהּ.
The Gemara answers: It is obvious to Rava that the halakha is in accordance with the opinion of Rabbi Yosei even when the husband added a verbal condition. But according to Rav Huna, it is uncertain whether or not this is the halakha.
וְאִיבָּעֵית אֵימָא: לְעוֹלָם דַּאֲמַר לַהּ ״מֵהַיּוֹם״ – וְרַבָּנַן, וְהָנֵי לִישָּׁנֵי אִיצְטְרִיכִי לֵיהּ: ״שֶׁאֲנִי מֵת״ – כְּ״אִם מַתִּי״ דָּמֵי; ״כְּשֶׁאָמוּת״ – כִּ״לְאַחַר מִיתָה״ דָּמֵי.
And if you wish, say instead: Actually, Rava’s statement is referring to a case where he said to her: This is your bill of divorce from today, and it is in accordance with opinion of the Rabbis. And it was necessary for Rava to state his ruling to teach the halakha of these expressions not stated in the mishna: First, the husband saying: When I am dead, is considered to be like the expression: If I die. Second, the husband saying: When I die, is considered to be like the expression: After my death.
וְאִיכָּא דְּמַתְנֵי לַהּ אַסֵּיפָא: ״זֶה גִּיטִּיךְ לְאַחַר מִיתָה״ – לֹא אָמַר כְּלוּם. אָמַר רַב הוּנָא: וּלְדִבְרֵי רַבִּי יוֹסֵי, חוֹלֶצֶת.
§ And there are those who teach this statement of Rav Huna with regard to the latter clause of the mishna, which states that if the husband said: This is your bill of divorce after my death, then the bill of divorce is invalid and it is as though he said nothing. Rav Huna says: But according to the statement of Rabbi Yosei she must nevertheless perform ḥalitza, as it is uncertain if the bill of divorce takes effect from the day the bill of divorce was given when the date is supplied verbally.
פְּשִׁיטָא, מִדְּסֵיפָא – לְרַבָּנַן חוֹלֶצֶת, רֵישָׁא נָמֵי – לְרַבִּי יוֹסֵי חוֹלֶצֶת!
The Gemara questions this version of Rav Huna’s statement: This is obvious. Since it was taught in the latter clause of the mishna, in a case where he explicitly stated: From today, that according to the opinion of the Rabbis she must perform ḥalitza due to the uncertainty as to when the bill of divorce takes effect, in the first clause as well, when he did not add: From today, it is obvious that according to the opinion of Rabbi Yosei she must perform ḥalitza due to the uncertainty. The dispute between Rabbi Yosei and the Rabbis concerns only whether the husband needs to add the term: From today.
מַהוּ דְּתֵימָא, רַבִּי יוֹסֵי בְּהָא כְּרַבִּי סְבִירָא לֵיהּ – דְּאָמַר: גִּיטָּא מְעַלְּיָא הָוֵי, וַחֲלִיצָה נָמֵי לָא תִּיבְעֵי; קָא מַשְׁמַע לַן דְּלָא רַבִּי סָבַר לַהּ כְּרַבִּי יוֹסֵי, וְלָא רַבִּי יוֹסֵי סָבַר לַהּ כְּרַבִּי.
The Gemara answers: His statement is necessary, lest you say that with regard to this, Rabbi Yosei holds in accordance with the opinion of Rabbi Yehuda HaNasi, who says: It is a proper bill of divorce, and she is not even required to perform ḥalitza. Therefore, Rav Huna teaches us that Rabbi Yehuda HaNasi does not hold in accordance with the opinion of Rabbi Yosei and Rabbi Yosei does not hold in accordance with the opinion of Rabbi Yehuda HaNasi. Each has a unique, albeit similar, opinion.
רַבִּי לָא סָבַר לַהּ כְּרַבִּי יוֹסֵי – דְּקָתָנֵי: ״כָּזֶה – גֵּט״, לְמַעוֹטֵי דְּרַבִּי יוֹסֵי; וְרַבִּי יוֹסֵי לָא סָבַר לַהּ כְּרַבִּי – דְּקָתָנֵי: ״כָּזֶה – גֵּט״, לְמַעוֹטֵי דְּרַבִּי.
The Gemara explains: Rabbi Yehuda HaNasi does not hold in accordance with the opinion of Rabbi Yosei, as it teaches in a baraita: If the husband said: This is your bill of divorce from today and after my death, Rabbi Yehuda HaNasi says: A case like this is a valid bill of divorce and there is no need for the wife to perform ḥalitza. By emphasizing the term: Like this, Rabbi Yehuda HaNasi intends to exclude the opinion of Rabbi Yosei, who is uncertain with regard to the matter. And similarly, Rabbi Yosei did not hold in accordance with the opinion of Rabbi Yehuda HaNasi, as it teaches in a mishna: Rabbi Yosei says: A case like this is a valid bill of divorce, to exclude the opinion of Rabbi Yehuda HaNasi.
רַבִּי מַאי הִיא? דְּתַנְיָא: ״מֵהַיּוֹם וּלְאַחַר מִיתָה״ – גֵּט וְאֵינוֹ גֵּט, דִּבְרֵי חֲכָמִים; רַבִּי אוֹמֵר: כָּזֶה – גֵּט.
The Gemara cites the baraita and mishna that demonstrate the difference of opinion between Rabbi Yehuda HaNasi and Rabbi Yosei. What is the opinion of Rabbi Yehuda HaNasi? As it is taught in a baraita: If a husband says to his wife: This is your bill of divorce from today and after my death, then there is uncertainty whether it is a bill of divorce or whether it is not a bill of divorce, and the wife must perform ḥalitza. This is the statement of the Rabbis. Rabbi Yehuda HaNasi disagrees and says: A case like this is a valid bill of divorce without any uncertainty, and there is no need for the wife to perform ḥalitza.
רַבִּי יוֹסֵי מַאי הִיא? דִּתְנַן: ״כִּתְבוּ וּתְנוּ גֵּט לְאִשְׁתִּי, אִם לֹא בָּאתִי מִיכָּן וְעַד שְׁנֵים עָשָׂר חֹדֶשׁ״, כְּתָבוּהוּ בְּתוֹךְ שְׁנֵים עָשָׂר חֹדֶשׁ וּנְתָנוּהוּ לְאַחַר שְׁנֵים עָשָׂר חֹדֶשׁ – אֵינוֹ גֵּט; רַבִּי יוֹסֵי אוֹמֵר: כָּזֶה – גֵּט.
What is the opinion of Rabbi Yosei? As we learned in a mishna (76b): If one says: Write and give a bill of divorce to my wife if I have not come from now until the conclusion of twelve months, and the court wrote the bill of divorce within twelve months and gave it to the wife after twelve months, it is not a valid bill of divorce. Rabbi Yosei disagrees and says: A case like this is a valid bill of divorce.
״זֶה גִּיטִּיךְ מֵהַיּוֹם, אִם מַתִּי מֵחוֹלִי זֶה״, וְעָמַד וְהָלַךְ בַּשּׁוּק כּוּ׳.
§ The mishna teaches: If one says to his wife: This is your bill of divorce from today if I die from this illness, and he recovered, and he arose and walked in the market and became ill again and died, then it must be assessed whether he died from the first illness and it is therefore a valid bill of divorce. But if he did not die from this illness then it is not a valid bill of divorce.
אָמַר רַב הוּנָא: גִּיטּוֹ כְּמַתְּנָתוֹ; מָה מַתְּנָתוֹ, אִם עָמַד – חוֹזֵר; אַף גִּיטּוֹ, אִם עָמַד – חוֹזֵר.
Rav Huna said: With regard to a person on his deathbed, the halakhot of his bill of divorce are the same as the halakhot of his gift. The Sages instituted that when a person on his deathbed gives a gift, no formal act of acquisition is required. Just as with regard to his gift, if he arose and was cured from his illness the gift he granted while on his deathbed is retracted, as he gave it only based on the assumption that he was about to die, so too, with regard to his bill of divorce, if he arose and was cured from his illness, the bill of divorce is retracted and nullified, as he gave his wife her bill of divorce only because he thought he was about to die and he wanted to exempt her from a levirate bond.
וּמָה גִּיטּוֹ – אַף עַל גַּב דְּלָא פָּרֵישׁ, כֵּיוָן דְּאָמַר ״כְּתוֹבוּ״ – אַף עַל גַּב דְּלָא אָמַר ״תְּנוּ״; אַף מַתְּנָתוֹ, כֵּיוָן דְּאָמַר ״תְּנוּ״ – אַף עַל גַּב דְּלָא קְנוֹ מִינֵּיהּ.
Rav Huna continues: And just as in the case of his bill of divorce, where, even though he did not explicitly say his full intention, once he said: Write the bill of divorce, his statement is interpreted to mean that the court should give the bill of divorce to his wife even though he did not say: Give the bill of divorce to my wife, which a healthy man would need to state, so too, this is the halakha with regard to his gift. Once he said: Give the gift, then even though the recipients did not acquire it from him, which finalizes a gift from a healthy person, because he is dying the halakha takes into account his intention without all the necessary legal requirements.
תְּנַן: ״זֶה גִּיטִּיךְ מֵהַיּוֹם, אִם מַתִּי מֵחוֹלִי זֶה״, וְעָמַד וְהָלַךְ בַּשּׁוּק, וְחָלָה וָמֵת; אוֹמְדִים אוֹתוֹ – אִם מֵחֲמַת חוֹלִי הָרִאשׁוֹן מֵת, הֲרֵי זֶה גֵּט; אִם לָאו, אֵינוֹ גֵּט. וְאִי אָמְרַתְּ ״אִם עָמַד – חוֹזֵר״, לְמָה לִי אוּמְדָּנָא? הֲרֵי עָמַד!
The Gemara challenges: We learned in the mishna: If a man said: This is your bill of divorce from today if I die from this illness, and he recovered, and he arose and walked in the market, but then became ill again and died, the court assesses him. If he died because of the first illness then this is a valid bill of divorce, but if not then it is not a valid bill of divorce. And if you say that if he arose and was cured of his illness the bill of divorce is retracted, then why do I need assessment at all? He arose from his sickbed, so the bill of divorce should automatically be nullified.
אָמַר מָר בְּרֵיהּ דְּרַב יוֹסֵף מִשְּׁמֵיהּ דְּרָבָא: שֶׁנִּיתַּק מֵחוֹלִי לְחוֹלִי.
Mar, son of Rav Yosef, says in the name of Rava: This is referring to a case where, instead of recovering completely, he proceeded from one illness immediately to another illness, and the assessment is to ascertain whether he died from the first illness or from the second one.
וְהָא ״עָמַד״ קָתָנֵי! עָמַד מֵחוֹלִי זֶה, וְנָפַל לְחוֹלִי אַחֵר. וְהָא ״הָלַךְ בַּשּׁוּק״ קָתָנֵי! הָלַךְ עַל מִשְׁעַנְתּוֹ;
The Gemara challenges: But isn’t it taught in the mishna: He arose from his illness, which indicates that he was completely cured? The Gemara answers: No, it means that he arose from this illness but fell into another illness. The Gemara challenges: But isn’t it also taught in the mishna: He walked in the market? The Gemara answers: This means that he walked with his staff for support, meaning that he was not fully recovered from his illness but was able to walk only with assistance.
