Tuesday, April 01, 2008

Nazir 12a - Appointing a Messenger to do something I myself cannot do now

Sorry for the long post, but i think it is interesting.
On Sunday I wrote a gett that was written properly, and after it was written and signed it was given over by the husband to me (shliach) to deliver it to his wife, but we realized that for whatever reason (not worth addressing now) there was a concern that one of the eidei chasima may not have signed it lishma (he forgot to speak out that he is signing l'ishmo u'lishmah). R' Nota Greenblatt who was mesader the gett paskened that I had to rewrite the gett from scratch, which would be a "nechpaz laleches" (husband in a hurry to leave town) type gett, because the husband didn't have patience to wait around. Meaning that, the rewritten gett will not be written in the presence of the husband [the Rama writes (E.H. 154 seder haget 33) that this method is only b'sha'as had'chak. But the pischei teushuva points out that we don't see any indication from the gemara that this method is only sha'as had'chak]. He explained that there is a significant advantage to the gett being written in the presence of the husband because we are then able to write in the gett the place where the husband is standing at the time it is being written, i.e. העומד היום בפאלא אלטא מתא דיתבא על כיף ימא דמתקרי סאן פראנציסקא בעי. The advantage to this is that according to R' Moshe (Igros Moshe E.H. 1:125) identifying the husband in the gett as the person standing in that particular city and differentiating him from the many others out there in the world who may have the same name (and same wife), is an essential (although not me'akev) aspect of the gett. Nevertheless, R' Nota felt that it is worthwhile to do a "nechpaz laleches" style gett, which leaves out the place where the husband is standing, rather than use the first gett on which the signing could be considered shelo lishma and is therefore a chashash of mezuyaf mitocho (Tosafos Gittin 4a, Shulchan Aruch 131:6).
In light of the Tosafos on today's daf there is another majorly significant advantage of writing the gett in the presence of the husband and not using the "nechpaz laleches" method, which is likely the issue that the Rama was referring to (since from the language of the Rama the kepeida seems to be on the giving over of the gett to the ba'al after it is written rather than the concern being the nusach that is written in the gett). The gemara says that something i cannot do right now because it is mechusar ma'aseh, i cannot appoint a shliach to do i.e. one cannot appoint a shliach to be mekadesh an isha that is married at the time of the appointment, since it is mechusar the ma'aseh gett. Tosafos explains that even in a situation where i myself can do the ma'aseh now which would enable me to do the process now, i still cannot appoint a shliach on that process, since the ma'aseh has not yet been done. With this Tosafos explains that the gemara (yevamos 52a) has a tzad that a yavam cannot appoint a shliach to write a gett for a shomeres yaveim, even though yibum can be done against her will and it is totally in the control of the yavam, since it is mechusar ma'aseh and he can't divorce her now, he cannot appoint a shliach to divorce her. Based on this R' Akiva Eiger (Teshuvos 141), Noda B'yehuda (drashos), Machaneh Efraim (Gittin perek 15) question, how can one appoint a shliach to write and deliver a gett to his wife, since he himself cannot deliver the gett until it is written so it is mechusar ma'aseh and he should not be able to even appoint a shliach to deliver it until after the gett is actually written. Based on this concern there is a significant advantage to writing the gett in the presence of the husband so that the husband can appoint the shliach to deliver the gett after it has been written to avoid this problem.
However, the Chasam Sofer (back of gemara) explains that the concern of Tosafos only applies if there is a "panim chadashos" created by the missing action, such as the chalos created from yibum, or the chiyuv challah created by kneading dough. But when there is an action that is missing such as the writing of a gett, since there is no chalos or chiyuv created by the gett being written, it is not considered mechusar ma'aseh and therefore the shliach to deliver the gett may be appointed even before the gett is written.
Therefore, it is still not so clear why the Rama is makpid to only use the Nechpas Laleches method for a sha'as had'chak. It seems to be because we want to be makpid that the husband hand over the finished product of the gett to the shliach, using the formal methods of "nesina" as it would be given to the woman herself (as the Rama writes in seder haget 98 - that the shliach l'holacha should receive it from the husband using the same chumros that the woman herself would).

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