Sunday, October 05, 2008

Gittin 85b - Must a Gett have ודין די יהוי ליכי מינאי

The minhag is that we end off the gett by writing:
והרי את מותרת לכל אדם, ודן די יהוי ליכי מינאי ספר תירוכין ואגרת שבוקין וגט פטורין
We fulfill both the tana kama and R' yehuda in the mishna by writing both the "והרי את וכו'" and "ודן די יהוי וכו", but it is not clear from the conclusion of the gemara whether we really need ודן or not. When the gemara says that we should right ודן without a yud, so that it doesn't say "din". But Rashi and the Rambam disagree with the problem of it sayin "din". Rashi says that it implies that he is required to divorce her, which indicates that since he is not actually required to divorce her the gett should not be valid. The Rambam says that it implies that they made up a "mishpat" between themselves to be divorced. The Beis Yosef understands that according to the Rambam the term "din" would not be misleading, just that you would be missing the term "ודן" which is a requirement in a gett. Based on this, the sefer gett pashut, quoted in Pischei teshuva points out that if the woman would be a Sotah so that he is in fact obligated to divorce her, Rashi would hold that ודן can be written with a yud, whereas the Rambam would hold that ודן must still be written without a yud. This approach assumes that the Rambam paskens like R' yehuda that ודן must be written to indicate that he is divorcing her with this gett, whereas rashi paskens like tana kamma that ודן is not necessary.
The sefer gett pashut points out that this approach is problematic. Although in the pirush hamishna that Rambam paskens like R' Yehuda that ודן is necessary. In the yad, the rambam quotes the language of the tanna kamma that gufo shel gett is just הרי את מותרת לכל אדם. This contradicts the assumption that the Rambam paskens like R' Yehuda? He quotes the Mahari Levi who suggests that the entire machlokes about ודן is only d'rabonon. Meaning, all agree that the gufo shel gett on a a d'oraysa level is הרי את מותרת לכל אדם. But the Rambam holds like R' Yehuda that m'drabonon we need to write ודן. This is a pretty radical approach because the pashtus of the mishna is that ודן is required m'doraysa according to R' Yehuda!

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