Wednesday, January 27, 2010

Baba Basra 160a - Gett Mekushar for Kohanim

The gemara says that the concept of a gett mekushar was instituted for a place where there were kohanim who were easily angered (not clear if the gemara is saying that this is the nature of kohanim, or just saying that in this place this was their nature) and would divorce their wives out of anger (Yad Rama points out that the takana was already in place in the time of Yirmiyahu since we the pesukim hint to the shtar mekushar). Since kohanim weren't able to remarry their divorced wives, the chachamim wanted to delay the gett proceedings so that their is time for their anger to subside, so they instituted the concept of a gett mekushar (and extended it to other contracts as well).
Clearly the implication is that when one would divorce out of anger, the gett would be binding. Tosafos 161a points out that the chachamim intentionally made the process complicated to delay so that kohanim will have to spend time figuring out what to do.
The Toras Chaim asks on the Tur cited by Rama (choshen mishpat 333:8) who writes in the context of mechila, that when one does something out of anger it is not binding? The Teshuvos Mahari"m Brisk siman # 38 (cited by Pischei Teshuva E.H. 134:43) answers that when one says something out of anger it isn't binding, but if he writes a gett which is a significant action, it is binding even if done out of anger. Secondly, even if it wouldn't be a gett to be matir her, it would at least be a rei'ach ha'gett (smell like a gett), which would forbid her to a kohen.
Practically, we never do a gett mekushar anymore, even for kohanim. Tosafos 160b made this observation and offers 3 approaches:
1. Since we lost the expertise of how to do a gett mekushar, it is better to just to a standard gett.
2. It was initially only instituted for a particular place where there were many kohanim and this presented a problem (as the gemara says - אתרא דכהני הוו).
3. Even the original institution wasn't an obligation on kohanim to do a gett mekushar, and was only instituted for their benefit so they don't lose their wives.
I heard from R. Nota Greenblatt that the entire necessity of the gett mekushar may have only been prior to the cherem of Rabbeinu Gershom who instituted that one cannot divorce his wife against her will. But, after R"G instituted that he needs her consent, and without that he is not able to divorce her, there is no longer a concern that he will divorce her out of his rage, because she will refuse to accept it. Perhaps Tosafos doesn't offer this approach because they knew that it was historically abolished prior to Rabbeinu Gershom.

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