תלמוד על גיטין 2:1

Rebbi Yose said, I questioned before Samuel: But with bills of divorce, thought is not written and his action cannot prove his intention! As we have stated¹³Mishnah Giṭṭin 2:5.: “Everybody is permitted to write a bill of divorce, even an insane person, a deaf-mute, and a minor.” Rebbi Huna said, if a sane person directs him. Rebbi Joḥanan asked, is that (Deut. 24:1,3): “he writes for her”, for her personally¹⁴This is an echo of the very short discussion in Giṭṭin 2:5. Rebbi Joḥanan points out that the divorce document must be written specifically for the woman in question. If two men with identical names are married to two women who have the same name, and both want to divorce them on the same day, the two divorce documents will have identical wording. Nevertheless, if the husbands switch the documents before they are handed to the respective wives, both divorces will be invalid. In both Talmudim, Samuel narrows down the meaning of the Mishnah in that he allows the incompetent only to write the formulaic portion under the direction of a competent person; but the data which make the document valid, date and names of the two persons involved, must be written by a competent person as agent of the husband. The argument here does not consider this restriction, except that R. Yose (Rav Assi of the first generation Amoraïm in Babylonia) is of the opinion that, since a document containing only date and names cannot be signed by witnesses and is not a divorce document, the writing of the incompetent is necessary for the validity of the document and one has to wonder why this is accepted.? Rebbi Yose came back and said, there one person writes¹⁵Writing a valid divorce document and using it for the divorce are two distinct actions; one may be valid without the other. But taking heave is valid only if the taking is intended for heave; the action itself needs thinking; this parallels the action of divorce, not the writing of part of the document. and another person divorces. But here, the same person thinks and takes heave. Rebbi Jacob bar Aḥa said, there, if he¹⁶A competent person. Even if he writes all by himself there are two actions. This argument is valid only for R. Eleazar (ben Shamua, the Tanna) who holds that a divorce is validated by handing over the document before two witnesses. But according to R. Meїr who holds that a document is invalid if it has not been signed by two trustworthy witnesses, the writing of the document is not important, only the signing is, and this must be done by two competent persons unrelated to the husband. would write himself and divorce, would that not be a divorce? But here, he thinks and takes heave.

If he did not say: “it was written and signed before me”? Should not an Amora have asked this question? He said to him³¹It is unclear to whom this refers; the text seems defective., that is what Rabin ben Rav said: If he brought a bill of divorce, gave it to her, but did not tell her: “It was written and signed before me”³²Is the bill of divorce invalid in this case? In the Babli, 5b, Rabin bar Rav Ḥisda brought a bill of divorce before R. Joḥanan, who instructed him to deliver the bill in the presence of two witnesses and to make the required declaration. The question here can be interpreted to mean that Rabin asked whether the formality was really necessary in view of the fact, reported in the next paragraph, that R. Joshua ben Levi, of the generation of R. Joḥanan’s teachers, did not require the declaration. In the Babli, which is edited according to strict historical principles, R. Joshua ben Levi is mentioned before R. Joḥanan.? There came a case before Rebbi Joḥanan, who said to him³³The messenger who had delivered the bill of divorce without making the required declaration., take it from her and say in front of two [witnesses]: “It was written and signed before me.³⁴It is understood that the Mishnah requires the declaration to be made either in the presence of two witnesses or at the local court. Tosephta 2:1 permits the declaration to be made “even after three years” if the bill of divorce can be returned to the messenger.” Does Rebbi Joḥanan follow Rebbi Simeon ben Eleazar, since Rebbi Simeon ben Eleazar said³⁵Tosephta 6:1; a different version Babli 78a, 84b. The statement refers to Mishnah 8:2: “If he said to her, take this bond, or she took it out from his belt, and when she read it she realized that it was her bill of divorce, it is not a bill of divorce unless he says to her: This is your bill of divorce.” The reason is that Deut. 24:1 requires that in a divorce the husband deliver the bill into the wife’s hand. The question arises whether the required declaration is valid after the bill is already in the wife’s hand. In the Babli 78a, Rebbi is quoted as holding that the bill is invalid unless given as a bill of divorce; R. Simeon ben Eleazar permits the husband to reclaim the bill from his wife and deliver it a second time accompanied by the required declaration. In the Tosephta, Rebbi is reported not to require the declaration, R. Simeon ben Eleazar requires that the declaration accompany the delivery. The language of the Tosephta is that of the Yerushalmi; it is not clear whether R. Simeon ben Eleazar permits taking the document back., it is no bill of divorce unless he tells her at the moment of delivery that it is her bill of divorce? Can the position of Rebbi Joḥanan be derived from Rebbi Simeon ben Eleazar? Would Rebbi Simeon ben Eleazar agree that if he told her at the moment of delivery that it was her bill of divorce it would not be a bill of divorce³⁶The answer to this rhetorical question clearly is no; the only condition imposed by R. Simeon ben Eleazar is that the wife be informed of the nature of the document at the moment of delivery.? But here, even if he tells her at the moment of delivery that it is her bill of divorce, it is no bill of divorce unless he tells her in front of two [witnesses]: “It was written and signed before me.” But Rebbi Joḥanan might hold that a woman cannot be believed if she says, I received a bill of divorce from my husband’s agents³⁷Therefore, the delivery of the document characterized as a bill of divorce must be made before two witnesses in good standing. It seems that in his case, the document was delivered in private; the main reason of R. Joḥanan was not the recitation of the formula but the delivery in front of witnesses.. But we did state³⁸Mishnah 2:7. If the husband delivers the document to her on condition that it should not become effective until she presents it to the court which has to preside over the payment of her ketubah, she can bring it herself and declare before the court that “it was written and signed before me.”: “The wife herself can bring her bill of divorce.” Would you not have to be afraid that she might have received the bill from a representative of the husband³⁹Why should she be believed if she brings the document from abroad when she is not believed if the document is delivered to her in private? It is implied here that the act which makes the document valid is its signing by two reliable witnesses, not its delivery.? How is it? The reason of Rebbi Joḥanan is to make her known as divorcee in front of two [witnesses]⁴⁰He holds that the requirement of the declaration mentioned in the Mishnah is prescriptive but its omission does not invalidate the divorce..