Monday, October 15, 2007

Kiyum Shtaros - A Woman who produces a Get in Bais Din

Hilchos Gerushin 12:2

הוציאה גט מתחת ידה ואמרה, גירשני בעלי בזה--הרי זו נאמנת; ותינשא בו, אף על פי שאינו מקויים, כמו שביארנו

The Rambam holds that if a woman comes into court holding a get and says that my husband divorced me with this, she is believed. The get works fully even with no kiyum (i.e. even with no certification from witnesses that the signatures on the get weren't forged.

The Raavad here argues with the Rambam and writes that the get needs kiyum even though there has been no protest as of yet against the kashrus of the get.

Our goal will be to explain the machlokes between the Rambam and the Raavad.

First, the basis for the Raavad. The gemara in Kesuvos 28a says that kiyum shtaros is midrabbanan. Rashi explains that this means that on a biblical level the testimony on a shtar is good. Why? Because Reish Lakish says that eidim who are signed on a shtar it is as though their testimony was already investigated by a court and found to be admissible. The Rabbis were stringent and required kiyum. In gittin 3a Reish Lakish's statement is also brought and thus the Raavad concludes that there is a din of kiyum shtaros drabbanan even by get (and not only by other shtaros like shtarei mamonos - we will discuss possible differences between different types of shtaros later).

The second presumption of the Raavad is that we require kiyum even with no protest against the kashrus of the shtar. This is based on the shittah of tosafos in gittin 2a that Bais Din is taaninan mezuyaf, they voice a protest against any shtar if the defendant is not present. Thus, the Raavad is saying that also by get, if the husband is not in court, the court itself claims mezuyaf for him and the get requires certification.

Tosafos themselves ask that if it is true that a get always needs kiyum what about when a shliach delivers a get within Israel. In such a case the halacha is that we don't require certification, and the shliach need not say b'fanai nichtav u'b'ganai nichtam. Why not? Tosafos answer that mishum iguna akilu bah rabbanan, we don't want the woman to be an aguna, so we allow the divorce without requiring the certification. One could perhaps argue for the Rambam that he too is being lenient on this woman who produces the get in beis din for the same reason - mishum iguna. However, this answer does not hold, because the fact is that in a case where a shliach brings a get from chutz laaretz there is certainly a requirement of certification. So, even if the Rambam held of tosafos' leniency of iguna he should still require the woman to at least prove that the get originated in Israel. The Rambam seems to be remarkably lenient. He requires nothing at all from a woman who produces a get, even though everyone agrees that when a shliach delivers a get from chutz laaretz certification is required. The question then is why is the Rambam so lenient on the woman?