Thursday, May 15, 2008

Shliach L'Havaah

When it comes to marriage and divorce generally speaking the man or the woman can appoint a shliach to carry out their respective parts of the process. A man can appoint a shliach l'holacha to deliver the get (or kiddushin) to his wife. Likewise, a woman appoints a shliach l'kabbalah to receive the get.

The Ran in Gittin on Daf 28a (dapei harif) discusses the possibility of a woman appointing a shliach l'holacha to deliver her the get from her husband. The Rambam says that this is possible and he calls this shliach a "shliach l'havaah". This Rambam is found in 6:4 of Hilchos Gerushin:

ד] וְכֵן הָאִשָּׁה שׁוֹלַחַת שָׁלִיחַ לְהָבִיא לָהּ גִּטָּהּ מִיַּד בַּעְלָהּ, וְזֶה הוּא הַנִּקְרָא שְׁלִיחַ הֲבָאָה. וְאֵין שְׁלִיחַ הוֹלָכָה וַהֲבָאָה צָרִיךְ עֵדִים

The question is obvious. How can a woman create a shliach to deliver the get? If the delivery of the get is the husband's job, shouldn't a shliach delivering the get automatically be a shliach of the husband? In what way is the shliach l'havaah a shliach of the woman?

The Ran suggests that really a shliach l'havaah is a shliach l'kabbalah al hatnai. Really, the shliach is fully the shliach of the woman and upon his reception of the get the woman should be divorced. However, the woman makes a tnai in the shlichus that the divorce will only happen upon her receiving the get.

(The idea that the woman can make a tnai in the reception of the get is interesting because in general a woman is divorced against her will - and thus has no "control" to make tannaim. Apparently, the Ran is saying that when the woman makes a shliach she can make tannaim within the shliach.)

While this pshat works in general - it seems that it cannot work in the Rambam. The Rambam we quoted above clearly states that no eidim are needed when appointing a shliach l'havaah. This is similar to a shliach l'holacha and not shliach l'kabbalah. If a shliach l'havaah was merely a shliach l'kabbalah with a tnai - surely eidim would be needed.

I heard the following pshat to explain the shitas haRambam. There is a halacha of nesinah by get - that a get must be given to the woman. The husband may not place the get on the ground and have the woman pick it up. This is lacking in nesinas haget.

By shliach l'havaah we can suggest that the shliach is the yad of the woman only for the purpose of fulfilling the halacha of v'nasan b'yadah. When the husband gives the get to the shliach the nesinah has been accomplished. Then, the shliach gives the get to the woman and with her zechiyah in the get she is divorced. But, the shliach l'havaah doesn't even need to give the get to the woman because the giving has already been done. Rather all that remains to be done is the woman taking possession of the get. Thus, the shliach l'havaah can theoretically place the get on the ground and allow the woman to pick it up and there would still be a divorce.

According to this we understand why there is no need for eidim by shliach l'havaah. A shliach l'havaah is not a shliach l'kabbalah. Only a shliach l'kabbalah needs to be appointed with eidim because that shliach is an integral part of the actual divorce - because the divorce is primarily affected by the receiving of the get by the woman. A shliach l'holacha and shliach l'havaah on the other hand are only involved in the din of v'nasan b'yadah. This din is not the actual divorce but just one of the prerequisite dinim involved in the divorce. Thus, these shluchim do not need to be appointed with eidim.