In last week’s issue we looked at the shaliach that can take the get to the wife for the husband (shaliach holacha). In the beginning of the sixth perek the Mishnah contrasts that shaliach with a shaliach who the wife can elect to receive the get on her behalf (shaliach kabala). With respect to the shaliach that takes the getto the wife, as we learnt, the divorce is not yet effective while he carries the get and the husband can change his mind. With respect to the shaliachthat is nominated by the wife to receive get, once it reaches his hands she is divorced.
The Gemara (62b) raises the following case. The wife elected a shaliach to bring her the get. However when he met the husband, the shaliach said that he was instructed to receive the get for her, a shalaich kabala. The husband then responded that the shaliach should do as he was instructed. The Gemara is unsure of the husband’s intent. If the husband is relying on what the shaliach told him, then she would not be divorce, because when the husband handed over the get he thought the shaliach was accepting the get (which has was not authorized to do).If however the husband intends to rely on what his wife wished, then since the shaliach was tasked with bringing the get, she is divorce when it reaches her. Ultimate the Gemara rejects this distinction, as the shaliach’s deviation from his instruction is equivalent to his uprooting the shlichut.
What appears to arise from this Gemara is that we have a third type of shlichut. The wife is able to nominate a shliach to bring her get – a shaliach hava’ah – and she is not divorce until it reaches her. The Rambam(Geirushin 6:4) rules explicitly that the wife has the ability to nominate such a shaliach.
Indeed the Rashba (65b) understands that the wife is able to nominate a shaliach hava’ah based on a later Mishnah as explained by the Gemara (65b). If the wife says to the shaliach that you may take the get from my husband wherever you meet him, but it is not a get till you reach such-and-such place, then she can assume she is married until the shaliach reaches that place.1 The Rashba asks that if it is not a get till the shaliach reaches that nominated place, then the issue is that the husband or his nominated shaliach never handed over the get. He answers that the wife effectively elected this person as a shliach hava’ah until he reaches that place, at which point he become a shaliach kabala.
The Rashba offers another answer that does not rely on the concept of a shaliach hava’ah. He explains that from the time the shalaich receives the get until he reaches the destination, it is consider one long receipt (kabala). This is much like a case where the husband hands his wife a get but stipulates that it only comes into effect after thirty days.
Rashi (Bava Metzia 76a) however explains our case differently. The wife is not nominating the shaliach directly as a shaliach hava’ah. The only person that can elect a shaliach to take the get to the wife is the husband. Instead she is directing the shalaich to instruct the husband to nominate him as a shaliach holacha. Put simply, Rashi maintains that there is no concept of a shaliach hava’ah.
R’ Kreskas strengthen this position. He argues that for gittin we need the getto be transferred directly from the hand of the person affecting to the divorce (the husband or his shaliach) to the hand of the person getting divorced (either the wife or her shaliach to accept it). A shaliach hava’ah would be an interruption in this process and equivalent to the wife picking the get up from the floor.
The Ran however defends the position of a shaliach hava’ah and explains since we have the principle that “one’s shaliach is like him” when the shaliach hava’ah receives the get it is as if she has received it, except on the condition that she does not wish to be divorced until the getreaches her hand.2
1 The implication is, for example, if she is a bat yisrael married to a kohen, then she can continue to eat terumah till she reaches that place.
2 The Achronim deal with the question on the Ran of how the wife can make such a stipulation given that isha mitgareshset ba’al korcha.
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