Cancelling or Stopping Shlichut

Gittin (4:1) | Yisrael Bankier | 9 years ago

The fourth perek begins by teaching that a husband has the ability to be stop a shaliach(messenger) that he sent to take a get to his wife, provided the he (or another shaliach) reaches the shaliach or wife, before the shaliach reaches the wife.

While the capacity to cancel shlichut is not new, the Gemara (32a) addresses the novelty of this Mishnah. It learns from the language of the Mishnah that even if the husband did not pursue the original shaliach and they just happen to cross paths, the husband is still able to cancel the shlichut. The Gemara explains that one might have thought that in such a case the husband is not sincere in his retraction and is only doing so to make it difficult for his wife for the time being. Had he been serious, surely he would have chased after the shaliach. Never the less, the withdrawal is effective and the shlichutannulled. This is Rashi’s understanding of the Gemara.

The Rashba however find Rashi’s explanation difficult. He maintains that there should be no difference between whether the husband annuls the get or simply wants the shaliach to hold off temporarily. In either case the shaliach would not be able to hand over the get unless the husband changed his mind again.1

Instead the Rashba explains that one might have thought that if the husband only cancelled the shlichut having happened to cross paths with the shaliach, that he was not sincere – “his mouth and heart are not equal”. In other words he is not interested in annulling the getat all and is only saying so to cause his wife the stress in its delay. Since this might be possible, one might have thought that in such a case, if that get was then delivered, there would be a safek whether the wife is divorced. Consequently the novelty of the Mishnah is that this is not a concern and that withdrawal even in those circumstance is effective.

An important debate comes out this difference in understanding the Gemara: can a shaliach deliver a get if the husband objects but does not annul the shlichut? According to Rashi it appears he can, where as the Rashba is clear that he cannot.

To understand the position of Rashi we refer to the principle that “the shaliach of the person is like him”. In other words the shaliach take the place of the sender entirely and operates independently. The Netivot HaMishpat (433:6) writes, “…[the shaliach] becomes like the husband mamash to divorce his wife as if he is his wife.” The netivot uses this to explain the following. One is able to nominate a shaliach to write and then deliver a get. The Tosfot(Nazir12a) explains that one cannot nominate a person as a shaliachto carry out a task that is not yet “in this world”. Delivering a get that has not yet been written would ostensibly be classified as such. However since in this case, the shaliach effectively becomes the husband, “his” wife exists.

In contrast to this understanding, the Avnei Miluim (35:9) presents a very different understanding of a shaliach that brings a get. The R’R’ Yosef and Ran understand that an eved cannot act as a shaliach to receive the geton behalf of the wife, but can act as a shaliach to deliver the get to the wife on behalf of husband. The Avnei Miluim explains the get is complete and the wording contained therein is what affects the divorce. The eved is simply behaving as a shaliach for the action of handing over the get. This is necessary because if the husband instructed his wife to collect the get from the ground, it would be invalid. Nevertheless this shaliach is not acting as a shaliach to affect the divorce. From this perspective, since he is not engaging the divorce, but rather satisfying the action for the husband, it is limited by the will of the husband.

1 The Rashba notes that according to Rav Sheshet who holds that if the shlichut is annulled the get cannot be used again, there would be a difference. However since we rule like Rav Nachman that maintains that the getis still valid, then there would be no practical difference.


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