Presumption Of Life?
‘The Husband Was Elderly or Ailing…’
(Gittin 28a)
Our mishna rules that an agent acting on behalf of an elderly or ailing person to deliver a get to his wife may do so and the get is valid. Even though the sender was elderly or ill when the agent set out on his mission, there is a legal presumption that the sender is still alive – b’chezkas chayyim – when the get finally reaches the wife, and therefore it takes effect.
Rava limits the mishna’s ruling somewhat. In the event the sender was either over 80 years of age or on his deathbed (gossess), the get is ineffective as we cannot be certain that the husband was still alive when the get reached the wife.
The Husband’s Intention
The Beth Shemuel (Even HaEzer, end of 141:s.k.106 and Rema, as cited by Shittot HaKadmonim and Chiddushei Rema ad loc.) explains that this halacha is relevant if the husband is childless and his death, if not preceded by a divorce, renders his wife subject to yibbum (levirate marriage) or chalitza. Our mishna teaches that if such a get is delivered, it frees her from yibbum/chalitza, which was obviously the husband’s intention.
If, however, the husband was on his deathbed when he sent the get, his wife may not remarry on the basis of that get (according to Rava’s opinion) unless we can ascertain that the husband was still alive when the messenger/agent delivered the get. Before remarrying, she would have to obtain a release from the [possible] yibbum bond by performing chalitza with one of her husband’s brothers.
Get And Chalitza
The Maharit (Responsa, Vol. I siman 103-104, cited by Pis’chei Teshuva, Even HaEzer 141:s.k. 72) explains that even in the latter situation, where there is no legal presumption that the husband is alive (be’chezkas chai) – such as the case of one who is on his deathbed (gossess) – we do not withhold the get and compel the woman to remain an agunah. Rather, the agent delivers the get and the woman is instructed to perform chalitza before remarrying (to cover the possibility that her husband died prior to the delivery of the get, rendering her subject to yibbum/chalitza).
Is The Get Delivered?
Rabbi Shlomo HaKohen (Responsa Maharshach I:39), as cited by Beth Shemuel and Maharit, above), based on Rambam (Hilchos Gerushin 6:29), disagrees and maintains that in such a case (i.e., where there is no legal presumption that the sender/husband is still alive) the agent is instructed not to deliver the get. The concern, Rabbi HaKohen explains, is that if the woman accepts such a get, she will (and so will others) view it as valid and assume she is definitely a divorcee. She might then remarry without performing the required chalitza. Therefore, we are to withhold the get until the husband’s status can be ascertained.
