Mishneh Torah, Divorce 1-3

Sugya Map

• Core Issue: The ontological threshold of Kritut (severance) in Gittin.
• Primary Sources:
  • Deuteronomy 24:1: "And he will write for her a bill of divorce..."
  • Gittin 24b: The requirement of Lishma (intent).
  • Mishneh Torah, Hilchot Gerushin 1:1: The ten fundamental principles of a valid Get.
• Nafka Minot:
  • Does Lishma require the scribe to have specific intent, or is the husband’s intent sufficient?
  • What happens when a Get is written for two women simultaneously (lo l'chaverta)?
  • Is the signature of witnesses a Torah requirement (Edut Kiyyum) or a Rabbinic safeguard (Edut Berur)?

Text Snapshot

Rambam, Hilchot Gerushin 1:1: "A woman may be divorced only by receiving a bill [of divorce]... The Torah establishes ten principles as fundamental... a) A man must voluntarily initiate... b) ...written document... e) That [the get] should be written for the sake [of the woman being divorced]."

• Nuance: The Rambam uses the term Ikkar (fundamental) to delineate Scriptural requirements from the later list of "Rabbinic institutions." The precision of the Hebrew li-shmah—literally "for her name"—implies an active, teleological orientation. If the writing is not "named" for the specific woman, it lacks the legal character of a Sefer Keritut (a document of cutting-off).

Readings

1. Ohr Sameach (Rabbi Meir Simcha of Dvinsk)

The Ohr Sameach focuses on the Kushya of why the Rambam omits the prohibition of lo l'chaverta (writing a Get for one woman while intending it for another) from the primary list of ten. He posits a deep analysis of Lishma: Lishma is not merely an additive requirement; it is a deconstructive one. If a scribe writes a Get that could potentially apply to multiple women (or is written with conflicting intent), the document loses its status as a "severance."

His Chiddush is that Lishma serves as a boundary condition. In Zevachim, we find that a sacrifice offered for the wrong category is invalid. Similarly, the Get is a performative act. If the scribe’s intent is diffused, the Get is legally "empty." The Ohr Sameach links this to the concept of Berirah (retroactive clarification). If the intent is not singular at the moment of creation, it cannot be "cut off" later, because the act of cutting was never fully realized for that specific subject.

2. Sha'ar HaMelekh

The Sha'ar HaMelekh approaches the text from the perspective of the Get as a legal instrument (Shtar). He investigates whether a Get written at night is valid. The friction here is between the Get as a Kinyan (acquisition/transfer) and the Get as a Din (adjudication). If Kritut is a judicial act—a "ruling" that the marriage is dissolved—then it should theoretically be subject to the rules of Dinei Mamonot (which require daytime proceedings).

His Chiddush is to distinguish between Kiddushin (which can often be performed at night) and Gerushin. He suggests that because Gerushin involves the potential for a Get to be treated as a Shtar requiring Kiyyum (ratification), the daytime requirement is an inherent part of its status as a legal document. He reconciles the conflicting opinions by noting that even if the Get is technically valid at night, the Rabbinic preference for day acts as a barrier against Kiddushin that might be misconstrued as Znut (licentiousness).

Friction

The Strongest Kushya: The Paradox of Agency vs. Intent

The Kushya arises from the conflict between the husband’s authority and the scribe’s execution. If the Torah requires he must write (or have written) for her, why is the scribe’s intent critical? If the husband is the principal, the scribe is merely a tool. Yet, the Mishneh Torah disqualifies a Get written by a gentile because the gentile "writes with his own intent." This implies that the scribe’s internal state constitutes the Kritut.

The Terutz

The Terutz lies in the distinction between a "legal tool" and a "legal person." The scribe is not a mere pen; he is the architect of the Shtar. Just as a Sofer writing a Sefer Torah must be a person capable of Kedushat HaShem, the scribe of a Get must be a person capable of Kedushat Yisrael. A gentile or a minor cannot "create" a Jewish legal status because their own legal status is not anchored in the Covenant of Gerushin. Therefore, the scribe's Lishma is not just a mental state; it is an act of Halachic creation. The husband provides the will, but the scribe provides the form.

Intertext

• Tanakh (Deut. 24:1): The verse serves as the constitutional basis. Rambam’s reading of "And he shall write" necessitates a formal process that mirrors the gravity of the covenant of marriage.
• SA (Even HaEzer 123): The Shulchan Aruch codifies the Get as requiring a specific pedigree of scribe. This reinforces the Rambam’s principle that the document is not just a piece of paper, but an extension of the court’s authority.

Psak/Practice

The psak meta-heuristic is clear: Gerushin is a "High-Stakes" legal environment. The Rambam’s inclusion of the Get as a "shard" if witnesses are missing (Hilchot Gerushin 1:15) teaches that while the document is technical, its function is existential. In modern practice, this necessitates the mesader gittin (the rabbi arranging the divorce) to be scrupulously obsessive about the scribal intent—even to the point of asking the scribe to state his intent aloud before each line. The Get is the only legal document in Judaism that requires its creator to define their intent before every stroke of the quill.

Takeaway

The Get is not a contract of mutual agreement, but a unilateral act of severance. Its validity depends not on the content of the words, but on the named intent of the writing—a reminder that in Jewish law, the how and the who are the what.