Missing Physical Masorah → Dispute

Monday’s maggid shiur at Rinat, R’ Yechiel, sent a video illustration over WhatsApp of a get mekushar as opposed to get pashut, so that we could see how the folds and signatures worked. See it on YouTube:

And that helped somewhat, but there was still a lot of confusion and arguing about how to understand different points in the sugya. Where the folds are, what side various bits of text are written, where the witnesses are signing, and so on.

I think it makes sense that there was a kind of closed legal contract in Biblical times. The gemara has Amoraim pointing to the basis of these documents, beginning with this.

גְּמָ׳ מְנָהָנֵי מִילֵּי? אָמַר רַבִּי חֲנִינָא, דְּאָמַר קְרָא: ״שָׂדוֹת בַּכֶּסֶף יִקְנוּ, וְכָתוֹב בַּסֵּפֶר וְחָתוֹם, וְהָעֵד עֵדִים״. ״שָׂדוֹת בַּכֶּסֶף יִקְנוּ וְכָתוֹב בַּסֵּפֶר״ –

GEMARA: The Gemara asks: From where are these matters derived? What biblical basis is there for the existence of these two types of documents? Rabbi Ḥanina says: As the verse states: “They shall buy fields for money, and subscribe the deeds, and seal them, and call witnesses” (Jeremiah 32:44). When the verse states: “They shall buy fields for money, and subscribe the deeds,”

זֶה פָּשׁוּט. ״וְחָתוֹם״ – זֶה מְקוּשָּׁר. ״וְהָעֵד״ – שְׁנַיִם, ״עֵדִים״ – שְׁלֹשָׁה. הָא כֵּיצַד? שְׁנַיִם לְפָשׁוּט, שְׁלֹשָׁה לִמְקוּשָּׁר.

this is referring to an ordinary document. When the verse states: “And seal them,” this is referring to a tied document. The next phrase, “and call witnesses [veha’ed edim],” which more literally would be translated: And have witnesses bear witness, is interpreted as follows: “And have bear witness [veha’ed],” this indicates the need for two witnesses, as the term “witness [ed]” in the Torah generally refers to two witnesses. As to the word “witnesses [edim],” this additional term indicates the need for three witnesses. How so? How can the verse call for both two witnesses and three witnesses? Rabbi Ḥanina explains: Two witnesses are required for an ordinary document, and three are required for a tied document.

Now, maybe you could interpret וְחָתוֹם as signing rather than sealing. But other verses about the chatom and galuy, also in Yirmeyah 32, ״וָאֶקַּח אֶת סֵפֶר הַמִּקְנָה, אֶת הֶחָתוּם הַמִּצְוָה וְהַחֻקִּים, וְאֶת הַגָּלוּי״; make me think that on a peshat level, yes, there was such a document in existence as described Biblically.

I don’t care that the gemara challenges these derivations, because these verses are required for other purposes, and concludes that it is merely rabbinic, with the verses as mere Scriptural allusions:

אֶלָּא מְקוּשָּׁר מִדְּרַבָּנַן, וּקְרָאֵי אַסְמַכְתָּא בְּעָלְמָא.

The Gemara explains: Rather, the entire institution of the tied document is rabbinic in origin, and all these verses that were cited above by various amora’im were intended as mere support for the concept of a tied document, as opposed to actual sources.

It doesn’t bother me, because (a) it may be talking about deriving specific halachic aspects of carrying out the get mekushar, in terms of the number of witnesses or where they sign, rather than the institution of get mekushar in general, and (b) while the Talmudic Narrator often does this contention about laws competing for verses, that doesn’t mean that the named Amoraim would agree. Indeed, I’ve written about how some Amoraim feel you can derive multiple laws from a single verse.

Now this is interesting. Why did they make this rabbinic ordinance? The gemara continues:

וְטַעְמָא מַאי תַּקִּינוּ רַבָּנַן מְקוּשָּׁר? אַתְרָא דְכָהֲנֵי הֲווֹ, וַהֲווֹ קָפְדִי טוּבָא וּמְגָרְשִׁי נָשַׁיְיהוּ; וְעָבְדִי רַבָּנַן תַּקַּנְתָּא, אַדְּהָכִי וְהָכִי מִיַּתְּבָא דַּעְתַּיְיהוּ.

The Gemara asks: And what is the reason that the Sages instituted the tied document? The Gemara explains: There was a place where there were many priests, and they were very quick tempered, and they would seek to divorce their wives impetuously. The halakha is that a priest may not marry a divorcée, even his own ex-wife. These priests, who acted impetuously, often regretted having divorced their wives. And therefore, the Sages instituted an ordinance that the bill of divorce for these people should be of the tied format, which is a long, drawn-out process, hoping that meanwhile, their composure would be regained and they would reconsider their decision to divorce.

Should we really say “there was a place”? Or should we rather be saying that “this was a place”? I haven’t seen meforshim who say this, but I think it is true nonetheless. That is, the verses in Yirmeyah 32 involve Yirmeyah buying land from his cousin Chanamel, where the land is in Anatot: וַיָּבֹ֣א אֵ֠לַ֠י חֲנַמְאֵ֨ל בֶּן־דֹּדִ֜י כִּדְבַ֣ר יְהֹוָה֮ אֶל־חֲצַ֣ר הַמַּטָּרָה֒ וַיֹּ֣אמֶר אֵלַ֡י קְנֵ֣ה נָ֠א אֶת־שָׂדִ֨י אֲשֶׁר־בַּעֲנָת֜וֹת אֲשֶׁ֣ר ׀ בְּאֶ֣רֶץ בִּנְיָמִ֗ין כִּֽי־לְךָ֞ מִשְׁפַּ֧ט הַיְרֻשָּׁ֛ה וּלְךָ֥ הַגְּאֻלָּ֖ה קְנֵה־לָ֑ךְ וָאֵדַ֕ע כִּ֥י דְבַר־יְהֹוָ֖ה הֽוּא׃

Except that this is not a shtar mekushar

And, I will remind you of the first verse in Yirmeyah 1:1:

דִּבְרֵ֥י יִרְמְיָ֖הוּ בֶּן־חִלְקִיָּ֑הוּ מִן־הַכֹּֽהֲנִים֙ אֲשֶׁ֣ר בַּעֲנָת֔וֹת בְּאֶ֖רֶץ בִּנְיָמִֽן׃

The words of Jeremiah son of Hilkiah, one of the priests at Anathoth in the territory of Benjamin.

So, Yirmeyah and Chanamel were kohanim, and the place, Anatot, was a town of kohanim. The gemara is saying that none of this is Torah law, but the practice described in sefer Yirmeyah was a rabbinic ordinance. That verses describe it doesn’t make it into law per se. Or, specifically about what Rami bar Yechezkel did to adduce support from the actual Torah, sefer Devarim, rather than Nach, was not meant to be actual derivation of Biblical Pentateuchal law.

Now, Tosafot wonder about requiring a get mekushar in their own days. They write:

תקנו רבנן מקושר כו'. מספקא לן בזמן הזה כשכהן מגרש אשתו אם צריך לעשות מקושר כי מתוך התקנה משמע שאין לגרש כי אם במקושר אך לפי שאין אנו בקיאין בו בטוב נכון יותר לעשותו פשוט שהוא קל יותר אי נמי לא תקינו רבנן כי אם באותו מקום ור"י היה אומר דתקינו רבנן מקושר לא שיהא חובה לעשותו כן אלא כדי שלא יפסידו נשותיהן התקינו לעשותו כן:

They have a doubt whether nowadays (when Tosafot wrote), when a kohen divorces his wife, if he needs to make it a get mekushar. For, from the takana, it implies that he {a kohen} should not divorce except by a mekushar. However, since we are not extreme experts in it, it is more correct to make it a get pashut, which is far easier to make. Alternatively, the Sages only instituted that decree in that place. And the R”i would say that when the Sages instituted a get mekushar, it was not that it is obligatory to do this, but rather so that their {kohanic} wives would not lose out they instituted to do this.

Anyway, according my theory that this was instituted specifically for Anatot, for documents drafted there, that was a place where they were densely kohanim there. And from then on, a get mekushar for divorce and other matters was just a specific form of document, but not that it was specifically required in any case. Once something is a get mekushar, there were specific ways of doing it.

That Tosafot did not endorse the continued practice of get mekushar means that we lack a physical masorah, practical documents we would find issues from current courts, or even medieval courts, that are mekushar. Unless we can find from other communities, or from Talmudic or Geonic times. Which leads to the confusion in Daf Yomi chaburas worldwide.

But, I think that the get mekushar falling out of favor and practice happened a lot earlier than Tosafot’s days. Consider the Mishnah describing it:

גֵּט פָּשׁוּט – עֵדָיו מִתּוֹכוֹ. מְקוּשָּׁר – עֵדָיו מֵאֲחוֹרָיו.

MISHNA: In an ordinary document, its witnesses are to sign inside it, i.e., on the written side of the paper. In a folded and tied document, its witnesses are to sign on the back of it.

פָּשׁוּט – שֶׁכָּתְבוּ עֵדָיו מֵאֲחוֹרָיו, מְקוּשָּׁר – שֶׁכָּתְבוּ עֵדָיו מִתּוֹכוֹ, שְׁנֵיהֶם פְּסוּלִין. רַבִּי חֲנִינָא בֶּן גַּמְלִיאֵל אוֹמֵר: מְקוּשָּׁר שֶׁכָּתְבוּ עֵדָיו מִתּוֹכוֹ – כָּשֵׁר, מִפְּנֵי שֶׁיָּכוֹל לַעֲשׂוֹתוֹ פָּשׁוּט. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: הַכֹּל כְּמִנְהַג הַמְּדִינָה.

With regard to an ordinary document whose witnesses wrote their signatures on the back of it, and a tied document whose witnesses wrote their signatures inside of it, both of these are not valid. Rabbi Ḥanina ben Gamliel says: A tied document whose witnesses wrote their signatures inside of it is valid, because one can transform it into an ordinary document by untying it. Rabban Shimon ben Gamliel says: Everything is in accordance with regional custom.

The Mishnah continues with details like the number of witnesses signed. So Rabbi Chanina ben Gamliel describes aspects of the get mekashar’s construction, and Rabban Shimon ben Gamliel says that it is a matter of divergent regional custom, so it is not actually standardized. These are two of Rabban Gamliel of Yavneh’s sons. Maybe they were familiar with it, or maybe not.

The son of Rabban Shimon ben Gamliel, mentioned above, was Rabbi (Yehuda HaNasi). A brayta relates the following about Rabbi and his own son, while asking a question on the position of Rav Huna.

אֲמַר לֵיהּ רָמֵי בַּר חָמָא לְרַב חִסְדָּא: לְרַב הוּנָא דְּאָמַר בֵּין קֶשֶׁר לְקֶשֶׁר – קָא סָלְקָא דַּעְתִּין בֵּין קֶשֶׁר לְקֶשֶׁר מִגַּוַּאי – וְהָא הָהוּא מְקוּשָּׁר דַּאֲתָא לְקַמֵּיהּ דְּרַבִּי, וְאָמַר רַבִּי: אֵין זְמַן בָּזֶה! אֲמַר לֵיהּ רַבִּי שִׁמְעוֹן בְּרַבִּי לְרַבִּי: שֶׁמָּא בֵּין קְשָׁרָיו מוּבְלָע? פַּלְיֵיהּ, וְחַזְיֵיהּ. וְאִם אִיתָא, ״אֵין זְמַן בָּזֶה וְאֵין עֵדִים בָּזֶה״ מִיבַּעְיָא לֵיהּ!

Rami bar Ḥama said to Rav Ḥisda: According to Rav Huna, who says that the witnesses sign between each tied fold, it enters our mind that he meant between each tied fold on the inside of the document. But this is difficult, as there was a certain tied document that came before Rabbi Yehuda HaNasi, and Rabbi Yehuda HaNasi, not realizing it was tied, said: There is no date on this document, so it is not valid. Then, Rabbi Shimon, son of Rabbi Yehuda HaNasi, said to Rabbi Yehuda HaNasi: Perhaps the date is hidden between the tied folds. Rabbi Yehuda HaNasi opened it and saw that the date was in fact between the tied folds. And if it is so that the witnesses sign between each tied fold on the inside of the document, Rabbi Yehuda HaNasi should have had two objections, and said: There is no date on this document, and there are also no witnesses signed on this document.

As R’ Elchanan asked at Daf Yomi — how could Rabbi not be familiar with details of the get mekushar — didn’t he write the Mishnah? So maybe Rabbi Meir wrote this, and he redacted it.

But I would say that this is a sixth-generation Tanna, and a transitional Tanna / Amora puzzling over a get mekushar that happened to have come into their beit din. Maybe it was just by accident that the date had been obscured. But I think it is more than that, that a get mekushar was a rare occurrence, so he might be confused by one aspect or the other. (I’m not sure about the strength of the question that Rabbi also being expected to have said that “there are no witnesses signed”, since even if it were in a way that witnesses names were obscured, that could have been what is expected of a get mekushar.)

People in the sugya. Rav Huna and Rav Yirmeyah bar Abba were both second-generation students of Rav, but Rav Huna associated with Sura and Rav Yirmeyah bar Abba associated with Pumbedita. Rav Chisda is second but also third-generation, a student and colleague of Rav Huna. Rami bar Chama is Rav Chisda’s fourth-generation student. All of these associated with Sura academy. So reading the sugya, in Sura, they are trying to understand and defend Rav Huna’s position in light of a conflicting brayta.

Part of the question and answer has to do with the physical traits of the document. Thus,

אֲמַר לֵיהּ: מִי סָבְרַתְּ בֵּין קֶשֶׁר לְקֶשֶׁר – מִגַּוַּאי? לָא, בֵּין קֶשֶׁר לְקֶשֶׁר – מֵאַבָּרַאי.

Rav Ḥisda said to him: Do you maintain that Rav Huna meant that the witnesses sign between the tied folds on the inside? No, he meant between the tied folds on the outside of the document.

I expect that all of this is due to less and less knowledge about the practical implementation of a get mekushar, and by the fourth generation of Amoraim, they already didn’t often practice it.

Sometimes disputes can arise because of systems of law, differing philosophical conceptions of what the law should be, what verses are saying, and how to then apply the law to a new circumstance. Here, it may just be that they stopped practicing get mekushar, so even if there were actual requirements and it didn’t vary regionally (like Rabban Shimon ben Gamliel), those were forgotten.