Gittin - Daf 28
- Giving a get with the assumption that the elderly husband is still alive
The next Mishnah states: המביא גט והניחו זקן או חולה – If one brings a get, and left [the husband] old or ill, נותן לה בחזקת שהוא קיים – he may give it to [the wife] with the assumption he is still alive. Similarly, a non-Kohenes whose husband, a Kohen, went abroad, may continue to eat terumah and assume he is alive. Finally, a korbon chatas sent from abroad may be offered, and we assume the owner is alive. Rava says this does not apply to someone who reached the advanced age of eighty or is deathly ill. Abaye challenged him from a Baraisa which teaches that a get may be given even if the husband is a hundred years old. The Gemara first says this refutes Rava. Alternatively, it answers: כיון דאיפליג איפליג – since he has shown himself to be different from others in having reached such an old age, he has shown himself different, and it can continue to be assumed he is alive.
- Contradiction with case of giving a get effective one hour before husband’s death and terumah forbidden
Abaye asked that our Mishnah’s ruling is contradicted from a Baraisa which states: הרי זה גיטך שעה אחת קודם למיתתו – If a Kohen said to his wife, “Here is your get to take effect one hour before I die,” אסורה לאכול בתרומה מיד – she is immediately prohibited from eating terumah on her husband’s account, because we suspect this hour may be his last. This contradicts our Mishnah, which taught we can continue to assume the husband is alive both regarding gittin and eating terumah!? Abaye answers that the views in the Baraisa and our Mishna reflect a machlokes Tannaim if we are concerned about the possibility of death. This is the machlokes quoted earlier (Daf 25) if one may drink tevel wine by declaring terumah and maaser on what he will later separate. Our Mishna, which isn’t concerned about the possibility of death, follows Rebbe Meir who says he can, and the Baraisa follows Rebbe Yehudah and others who say he cannot, because the container may later split before it is separated. Similarly, they would be concerned the husband may die at any moment. Rava answers:שמא מת לא חיישינן – We are not concerned [the husband] has already died, and therefore his wife may eat terumah in our Mishnah. However, שמא ימות חיישינן – we are concerned that he may die shortly. The possibility that he may die soon is not contradicted by the chazakah that he is currently alive, so a get takes effect before he dies and forbids her in terumah immediately.
- Circumstances of an increased concern of death – ex. Someone sentenced to execution
In the next Mishnah, Rebbe Elazar ben Parta said three rulings: על עיר שהקיפה כרקום – Regarding a city surrounded by an army, ועל הספינה המוטרפת בים – and regarding a ship being cast about at sea, ועל היוצא לידון – and regarding one going out to be tried for execution, שהן בחזקת קיימין – they are presumed to be alive. However, if the city has been conquered, the ship was lost, or one was sentenced to death and goes out to execution, נותנין עליהן חומרי חיים וחומרי מתים: - we apply to them the stringencies of being alive and the stringencies of being dead. He may have died, so a non-Kohenes married to a Kohen can no longer eat terumah. He also may be alive, so a Kohenes married to a non-Kohen cannot resume eating terumah. Rav Yosef qualifies the second ruling of the Mishnah: Only regarding a Jewish court, which seeks acquittal even after sentencing, do we suspect he was never executed. But regarding a non-Jewish court, we can assume he was killed. Although they accept bribes, they do not after the verdict is signed. In another version, Rav Yosef said our Mishnah only applies to a non-Jewish court, because they do accept bribes. Regarding a Jewish court, however, we can assume that he was killed (because acquittal is remote).
