Talmud - Gittin 72b גיטין ע״ב ב׳

if Rabbi Yosei says that the date on which a document is written proves when it takes effect even when the husband stated a verbal condition as he handed it over, or if Rabbi Yosei does not say his principle in such a case.

The Gemara asks: But is Rav Huna uncertain with regard to this matter? But didn’t we learn in a mishna (76b): If one says to his wife: This is hereby your bill of divorce if I have not come back here from now until the conclusion of twelve months, and he died within twelve months, then it is not a valid bill of divorce because the bill of divorce does not take effect until the end of twelve months, which is after the husband’s death? As a result, she is bound by a levirate bond if her husband has no children. And it is taught with regard to that mishna: Our Rabbis disagree, and they rendered it permitted for her to marry, because they are of the opinion that there is no levirate bond in this case.

And we say: Who represents the opinion cited as our Rabbis? Rav Yehuda says that Shmuel says: It is the court that permitted the consumption of oil manufactured by gentiles, and they hold in accordance with the opinion of Rabbi Yosei, who says: The date written in a document proves when it takes effect. Evidently, according to Rabbi Yosei this principle applies even when the husband made a verbal condition with regard to the bill of divorce.

Rather, it is necessary to say as follows: Rav Huna is uncertain if the halakha is in accordance with the opinion of Rabbi Yosei when the husband adds a verbal condition when giving the document, or if the halakha is not in accordance with Rabbi Yosei’s opinion in such a case.

The Gemara asks: But is Rav Huna uncertain with regard to this matter? But didn’t Rava say: If one says to his wife: This is hereby your bill of divorce if I die, or: “This is your bill of divorce when I am dead, then this is a valid bill of divorce? If he said to her: When I die, or: After my death, then this is not a valid bill of divorce.

The Gemara clarifies: What are the circumstances? If we say that he said to her: This is your bill of divorce from today if I die, and Rava’s statement is in accordance with opinion of the Rabbis, which is the unattributed opinion of the mishna, is it necessary that this halakha be said by Rava, an amora? But didn’t we learn explicitly in the mishna that if he said: This is your bill of divorce from today if I die, then it is a valid bill of divorce? But rather, is it not speaking about a case where he did not say the term: From today, when he gave the bill of divorce, and Rava’s statement is in accordance with the opinion of Rabbi Yosei? Conclude from it that the halakha is in accordance with the opinion of Rabbi Yosei.

The Gemara answers: It is obvious to Rava that the halakha is in accordance with the opinion of Rabbi Yosei even when the husband added a verbal condition. But according to Rav Huna, it is uncertain whether or not this is the halakha.

And if you wish, say instead: Actually, Rava’s statement is referring to a case where he said to her: This is your bill of divorce from today, and it is in accordance with opinion of the Rabbis. And it was necessary for Rava to state his ruling to teach the halakha of these expressions not stated in the mishna: First, the husband saying: When I am dead, is considered to be like the expression: If I die. Second, the husband saying: When I die, is considered to be like the expression: After my death.

§ And there are those who teach this statement of Rav Huna with regard to the latter clause of the mishna, which states that if the husband said: This is your bill of divorce after my death, then the bill of divorce is invalid and it is as though he said nothing. Rav Huna says: But according to the statement of Rabbi Yosei she must nevertheless perform ḥalitza, as it is uncertain if the bill of divorce takes effect from the day the bill of divorce was given when the date is supplied verbally.

The Gemara questions this version of Rav Huna’s statement: This is obvious. Since it was taught in the latter clause of the mishna, in a case where he explicitly stated: From today, that according to the opinion of the Rabbis she must perform ḥalitza due to the uncertainty as to when the bill of divorce takes effect, in the first clause as well, when he did not add: From today, it is obvious that according to the opinion of Rabbi Yosei she must perform ḥalitza due to the uncertainty. The dispute between Rabbi Yosei and the Rabbis concerns only whether the husband needs to add the term: From today.

The Gemara answers: His statement is necessary, lest you say that with regard to this, Rabbi Yosei holds in accordance with the opinion of Rabbi Yehuda HaNasi, who says: It is a proper bill of divorce, and she is not even required to perform ḥalitza. Therefore, Rav Huna teaches us that Rabbi Yehuda HaNasi does not hold in accordance with the opinion of Rabbi Yosei and Rabbi Yosei does not hold in accordance with the opinion of Rabbi Yehuda HaNasi. Each has a unique, albeit similar, opinion.

The Gemara explains: Rabbi Yehuda HaNasi does not hold in accordance with the opinion of Rabbi Yosei, as it teaches in a baraita: If the husband said: This is your bill of divorce from today and after my death, Rabbi Yehuda HaNasi says: A case like this is a valid bill of divorce and there is no need for the wife to perform ḥalitza. By emphasizing the term: Like this, Rabbi Yehuda HaNasi intends to exclude the opinion of Rabbi Yosei, who is uncertain with regard to the matter. And similarly, Rabbi Yosei did not hold in accordance with the opinion of Rabbi Yehuda HaNasi, as it teaches in a mishna: Rabbi Yosei says: A case like this is a valid bill of divorce, to exclude the opinion of Rabbi Yehuda HaNasi.

The Gemara cites the baraita and mishna that demonstrate the difference of opinion between Rabbi Yehuda HaNasi and Rabbi Yosei. What is the opinion of Rabbi Yehuda HaNasi? As it is taught in a baraita: If a husband says to his wife: This is your bill of divorce from today and after my death, then there is uncertainty whether it is a bill of divorce or whether it is not a bill of divorce, and the wife must perform ḥalitza. This is the statement of the Rabbis. Rabbi Yehuda HaNasi disagrees and says: A case like this is a valid bill of divorce without any uncertainty, and there is no need for the wife to perform ḥalitza.

What is the opinion of Rabbi Yosei? As we learned in a mishna (76b): If one says: Write and give a bill of divorce to my wife if I have not come from now until the conclusion of twelve months, and the court wrote the bill of divorce within twelve months and gave it to the wife after twelve months, it is not a valid bill of divorce. Rabbi Yosei disagrees and says: A case like this is a valid bill of divorce.

§ The mishna teaches: If one says to his wife: This is your bill of divorce from today if I die from this illness, and he recovered, and he arose and walked in the market and became ill again and died, then it must be assessed whether he died from the first illness and it is therefore a valid bill of divorce. But if he did not die from this illness then it is not a valid bill of divorce.

Rav Huna said: With regard to a person on his deathbed, the halakhot of his bill of divorce are the same as the halakhot of his gift. The Sages instituted that when a person on his deathbed gives a gift, no formal act of acquisition is required. Just as with regard to his gift, if he arose and was cured from his illness the gift he granted while on his deathbed is retracted, as he gave it only based on the assumption that he was about to die, so too, with regard to his bill of divorce, if he arose and was cured from his illness, the bill of divorce is retracted and nullified, as he gave his wife her bill of divorce only because he thought he was about to die and he wanted to exempt her from a levirate bond.

Rav Huna continues: And just as in the case of his bill of divorce, where, even though he did not explicitly say his full intention, once he said: Write the bill of divorce, his statement is interpreted to mean that the court should give the bill of divorce to his wife even though he did not say: Give the bill of divorce to my wife, which a healthy man would need to state, so too, this is the halakha with regard to his gift. Once he said: Give the gift, then even though the recipients did not acquire it from him, which finalizes a gift from a healthy person, because he is dying the halakha takes into account his intention without all the necessary legal requirements.

The Gemara challenges: We learned in the mishna: If a man said: This is your bill of divorce from today if I die from this illness, and he recovered, and he arose and walked in the market, but then became ill again and died, the court assesses him. If he died because of the first illness then this is a valid bill of divorce, but if not then it is not a valid bill of divorce. And if you say that if he arose and was cured of his illness the bill of divorce is retracted, then why do I need assessment at all? He arose from his sickbed, so the bill of divorce should automatically be nullified.

Mar, son of Rav Yosef, says in the name of Rava: This is referring to a case where, instead of recovering completely, he proceeded from one illness immediately to another illness, and the assessment is to ascertain whether he died from the first illness or from the second one.

The Gemara challenges: But isn’t it taught in the mishna: He arose from his illness, which indicates that he was completely cured? The Gemara answers: No, it means that he arose from this illness but fell into another illness. The Gemara challenges: But isn’t it also taught in the mishna: He walked in the market? The Gemara answers: This means that he walked with his staff for support, meaning that he was not fully recovered from his illness but was able to walk only with assistance.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Gittin 72b examines Rabbi Yosei's principle on document dating versus verbal conditions attached to a bill of divorce and its effect on levirate marriage obligations.