Explanation: Rabeinu Tam says that this is only if both want to divide the estate. However, if one does want but one does not want to divide, they do not do so.

Opinion: Where both did not come to divide, but rather one did and the other is not present, the Ri says that we do divide the property. In Kidushin (42a), this is quoted regarding the dividing of the portions of Eretz Yisrael, where there were many young children (who had portions).

Implied Question: There is no clear proof from here, as the Gemara there does not clearly compare this to the dividing of Eretz Yisrael. The dividing of Eretz Yisrael was done through Hash-m (i.e. prophecy), and the Urim v'Tumim was involved. This could be why the Gemara says that if they grew up, they cannot protest.

In Yevamos (67b), the Gemara says that the males cause everyone to eat Terumah, even though there is the possibility that the fetus will be a male. (Note: The Gemara there states that when a Kohen dies and leaves a pregnant wife and sons, all of his servants can eat Terumah. This is despite the fact that the unborn fetus could be a son, and this son will own a portion of the slaves who are now eating Terumah, even though they will not belong to the sons who are presently alive.)

This is because we make a decree in accordance with the opinion of Rav Nachman (that the adult cannot protest the division done by Beis Din when he was a child). (Note: This would seem to be proof that if one is not present by the division (the fetus), we still say the division should be done.) This, however, is not a proof.

The Gemara there is different. Even though only one son came to split the estate, we help him with a settlement because the child is also helped. His portion becomes valuable this way, as their servants can eat Terumah in order that they should not die of starvation.

Opinion: Rabeinu Tam and Rabeinu Chananel say that they first designate a Beis Din for the evaluation of the estate. They give them caretakers so that each can guard his portion individually, as until now it was guarded collectively. The portions are divided based on a lottery, as it is not bothersome to cast lots.

Even regarding a lottery, it is possible to ensure that the portions should be good. For example, if there are three fields, it is better that each should take one field and have all of his portion in one area, than have each field split up in three sections. There are similar choices to be made regarding windows, ladders, and pathways. They only split things where there is no need that one should take the portion or the other will buyout his portion (i.e. a unique asset).

Proof: Rabeinu Tam deduced that if one were to say that they even split unique assets that only one of them may have, why does the Gemara in Kidushin (42b) say that they could protest regarding the locations of the land they were allocated (from the estate when they were children)? It should have said that they can protest against the deals made on their behalf regarding the unique assests of the estate!

The reason that it does not say that they can protest the fact that the sale is valid if the estimate was off by less than a sixth, is because it simply is illogical to say this. It is logical that we should strengthen Beis Din's estimate to be as if they did not make a mistake. Even though we say they can protest the area of their land, we do not have to insist that the Beis Din's original ruling stand, as it is not dependent on estimation of value. Certainly, if we will say that the sale is valid and the Ona'ah (the Maharsha says that Tosfos means the less than one-sixth overcharge/undercharge) is returned, this is understandable.

Question: However, it is possible to push aside this proof by saying that the Gemara only gave one possible answer.

Implied Question: The Gemara in Yevamos (67b) implies that we find a solution in order that all of the servants should be able to eat Terumah, and thereby give the sons all of the servants, and one portion is given to the fetus. However, there is no proof from here that we even divide unique assets like servants. (Note: Why isn't this proof?)

Answer#1: This case is different, as the portion of the fetus is more valuable if we make this division, because the servants are then allowed to eat Terumah. The fetus has a better portion because of this division. (Note: It therefore may be that we only make such divisions when it clearly benefits the minor (or fetus) to do so.)

Answer#2: Additionally, we are not trying to fix all of the servants, but rather the portion of the sons who were born (as they also gain when their servants are able to eat Terumah).

Answer#3: Additionally, when there are fields that we can give the fetus instead of slaves, Beis Din has the power to do so, as stated clearly in Gitin (52a). (Note: The Maharshal implies that the only problem is when one side pays money for the unique assets, not when there is a trade-off of other assets.)

Question: If a partner comes to divide his partnership without the knowledge of his friend, the Ri doubts whether he can divide the land they own, as people like to have land is certain directions (areas).

Implied Question: One should not deduce otherwise from the Gemara in Bava Basra (106b). The Gemara there asks, "But now, if there are three brothers, and two of them divide their assets into three parts (without the knowledge of the third brother), the division should be null!" This implies that the division is presumed valid (as the Gemara is asking that it should be null, meaning the assumption is it is valid), even though we are discussing land.

Answer: It is possible to say that the case is when he goes back and splits with him, and he receives in the lottery the exact portion that he received previously when the two brothers split the estate without him. In such a case their splitting is upheld. However, he must go back and hold a lottery with both of them, as if they were coming to split the estate originally.

Question: If so, how was the Gemara able to deduce earlier from the fact that Rebbi retracted and did like Rabban Gamliel in Kesuvos (100a), that he also retracted from his position that if the Get was nullified, it was indeed nullified? We can differentiate between the two cases, as one is regarding prohibitions and one is regarding money matters!

Answer#1: Rav Nachman, who says that the law follows Rebbi in both cases, is the one who differentiates between matters regarding prohibitions and monetary matters. Even though Rebbi himself does not differentiate between the two when a mistake was made regarding a monetary estimate, Rav Nachman does differentiate according to Rebbi even regarding money matters where Beis Din made a mistake. (Note: See Maharam Shif who has a different text and therefore a different explanation in Tosfos.)

This is evident from the fact that Rebbi retracted his position in Kesuvos (100a), and Rav Nachman rules like him. However, in the previous cases he does not differentiate.

When the Gemara asks a contradiction in Rav Nachman, it could have also asked that Rebbi himself retracted his opinion, as is apparent in Kesuvos (ibid.).

The Gemara preferred to ask a contradiction in Rav Nachman's own position.

Answer#2: The Gemara here is differentiating between cases of prohibition and money matters where no mistake was made. However, the Gemara previously differentiated between a case of money where Beis Din made a mistake, and a case of prohibition.

In Kidushin (42a) and Kesuvos (100a) the Gemara asks a question on Rav Nachman who rules there that the law is like the Chachamim, from the case of orphans who come to divide the property in which Rav Nachman rules that the division stays valid as otherwise Beis Din does not have any strength. The Gemara there answers, in one case they made a mistake and in one case they did not make a mistake. Rebbi, when he retracted his opinion in Kesuvos, he also retracted the ruling that if he nullified the Get it is nullified. Rav Nachman ruled like Rebbi that if it is nullified it is indeed nullified because he rules in the case in Kesuvos like the Chachamim.

Explanation: This is according to Abaye's logic. However, Rava said earlier, "Does he want to nullify a Get? He wants to uphold his condition!" He is therefore not arguing here.

Opinion: In the "Forms of Gitin" written by the Halachos Gedolos, it says that the Get must say, "And any name or nickname that I have, and those of my place." They would write this phrase in a Get.

Question: Rabeinu Tam says that this does not appear to be correct. This can sometimes cause problems. When the person for whom the Get is written only has one name that is written in the Get and does not have any nicknames, if his Get contains the phrase "and any name or nickname," it makes it seem like this must be someone else's Get who does have another name or nickname.

Opinion#2: It therefore seems to Rabeinu Tam that when the Mishnah says, "And any name that he has" it means that all of his names are spelled out in the Get. Rabeinu Tam instituted that it should be written in the Get, "I, Ploni, who am called such and such." This is as the Gemara states, "Sarah, who is called Miriam," and "Acha bar Hedya who is called Ayah Mari."

Proof: The Gemara's statement that "his name that is in Yehudah and with it the name used in the Galil" implies somewhat that Rabeinu Tam's explanation is correct.

Question: Rabeinu Tam was asked regarding a Mumar for Avodah Zarah (someone who was known to purposely worship idols) who divorced his wife, and the Get only contained his Jewish name, not his idolatrous name. (Note: Is the Get kosher even though this secondary name was left out?)

Answer: Rabeinu Tam answered that an idolatrous name should never be mentioned within the context of the Torah of Moshe and Yisrael.

Proof: He brought a proof to this from the Tosefta (ch. 6) that says that a convert who changed his name to an idolatrous name, and used it to divorce, the Get is kosher. Similarly, a Mumar can use his Jewish name and the Get is kosher Lechatchilah.

The Gemara later states that if he wrote his and her nickname, the Get is kosher. The Aruch explains that this is even if his real name was not written. This is also explained in the Mishnah later (87b), that the pure-minded people in Yerushalayim would do so, meaning that they would write his and her nicknames.

Implied Question: The Beraisa later states that she is not divorced unless he writes his name which he is known by in Yehudah and in Galil. (Note: This implies that both names are necessary or the Get is unkosher, unlike our previous position that only one name is necessary!)

Answer: This is specifically if he is known by two different names in two different places. He is known by one name where the Get is being written and by another name where the Get is being written.

Proof: The Beraisa doesn't say that he had two names in Yehudah or two names in general, and that he must list both names. Rather, if he has two names, one in Yehudah and one in the Galil, he must write both names as he is known in each place. This is because the people in Galil do not recognize the name that he is known by in Yehudah, and they will say (if the name in the Get is the name he is known by in Yehudah) that he did not divorce his wife. They will proceed to spread rumors about his ex-wife's children from her second husband (that they are Mamzerim). However, if he simply is known to have two different names in one place, the Get is kosher b'Dieved even if only one name is written, and even if it is a nickname.

However, Lechatchilah both have to be written, even if the writing and giving of the Get are done in one place. This is as the Gemara states later that if most call her Miriam and some call her Sarah, they write "Miriam and any other nickname that she has." This implies that in one place she is called both names (and even so both must be mentioned).

This is also implied by the Yerushalmi regarding our Beraisa (discussing Yehudah and Galil). Our Mishnah is discussing when he was in Yehudah and he wrote a Get to divorce his wife who was in the Galil, or visa versa. However, if he was in Yehudah and he wrote a Get to divorce his wife who was in Yehudah etc. she is divorced (even if only one name is written). Rebbi Yosi says, this is only b'Dieved. However, Lechatchilah both names must be written.

Opinion#1: The Gemara there makes the place where the Get is given into the main place, and the place where it is written as the secondary place (regarding which name to write in the Get). This is as the Mishnah states, "Until he divorces his wife who lives in Galil with his name in Galil and his name in Yehudah with it etc."

Opinion#2: However, the Tosefta establishes that the place where the Get is written is the main place. It says that if one has two wives, one in Galil and one in Yehudah, if he divorces the one in Yehudah using his name in Galil or visa versa, the Get is invalid. If he said, "I Ploni in Yehudah with my name that I have in Galil" or if he wrote the Get somewhere else and he wrote one of his names, the Get is kosher. Rabban Shimon ben Gamliel says that even if he wrote the name he is known by in Yehudah in Galil, and the name of Galil in Yehudah, it is kosher.

The Tosefta there also implies that it is discussing a person who divorced in Galil his wife who was living in Yehudah. Now, when our Mishnah states that originally they would "change" his name and her name, it means that there would be a change in that only one name would be written out of the two places (where he had two different names). This is considered a "change" because they do not recognize this name in a different place. We can similarly explain the name of his and her city.

Implied Question: The Mishnah says later (87b) that if he writes his and her nickname that the Get is valid. The Mishnah continues that this is what the clear minded people in Yerushalayim would do. This implies that there is no need to write both names, even Lechatchilah. This is despite the fact that our Gemara does not imply this when discussing the name Miriam later, and the Yerushalmi explicitly says that this is only kosher b'Dieved. (Note: How can we reconcile the Mishnah later with these sources?)

Answer#1: The name of the clear minded people of Yerushalayim (its elite) were well known, and that is why there was no rumors spread about such Gitin.

Answer#2: Alternatively, when the names are similar, meaning that the nickname is similar to the real name, it is even Lechatchilah to write the nickname.

Question: This seems difficult, as the Kesuvah was not given in order that it should be collected while he was alive. Reish Lakish says in Bava Basra (5a) that there is a Chazakah that a person does not pay within the time allotted for him to pay back the loan. The Gemara there rules like Reish Lakish. Being that this is the case, she should even be able to collect from orphans without having to take an oath (as there is no reason for us to suspect that he paid her Kesuvah while he was alive)!

Answer: This (Reish Lakish's law) refers to a creditor. However, a widow who receives her Kesuvah due to a condition of Beis Din, might indeed seize monies from the estate even during the time that is allotted for her husband to pay. This is as we find in Kesuvos (102b), that we suspect that his daughters might have seized funds more than we suspect this regarding the daughters of his wife. The reason is that being that there is a condition of Beis Din that they should be supported, they are more likely to seize money from the estate.

Question: The Gemara asks, why mention specifically a widow etc.? (Note: This should not be difficult according to what we stated above.) The Gemara should answer that it discusses a widow because there is a suspicion that she would take money before the Kesuvah must be paid!

Answer: It should instead have told us about a case where there is no condition of Beis Din. For example, it should have preferably discussed a creditor who is after the due date of the loan than a widow who is (suspected of seizing money) before the Kesuvah is due, being that she has a condition of Beis Din.

Explanation: If it specifically says a case of a widow because it wants to discuss in the second part of the Mishnah what happens when they do not make her take an oath. (Note: Even so, the Gemara still remains with a question.) It should have said that one cannot collect from orphans without an oath, and they refrained from making a widow take an oath. The Gemara answers, the case of a widow is necessary. There is a more novel teaching in this case than in a case of a regular creditor (as explained in the Gemara). This is why it discusses the case of a widow in the first sentence of the Mishnah as well (as in the second part which it clearly had to discuss).

Question: It seems that the Mishnah in Kesuvos (87a) already discussed a widow as well, as it says there that if someone collects from orphans he may only do so if he takes an oath!

Answer#1: It is possible that is only discussing a divorcee. Even though the Gemara in Kesuvos (97b) says that a divorcee also requires "Chen" -- "favor," we cannot deduce from here that a widow is also being discussed. While a divorcee also needs to find favor in the eyes of men (in order that they should marry her), she is currently after the due date of her Kesuvah (as it was owed to her when she was divorced, and only afterwards her husband died). However, a widow was within the time that the Kesvah did not have to be paid yet (before her husband died) and she also requires favor in the eyes of men. (Note: We would therefore think that Chazal did not make her take an oath when collecting from orphans, unlike a divorcee. This is why it is not clear that the Mishnah in Kesuvos (87b) is discussing a widow.)

Answer#2: Additionally, it is the way of the Tana to teach us a law when he does not have to add words, even though he already taught us this law in another place. We find that this is so in the Gemara in Berachos (3a) and other places.