QUESTIONS: The Gemara cites a Beraisa which teaches that when a man divorces his wife and then is found living together with her, "we are afraid that Z'nus occurred, and we are not afraid that Kidushin occurred."

RASHI asks what problem would be created through Z'nus for which the Beraisa must say that "we are afraid that Z'nus occurred"? With regard to marrying a Kohen, her act of Z'nus will not prohibit her to a Kohen because she is already prohibited to marry a Kohen because of her status as a Gerushah, a divorcee. With regard to eating Terumah if she is the daughter of a Kohen, Z'nus will not prohibit her from eating Terumah because the daughter of a Kohen becomes prohibited from eating Terumah only if she had forbidden relations (such as with a Mamzer), but here she had relations with a single man who was not prohibited to her.

Rashi answers that when the Beraisa says that we suspect Z'nus, it does not mean that a problem was created because of the Z'nus. Rather, it means that we suspect that there was Z'nus and not that Kidushin took place (see RASHASH).

If Rashi maintains that a woman can become a Zonah only through forbidden relations, why does he need to explain that Z'nus does not prohibit her to a Kohen because she is a Gerushah? He should explain that Z'nus cannot prohibit her to a Kohen because this act is not an act that is forbidden and thus it does not render her a Zonah.

Moreover, why does Rashi insist that a woman becomes a Zonah only through forbidden relations? The Gemara in a number of places mentions the opinion of Rebbi Elazar (Yevamos 63b) that even when an unmarried man has relations with an unmarried woman ("Panuy ha'Ba Al ha'Penuyah she'Lo l'Shem Ishus"), he renders her a Zonah. (REBBI AKIVA EIGER)

ANSWER: REBBI AKIVA EIGER suggests that one question answers the other. Rashi follows the view of TOSFOS in Yevamos (69a, DH Lo) who explains that even Rebbi Elazar considers a "Panuy ha'Ba Al ha'Penuyah" to be a Zonah only with regard to her ability to marry a Kohen afterwards, but not with regard to her ability to eat Terumah; she is still permitted to eat Terumah. Therefore, Rashi must explain that she is already prohibited to marry a Kohen because she is a Gerushah, for otherwise the Beraisa might mean that she is a Zonah because of her act of Bi'ah with a Panuy. However, with regard to eating Terumah, Bi'as Penuyah cannot make her a Zonah.

QUESTIONS: The Mishnah earlier (72a) teaches that if a man divorces his wife with the condition that the Get should take effect from today, retroactively, if he dies as a result of his present illness, the Get takes effect retroactively if he dies due to that illness. The next Mishnah (73a) continues and says that Rebbi Yehudah and Rebbi Yosi disagree about the status of the woman before the husband dies. Rebbi Yehudah says that she has the status of a full-fledged Eshes Ish until the husband dies, and Rebbi Yosi says that she is "divorced and not divorced."

RASHI (DH k'Eshes Ish, and DH u'Meshani) explains that the second Mishnah refers to a different situation than the first Mishnah. In the case of the second Mishnah, the husband did not stipulate that the Get should take effect retroactively from the moment that it was given, but rather that it should take effect retroactively from the moment before the man dies. Rebbi Yehudah maintains "Yesh Bereirah" -- that such a condition is valid even though the man did not know whether, or when, he would die; the condition is still valid and the Get can take effect retroactively based on future circumstances. Rebbi Yosi, on the other hand, maintains "Ein Bereirah," and since at the time the Get was given it was unknown whether the husband would die the next minute, the Get will take effect out of doubt from that moment onward. Although the man did not die afterwards, we cannot conclude that the Get certainly did not take effect at the present moment based on a future event (the fact that the man did not die), because "Ein Bereirah."

A Beraisa adds that even according to Rebbi Yosi, the Get is a Safek Get only if the man actually dies due to his illness. If he recovers from the illness, even Rebbi Yosi agrees that the Get does not take effect at all.

TOSFOS (DH Tana) and the other Rishonim ask a number of strong questions on Rashi's explanation.

1. RASHI teaches that those who maintain "Ein Bereirah" will rule that when a Get is made conditional upon a future event, the Get takes effect out of doubt and the woman is considered to be Safek Megureshes, doubtfully divorced. This seems illogical, though; according to the opinion that maintains "Ein Bereirah," the woman should not be divorced at all! Since it is impossible to know at the time the Get was given whether or not it will take effect, the law should be that it does not take effect, as the Gemara implies in Eruvin (37b). The Gemara there teaches that according to the opinion that "Ein Bereirah," if a person places an Eruv Techumin 2,000 Amos away from his house and says, "Any Shabbos during which I decide to use the Eruv, I want this to be an Eruv Techumin retroactively from the beginning of that Shabbos," the Eruv is not valid. If "Ein Bereirah" means that we are unsure whether or not the Kinyan took effect, as Rashi here explains, then the Gemara there should teach that if the person decides, on Shabbos, that he wants the Eruv to be his Eruv, it should be a Safek Eruv (and, consequently, he should not be permitted to walk in the opposite direction of the Eruv, or past the point of the Eruv).

2. If Rebbi Yosi maintains "Ein Bereirah," even if the husband recovers from the illness the Get should still be a Safek Get because at the time the Get was given it was impossible to know whether or not he would recover. Why, then, does the Beraisa teach that if he recovers, everyone agrees that it is not a Get?

3. Rebbi Yosi does not argue with the Tana in the earlier Mishnah, in the case of a man who divorces his wife on condition that the Get will take effect retroactively from the day that the Get was given ("meha'Yom..."). He discusses only the case of the second Mishnah, in which one divorces his wife retroactively from the moment immediately before his death. If Rebbi Yosi maintains "Ein Bereirah" as Rashi asserts, the Get should not take effect even if he says "from today," because the Gemara (25b) says explicitly that in the case of "meha'Yom Im Mesi" the Get is valid only because of Bereirah! (See RASHI there, DH Mah Hi, and DH ul'Chi Mayis.)

4. TOSFOS (DH Tana) explains Rebbi Yosi's Safek differently. Rebbi Yosi maintains "Yesh Bereirah." However, Rebbi Yosi is uncertain whether the words "me'Es she'Ani ba'Olam" ("from the time that I am still alive") mean that the Get should take effect retroactively from the time that it was given or retroactively from a moment before the husband's death. Therefore, during the period between when it was given and when the husband dies, the woman is Safek Megureshes.

Rashi himself (74a, DH Be'ilasah Teluyah) agrees that there is a Tana who maintains that "from the time that I am still alive" refers to the time when the Get was given. Why, then, does Rashi not explain here like Tosfos, that Rebbi Yosi is uncertain whether that Tana is correct or whether Rebbi Yehudah is correct, and that is the cause of his Safek? (CHIDUSHEI HA'RAN)

(a) The TOSFOS HA'ROSH suggests a different reading of Rashi which answers all of the questions. When Rashi writes that according to Rebbi Yosi the Get takes effect mi'Safek, out of doubt, because of "Ein Bereirah," he does not refer to the normal situation of Bereirah which the Gemara discusses earlier (25b) and in other places. Rebbi Yosi maintains that Bereirah, in the normal sense, does work ("Yesh Bereirah"). Rather, Rashi means that if the woman has relations with another man before her husband dies, she must bring a Korban Asham Taluy (and not just a Korban Chatas which is brought for a definite transgression, and which is less expensive than an Asham Taluy), like a person who did a Safek Aveirah, an act that might have been an Aveirah, even if her husband ends up dying later (not at the next moment) and retroactively she was not divorced.

He explains that Rebbi Yosi's logic is that if a person eats a piece of fat, the status of which is in doubt, and he does not know whether it was permitted fat or forbidden fat, and then -- before he brings a Korban Asham Taluy -- he discovers that it was actually forbidden fat, he is exempt from bringing an Asham Taluy (and he brings only a Korban Chatas), because the forbidden fat never had an opportunity to become permitted; it was unequivocally prohibited, and there was no possibility that it could have been permitted. However, when another man lives with this woman, at that moment it is possible that the act indeed will turn out to have been permitted, based on the future circumstances. For such an act, an Asham Taluy must be brought even though Bereirah reveals that the woman was not divorced at the time of the act, since -- at the time the act was done -- the act could have become permissible, retroactively.

(The Tosfos ha'Rosh might mean that the Torah deals more stringently with a Safek Aveirah than with a Vadai Aveirah; see TALMIDEI RABEINU YONAH, beginning of Berachos. Consequently, if the Aveirah can be viewed as a Safek, a Chatas does not suffice. Alternatively, the Tosfos ha'Rosh might mean that since the act is viewed as a Safek Aveirah, she must bring both a Chatas and an Asham Taluy, since it has elements of both a Safek Aveirah and a Vadai Aveirah. See TOSFOS HA'ROSH, DH Tana.)

This answers all of the questions on Rashi. Rashi is not discussing Bereirah at all, and therefore this Sugya does not contradict any of the Sugyos of Bereirah.

Why, though, does the woman not bring an Asham Taluy if the husband does not die from the illness? Even if he does not die, the possibility exists that he might die the next moment and therefore it should be a Safek Aveirah and not a Vadai Aveirah! The Tosfos ha'Rosh answers that if the husband does not die, the stipulation he made was not fulfilled and the Get does not take effect in the first place. Consequently, the Tenai can be ignored; it is as if he never gave a Get in the first place.

(b) If, however, Rashi's words are to be understood literally and he indeed refers to the normal case of Bereirah (see also Rashi to Chulin 14a, DH Osrin, who says that those who maintain "Ein Bereirah" rule that the Kinyan takes effect mi'Safek), Rashi's approach seems to be as follows: Rashi understands that even if we rule "Ein Bereirah," the Kinyan still takes effect, but the details which were dependent upon the outcome of the future event remain in doubt. For example, when a person has two fruits of Tevel and says, "If it rains tomorrow, the one on the left will be Terumah for the one on the right, but if it does not rain tomorrow, the one on the right will be Terumah for the one on the left," according to Rashi one of the two fruits certainly becomes Terumah, but which one it is remains in doubt. According to the way most Rishonim understand "Ein Bereirah," neither fruit becomes Terumah because "Ein Bereirah" dictates that a present status cannot take effect based on a future event. According to Rashi, however, one of the fruits is Terumah, but exactly which fruit is Terumah remains in doubt. The change of status is effected, but the details that depended on the future event remain in doubt even after the future event occurs.

Rashi understands that when one makes a Kinyan dependent on a future event, the Kinyan does not depend on what actually happens in the future (since the Kinyan must take place now). Rather, it depends on what is destined -- at this point in time -- to happen in the future. Even if it actually does rain tomorrow (in the example above), those who rule "Ein Bereirah" maintain that the Kinyan does not take effect because it was impossible to know on the previous day, when the condition was stipulated, that it was destined to rain the next day. (TOSFOS to Eruvin 37b, DH Ela, cites a similar ruling in the name of MAHARI. See CHIDUSHEI REBBI AKIVA EIGER in Ma'arachah #4 to Eruvin 38a, DH v'Nir'eh d'Vein. See also Insights to Eruvin 37:1, Yevamos 67:1, Gitin 25:1, Zevachim 3:1, and Chulin 14:3.)

Why, in the case in Eruvin, does the Eruv not take effect when the person decides on Shabbos to use it? It should take effect mi'Safek! The KEHILOS YAKOV (19:1) quotes the KESONES PASIM who explains that even Rashi considers it a Safek only when the person makes a condition that leaves a number of different possibilities for how the Kinyan might take effect. For example, in the case of the Mishnah here, the Get could take effect at this moment or at the next moment, or at the next moment. Consequently, it takes effect mi'Safek from the first minute onward. In contrast, in the case of the Eruv, where the person makes only a single Eruv and says that either it will or will not take effect based on what he decides later on Shabbos, the Erev does not take effect mi'Safek.

Logically, however, the difference between these cases is difficult to reconcile. Perhaps the Kesones Pasim refers to the reasoning that the Gemara proposes that "a person does not put himself into a situation of Safek" by making ambiguous statements that can be interpreted in more than one way (see Nedarim 61a and Background there, #4), which means that a person would not accept an obligation in the first place if he knew that doing so would create a questionable, Safek obligation. Because of this principle, if a person makes an Eruv conditional on his decision to use it during Shabbos, according to the view that "Ein Bereirah" we may assume that he did not intend that the Eruv take effect at all in order to avoid having a Safek Eruv.

However, if a person separates Terumah and leaves it up to Bereirah to determine which of the fruits will be Terumah and which will be Chulin, if the Terumah takes effect on one of the fruits it is not a Safek Terumah but a Vadai Terumah, and the fruit may be eaten by a Kohen. Since the separating of the Terumah accomplishes the goal of the person who separated it (by removing the Isur of Tevel from the fruit), the person who separated the Terumah is not bothered by the fact that he does not know exactly which fruit is Terumah. It is still better than having Tevel. The same applies when a person divorces his wife in order to exempt her from Chalitzah in such a way that there is a doubt about the moment at which the divorces takes effect.

(According to this understanding, even if a person makes an Eruv Techumin in both the east and the west and he leaves it up to Bereirah to determine which Eruv will take effect, even though there are two different possibilities for where the Eruv will take effect we do not say that the Eruv takes effect mi'Safek. If it were to take effect mi'Safek, it would not accomplish anything for the one who made it, other than limiting (as a result of the doubt) the distance that he was already permitted to travel.)

An important question on the approach of the Kesones Pasim is that he assumes that in the Mishnah here, the man certainly wanted the Get to take effect but left up to Bereirah the moment at which it would take effect. However, from the Gemara that says "u'Vilvad she'Yamus" (as long as he dies) and from Rashi here (beginning of 73b) who mentions that "me'Es she'Ani ba'Olam Im Mesi," it appears that the man did not give the Get with intention that it definitely take effect, but he left open the possibility that if he recovers from the illness the Get will not take effect at all. Accordingly, the case of the Gemara here should be similar to the case in Eruvin, where the possibilities are that the Eruv will either take effect or will not take effect and we rule that it does not take effect even mi'Safek!

Perhaps the question of Tosfos may be answered as follows. According to Rashi, when the Beraisa in Eruvin says that according to the Chachamim (who maintain "Ein Bereirah") the Eruv is not valid, it means only that the Eruv is not a Vadai Eruv. It is, however, a Safek Eruv, just as the Get in the case of the Gemara here is a Safek Get according to those who maintain "Ein Bereirah."

How will Rashi answer the third question -- why does Rebbi Yosi not argue with the Tana Kama with regard to the Halachah of "meha'Yom Im Mesi"? Even if, as the Kesones Pasim suggested, he does not rule that the Get takes effect mi'Safek in that case (since the Get has only one time at which it can take effect, and not a number of different possibilities), he should argue with the Tana of the Mishnah and rule that the Get does not take effect at all!

The answer to this question seems to be that according to Rashi here, any Tenai which contains only two possibilities (i.e. the Kinyan either will or will not take effect) is not dependent on Bereirah. Bereirah means that we are unsure how the Kinyan will take effect; for example, will the Terumah take effect on this fruit or on another, will the Get take effect at this time or at another? That is why Rebbi Yosi, who maintains "Ein Bereirah," argues only with Rebbi Yehudah in the case of the Seifa; we are unsure when the Get takes effect -- it may take effect on any one of the days between the day it was originally given and the day the husband actually dies. In the Reisha, however, Rebbi Yosi agrees that the Get is valid if the husband dies. Since the Get must take effect at the time it was given or not at all, the rule of "Ein Bereirah" is not invoked and the Tenai is valid.

TOSFOS (25b, DH ul'Chi) indeed mentions this logical distinction between a Tenai with two possibilities and Bereirah, but he rejects it (based on the Sugya on 25b). However, the RAMBAN and ME'IRI (ibid.) do make this distinction, and perhaps Rashi here does as well.

How is this approach consistent with the Beraisa in Eruvin, in which the Chachamim argue with Rebbi Shimon in the case of a person who gives himself the option to choose, in the middle of Shabbos, whether the Eruv Techumim he designated before Shabbos is valid or is not valid? Since the question in that case involves only two possibilities, it should not depend on Bereirah! The answer is that Eruv Techumim differs from other Kinyanim (such as the giving of a Get). The "Kinyan" of the Eruv is not the simple function it performs by giving its owner permission to walk another 2,000 Amos. The Eruv accomplishes a "Kinyan Shevisah" -- it "acquires" for its owner a "place of residence" from which he may walk 2,000 Amos in any direction on Shabbos. If there is no Eruv Techumim, the owner still acquires a Kinyan Shevisah, a "place of residence." His Kinyan Shevisah is the place in which he finds himself when Bein ha'Shemashos arrives. According to this perspective, it is evident that the rules of Bereirah should apply to Eruv Techumim since the point in question is whether the Shevisah is here (in his house) or there (where the Eruv Techumim is resting).

However, the Gemara earlier (25b) clearly concludes that even a simple condition with two possibilities ("yes" or "no") is considered Bereirah (see Rashi and Tosfos there, DH ul'Chi Mayis). (See how the Ramban there answers this question, cited in Insights to Gitin 25:2:b. The Me'iri suggests that the Sugya there does not mean what it says.) The answer is that according to Rashi, the view of the Gemara there is not unanimous. Rashi understands that the Gemara here disagrees with the Gemara there about this point.

How, though, does the Gemara there (25b) explain the words of the Mishnah here? Why, according to the Gemara there, does Rebbi Yosi disagree only with the Seifa of the Mishnah and not with the Reisha ("this shall be a get from now if I die from this illness")?

Rashi there (25b, DH Mah Hi; see Tosfos DH ul'Chi) answers this question by suggesting that the Gemara there understands the Mishnah of "Mah Hi b'Osan ha'Yamim" differently from the way the Gemara here understands it. The Gemara there apparently was not aware of the Beraisa which says that the dispute between Rebbi Yosi and Rebbi Yehudah applies to a situation in which the husband indeed died from his illness. Instead, the Gemara understands that the dispute applies to a situation in which the husband is still alive and it is still unknown whether he will die or recover. Rebbi Yehudah maintains that the rules of Chazakah allow us to treat his wife as a full-fledged Eshes Ish. Rebbi Yosi argues that she is viewed as one who is Safek-married and Safek-divorced (since an action was done to effect divorce; see Insights to Gitin 28:2:a). Consequently, both Rebbi Yehudah and Rebbi Yosi rule "Yesh Bereirah," according to the way the Gemara there understands the Mishnah here. The Gemara here, on the other hand, understands the dispute between Rebbi Yehudah and Rebbi Yosi differently (based on the Beraisa which insists that the husband already died).

How does Rashi answer the second question, why is the Get not a Safek Get if the man recovers (according to Rebbi Yosi)? Since Rebbi Yosi maintains "Ein Bereirah," the status of the Get should remain in doubt regardless of what happens in the future. The answer to this question seems to be that according to Rashi here and Rashi earlier (26a, DH Lo Ratzah), the ruling of "Ein Bereirah" creates a Safek with regard to the Kinyan only if the condition is fulfilled. If the condition is not fulfilled, even if the Halachah is "Ein Bereirah" the Kinyan is certainly not valid and there is no doubt that the Kinyan might have taken effect. The reason for this seems to be that the Torah teaches that a Tenai stipulated in a Kinyan has the ability to annul a Kinyan retroactively. Therefore, at the time that the condition is not fulfilled, any Safek Kinyan is retroactively removed from that point on. Since the circumstance which caused the stipulation not to be fulfilled has already occurred, Bereirah does not have to be invoked in order to positively remove the Kinyan.

This also explains why a Tenai that the person is able to fulfill and intends to fulfill is not considered Bereirah (Rashi 25b, DH ul'Chi Mayis). Since the person intends to fulfill the Tenai, we assume that he wants the Kinyan to take place for certain. There is no doubt about whether or not he wanted the Kinyan to take place, and therefore Bereirah is not necessary. Later, when he does not fulfill the condition, the Tenai can retroactively revoke the Kinyan.

(According to the approach in the previous few paragraphs, this is even more clear; the Sugya here maintains that a Tenai can bind a Kinyan to a future event, as long as it is only making or breaking the Kinyan.)

The reason why Rashi does not explain like Tosfos and say that Rebbi Yosi is not sure whether "me'Es she'Ani ba'Olam" means the moment before his death or the present moment (when he makes that statement) is the Beraisa which teaches that Rebbi Yosi considers a Get to be a Safek Get only if the husband dies. According to Tosfos, the Beraisa should not need to teach this Halachah, for it is obvious that if the husband does not die the Tenai was not fulfilled, and thus there is no way for the Get to take effect either "meha'Yom" (from the day he makes his condition) or from the moment before he dies. Tosfos maintains that Rebbi Yosi rules "Yesh Bereirah," and thus the Get can only take effect if the husband dies, for his death clarifies that the Get was indeed a valid Get! (See TOSFOS HA'ROSH who is bothered by this question.)

Rashi therefore explains that Rebbi Yosi maintains "Ein Bereirah," and thus the Beraisa teaches an important Chidush. It shows that even those who maintain "Ein Bereirah" agree that the Get will not be a Safek Get if the husband remains alive, for the reason explained above -- that a Tenai can retroactively remove a Kinyan. (M. KORNFELD)