Why bother with forcing the Get?

Question

According to the discussion here as elaborated in the link, a forced Get as a Halachic matter (the opinion paskened in Shulchan Aruch), is simply that the Chachamim retroactively revoke the Kiddushin.

If so, why bother with the whole "forcing". Why not just have Beis Din write out a Get and deliver it?

Really only the Rambam's opinion would justify requiring the verbalized consent - and even that seems a stretch (if he really wants it, just do it!).

To clarify, I'm not questioning the fact that there is a need (as in this is the Halacha) to force the husband to agree. I'm just wondering why the need for the use of force like that, when in reality it accomplishes nothing (except according to the Rambam).

To ask this in Yeshivish: The saying רוצה אני is a גילוי and בירור that he in fact wants it, but the purpose is the wanting, not the incantation of the words. Therefore, in this case, since he doesn't want it anyway, why force the incantation of the words? How did that add anything to the Get.

Even according to the Rambam it seems דוחק to say that the requirement is a גילוי of the subconscious desire of the Yetzer Tov to listen to the Beis Din, because if we are sure it is there, why does he have to say it? But at least according to that, בדוחק, you can say that the requirement is that he actually reveals that desire. But what about the opinion which is actually the controlling Halachic opinion? What is the purpose and accomplishment of making him pretend to be מגלה something that isn't there? And that is so important that it is worth using torture to get there?

Answer 1

The Gemara in Kesubos 3a has the source of this idea:

ומשום פרוצות שרינן אשת איש לעלמא אין כל דמקדש אדעתא דרבנן מקדש ואפקעינהו רבנן לקידושי מיניה

Due to immodesty the Rabbis would permit a married woman to anyone? Yes, as everyone who performs Kiddushin does so according to the guidance of the Rabbis, and they nullify this Kiddushin.

Rashi there, twice, stresses the role of the Get:

כל המקדש - כל המקדש אשה על דעת שהנהיגו חכמי ישראל בישראל הוא מקדשה שיהיו קיימין קידושין לפי דברי חכמים ויהיו בטילים לפי דברי חכמים על ידי גיטין שהכשירו חכמים

(Summary) Kiddushin is conducted according to the Sages, and they are nullified through Gittin which the Sages validate

אפקעוה רבנן לקידושין - כשיבא גט כזה אחריהם

When a Get like this comes before them.

The Rashba there is more explicit:

כל דמקדש אדעתא דרבנן מקדש ואפקעינהו רבנן לקדושין מיניה - וא"ת מאי שנא מטבע במים שאין להם סוף דלא אפקעינהו רבנן לקדושיה משום עגינות י"ל דבכדי לא מפקיעי להו רבנן לקידושיה אלא היכא דאיכא סרך גיטא כדהכא

Why is this different than the case of a person who has been lost at sea, in which they did not nullify her Kiddushin and prevent Aguna (being stuck)? We could say that the Rabbis do not nullify a Kiddushin for naught, except in the situation where there is at least some hint of a Get.

Kiddushin is a big deal. The Rabbis did not want to uproot a Kiddushin without having at least the formalities of a divorce document, in order to maintain the seriousness of what Kiddushin is. If they just "popped" Kiddushin out of existence, it would devalue what Kiddushin is.

I think* that the idea here is that Chazal wanted to maintain, to the degree possible, the framework of "כשיבא גט" - when a Get comes. They did not want to create the Get. If they happened to have a Get to work with, they would use it. Granted in this case, the Get "happens" to be here because they engineered the husband's creating it, but to the extent possible they wanted to maintain the format of them using an existing Get, not creating one from scratch.

*By which I mean I do not have an explicit source, it is just how I understand it.

Answer 2

Firstly, a גט is a document that is willingly given by a man to his wife, or sent with a worthy messenger. It has to be written by him or with his שליחות, and בית דין cannot just write and give it; that would make her think she was allowed to remarry, and 'ould lead to ממזרים.

What the רבנן can do, is nullify the entire marriage retroactively, as the statement הרי את מקודשת לי בטבעת זו כדת משה וישראל implies that the marriage should be חל only if the רבנן are ok with it.

.גמרא גיטין לג:

כל דמקדש אדעתא דרבנן מקדש ואפקעינהו רבנן לקידושין מיניה

רש"י, same place:

אדעתא דרבנן מקדש - להיות קדושין חלין כדת משה וישראל, שהנהיגו חכמי ישראל, והרי הם אמרו .שיפקיעו כל קדושין שבישראל על ידי גט כזה, הילכך פקעי, שעל מנת כן קידשה

Rashi does mention גט כזה, but only because that גמרא is dealing with a גט that was sent with the husband's will, but he then got three people together and declared it null in front of them (see משנה to that גמרא). In theory, a גט would not be required for the רבנן to nullify a marriage.

There is a major difference between the כריתות that occurs as a result of a גט and as a result of the רבנן's decision that the couple should be seperated. Although both methods of seperation allow the woman to get remarried to somebody else after three months, the retroactive nullification of the marriage would mean that the couple was living in sin for the entire duration of their supposed marriage. That's obviously not something we want to do, so the רבנן would much rather subdue the husband's יצר הרע enough that he gives a גט voluntarily.