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Tosfos (Gittin 13a, s.v. לא יתנו) write that

דאע"ג שמינה המגרש בחייו השליח לא חשיב להיות כמותו אחר מותו כאילו הוא עצמו קיים אלא חשיב גט לאחר מיתה

Even though the husband appointed his messenger before he died, we don't say that "a person's messenger is like him"* after he died, to consider it as if he (the husband) is still alive; rather, this is considered to be a case of "divorce after death" (which doesn't work)

(my translation)

Are there any rishonim who hold that there is such a thing as a "שלוחו של אדם כמותו לאחר מותו," a messenger-clone that works after death, as if the person would still be alive?

* A Talmudic principle, which means (according to most understandings of it) that the messenger of a person is exactly like the person himself. If this principle would apply posthumously, then this would mean that the dead man would be living vicariously through the messenger, and the messenger would be able to affect certain things that only that specific person could do. See the tag wiki for more info.

msh210
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MTL
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3 Answers3

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Long debated question, קצות החושן brings this question down as a מחלוקת among the ראשונים. The following is based on part of this shiur:

So how exactly is שלוחו של אדם כמותו?

One side sees the messenger as a person on his own, given the power, or permission, to create consequences for the sender, where usually one could not do so for another.

The other side sees the messenger being the long hand of the sender. If the sender dies, the hand no longer can do his will. If the hand can, somehow, continue acting, it would still not have any more rights or legal power than the person himself currently (at the moment of the action) has. Sort of like sending an arrow, perhaps.

Regarding one who sent a גט and became insane, the Rambam (side 1) says it is פסול, meaning it is valid but דרבנן decreed for it not to be used, so that people won't fall into thinking a שוטה can give a גט. The Tur (side 2) says the גט is nullified completely.

Following this, the קצות raises the question in the OP, obviously not following the Tur's opinion, but the Rambam's. He answers that since at the moment of death the woman is no longer his wife, when the גט reaches her, it is worthless. He parallels it with sending a שטר to free a slave, and selling him before it arrives. Having a new master, the שטר now means nothing to the slave.

Leaving the shiur

I would say, likewise, at the moment of death, the person is devoid of any legal or halachic power, of any possessions (which move on to the heirs), exempt of all responsibility and is not in a state of backing up a שליחות.

In a sense, I would say "שלוחו של אדם כמותו לאחר מותו", meaning that after death the שליח can do nothing.

If you can think of a specific שליחות that might behave differently I'd be delighted to discuss.

JNF
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  • +1. It should be noted, though, that there is certainly room to differentiate between where the משלח was משתטה, and where he died. Thanks for the sources and resources, I'll have to do some more research :) – MTL Jan 01 '15 at 21:31
  • When he's משתטה he cannot give a גט, whereas when he's dead she's no longer his wife... – JNF Jan 03 '15 at 19:32
  • That's true, though according to בית מאיר and others, there is still אישות after death (זיקת יבום, for example; especially if the איסור of יבמה לשוק is leftover אשת איש of the מת) – MTL Jan 03 '15 at 23:47
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it would be interesting according to R Yosef engel ( Lekach Tov, Klall 1) who entertains a third option as to how shlichus works, in that the shliach remains an independent entity, while his creation of a specific halachic chalos works and is effective for the meshaleach, where as the first mehalech is power of attorney, and special strength is invested in the shliach that the action is done in the name of the meshaleach, this mehalech takes on that even the action isn't done in the name of anyone, rather the results may be attributed to the meshaleach,

Therefore, in our case even once the meshaleach is dead, we do not require his living being to execute any halachic chalos, and maybe there is case for saying geirushin should be chal. however, in reality there is no room for this, for the very yesod v'shoresh of ishus is the fusion of the 2 parties, and krisus severs the bond. but when the husband, the creator of this bond, dies, the ishus falls apart due to a main ingredient missing. as the gemara in kidushin 2b explains that death isn't a kinyan as "get" is, perhaps for this reason. (kinyan in the sense of re-acquiring ones independence)

Y     e     z
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michoel
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    Welcome to Mi Yodeya, michoel! Would you care to be more explicit about tying this back into answering the question? (I am pretty sure I know what you mean to say, but with the jargon and the lack of a concluding "therefore," others may not.) – Y     e     z Mar 26 '15 at 18:46
  • therefore, in our case even once the meshaleach is dead, we do not require his living being to execute any halachic chalos, and maybe there is case for saying geirushin should be chal. however, in reality there is no room for this, for the very yesod v'shoresh of ishus is the fusion of the 2 parties, and krisus severs the bond. but when the husband, the creator of this bond, dies, the ishus falls apart due to a main ingredient missing. as the gemara in kidushin 2b explains that death isn't a kinyan as "get" is, perhaps for this reason. (kinyan in the sense of re-acquiring ones independence) – michoel Mar 31 '15 at 05:59
  • I edited your comment into your answer. In the future, you could do so yourself with the [edit] link above. – Y     e     z Mar 31 '15 at 17:55
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Nobody holds that a get given after death is valid; the Gemara, Gitin 28a-b repeatedly states that a get given after death is invalid.

While there is the Ketzos that @JNF quotes, he only quotes the Gemara as a problem according to one opinion, not that it's an additional nafka minah between the two sides.

DonielF
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