QUESTION: The Mishnah teaches that a Chacham who refused to annul a woman's oath and thereby caused her to become prohibited to her husband is not permitted to marry that woman after she is divorced, lest he had improper motives when he prohibited her to her husband. However, if a woman performed Mi'un or Chalitzah in front of a Chacham, he is permitted to marry her because Mi'un and Chalitzah may be performed only in front of a Beis Din of three judges; there is no reason to suspect that all three judges had improper motives when they permitted the woman to marry.

Why does the Mishnah omit the obvious case of a Chacham who officiates over a woman's divorce? The Mishnah should say that if a woman received her Get in front of a Chacham, the Chacham may marry her because the procedure is done only in front of a Beis Din, and an entire Beis Din is not suspected of having improper motives.

ANSWER: The PERISHAH (EH 12:8) writes that the Mishnah's omission of the case of a Get proves that a Get does not need to be given in front of a Beis Din. Since the Get would take effect even without the Chacham present, the Chacham contributes nothing to the efficacy of the Get. Hence, there is no reason for the Mishnah to include it in the cases in which the Chacham (or Beis Din) directly effects the woman's allowance to marry others.

Whether or not the procedure of a divorce must be executed in the presence of a Beis Din is the subject of considerable discussion among the Acharonim. The NODA B'YEHUDAH (EH 2:105, 114, 118) issues a novel ruling that a Get must be given in front of a Beis Din. He presents several proofs for his ruling. He cites the OR ZARU'A who rules that a Get may not be given at night. The Noda b'Yehudah asserts that it may not be given at night because it requires a Beis Din, and Beis Din does not convene at night.

The Noda b'Yehudah also cites proof from the words of RASHI in Sanhedrin (2a, DH Mi'unin). Rashi writes that Mi'un must be done in front of a Beis Din because of the principle "k'Ein d'Oraisa Takun" -- when the Chachamim instituted an enactment, they instituted that it have the same laws and conditions as the Halachah d'Oraisa upon which the enactment is based. When the Chachamim instituted the enactment of Mi'un, they made it similar to the Halachah d'Oraisa (i.e. divorce) and required a Beis Din. Rashi implies that Mi'un must be done in front of a Beis Din because a Get must be given in front of Beis Din.

As further support for the Noda b'Yehudah's ruling, the URIM V'TUMIM (9:2) cites the Targum Yonasan on the verse, "v'Kasav Lah Sefer Kerisus" -- "he shall write for her a deed of separation" (Devarim 24:1), who interprets the verse to mean that "he shall write a Get in front of Beis Din."

However, the Acharonim point out that the Noda b'Yehudah's ruling that a Get requires a Beis Din seems untenable. An entire Masechta (Gitin) discusses the details of the laws of divorce, as does many chapters in the Shulchan Aruch, and yet no mention is made that a Get must be given in front of Beis Din. On the contrary, the Gemara in a number of places makes the statement, "Do you think that everyone who divorces his wife does so in front of Beis Din?" (Bava Basra 174b, Erchin 23a).

Although the Noda b'Yehudah addresses these questions, the Acharonim reject his proofs that a Get must be given in front of Beis Din. They write that the reason why a Get may not be given at night is unrelated to the law that a Beis Din may convene only during the day (see BEIS SHMUEL EH 123:9).

The PISCHEI TESHUVAH argues that when Rashi in Sanhedrin writes that Mi'un must be done in front of Beis Din because of "k'Ein d'Oraisa Takun," he does not mean that the enactment of Mi'un is like the Halachah d'Oraisa of Get, but rather that it is like the Halachah d'Oraisa of a Get Me'usah -- a forced Get which the husband gives against his will. Such a Get must be given in front of Beis Din in order to be effective, as the Gemara in Gitin (88b) states. Alternatively, the MAHARAM SHIF in Sanhedrin there explains that Rashi means that the enactment of Mi'un is like the Halachah d'Oraisa of Chalitzah, which requires a Beis Din. Mi'un more closely resembles Chalitzah than it does a Get, because it requires an action on the part of the woman, like Chalitzah, while in the procedure of a Get the woman is passive.

The Acharonim refute the proof from the Targum Yonasan and explain that the Targum does not mean that the Get must be given in front of Beis Din. The Targum says only that the Get must be written in Beis Din. The Targum means that a husband may not write any arbitrary text of a deed of separation that he chooses. Rather, he must write a specific text. He writes the Get in Beis Din so that the judges can instruct him how to write it correctly.