Gittin Chapter 9 - 83a: Four Elderly Sages

           The gemara (83a) quotes a braita which preserves a discussion of the tannaim regarding R. Eliezer’s position. Four elderly Sages (the list lengthens in the end to six elderly Sages) entered the discussion to dispute R. Eliezer’s statements, each one with a different claim or question.  We will discuss each claim, in an attempt to deduce the logical claim or the halakhic concept which lies behind the opposition to allowing excluding someone from gerushin.

 

 

 

           The intention of the question is that by giving a get and excluding a certain individual, a situation is possible in which the mitzva of yibum will be nullified, because if the one excluded from the gerushin is the brother of the divorced woman’s new husband, yibum cannot be performed, since the woman, insofar as the surviving brother is concerned, is still the wife of the first husband (the one who gave the get). It seems that this situation, of uprooting a mitzva of the Torah, is undesirable, and this alone constitutes a reason not to allow exclusion from gerushin le-chatchila. The question is, obviously, why? Even if the result is undesirable, how does this constitute a reason to invalidate the get?

 

            Rashi (s.v. she-ain) writes: "The Torah did not write (i.e., define) kritut which uproots something from the Torah." On the face of it, Rashi’s intention is that uprooting the mitzva of yibum is an external reason from which we can deduce that the Torah apparently does not approve the gerushin. It is unreasonable to believe that the Torah is in favor of a halakhic action which acts to uproot something desirable. It seems to me that this kind of reasoning must be based on the idea that we need an explicit source to allow gerushin with an exclusion. (And, as we saw in the previous shiurim, the gemara does not ask what is the reasoning of the Rabbanan, and requires a source only for R. Eliezer’s position.) Therefore, R. Tarfon concludes that it is unreasonable that the Torah would expend effort to allow this exceptional law if it could have negative implications.

 

           According to this, the phraseology of R. Tarfon’s conclusion – “Thus you can learn from this that this is not “kritut“ – does not express reasoning specifically connected to the concept of “kritut.” Rashi does not explain how the concept of kritut contradicts gerushin with an exclusion; the gemara just claims that the Torah, in general, opposes institutions which uproot the laws of the Torah.  Thus, the Rashba concludes, regarding the meaning of the words “this is not kritut”:

 

 

           This means to say, there is no special significance to the expression “this is not kritut,” and this is nothing other than synonymous with “this is not a get.” This interpretation is puzzling to some degree, for Masekhet Gittin is full of halakhic decisions phrased as “this is not a get” or “she is not divorced.,” and only here, it was said about a certain case that “this is not kritut.” Suddenly the tannaim decide to use the biblical phraseology! We must remember that on the previous amud, R. Ami used the expression “kritut” to articulate a special law and reasoning which necessitates total severance. But here, according to the Rashba, there is no significance to the expression?

 

           The reason that Rashi and the Rashba interpret the gemara in this way is that it seems that, in their opinion, there is no alternative. What could be the reasoning that because there may not be yibum after a subsequent marriage, the get should not be valid now? Why is there now, at the time that the get takes effect, a defect in the get, a lack of kritut? Therefore, the Rashba explains that indeed there is a principle that the Torah does not approve processes which cause complications further on, and this is the whole reason that this get is not valid.

 

            In my opinion, it is possible to suggest an explanation of R. Tarfon which will understand the expression “this is not kritut” as expressing a logical reason to invalidate the get (and indeed the Rashba will thus explain regarding other cases of the expression). That is, the phenomenon R. Tarfon pointed to, uprooting a future yibum, shows that there is a defect in the kritut and severance of the woman at the time the get is coming into effect. There is here a drasha, based on the expression sefer kritut, which requires that the gerushin be total and remove all limitations from the woman. R. Tarfon demonstrates that in the case of a get with exclusion, a limitation exists, and therefore, literally and simply, this is not kritut.

 

            The requirement of "kritut" which must be achieved in regards to the woman is, obviously, in the realm of marriage. A get, R. Tarfon claims, must enable a woman to marry someone else. R. Tarfon’s claim, I maintain, is that preventing yibum after the new husband’s death without children is a flaw in the subsequent marriage itself. Such a marriage is not a full one. Thus, on the basis of this get, the woman is restricted in entering into a full marital relationship, and therefore “this is not kritut.”

 

            What is the reasoning behind the concept that a future levirate marriage is a component of the wholeness of the present marriage? The answer is that yibum complements the original nissuin in the realm of having children. This involves two assumptions:

 

 

 

            If we accept these two assumptions, it turns out that nissuin which are not fit for yibum are unable to fully implement their mission. R. Tarfon’s claim is that a get which does not enable full nissuin, but rather only nissuin which are restricted in their ability to implement their mission, is a get which lacks the full degree of “kritut.”

 

            In the gemara, Rava noted, regarding the four elderly sages, that “there is a refutation of all of them, except for R. Elazar ben Azaria.” Regarding R. Tarfon, the gemara says that the refutation is, “if so, a man should not marry the daughter of his brother, lest his brother die without children and thus he causes something of the Torah to be uprooted.” This works out well according to the commentary of Rashi and the Rashba. Here, we are not talking about the get at all, but the original marriage of someone with a woman who will not be subject to yibum. According to Rashi, the gemara’s question is that the Torah did not say that here too the kiddushin uprooted something from the Torah, that Torah does not approve dependencies that contradict its principles. According to the interpretation that I suggested, this is not a refutation. In gerushin, there is a particular problem that there is no possibility of yibum in the marriage after the gerushin. But in kiddushin, there is no requirement that the nissuin be complete. Indeed, the Yerushalmi cites an answer to this refutation: “There is a reasonable explanation: the reason is that there, the Torah prohibits her to him, but here, he makes her prohibited to him.” It is possible to interpret this to say that this is precisely the answer – someone may do things which have a limited implementation, since that is the law of the Torah.   But someone may not limit the gerushin by a condition he makes.

 

           According to the Bavli, which accepts Rava’s refutation of R. Tarfon, we must say as follows: the gemara just proves from the case of nissuin with one’s brother’s daughter that there is indeed no defect in these nissuin. Even from the outset, there is nothing to prevent one from marrying his brother’s daughter (and there is no reason to believe that kiddushin in this case would not be valid). It seems that there is no defect here (and it is known that the gemara indeed praises one who marries his brother’s daughter). Hence, there is no basis for R. Tarfon’s reasoning.

 

 

           In the course of the discussion of R. Eliezer’s position, the gemara cites a source that “R. Eliezer concedes that if someone divorced his wife and said ‘you are permitted to everyone except Ploni,’ and she went and married someone from the marketplace, and became widowed or divorced from this marriage, she is permitted to the man prohibited to her because of her first marriage.” The nissuin and gerushin from someone from the marketplace result in a permit to Ploni as well, he who was previously prohibited to. Rashi explains “Since she married someone else, she disconnected herself from the first marriage completely.” The marriage to the second husband nullifies the remnants of the marriage to the first husband which remained.

 

           Tosfot (82b s.v. k’gon) wrote that the fundamental principle made clear here, that the woman cannot be married to two men, is true only regarding the process of gerushin. The nissuin to the second husband complete the gerushin of the first one. But this is not true (according to R. Eliezer) regarding the process of kiddushin. If a woman becomes mekudeshet to someone with the exclusion of Ploni, and then marries Ploni, the marriage of neither of them cancels out the first nissuin.

 

           The explanation is based on the principles we explained in the first shiur. In gerushin with exclusion the relationship between the woman and her husband is completely annulled. The exception is only in the realm of issur and not in the realm of kinyan. Therefore, when she marries someone from the marketplace, R. Eliezer concedes that the shem eshet ish cannot be applied to the first husband at the same time that she is completely in a kinyan relationship with the second one. It cannot be that Shimon’s wife bears a shem issur of Reuven’s wife. But in kiddushin with exclusion, we must say that there is exclusion regarding kinyan as well (therefore, the one excluded may be mekadesh her as well, even though no one may be mekadesh someone else’s wife). Since, this is the case, the second husband brings her into his domain partially, and also makes her prohibited, and the first one also has a (partial) kinyan in her, on the part of her which was excluded, and there is no contradiction between the two kinyanim. (See the previous shiur in regards to the dispute between Rashba and the Ritva on the subject of kiddushin with exception.)

 

 

 

          The gemara comments that there are many examples of something prohibited to one person and prohibited to another, such as teruma, which is prohibited to a non-kohen and permitted to a kohen. The gemara answers that R. Yossi Ha-galili is only speaking about issurim in connection with marriage. What is the logic of this seemingly arbitrary formulation? The explanation is that R. Yossi claims that the shem eshet ish cannot be divided. The gemara continues to question this assertion of R. Yossi: “Behold, there is eshet ish!” Rashi explains that every eshet ish is prohibited to the whole world and simultaneously permitted to her husband. This claim is relevant only if we are speaking of the shem eshet ish, that is to say, a woman with the shem eshet ish is prohibited. If we say (as the Pnai Yehoshua holds) that the prohibition of a married woman derives from the fact that there is a kinyan between her and her husband (similar to the monetary concept of theft), it is clear that it is not appropriate to ask why an eshet ish is permitted to her husband. The issur at the outset is to have relations with someone else’s wife. However, if we were to say that there is a prohibition which derives from the personal status of the woman, from the shem eshet ish that is part of the identity of the woman (as the prohibition of incestual relations is based on the shem issur on the identity of the woman), then if the status is indivisible, as R. Yossi claims, the woman should have been prohibited to the person who created that identity as well, the husband.

 

 

 

           In R. Elazar ben Azarya’s claim, it is clear that kritut is a gezeirat hakatuv which defines a special law regarding the nature of gerushin ‒ something that disconnects the husband and the wife. The very state of issur to someone else, R. Elazar ben Azarya claims, demonstrates that a certain connection of the woman to the husband remains, and this is not kritut. On the face of it, this is a simple claim, for if there is a requirement of total severance, anything excluded contradicts the absoluteness of the kritut. The Rashba on the mishna explains that R. Eliezer agrees that total kritut is required, but claims that in a case of gerushin to the exclusion of Ploni, “the woman is totally megureshet from her husband in regards to other men.” That means to say, the heter which comes into effect does so totally. The claims of the other Sages attempt to undermine this point – the heter which comes into effect does not do so totally, and does not constitute total kritut. Accordingly, I attempted to explain the argument of R. Tarfon, that the heter to marry does not allow full nissuin. So too we will see regarding R. Akiva’s argument.

 

 

 

           The question to be asked here is similar to the one we asked on R. Tarfon. If someone gave a get on condition that the woman not marry Ploni, and she went and married someone from the marketplace, and after his death married Ploni, it turns out that the condition was not fulfilled, and of itself the get is null retroactively and her children are mamzerim. This is very sad, but why should this be a reason to nullify the get in all cases, even if she is careful to fulfill the condition? Rashi answers that this is completely parallel to what he wrote regarding R. Tarfon – “the Torah did say (institute) kritut which brings Israel to a defect (pasul).” That is to say, there is really no logical reason to invalidate the get, but it is not logical that the Torah should specially allow gerushin with problematic results. But here the Rashba departed from this path, and explained that R. Akiva bases himself on a claim of kritut as a special law. These are his words:

 

 

           The Rashba explains that the very fact that the woman lives in doubt that the get will become invalidated retroactively constitutes a defect in kritut, even if in the end the get never becomes invalidated. (This comment of the Rashba appears directly adjacent to the comment of the Rashba (cited above) in which he explains, regarding R. Tarfon, that “kritut” is merely synonymous with get; this emphasizes that there are two different interpretations of the expression “this is not kritut.”)

 

           The reason the Rashba changed his commentary between R. Tarfon and R. Akiva is clear. In the case of R. Akiva’s claim, the explanation based on the lack of kritut seems simple.  The innovation in R. Akiva’s statements is that a case of a doubtful, tentative nullification of the get is also considered a certain lack of kritut, because in practice the woman is not free and released from all restrictions which are a result of her previous nissuin. Indeed, this restriction is serious, and relates to the very heter – if the get is nullified, she is not permitted to anyone. In the case of R. Tarfon, there is no defect in the woman’s actual heter, and the explanation I suggested is based on a defect which is external, i.e.  a defect in fulfilling the goal of nissuin which result in children. The Rashba was not comfortable with this explanation. Rashi, on the other hand, was not willing to interpret kritut as the source of the invalidation in R. Akiva’s case either. One can explain that Rashi looks at the condition (tnai) the husband makes as something external to the geirushin. The husband hasn’t created a single status of “conditional divorce, geirushin al tnai”. Rather, there exists one of two alternatives. If the condition is fulfilled, the kritut is complete. If the woman does not fulfill the condition, there is no kritut at all. This is a situation of two alternatives, and neither one affects the other. The explanation of the Rashba is based on the fact that the requirement of kritut is a practical situation in actual fact, and not a halakhic dependency. The very fact that there is a possibility that the condition will not be fulfilled causes a situation in which in practice, the woman lives in doubt, and this undermines the kritut of the get.

 

 

           There are three additional claims against R. Eliezer, one in the name of R. Akiva, and two more in the names of R. Yehoshua and R. Shimon ben Elazar (83b). They must be understood, each one in its place, according to the principles we have explained in today’s shiur and the previous ones. I am leaving this for each student to do by himself.