Daf 82A Except for Ploni

  • Rav Ezra Bick
 
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Dedicated in memory of Rabbi Jack Sable z”l and
Ambassador Yehuda Avner z”l
By Debbie and David Sable
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Sources for this shiur:
 
1.       Gittin 82a, Mishna and Gemara until 82b "…issur kehuna shaini"
2.       Tosafot 82a s.v. "hamegaresh", Rashba s.v. "Uvachutz" (until "… d'leka shiura baget")
3.       Yerushalmi 9,1, Gemara until "…etzel acher"
4.       Tosafot 82b s.v. "afilu" (the first half), Tosafot HaRosh s.v. "afilu"
5.       Rashba 82b s.v. "ha d'amrinan kidushei Reuven" (until "… kana"l"), Ritva s.v. "Batar" (until "… harei hi k'pnuya")
 
We are beginning the study of Masechet Gittin. We will begin with the 9th chapter, which, even though it is the end of the masechet, deals in the most fundamental manner with the definition of divorce – the concept of kritut. It therefore makes sense to begin with fundamentals, and only afterward will we move to the beginning of the masechet, where we will investigate the act of giving a get as well as the laws of the get as a document.
 
 
82a Mishna: One who divorces his wife
  1. Chutz and Al Menat
The first Mishna in the ninth chapter starts with the dispute between Rabbanan and R. Eliezer regarding someone who divorces his wife and makes her permitted to everyone, but excludes one person from the general case. If the get takes effect, the woman will be divorced, and permitted to all men, except for that one person (Ploni), to whom she will be forbidden, with the status of a married woman. R. Eliezer permits this – that is to say, the woman is permitted to every man, and forbidden to Ploni. And the Chakhamim forbid – that is to say, the get does not take effect, and the woman is forbidden to all men, as a married woman.
 
The language of the mishna is “you are permitted to all men other than (elah) Ploni.” The term elah lead to an uncertainty in the gemara. As far as halakhic mechanisms go, there are two possibilities: “except for,” that is to say, something is not included in the act of divorce itself, or “on condition that,” that is to say, a stipulation, you are divorced on condition that you do not have relations and do not marry Ploni. The result is the same in these two cases – in effect the woman cannot marry Ploni, but there is a difference in principle between them. “Except for” means that the get takes effect partially; it makes her permitted to everyone and makes her forbidden to Ploni. The woman is simultaneously divorced and not divorced. “On condition that” means that there are two alternative situations: if the condition is fulfilled (if she does not have relations with Ploni) the get takes effect and she is permitted to everyone (including, in principle, Ploni) and if she does not satisfy the condition (she does have relations with Ploni), then the get does not take effect, and she is forbidden to everyone.
 
The gemara says that if the dispute between the Rabbanan and R. Eliezer is about “except for,” then in the case of “on condition that,” the Rabbanan agree with R. Eliezer. Tosfot (s.v. hamegaresh) explain that since her prohibition is framed only in conditional terms, “it is as if she was made permitted to all.” The Rashba explains “for nothing at all was excluded from the get; he (the husband) is not saying that she is not permitted to this man, but rather she (the wife) is permitted to everyone, including this man, and she is divorced in relation to him too, but he makes a condition regarding her from another angle, on condition that she not have relations with him, neither by marriage nor promiscuously.” We interpret this as follows: if he says “except for,” this limits the power of the get – in the Rashba’s words, there is something excluded from the get – and this invalidates the get according to the Rabbanan. The term “on condition that,” on the other hand, means that the get’s power is unlimited, and if the get takes effect, it makes her permitted to that Ploni also; however, if she has relations with him, the get becomes invalid retroactively, like any condition in general. As a result of the invalidation of the get, the woman becomes prohibited retroactively as well, but this is not an exlusion in the power of the get, but an invalidation of the get under certain conditions. According to this opinion in the gemara, this is not an exclusion which invalidates the get.
 
That is to say, this position in the gemara claims that the Rabbanan invalidate a get whose internal power to make the woman permitted is limited. In “on condition that,” in practice there is no permission for Ploni (to marry her), but this is not because of any lack in the power of the get, but because of the condition, as an external factor.
 
There is an opposite opinion in the gemara – the dispute is in the case of “on condition that;” and in “except for,” even R. Eliezer concedes to the Rabbanan. According to this opinion, the Rabbanan claim that since in practice the get does not fully succeed in making the woman permitted to everyone, there is a deficiency in the kritut (severance) of the giving of the get[1].
 
The disputing opinions in the gemara can be explained as follows: According to both opinions, the Rabbanan require that the divorce be absolute, with nothing left out. In the language of the gemara further on, we require kritut, severance, which it seems means a total action which doesn’t leave any loose ends. The first opinion holds that this requirement relates to the act of divorce, that the get effect a complete separation. Therefore, in the case of a condition, we claim that the act of divorce was absolute, and the woman is forbidden to Ploni not because of any deficiency in the kritut power of the get, but rather because of the condition. The second opinion claims that the get must engender a situation of kritut, that as a result of the get the woman be released from the bonds of marriage. Therefore, in the case of a condition as well, although the get itself acted to make her permitted entirely, nevertheless, since the desired result was not achieved, there is a deficiency in the status of the woman as a divorcee, and thus the get completely does not take effect. That is to say, the first opinion examines the act of divorce itself, and the second opinion examines the result of the divorce on the personal status of the woman.
 
In practice, most Rishonim rule that the dispute is about “except for,” and in “on condition that,” Rabbanan agree with R. Eliezer that the woman is divorced. The Ramban rules that according to the halakha, the tannaim disagree both on “except for” and on “on condition that,” (Ramban, s.v. ha); that is to say, although the logical distinction between the two cases is clear, nevertheless the Rabbanan invalidate the get in both cases, and R. Eliezer validates it in both cases.
 
  1. That You Do Not Have Relations, and That You Do Not Marry
 
The above presentation reflects the opinion of most Rishonim (Tosfot in their conclusion, the Ramban, the Rashba, the Ritva, the Ran) that the case of “on condition that” means “on condition that you do not have relations.” The simple basis of this opinion is that “except for” and “on condition that” are in parallel, that is to say, in both cases, the husband makes her forbidden, one way or another, to have relations with Ploni (and of course, not to marry him). Tosfot, in the beginning of their words, raises the possibility that “on condition that” means on condition that you do not marry Ploni, but promiscuous relations would not make the condition unfulfilled. According to this, the distinction between “except for” and “on condition that” is not a learned distinction in the basis of the forbidding factor, but a simple distinction. In the “except for” case, she is forbidden to Ploni; in the “on condition that” case, she really in practice is permitted to Ploni (in regard to sexual relations), but she just may not marry him. According to this, the Rabbanan agree in the “on condition that” case (that the get is valid) for the simple reason that the releasing action of the get is not partial at all. The woman is divorced, on the practical level as well, since she is permitted to every man.
 
The question according to this position concerns the second possibility in the gemara, that the Rabbanan disagree in the “on condition that” case. Why should a condition that the woman not marry Ploni invalidate the get according to the Rabbanan? The answer is clear: the dispute between R. Eliezer and the Rabbanan ‒ the first of whom invalidates the case “except for” (and also in the case of “on condition that you not have relations”) but validates the get in the case of “on condition that you not marry,” and the second of whom invalidates the get even on the basis of a limitation in practice to marry ‒ is: what is considered the essential function of the get? Is the function of the get to permit and release, that is to say, to cancel the prohibition of eshet ish, a married woman, which is a prohibition of sexual relations, or does the essential function of the get include changing baalut, enabling the woman to be in her own domain (reshut) and allowing her to enter into a relationship with another man and put herself into his reshut? Both agree (since R. Eliezer agrees that in the case of “on condition that,” there is no valid get) that a partial get is not a get. The question is, does preventing marriage to someone else also constitute leaving something out of the essential action of the get, or does only preventing relations do so?
 
On the face of it, we are speaking about a question in principle about gerushin. Does gerushin act in the realm of issur v’heter as a determinant of personal status, or in the realm of kinyan? That is to say, does the get change the status of the woman from a married woman to an unmarried one, or does it undo the relationship between the woman and her husband? (We will not enter here into a discussion of the meaning of the term “kinyan” in regards to kiddushin; this question in principle relates to the first mishna in Masechet Kiddushin. We are using the term kinyan here to describe the relationship between a husband and wife, and issur to describe the status of the woman.)
 
Under the reasonable, although not absolutely necessary, assumption that there is a converse parallelism between kiddushin and gerushin, there is a question in principle about kiddushin as well. Does a man who is mekadesh a woman make her forbidden (in the words of the gemara in Kiddushin 2b: You are hereby mekudeshet, that is to say, forbidden to the whole world like hekdesh), and as a result of this she is considered his wife, or does the man performing kiddushin make a kinyan which connects the two parties, whereby she is his wife, as a result of which she becomes forbidden to everyone? It is clear that in kiddushin and gerushin, there are ramification in both of these realms (kinyan and issur); the question is, what is the immediate and direct action, and what is the accompanying aftereffect? In our sugya, this hakira expresses itself in our understanding of the position of the Rabbanan, who oppose the idea of partial gerushin. Does “partial gerushin” mean gerushin which effect a partial kinyan, or gerushin which effect only a partial heter, only partially negating an issur?
 
  1. Heter or Kinyan?
 
The gemara (82b) asks: what is R. Eliezer’s reasoning? We should pay attention to the fact that the gemara does not ask a similar question regarding Rabbanan. From this it seems that R. Eliezer has an innovative position, which requires a Biblical source, unlike Rabbanan, for whom it is sufficient that they reject R. Eliezer’s derivation to justify their position. However, further on in the gemara, it turns out that the Rabbanan base themselves on the significance of the Biblical word “kritut,” which appears in the Biblical verse as the definition of a get – “and he will write her a bill of kritut.“ The gemara on 83a it says explicitly regarding the position of R. Elazar ben Azarya, who supports the position of Rabbanan in the mishna, that it is based on the wording of the verse “sefer kritut.” Nevertheless, at least on the explicit level, our gemara relates to the position of the Rabbanan as simpler than that of R. Eliezer.
 
In contrast, the Yerushalmi at the beginning of our chapter asks a double question – what is the reasoning of R. Eliezer, and what is the reasoning of Rabbanan? The Yerushalmi answers the second question “and she left his house... and became the wife of another man”: the verse links yetzia (leaving) to havaya (becoming).  Just as “havaya” excludes becoming the wife of anyone else, so too “yetzia” excludes leaving anyone else out.
 
The simple meaning of the Yerushalmi indicates that simply by logic, without any textual source and without dispute, it is impossible to have partial kiddushin. Rabbanan use the textual linkage (hekesh) of “havaya” and “yetzia,” the fact that the verse says “and she left... and she became someone else’s wife,” to conclude that there is also no partial gerushin. It seems from this that R. Eliezer agrees that there cannot be partial kiddushin, but he does not accept, for this purpose, the hekesh of havaya to yetzia.
 
What is the basis of the simple reasoning that there is no partial kiddushin? It seems that the Yerushalmi holds that the very essential meaning of the concept of kiddushin is that she is forbidden to others – that she cannot become the wife of anyone else. There is a contradiction, it seems, between the concept of kiddushin and the possibility of becoming the wife of anyone else, other than her husband. This point does not need any proof or source – it simply is the meaning of the concept kiddushin. Kiddushin is yichud, exclusive designation (indeed, the gemara mentions the words “harei at meyuchedt li” as an alternative to “harei at mekudeshet li.”) Logically, on the other hand, I could imagine that someone could divorce his wife partially, until the verse came and explained that gerushin is the converse parallel of kiddushin. Just as it impossible to exclusively designate a woman as one’s wife without her becoming forbidden to everyone else, so too, cancellation of the kiddushin must make her permitted to everyone. R. Eliezer, in opposition to the view of the Rabbanan, holds that if kiddushin means that she is designated to him and forbidden to everyone else, nullifying this situation begins with making her permitted to one or two people, and there is not necessarily a need to do the diametric opposite.
 
In our gemara, in contrast to the Yerushalmi, the relationship between kiddushin and gerushin is the opposite. The dispute between Rabbanan and R. Eliezer is stated regarding gerushin. R. Abba asks, "b’kiddushin mai, what is the law regarding kiddushin?," and the question is interpreted by the gemara on daf 82b as a question of whether we derive kiddushin from gerushin? That is to say, there is a possibility that even if gerushin must be total and absolute (because of the terminology of kriutut used regarding gerushin), kiddushin may possibly be partial. If we don’t say that havaya is linked to yetzia, this is precisely the opposite of the relationship between kiddushin and gerushin as stated in the Yerushalmi.
 
  1. R. Eliezer’s source
 
The gemara brings two sources for R. Eliezer’s position. R. Yannai cites the verse “and she left his house, and went and became someone else’s wife” – (the get is valid) even if it made her permitted to only one man. R. Yochanan cites another verse: “And a woman divorced from her husband they will not take (marry)” (said in regards to kohanim), and quotes the drasha of the Sages, “Even if she is divorced only from her husband, she becomes invalid to marry into the priesthood - therefore, it (such a get) is a get."
 
The two derivations may be easily explained on the basis of the above hakira. The derivation of R. Yannai may relate to issur v’heter. “'And she left ... and became the wife of another man' – it is sufficient that she becomes permitted to even only one man. R. Yochanan’s drasha, on the other hand, explicitly relates to the realm of kinyan. Even if she is divorced from only her husband, and she is forbidden to the whole would, nevertheless she is considered a divorcee insofar as she is forbidden to a kohen (even after the death of her husband). What does the expression “a woman divorced from her husband only” mean? Just that she is cut off from him, was sent away by him, even though she is permitted to no one. R. Eliezer proves, according to R. Yochanan, from the fact that such a woman is forbidden to a kohen (as a divorcee), that there is a get which has no heter consequences, but only kinyan significance, and from this he deduces that there is such a thing as a partial get. The logic is that if a get is only matir, it is reasonable that it could not be matir partially. However, now that we see that the matir may be disconnected from the kinyan, the heter must be the result of the kinyan, which is the basic action of the get, and this result is dependent on the intention of the husband who gives the get. If so, he can also make her permitted to some people, and leave her forbidden to others.
 
There is a third source for R. Eliezer in the Yerushalmi. “Death is matir, and a get is matir. Just as death may be matir partially, so too a get may be matir partially.” The commentaries explain that death is “matir partially” because although through her husband’s death a woman becomes permissible to the world, she remains forbidden to her husband’s close relatives (that is to say, there remains the prohibition of incestual relationships of an eshet ach (brother’s wife) even after the husband’s death. Therefore – R. Eliezer concludes – a partial get may be given; that means to say that the woman is permitted to one person, and forbidden to another.
 
This derivation may be interpreted only in regards to the realm of issur v’heter. The Yerushalmi demonstrates that the personal status of eshet ish may be partial. A woman is considered Reuven’s wife even after his death in regard to Reuven’s brother, and not be considered Reuven’s wife any longer in regard to the rest of the world. From this, R. Eliezer comes to the conclusion that the status of eshet ish may be split, and therefore a woman may a forbidden woman and a permitted woman simultaneously, in regards to two different men. There is no way this derivation can be formulated in the realm of kinyan, since death is not an act of kinyan.
 
  1. Kinyan Without Issur or Heter
 
As was said, the gemara mentions, as a source for R. Eliezer, the derivation from the verse “a woman divorced from her husband they will not take (marry)” – even if she is only divorced from her husband, she is invalid for marriage into the priesthood. From this, R. Eliezer deduces “therefore, this get is a get.” Rabbanan indeed reject this proof, because “prohibitions of the kohanim are different;” that means to say, there is a special law that even a get which is not a get may invalidate a woman from marrying a kohen: this is the law of “rei'ach (scent of a) ha-get” which invalidates a woman from marrying a kohen. According to R. Eliezer, although this status applies only in regards to kohanim, nevertheless it proves that in this case the get is a valid get. That means to say, the definition of rei'ach haget is an act of gerushin without a result (challot) of gerushin. From this, R. Eliezer proves that an act of gerushin without any heter at all is nevertheless considered an act of gerushin (for, on the other hand, if a man were to give his wife a get not written lishma, his wife would not therefore be invalidated from married a kohen, since that does not constitute an act of gerushin), and if so R. Eliezer deduces that an act of gerushin with even only a partial heter is considered an act of gerushin, and the partial heter takes effect.
 
Tosfot (s.v. afilu) writes about this case, in which no heter to anyone takes effect, that “it is obvious that, even according to R. Eliezer, this not a get at all in general, and if the husband dies, his wife may be mityabemet (become the wife of her husband’s brother), even though she becomes invalidated from marrying a kohen.” The phrase “it is obvious” indicates that Tosfot has no source for his position, but derives it from pure logic, “from the stomach.” Tosfot claims that there is no significance to a get that is not matir at all. Therefore, Tosfot conclude that if, after the get was given, the husband dies, his wife may be mityabemet, even though one may not perform yibum with a woman whom his brother divorced, for in this case there was no gerushin at all. (In accordance with this reasoning, Tosfot finds it difficult to explain how R. Eliezer deduces from here that a heter to one man would be chal if such a condition were made, because in our case, in which there is no heter to anyone, this is not a get at all. However, we do not need at this point to explain Tosfot’s answer to this question.) It seems that Tosfot understands as something obvious that the function of gerushin is to create a heter, and gerushin without any heter is meaningless. In opposition to Tosfot, the Rosh (Tosfot HaRosh, s.v. afilu) asserts that “according to the opinion that R. Eliezer deduces his position from prohibitions of kohanim, such a woman is considered a divorcee even if she was divorced only from her husband (and not permitted to others) – if her husband died, she cannot be mityabemet, since she is considered the grusha of the yavam’s brother.” It seems that according to the Rosh, it is possible to be divorced from one’s husband without a heter to anyone. That is to say, that gerushin may be expressed by leaving the husband’s domain alone, by severing the existing relationship, even without any issur content at all. In other words, according to Tosfot, gerushin is an act in the realm of issurim, while according to the Rosh, it is in the realm of kinyanim.
 
(One must state two reservations about this conclusion: a) The Rosh asserts what he does only according to one who bases R. Eliezer’s position on this verse, that is, R. Yochanan. According to R. Yannai, who derives R. Eliezer’s law from the verse “and she left... and she became someone else’s wife,” this conclusion is not necessarily valid, and this is emphasized in the Rosh’s words. b) It is sufficient to conclude that gerushin may be defined as an act of kinyan without issur. This does not preclude the possibility that regular gerushin include both elements.)
 
We find a parallel dispute regarding kiddushin further on in the gemara. Abba Shaul asks, what is the law regarding partial kiddushin? Further on in the gemara, after the conclusion that the din of kiddushin is the same as the din of gerushin, according to both Rabbanan and R. Eliezer, Abbaye brings up a case in which Reuven is mekadesh a woman to the exclusion of Shimon, and Shimon is mekadesh her to the exclusion of Reuven. According to R. Eliezer, who allows partial kiddushin, on the face of it both acts of kiddushin take effect. The gemara says about this case that Shimon’s kiddushinlo ahanu,” have no effect. The Rashba (s.v. ha amrinan) writes that not only do both kiddushin take effect, but each act of kiddushin prohibits the other man to the woman, even though he was explicitly excluded. When Shimon is mekadesh the woman to the exclusion of Reuven, Reuven is forbidden to her (being excluded from Shimon's kiddushin allows his kiddushin, but not relations with the woman.) The Ritva disagrees with the Rashba on two points: a) “to the exclusion of“ permits relations as well; b) if Shimon is mekadesh the woman to the exclusion of Reuven, the kiddushin do not take effect at all, because he did not make her forbidden to anyone who was not forbidden previously. He did not make her forbidden to everyone, since Reuven had already made her forbidden to everyone other than Shimon, and he did not make her forbidden to Reuven, because Shimon stipulated “to the exclusion of Reuven.” That being the case, Shimon’s kiddushin are null and void, since kiddushin which do not prohibit are not kiddushin.
 
It is clear that that the Ritva (and his teacher, the Raah, in whose name this position is cited) holds that kiddushin are an act in the realm of issur. Kiddushin which do not prohibit anything are meaningless, hence null and void – similar to the position of Tosfot we cited, that gerushin which are not permit anything are null and void. This also explains the first position of the Ritva. Since kiddushin are an act of prohibition, kiddushin “to the exclusion of” are kiddushin which prohibit partially, and that which was excluded from the prohibition is indeed permitted, since no issur applies to it. Therefore, Reuven is permitted to the woman after Shimon was mekadesh her to the exclusion of Reuven.
 
The Rashba holds the opposite. The Rashba explains that even if Shimon was mekadesh to the exclusion of Reuven, Reuven is forbidden to her “because he uses the side of her which is mekudeshet to Shimon.” The Rashba regards a woman partially mekudeshet as having two “sides,” one side mekudeshet to Shimon, and another one not (and in our case the side not mekudeshet to Shimon is mekudeshet to Reuven, who was mekadesh her previously, to the exclusion of Shimon). The phrase “uses the side” is taken from the law of a woman who is half a shifcha cnaanit, a caananite slave, and half a free woman, who in practice is forbidden to a Jew because of her slave side. That is to say, the Rashba explains that partial kiddushin leave room for kiddushin by someone else – on the side left out of the original partial kiddushin – but sexual relations, which perforce relate to the whole woman, are forbidden to anyone else. Thus it turns out that the Rashba holds that partial kiddushin are partial only insofar as the kinyan goes, and a woman with a partial kinyan is entirely forbidden. If so, the Rashba does not agree with the Ritva’s claim that kiddushin which do not prohibit are null; according to him, they are valid in respect to the kinyan of the man who is mekadesh her. According to the Rashba, kiddushin are an act of kinyan, and according to the Ritva, they are an act of issur.
 
(In principle, the Ritva need not necessarily agree with Tosfot, because we may distinguish between kiddushin and gerushin, but basically we should see these in the same light, particularly since our gemara is based on the fact that havaya and yeztzia are linked, and the very din of shiyur bkiddushin, partial, incomplete kiddushin, is based in the concept that kiddushin and gerushin are parallel.)
 
We will return to this distinction, between the act of kinyan and the act of issur, further on in the gemara in regards to the tannaim’s derivation as to the basis of the Rabbanan’s position, and other laws further on as well.
 
 
Sources for next week's shiur:
 
1. Gemara 82b "Ba'ee Rabi Abba... " until 83a "teiku"
2. Rashba 82b s.v. "ha d'amrinan kideish"
3. Ritva 82b s.v. "Batar"
 
 
 

[1] The Torah defines a get as "sefer kritut," a bill of severance.