Shiur #03: Ketubot 2b "Oness" in Situations of Gittin

  • Rav Yair Kahn

            The Gemara cites two views concerning a case where a condition for the effectuation of a get is fulfilled as a result of an "oness" - a non-volitional event.  For example, a man gave his wife a get that would take effect only if he does not return within thirty days; due to circumstances beyond his control he is detained past the thirty-day limit.  According to the first view cited by the Gemara, we do not apply the standard halakha of oness (that exempts one from accountability in circumstances beyond his control) to gittin.  Therefore, although the husband meant to return by the given date, and thus the get's condition was satisfied only by virtue of an oness, the divorce nevertheless takes effect.  According to the second version, we do apply the standard principle of oness to gittin.  The divorce therefore cannot take effect if the condition was met only as a result of an oness.  It emerges from the Gemara's discussion that in principle, the divorce in such a situation should not take effect despite the condition's having been technically satisfied.  The debate cited by the Gemara revolves around the issue of whether or not Chazal instituted a rabbinic decree validating the divorce despite the fact that the get's condition was met only through an oness.

 

            At first glance, this conclusion is most surprising.  Logically, we would likely have reasoned that the divorce should take effect even at the level of Torah law.  After all, when all is said and done, the husband did not return on time, and thus the tenai (condition) for the effectuation of the get was satisfied.  We have no reason, it would seem, to invalidate the get due to the circumstances under which the condition was fulfilled.  The general oness exemption evolves from the pressure applied on the individual resulting in his committing the given action against his will, thus exempting him from criminal accountability.  But how does lack of the husband's will or intent impact the fulfillment of the condition set for the effectuation of the divorce?  In this shiur, we will deal with this issue and suggest several approaches one could take in understanding this sugya.

 

1.         "Umdana" - Presumption of Intent

 

            Seemingly, the simplest explanation of this halakha is to suggest that in fact, we are not applying the halakha of oness at all in this context; we do not deal in this sugya with the issue of the individual's will or intent to fulfill the tenai.  The issue of oness here involves not the lack of will or control, but rather the inability to foresee the extenuating circumstances that arose.  The reason why the divorce does not take effect is because we have an "umdana" - a presumption - that the husband did not have such situations in mind when he stipulated the condition.  Indeed, the Gemara distinguishes between "oness shekhi'ach" - a common, and hence foreseeable, oness - and "oness she-eino shekhia'ch" - an uncommon, and hence unforeseeable, oness.  This implies that, essentially we do not apply oness to gittin - if the condition is met, the get is valid.  However, in situations of "oness she-eino shekhi'ach," we do not consider the get's true condition to have been satisfied.  As the Gemara writes, "Perhaps an 'oness shekhi'ach' is different, for since he should have stipulated and did not stipulate, he brought about his own injury."  Basing ourselves on umdana, we can easily understand this distinction.  Although even a foreseeable oness is, indeed, an oness, and the fulfillment of the get's condition occurred against the husband's will, nevertheless, this situation was to be anticipated.  We therefore have no umdana to invalidate the condition's fulfillment in such a situation, and, to the contrary, the fact that the husband did not make any stipulation concerning such a circumstance shows that he took this likely situation into account.

 

            The Rambam writes in Hilkhot Mekhira (19:5-6):

 

"If one sells land to his fellow and stipulates with him that in any case of oness that arises with regard to this land he [the seller] will be obligated to pay [compensation to the buyer], then even if a gentile comes and steals it due to [his grievance against] the seller, he must pay; but if the river that had irrigated it stopped flowing, or a river returned and passed through it and it thus became a pool of water, or if an earthquake came and destroyed it, he is exempt, for these and similar occurrences are considered unforeseeable situations of oness, and it never occurred to the seller that such extraordinary events would take place when he made his stipulation.  Thus, no unforeseeable oness is included in this stipulation.  The same applies to any monetary stipulation, that we assess the mind of the one making the stipulation and we include in that stipulation only that which we know to be included in the stipulation, and that which the one making the stipulation had in mind at that time."

 

The Rambam here writes explicitly that the halakha of oness regarding kiyum ha-tenai (fulfilling legal conditions) is predicated on the concept of umdana.

 

            [We may, however, question the relevance of this ruling of the Rambam to our sugya, as the Rambam established this rule only with regard to tena'ei mammon - monetary stipulations, as he writes, "The same applies to any monetary stipulation…"  In fact, we do, indeed, find distinctions between monetary conditions and those made in the context of marriage and divorce, according to the view of the Geonim.  The Rambam (Hilkhot Ishut 6:14) records that according to some Geonim, the requirement of "tenai kaful," the explicit articulation of both sides of the condition ("if… then…; if not… then…"), to validate a condition applies only to gittin and kiddushin.  When setting conditions in monetary matters, one need not articulate both sides of the stipulation.  The Rambam questions this view in light of the fact that Chazal derived the requirement of "tenai kaful" from the condition established on the acquisition of the East Bank by the tribes of Reuven and Gad (Bemidbar 32), clearly a situation of monetary matters.  In any event, according to this view of the Geonim, it stands to reason that the concept of setting conditions on monetary transactions involves not the standard halakha of tena'im, but rather a restriction on the seller's or giver's intent.  If the condition is not met, then the seller or giver never intended to give the item; as such, the transaction lacks the basic prerequisite of "da'at makneh" - the seller's intent.  By contrast, when dealing with issues of ishut (marriage and divorce), in which case the "tenai kaful" provision applies, we have a specific halakha of tena'im that can determine whether or not the act will be binding, which may be divorced from whether or not there was intent regarding a specific eventuality.  Quite possibly, then, the consideration of umdana will bear significance only in monetary contexts, where the umdana reflects the "da'at makneh," but not in areas of ishut, which might be entirely dependent on the condition's fulfillment (regardless of the individual's intent).  Although the Rambam disagrees with this position of the Geonim, he perhaps felt that a "tenai kaful" is necessary to establish "da'at makneh," since the expression of one side of the condition does not automatically imply the converse side ("mi-khlal lav i ata shomei'a hen" - see Nedarim 11a).]

 

            In any event, according to this approach, we deal here not with the standard exemption of oness, which is derived from the verse, "ve-la-na'ara lo ta'aseh davar, but to the girl you shall do nothing." (Devarim 22:26), but rather with an assessment of the husband's intent.  We must, however, test this approach against the sugya in Masekhet Nedarim (27a): "There was a man who brought his documents of evidence to the court and said, 'If I do not return within thirty days, these documents should be rendered invalid [as evidence on my behalf].'  Due to circumstances beyond his control, he did not return.  Rav Huna said: His documents are invalid.  Rava said to him: He is annus [prevented from coming by an oness], and the Torah exempted an annus, as it says, 'Do not do anything to the girl [who was raped, to punish her].'"  Rava explicitly based his position, that we do not consider a condition satisfied if it was fulfilled due to an oness, on the general oness provision derived from the Torah's exemption of a rape victim from punishment.  Although the Gemara subsequently challenges Rava's position, it does not reject it out of hand.  Similarly, Rashi, commenting on our sugya, presents the following explanation as to why on the level of Torah law we apply the halakha of oness to gittin: "According to Torah law it is not a get - for we find the claim of oness in the Torah, as it says, 'Do not do anything to the girl' (Devarim 22).'"  According to Rashi, it seems, Rava's claim is ultimately accepted.  We therefore cannot explain the discussion in our sugya as based on the concept of umdana, and we must look for a different approach.

 

2.         Undoing the Act

 

            We could explain that the general halakha of oness includes more than an exemption from punishment.  To illustrate this point, let us study seemingly contradictory rulings of the Rambam in Hilkhot Yesodei ha-Torah.  In the beginning of chapter 5, the Rambam writes:

 

"One about whom it is said that he must be killed rather than violate [a given transgression], who violated rather than be killed, has desecrated the Name… Nevertheless, since he violated under coercion, he is not whipped, and surely the court does not put him to death, even if he killed under coercion, for we whip or put to death only someone who violated willingly, with witnesses and a warning, as the Torah writes with regard to the one who gave his children to Molekh, 'I Myself will set My face against that man.'  We learn from tradition that 'ha-hu' ['THAT man'] excludes someone under coercion, someone who violated inadvertently, and someone who violated due to error.  If regarding idolatry, the most severe of all [transgressions], one who worships under coercion is not liable for karet, not to mention for death by the court, then all the more so does this apply to other mitzvot of the Torah.  Regarding adultery it says, 'Do not do anything to the girl'." 

 

In halakha 6, however, the Rambam contradicts this ruling, establishing punishment for someone who violated the given transgression rather than allow himself to die, despite his having violated due to an oness:  "The same [rule] stated regarding situations of oness applies to illnesses.  How does this work?  One who took ill and was soon to die, and the physicians said that a certain Torah prohibition could cure him, we perform [the treatment]; we may be treated with all prohibitions in the Torah in situations of mortal danger, with the exception of idolatry, adultery and murder.  Even in circumstances of danger [to life], we may not be treated with them.  If one violated [the prohibition] and was treated, the court administers the punishment he deserves."  Seemingly, we have no reason to distinguish between these two halakhot if we view oness as simply an exemption from punishment, since, after all, this exemption should apply equally in both cases.

 

            Necessarily, then, there exists an additional halakha, beyond the exemption from punishment, which determines that an action performed due to a compulsory, external force is not attributed to the agent.  Indeed, the Torah writes, "Do not do anything to the girl; the girl did not incur the death penalty, for this case is like that of a man attacking another and murdering him" (Devarim 22:26).  The Torah likens a rape victim to a murder victim; hence we may conclude that we do not consider the event to be attributed to the victim.  Herein lies the distinction between the two rulings of the Rambam.  In halakha 1, an external force compelled the individual to violate one of the three cardinal sins (for which one must sacrifice his life rather than transgress).  Although halakha requires him to sanctify God's name by sacrificing his life in such a case, nevertheless, if he violates the prohibition, we cannot punish him, because the sin cannot be attributed to him.  In halakha 6, by contrast, no external force compels the individual to transgress.  There is an illness that threatens him, and on account of this threat the patient decides on his own volition to violate the given prohibition in order to save his life.  In such a case, no external force dissociates the action from the individual, and he therefore bears responsibility for what he does.  He is thus deserving of punishment, since the exemption of oness was suspended regarding the three transgressions that one must not violate even at the expense of one's life.  (See Kovetz Shiurim.)

 

            Based on this distinction, we may suggest that in order to effectuate a get with a condition, willingly set by the individual, we require the condition's fulfillment in a positive, active sense.  So long as the condition is not fulfilled, the get cannot take effect.  If so, then when the condition was met through an oness, we learn from the verse, "Do not do anything to the girl" that the husband did not actively fulfill the condition, since we do not attribute to him the action that is satisfying the condition.  According to this approach, if due to an oness the tenai is NOT satisfied, we cannot argue oness to validate the get, by claiming that the conditions were not met due to a situation beyond control.  Instead the get is invalid, since, when all is said and done, no fulfillment of the condition ever occurred.  This is the position of the Ritva: "Rava said: With regard to gittin, this is not the case.  Meaning, the husband cannot advance the claim of oness to cancel the get; if he gave the get on condition and the condition was met, then even if the condition was met as a result of an oness, it is a get, to the exclusion of when the condition was not met, in which case even if it was not met because of an oness, the get is not a get, since, when all is said and done, the condition was not met.  This is perfectly clear."  (See also the Chiddushei ha-Ra'a.)

 

            The Yerushalmi in Masekhet Kiddushin (3) cites a debate between Rabbi Yochanan and Reish Lakish regarding this issue: "Rabbi Avahu said in the name of Rabbi Yochanan: This is the formula for setting a condition [on one's betrothal]: 'I so-and-so son of so-and-so betroths you, so-and-so daughter of so-and-so, on condition that I will give you such-and-such item and will marry you on such-and-such day.  If such-and-such day arrives and I do not marry you, then I have done nothing [the betrothal is invalid].'  If an oness occurred to him - Rabbi Yochanan says, an oness is like he hasn't done it [i.e. he has not fulfilled his condition]; Reish Lakish says, an oness is like he has done it [i.e. he has fulfilled his condition]."  Rabbi Yochanan and Reish Lakish debate a case where the condition was not fulfilled due to oness.  According to our explanation, we can readily understand Rabbi Yochanan's view that the condition is considered as unfulfilled.  As for Reish Lakish, we may explain that in his view, one who betroths on condition does not need to perform a positive act to fulfill the stipulation.  He maintains that the kiddushin takes effect unless there occurred a positive act that violates the condition.  Reish Lakish therefore concludes that if due to an oness the condition is not met, we do not consider the condition as having been actively violated, since the violation due to oness is not attributable, and hence the kiddushin takes effect.

 

Nevertheless, this approach does not quiet my mind regarding this sugya.  The requirement of active fulfillment of the condition is more reasonable where fulfillment entails positive action on the part of the agent.  However, in the situation addressed in the Gemara, the condition is fulfilled as a result of the husband's not having arrived by the designated day.  It is somewhat difficult to view his lack of arrival as a positive act of fulfilling the condition.  Moreover, Rashi himself, as we saw, introduces into our sugya the factor of "Do not do anything to the girl" to show that according to Torah law we accept "the claim of oness."  It is hard to interpret Rashi's comments, which emphasize "the claim of oness," to refer to the undoing of the act of fulfilling the tenai.  The use of the term, "ta'ana" - "claim" - is appropriate only if we deal with an exemption granted due to the oness.

 

3.         The Get's Effectuation as a Punishment

 

            I would like to suggest a novel approach to explain this sugya.  We generally think of a tenai as posing two equally acceptable options.  If the condition is met, the get will take effect; if not, it will not take effect.  We should note, however, that Chazal derive the guidelines of tena'im from the tenai applied to the tribes of Reuven and Gad.  In that situation, the two options were clearly not equally desirable.  The option that they would not fight together with Am Yisrael and thereby forego on their territory was not legitimate.  Moshe called upon these tribes to uphold their condition, to cross the Jordan River together with the rest of the nation.  Failure to fulfill this condition would lead to their punishment and the revocation of their rights to the East Bank.  We can prove this point by looking at Moshe's instructions to them: "Build towns for your children and sheepfolds for your flocks, and do what you promised" (Bemidbar 32:24).  This expression - "ha-yotzei mi-pikhem" (translated in our citation as, "what you promised"), borrowed from the verse dealing with vows (see Bemidbar 30:3), testifies to the fact that the tribes of Gad and Reuven were obligated to fulfill this condition. 

 

On this basis we can understand Rashi's comments in Masekhet Shavuot (36a, explaining the rule, "Amen - bo kabbalat devarim"): "If one says to his friend, '… if you fulfill such-and-such condition for me,' and he says, 'Amen,' he accepted his words and must fulfill his condition."  Rabbi Akiva Eiger there asks why the individual must fulfill the tenai.  After all, accepting a condition means accepting two equally viable options; even if the tenai is not fulfilled, the agreement he accepted will be upheld by the non-effectuation of the action that hinges on the condition.  In light of what we have explained, however, his question is easily resolved.  The individual by responding "amen" took it upon himself to fulfill his condition, and if he does not, he is punished by not having the desired action take effect.

 

            Similarly, we find situations where, conversely, a person takes it upon himself not to fulfill a condition, and the effectuation of the given act comes as a penalty for his having fulfilled it.  The Rambam writes in Hilkhot Nedarim (3:2): "How does one neder take effect upon another [preexisting] neder?  One who says, 'I obligate myself to bring a korban if I ate this piece; I obligate myself to bring a korban if I eat it' - and he ate it, he is obligated for each one.  The same applies to similar situations."  At first glance, this ruling appears very difficult.  In Hilkhot Nedarim the Rambam deals with "nidrei issur" (when one takes upon himself a certain prohibition - see Hilkhot Nedarim 1:1-3).  This halakha, however, involves not a "neder issur" that takes effect upon another "neder issur," meaning, twice taking upon oneself a prohibition against eating a given food, but rather several "nidrei hekdesh" which require him to bring several korbanot.  What new halakha does the Rambam introduce here, by informing us that one can obligate himself to bring several korbanot?  Clearly, we can understand the Rambam only if we view the individual's abstention from eating the given item (which constitutes the "bittul ha-tenai," the violation of the condition) as the individual's primary intent, and the obligation of the korban as a penalty should he violate his promise.  Accordingly, the Rambam here indeed deals with "nidrei issur" which come to prevent one from eating a given food, and he informs us (based on the mishna, Nedarim 17a) that one can take upon himself a prohibition against eating a certain food several times, and it takes effect each time.  (I elaborated on this sugya in the yeshiva's publication, "Alon Shevut," vol. 139.)

 

            All the tena'im addressed in our sugya appear to fall under this category.  The Gemara in Nedarim deals with a person who foregoes on his legal evidence that could win him his case if he does not arrive in Bet-Din by a certain date.  Undoubtedly, this case involves an individual who takes it upon himself to come to the court by that time (which would violate the condition); otherwise, he accepts upon himself the penalty of invalidating his evidence.  Similarly, one who gives his wife a get to take effect if he does not return within a certain time takes it upon himself to return (which would then violate the condition).  He anchors this commitment by divorcing his wife if he fails to follow through on his commitment.  In such a case, the effectuation of the get constitutes the penalty accepted by the husband should he fail to fulfill his commitment.  At first, the Gemara thought that even death would amount to an oness in the tenai's fulfillment.  From here we see that the giving of the get was not intended to prevent an aguna situation, whereby the woman could not remarry due to the uncertainty of the husband's fate.  (Accordingly, we should distinguish between this sugya and the discussion in Masekhet Gittin 73a, which deals with a get given to avoid an aguna situation.  However, various Rishonim compared the two.)

 

            According to this approach, we can understand the straightforward reading of Rava's comment.  If the tenai was met through an oness, then although the individual did not follow through on his commitment and failed to show up in court by the designated time, he was prevented from doing so because of an oness, due to circumstances beyond his control.  Here we must ask whether the oness exemption applies only to objective punishments administered by the Bet-Din or the Almighty, or if we may extend this exemption to subjective penalties one imposes upon himself.  On this basis we could explain the Gemara's discussion in Nedarim (27a) concerning Rava's comment exempting the individual from having to invalidate his evidence if he was delayed due to an oness: "If you say that capital punishment is different, did not the mishna state, 'Nidrei onsin - if one's friend made him vow that he will eat with him, and he or his son took ill, or the river delayed him, these are nidrei onsin [from which one is exempt]'?"  According to our interpretation, the gemara is debating whether the exemption of oness can be applied to subjective penalties.  If we accept this thesis we can apply the same principle to our sugya, by which the penalty of the get does not take effect, since the individual failed to fulfill his commitment only through a oness, and the Torah issued an exemption in situations of oness.

 

Summary

 

            Our sugya establishes that if one divorces on condition, and the condition is met due to an oness, according to Torah law the get does not take effect.  We raised several explanations for this counter intuitive halakha:

 

(1)       We may presume that the husband had no intention to divorce should the condition be met under such circumstances.

(2)       We do not attribute to a person an action performed under compulsion; therefore, we cannot consider the person as having fulfilled the tnaim in a case of oness.

(3)       The Gemara deals with a case where the husband committed himself not to fulfill the tenai, and the effectuation of the get is a penalty he took upon himself.  We therefore exempt him from this penalty since circumstances beyond his control prevented him from following through on his commitment.

 

Sources for next week's shiur:

 

Sources:

 

1.         Ketubot 2b: "Ela Rava sevara de-nafshei… be'ilat zenut"; Gittin 33a: "Tanu rabanan bitlo mevutal… be'ilat zenut"; Bava Batra 48b: "Ve-amar Ameimar… be'ilat zenut"; Yevamot 110a: "Ha-hi uvda… be'ilat zenut."

2.           Yerushalmi, Gittin 4:2: "Avar u-bitlo… okrin divrei Torah"; Tosefot - Yevamot 110a s.v. "lefikhakh"; Tosefot - Ketubot 3a s.v. "teinach."

3.         Tosefot s.v. "a-data"; Ritva (in Ketubot) s.v. "ve-afke'inhu," "teinach."

4.         Ramban s.v. "shavyuha."

 

Questions:

 

1.         How do the Bavli and Yerushalmi differ in explaining the halakha of "bitlo eino mevutal" (that the get sent via a messenger remains valid even after the husband tries canceling it)?

2.         On what basis do we determine that a person betroths his wife specifically in accordance with the Chakhamim's consent?

3.         Does this halakha apply when the groom does not declare, "ke-dat Moshe ve-Yisrael" ("in accordance with the religion of Moshe and Israel"), or if it is abundantly clear that he does not wish to betroth in accordance with the Chakhamim's consent?

4.         Can we undo the status of "mamzerut" through retroactive "hafka'at kiddushin" (revocation of kiddushin)?