A Conditional Bill of Divorcement Sent Through A Negligent Agent

Moshé Rodrigues Lopes

Peri Eẓ Ḥaim, Vol. 4, simán 22 (pg119) 

3 Adar 5542/17 February 1782

Question:

Reuben sent his wife a get [bill of divorcement] with an agent, with a stipulation that she would be free if he does not return within 2 years. However, the agent was negligent in delivering the get. Within the course of two years, the was hearsay that Reuben had boarded a ship which was lost at sea and his whereabouts were unknown. Thereafter, there was doubt as to whether the agent could still deliver the get or not to Reuben’s wife. 

Response:

Moshé Rodrigues Lopes begins his analysis by raising the problematique of the case. It is apparent that if the condition of the get was fulfilled or if Reuben died, his wife would be free to marry whomever she desires. However, the Rambam states something which puts the validity of the get in doubt.

Rodrigues Lopes states his case by first citing the Rambam: 

When, by contrast, a city has been conquered by an attacking army and [its wall] broken, a ship is lost at sea, a person is being taken out to be executed by a gentile court, or he is being dragged by a beast of prey, swept away by a river or an avalanche has fallen upon him, the stringencies applying to both the living and the dead, are followed. If [a person in one of these situations gave] a get to an agent, the agent should not give it to the husband's wife. If, however, he gives it to her, the status of the divorce is in doubt. If it is known that the husband died before the get reached his wife, the divorce is void (Laws of Divorce 6:29). 

Right from the beginning of this case, one learns that the Rambam’s codification of law is of primordial importance. In fact, Rodrigues Lopes calls the Rambam, “ha-Rab.” He then states that there a some who learn that this law applies only to cases of yibbum [levirate marriage]. However, he explains that the context of the entire chapter speaks about general cases of divorce. 

Next Rodrigues Lopes cites the Mishnah:

Three statements were made by Ribbí Eleazar ben Fartá before the Sages, and they upheld his words. About [people in] a besieged town; And about [people on] a ship listing at sea; And a person who has been brought to court [in a capital case] that they are presumed to be alive. [However, concerning people] in a besieged town which has been captured; Or [people in] a ship which has been lost at sea; Or a person who has been led out to execution we put upon them all of the stringencies of their being alive and all of the stringencies of their being dead. The daughter of an Israelite who has married a kohen [priest] or the daughter of a priest who has married an Israelite may not eat of the terumah (m.Gittin 3:4; b.Gittin 28b). 

Rodrigues Lopes analyzes the Mishnah stating that the stringencies are only applied to the daughter of an Israelite who has married a priest or the daughter of a priest who has married an Israelite may not eat of the terumah, but that the Rambam does not mention this stringency. Rodrigues Lopes states that despite the Rambam not specifying the application of these laws, we have a received tradition that the “all of the stringencies of their being alive and all of the stringencies of their being dead” applies in the case of yibbum so that the wife does not have to marry her brother-in-law. And the “stringencies of their being dead” are applied so that she is not allowed to marry anyone yet. 

The author continues with the Rambams codification of law, i.e that if the get is given to the woman, its status is in doubt. And “If it is known that the husband died before the get reached his wife, the divorce is void.” Therefore she is able to fulfill the miẓwah [precept] of yibbum on the basis of our taqanah [ordinance] of yibbum. Rodrigues Lopes then argues that yibbum is not applicable, then neither do any of these doubts apply. If so, then the agent is able to give Reuben’s wife the get  even a priori. 

Rodrigues Lopes goes on to say however that after a careful analysis of the relevant law, the agent is not able to give the get a priori due to two reasons. He cites the Gemara where the two issues lie:

Rab Huna said: The legal status of one’s bill of divorce is like that of his gift. Just as with regard to a gift given by one on his deathbed, if he recovered from his illness and arose from his deathbed, he revokes his gift, so too, with regard to his bill of divorce given by one on his deathbed, if he recovered from his illness and arose from his deathbed, he revokes the bill of divorce (b. Gittin 66a).

He then cites Rabbah and Raba gezerah [decree] in this case, lest one say that the get was given after the husband’s death. The second reason that the get is not given a priori is that it is not clear whether the husband is dead or not. If he is indeed dead, then the get would have been delivered in vain, and she would be barred from marrying into the kehunah [priesthood]. Rodrigues lopes cites the Gemara from the chapter ha-Isha bathra where it speaks about the case of a woman whose husband left to an island with his second wife. and then news came to her about his death; she cannot marry anyone she desires because she may have to marry her yabam [brother-in-law], and nor does she marry her yabam until is known for sure that the second wife was pregnant or not (b. Yebamoth 119a).  Rodrigues Lopes brings the debate between Ribbi Ze’eri and R’Ḥanina:

Ze’eri said: In order for herself [le’atzma]to be permitted to marry, she must wait three months after performing ḥalitza, since every woman must wait three months after her husband’s death before she marries again…Rabbi Ḥanina said: For those concerns relating to herself she must wait three months, as explained, but for concerns related to her fellow wife’s possible pregnancy she must wait indefinitely, until it is verified whether or not that wife gave birth…Abaye bar Abin and Rabbi Ḥanina bar Abin both say in explanation of Rabbi Ḥanina’s opinion: It is a rabbinic decree lest there be viable offspring of that other wife. If so, her ḥaliẓa [release from levriate marriage] is superfluous, since she was exempt from both levirate marriage and ḥaliẓa; and then it transpires that you necessitate an announcement on her behalf stating that she is permitted to the priesthood, as a woman who has undergone ḥaliẓa is forbidden to a priest, but in this case it has become clear retroactively that she did not undergo ḥaliẓa. (b. Yebamoth 119b).   

Rodrigues Lopes then cites Rashi to explain the same halakhah here, that one must investigate first before issuing the get, lest the husband is already dead. The question now is whether the get arrived to her hands before the death of her husband or not. If so, she would not be able to marry into the priesthood, and if not, then she would be able to marry a priest. 

Rodrigues Lopes agrees that he does not see any reason why he should deviate from the words of the Rambam nor the ha-Rab ha-Maggid. He concludes from this law that if the agent delivers the get a priori, the wife is doubtfully divorced. He adds the words of ha-Rab ha-Maggid that in a situation where there is yibbum, she is released, and in a situation where there is no yibbum, she is permitted to marry whomever she pleases, with the exception of a kohen. Therefore, a priori, the get should not be delivered to the wife. Rodrigues Lopes mentions the same legal decision from the Tur (Eben ha-Ezer 141). 

This case teaches us about the get al tenay [conditional bill of divorcement]. This is useful in order to avoid cases of agunoth [chained wives], especially when men were traveling across the seas with much danger. Here we also witness the importance of Talmudic analysis in conjunction with the Rambam, ha-Rab ha-Maggid, the Tur, and Rashi. These sources all agree on the same issue. So once again, it does not matter whether one is Ashkenazi or Sepharadi. What is important is if the legal advisor follows the legal consensus from the geonic tradition. Finally, this case also demonstrates that polygyny and levirate marriages and releases were practiced by the Nação community well into the eighteenth century.