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Kesuvos, 3

1) THE RABANAN'S AUTHORITY TO UPROOT A MARRIAGE

QUESTIONS: The Gemara states that in certain situations, the Rabanan -- in order to end a marriage -- uproot the Kidushin so that the marriage will no longer exist. The situation discussed in our Gemara is when a person gives a Get to his wife on condition that he does not return, and then circumstances beyond his control prevent him from returning. Even though the Get is not a valid Get mid'Oraisa (since a fulfillment of a condition against one's will is not considered as though one fulfilled the condition), the Rabanan instituted that the Get does take effect (for the reasons that the Gemara describes). How can the Rabanan make the Get valid when, mid'Oraisa, it is not valid? The Gemara explains that the Rabanan make the Get effective by implementing their authority to uproot the Kidushin (retroactively), "Afke'inhu Rabanan l'Kidushei Minei."

Another example of a situation in which the Rabanan remove the Kidushin is when a man sends a Get to his wife and then annuls the Get after the Shali'ach has departed, without informing the Shali'ach of the annulment. Although the Get is not valid when the Shali'ach gives it to the woman, the Rabanan make it take effect by uprooting the Kidushin.

How does this mechanism of uprooting the Get work? When the Rabanan uproot the Kidushin, is it considered as though the couple were never married? If so, it should be possible to remove the status of a Mamzer in a situation where a married woman committed adultery or was raped and had a child from the union; although the child is a Mamzer, it should be possible to make the child legitimate by having the Kidushin uprooted retroactively (such as by sending her a Get with a Shali'ach and then annulling the Get)! Similarly, a man could save his wife from being punished with Misah, where she committed adultery, in this manner as well!

In addition, the PNEI YEHOSHUA points out that if the Rabanan uproot the Kidushin retroactively, then if the brother of the husband later marries the woman (who is Asur to him as "Eshes Achiv"), the Kidushin should take effect mid'Oraisa (and she should require a Get if she wants to leave him) since she is not his "Eshes Ach!" Is that indeed the Halachah?

Another question is that if the Rabanan are able to remove Kidushin in such a manner, then why do they not use it in a broader context -- such as to permit Agunos to remarry? For example, in a case where a husband drowns in the sea ("Mayim sh'Ein Lahem Sof") and there is no positive testimony that he is dead, the Halachah is that his wife may never remarry. The Rabanan should permit her to remarry by exercising their authority to uproot the Kidushin!

ANSWERS:

(a) TOSFOS in Gitin (33a) says that it is true that where the Rabanan uproot the Kidushin, a child who is a Mamzer due to the Kidushin becomes legitimate, and the woman becomes exempt from punishment for committing adultery (and, presumably, if she marries the brother of her husband, the Kidushin with him will take effect). However, a person cannot take advantage of this right of the Rabanan in order to intentionally correct the status of a Mamzer. In such a case -- where a man intentionally sends a Get to his wife with a Shali'ach and then annuls the Get in order to save his wife from punishment or to make his wife's illegitimate children legitimate -- the Rabanan do *not* uproot the Kidushin. They only uproot the Kidushin when a man annuls the Get innocently, with no ulterior motives.

As for why the Rabanan do not exercise their authority to uproot Kidushin in order to permit Agunos to remarry, the RAMBAN and RASHBA explain that the Rabanan exercise this power only where there was some form of Get that was already given. Even though the Get itself is not valid, the Rabanan uproot the Kidushin based on the giving of the Get.

This also seems to be the intention of RASHI here who repeatedly writes that the Rabanan uproot the Kidushin "when a Get is given." (Rashi in Shabbos (155b) writes that the reason the Rabanan permitted a woman to remarry based on the testimony of a single witness is because of the principle of "Afke'inhu." Here, Rashi explains why the Rabanan do not apply "Afke'inhu" to permit Agunos in other situations. Rashi is explaining that in the case of a single witness who testifies that the husband died, there is at least some sort of testimony that he died, and thus there is a foothold for the Rabanan to uproot the Kidushin. According to Rashi, wherever there is some form of Get or some form of testimony of death, the Rabanan can apply "Afke'inhu.")

(b) The RAMBAN and RE'AH write that although the Rabanan uprooted the Kidushin d'Oraisa, they nevertheless established in its place a Kidushin d'Rabanan. Therefore, the child born to the woman from another man will still be a Mamzer d'Rabanan, and the relatives of the husband will be prohibited to the woman mid'Rabanan. Similarly, she will be prohibited mid'Rabanan to marry a Kohen.

(c) The Rishonim here (RAMBAN, RASHBA) and in Gitin quote the RASHBAM (see also PNEI YEHOSHUA here) who suggests that when a condition of the Get is fulfilled against the husband's will, and when a husband annlus a Get after having sent it with a Shali'ach, the Kidushin is not uprooted retroactively, but rather it is uprooted from now on, "mi'Kan ul'Haba." (See also SHITAH MEKUBETZES who quotes the Rashbam as found in a marginal note in a manuscript of Rashi's commentary.)

The Rashbam explains that the Gemara means that the Rabanan have the right to uproot the Kidushin retroactively, and if they do so, all of the Be'ilos retroactively become Be'ilos of Z'nus. Since nobody wants his Be'ilos to become Be'ilos Z'nus, when he gives a Get with a condition, he has in mind that even if the condition is fulfilled later against his will, he still wants the Get to be valid. Similarly, when a man annuls a Get, since he knows that the Rabanan will make his Be'ilos into Be'ilos Z'nus if the Get is annulled, he does not really want to annul the Get.

The Ramban asks that according to this, in a case where a woman is only betrothed (with Erusin), and her husband gives her a Get on condition or annuls a Get that he sent with a Shali'ach, the Kidushin *should* be uprooted retroactively, since the man has not had relations with his wife and thus has no fear that his Be'ilos will be made into Be'ilos Z'nus! The Ramban answers that even though there was no Be'ilah, the husband has in mind that the Get should take effect even if the condition is fulfilled b'Ones, because he knows that if he does not want it to work, it will not gain anything for him (since the Kidushin will still be uprooted against his will). Therefore, he intends for the Get to take effect no matter what.

(d) RASHI cites a fourth explanation in the name of "all of my teachers." This explanation is actually found in PERUSH RABEINU GERSHOM in Bava Basra (48b). He explains that all Kidushin nowadays is only mid'Rabanan in any case, and that is why the Rabanan are able to uproot it from now on. Rabeinu Gershom asserts that Kidushei Kesef (and Kidushei Shtar) are mid'Rabanan, while Kidushei Bi'ah -- which is mid'Oraisa -- cannot make a Kidushin d'Oraisa nowadays since the Rabanan prohibited being Mekadesh a woman with Bi'ah (Kidushin 12b). The Rabanan went further and said that since everyone is "Mekadesh Al Da'as d'Rabanan," all Kidushei Bi'ah does not work mid'Oraisa nowadays (and it only makes a Kidushin d'Rabanan).

(Once the Rabanan instituted that one can be Mekadesh a woman with Kidushei Kesef, it became a an act of effrontery to be Mekadesh a woman with Bi'ah. Therefore, when the Rabanan instituted Kidushei Kesef, they also instituted that a person may not be Mekadesh with Bi'ah and they annulled that form of Kidushin, based on the premise that when a person gets married, he does so according to the will of the Rabanan.)

Rashi and the other Rishonim ask strong questions on the explanation of Rabeinu Gershom.

1. First, how can he say that Kidushei Kesef (and Kidushei Shtar) are mid'Rabanan, when Kidushei Kesef is derived from a Gezeirah Shavah (Kidushin 2a) and is thus clearly d'Oraisa?

Apparently, Rabeinu Gershom learns that this Gezeirah Shavah is not an actual Gezeirah Shavah mid'Oraisa, but is only an Asmachta. (The same applies to Kidushei Shtar, which is learned by comparing it to a Get (Kidushin 9b). Rabeinu Gershom understands that comparison to be only an Asmachta.)

2. Second, Rashi asks that we know that a Ne'arah Me'urasah is defined as a woman who was assumed to be a Besulah at the time of the Nesu'in, but was found to have had relations with another man while she was an Arusah. The Torah punishes such a woman with Sekilah. How can the Torah consider her to be a Besulah at the time of Nesu'in if, mid'Oraisa, there is no such thing as Kidushei Kesef or Kidushei Shtar? The only way she could have become an Arusah, mid'Oraisa, is through Kidushei Bi'ah, and thus it is not possible for there to be a case of Ne'arah Me'urasah!

Rabeinu Gershom apparently was not bothered by this question, because we could say that the Kidushin was done with a Bi'ah *she'Lo k'Darkah*. Such a Bi'ah serves to make the woman an Arusah, but it does not make her a Be'ulah and she remains a Besulah. (See in full the Gemara in Kidushin 9b. Even though the Gemara there rejects this possibility, perhaps Rabeinu Gershom understands that the Sugyos are arguing.)

3. Third, Rashi asks that according to Rabeinu Gershom, a woman who gets married with Kidushei Bi'ah should be permitted to leave her husband without a Get. Rabeinu Gershom apparently learned that although the Rabanan removed the Kidushin d'Oraisa, they did substitute in its place a Kidushin d'Rabanan which does requires a Get.

3b

OPINIONS: During a era when the wicked regime instituted that every Jewish Besulah was to be defiled by the local governor before her wedding, people started getting married on Tuesday to avoid the decree (since the officials knew that the Chachamim had instituted that a Besulah get married only on Wednesday). The Gemara says that those who are defiled by the governor are nevertheless permitted to live with their husbands afterwards (because the act was one of Ones), except for the wives of Kohanim, who become Asur to their husbands even when raped.

It is clear from the Gemara that if a woman lived with the Nochri governor willfully, she will would *not* be permitted to her husband. What is the Halachah if a married, Jewish woman is Mezanah with a Nochri? Does she become prohibited to her husband, and to the one with whom she was Mezaneh (if, for instance, he later converts to Judaism)? The Rishonim discuss this question at length.

(a) RABEINU TAM (cited by TOSFOS DH v'Lidrosh) writes that the Bi'ah of a Nochri is like that of a Behemah. Therefore, a woman is not Chayav Misah if she willingly lives with a Nochri while she is an Eshes Ish. This is also the opinion of the BA'AL HA'ME'OR and the MILCHAMOS in Sanhedrin (74b). However, the reason they give for exempting her from Misah is that the Torah says that only a man who commits adultery with "Eshes Re'ehu" ("the wife of one's *fellow* man") is Chayav Misah, and when a Nochri commits adultery with a Jewish man's wife, she is not called "Eshes Re'ehu."

Rabeinu Tam adds that for the same reason, if the Nochri later converts, he is permitted to marry the woman with whom he lived, even though normally a woman who commits adultery is prohibited both to her husband and to the adulterer. In this case, the Nochri, after converting, may marry her, because his Bi'ah with her was like the Bi'ah of a Behemah which is not the type of Bi'ah that can make him Asur to her, and thus when he converts he may marry her.

The RIVAM (cited in Tosfos, ibid.) understands that Rabeinu Tam means to permit not only the Nochri to the wife, but even the husband is permitted to his wife after she was Mezanah with a Nochri. However, he strongly opposes this ruling based on our Gemara that implies that if the woman lived with the Nochri willingly, she becomes Asur to her husband.

(We might also ask that if Rabeinu Tam mean to say that Z'nus with a Nochri does not prohibit the woman to her husband or to the adulterer, the woman should also be permitted to her husband if he is a Kohen. Yet our Gemara says that she is prohibited to her husband if he is a Kohen! However, we could answer this question by saying that the prohibition to a Kohen is not because of Tum'ah, that she was defiled, which is the reason for her prohibition to her husband and to the adulterer. Rather it is because of the Isur of "Zonah." This Sugya holds that even Bi'ah b'Ones makes a woman a Zonah (see Yevamos 56b and 59b).)

It is possible, though, that Rabeinu Tam had a different intention. Rabeinu Tam means only that the woman is permitted to the adulterer, but *not* to her husband nor to a Kohen, as the SHITAH MEKUBETZES (DH v'Ivra) writes. The logic behind this distinction is that since the Nochri's Bi'ah is not the same as that of a Jew because of the element of "Zirmas Susim Zirmasam," the woman is not Chayav Misah for such a Bi'ah. For the same reason, the adulterer is not prohibited to the woman, because his Bi'ah was not the type of Bi'ah which the Torah punishes with Misah, and we do not find that such a Bi'ah could make her Asur to the adulterer.

She *is* Asur to her husband, though, because she was not faithful to him, and the Torah says that if a woman is unfaithful to her husband she becomes Asur to him; it makes no difference whether she was unfaithful to him with a Nochri or with a Jew. In short, the Isur to her husband depends on her being unfaithful, while the Isur to the adulterer depends on the Bi'ah being considered a normal Bi'ah. (See MISHNEH L'MELECH, Hilchos Yibum 6:19, who discusses the extent to which we compare the woman's status to her husband with her status to the adulterer.)

In fact, this is exactly the opinion of RABEINU YECHIEL (cited by the RITVA here and by the MORDECHAI in Sanhedrin #720). Rabeinu Yechiel says that if a Nochri lives with a Jewish Eshes Ish, he is permitted to marry her after he converts, since he was permitted to her at the time he had relations with her (since he was a Nochri), and when he converted he became like a "Katan sh'Nolad." This implies that if he had been Asur to her while he was a Nochri, the Isur would *not* have been revoked because of "Ger sh'Nisgayer k'Katan sh'Nolad Dami."

Accordingly, Rabeinu Tam is giving the reason why the Isur does not apply to the Nochri while he is a Nochri, and Rabeinu Yechiel is adding why the Isur does not apply to him when he converts. Indeed, the CHASAM SOFER and TOSFOS YOM HA'KIPURIM (Yoma 82b) explain that Rabeinu Tam means to say the same as Rabeinu Yechiel.

(b) The ROSH (1:4, and in TOFOS HA'ROSH) also rules that when a woman is Mezanah with a Nochri and then he converts, she is permitted to marry him, like Rabeinu Tam says, but for a different reason than that of Rabeinu Tam. He asserts that we only prohibit a woman to her adulterer if she was permitted to him before the Z'nus. Since she is prohibited to marry a Nochri even before the Z'nus, the Torah does not prohibit her to him when she was Mezanah with him, and even when he converts she is permitted to him.

The TERUMAS HA'DESHEN (#29) discusses what the Rosh would hold if a woman was Mezanah with the husband of her sister, and then her sister later died. Following the logic of the Rosh, she should be permitted to the adulterer, because at the time of the Z'nus, she was prohibited to him (because of "Achos Ishto").

The Terumas ha'Deshen concludes that even the Rosh permits her only to a Nochri, because a Nochri is *always* Asur to the woman. If he converts, he is not the same person anymore because he is like a "Katan sh'Nolad." Therefore the Isur to the adulterer will not apply when the Nochri converts. In contrast, the husband of her sister is only prohibited to her as long as her sister is alive. Therefore, when she commits adultery with him, the Isur to marry her adulterer will apply.

(c) The RIVAM rejects Rabeinu Tam's argument entirely. He rules that the woman *is* prohibited to the Nochri with whom she committed adultery.

HALACHAH: The SHULCHAN ARUCH (EH 178:19) rules like Rabeinu Yechiel and the Terumas ha'Deshen, that the woman is permitted to the Nochri when he converts, but she is not permitted to the husband of her sister after her sister dies.

QUESTION: The Gemara says that if a wicked regime were to institute that anyone who marries a Besulah on Wednesday is to be killed, the Rabanan would uproot the Takanah d'Rabanan and would not require a Besulah to get married on Wednesday.

However, later the Gemara says that if the wicked regime decrees that any Besulah who gets married on Wednesday must live with the governor first, then even though there is a concern that some women, the Tzenu'os, might give up their lives, the Rabanan do not uproot the Takanah of getting married on Wednesday, because "evil decrees are wont to be retracted, and we do not uproot a Takanah d'Rabanan because of an evil decree which will eventually be retracted."

If so, why are the Rabanan prepared to uproot their Takanah if the regime decrees that whoever gets married on Wednesday will be killed? That, too, is an evil decree that will eventually pass!

ANSWERS:

(a) TOSFOS (DH Takanah) explains that if the governor makes a decree to kill anyone who gets married on Wednesday, then the Rabanan would not have to uproot their Takanah, because they could institute a different day for getting married instead of Wednesday. Such a change would satisfy the governor, since he would be content with the knowledge that he was able to cause a change in the Halachah of the Jews. Since his intention in making such a decree was clearly to prevent the Jews from observing the Halachah, it will not bother him if he finds that everyone is getting married on another day.

However, when the governor wants to live with every Besulah who gets married on Wednesday, he is obviously interested in personal pleasure and not in abolishing the Jews' Halachah. (This also explains why there is no requirement "to be killed and not to transgress," in this case, even though the Halachah is that when a Nochri tries to make us change any religious practice with the express intention to abolish the Jewish faith, there is a requirement "to be killed and not to transgress.") If the Rabanan were to institute that Besulos should get married on Tuesday, the governor would just change his evil decree to take all the woman who get married on Tuesday. Therefore, the Rabanan would have to avoid instituting a new day for getting married and abolish the Takanah of getting married on a specific day. Since they do not abolish any Takanah because of an evil decree, the Takanah remains.

This appears to be the intention of Rashi as well (DH v'Ne'akrei).

(b) The SHITAH MEKUBETZES explains that if the evil decree was to *kill* people who get married on Wednesday, then the Rabanan would certainly have annulled their enactment in order to save lives. But if the decree was only that the Besulos must be defiled by the governor -- and there was no definite danger to lives but only a *possible* danger that a modest woman might give up her life in order to avoid living with the governor -- the Rabanan would not have annulled their enactment, since there is a possibility that *no* lives will be lost by the time that the evil decree is revoked. (See also PNEI YEHOSHUA.)

(c) The RITVA answers that in the case where the decree was that each Besulah must be defiled by the governor, the Rabanan did not uproot the decree, because the only concern is that some women will give up their lives Lifnim mi'Shuras ha'Din, beyond the letter of the law. For such a concern, the Rabanan do not abolish an enactment. If, however, there would be a concern that a person would have to give up his life according to the letter of the law, then the Rabanan would certainly abolish their enactment.

As the SHITAH MEKUBETZES here points out, it seems that the Ritva is following his opinion elsewhere (19a), where he writes that for any Mitzvah for which a person is not required to give up his life, it is *prohibited* for him to give up his life. (This is also the ruling of the RAMBAM in Hilchos Yesodei ha'Torah 5:4.) Accordingly, , the Rabanan did not find it necessary to abolish the Takanah because of women who are acting improperly by giving up their lives when they are not supposed to do so (and it is prohibited to do so). This is the "Lifnim mi'Shuras ha'Din" to which the Ritva is referring -- an erring act, not a laudable one.