Monday, September 03, 2007

Revoking a Kiddushin

The Gemora asks, is there any kind of get (halachic divorce document) that the Torah says is invalid, and due to the concern regarding modest or brazen women, we will permit the men in the world to marry what is essentially a married woman?! The Gemora answers that yes, it is possible, as there is a principle that whoever effects kiddushin does so based on the standards of the Rabbanan. The Rabbanan took away the kiddushin from this man (and therefore the woman is not married, although she never received a get).

The Rashba asks: Why is this case different than the case in Yevamos where a man fell into water that has no end? There, we rule that the wife will remain an agunah because the husband might have exited the water from a place that was not visible to us. Why don’t we say that the Rabbanan took away the kiddushin from them, and she may remarry another man?

He answers: The two cases are very different. Here, there was a get, except that it was written with a condition, and an uncertainty arose regarding the condition. Another example where the Rabbanan would revoke the kiddushin is where one witness is testifying on the woman’s behalf (that her husband died). However, when there is no get and no witness, the Rabbanan did not go ahead and remove a kiddushin.

The Gemora in Yevamos (110a) records an incident in Narsh where a girl was married off when she was a minor. When she became an adult, they sat her by a Chupah (wedding canopy, in order to validate the first marriage), and someone else snatched her away before the “wedding” (and made her his wife)! Rav Bruna and Rav Chananel, students of Rav, were present when this happened, and they did not even require her to have a get from the second “husband” (as his kiddushin is invalid).

Rav Ashi explains that being that the wife snatcher acted improperly, the Rabbanan therefore acted improperly with him and removed the validity of his kiddushin. (This is following the opinion of Rav, who maintains that for the marriage of a minor to become valid, she must have marital relations with her husband when she becomes an adult, and if not the marriage is invalid.)

The Rabbanan were empowered to remove the kiddushin in this case because he acted improperly in the beginning of the kiddushin.

Reb Yosef Engel in Gilyonei Hashas cites a Teshuvos haRashba who writes that we do not apply the principle of “Since he acted improperly, the Rabbanan acted improperly with him” only in places that are specifically mentioned in Chazal. The Sages did not annul the marriage in every case where one acts with trickery. This can be proven from a Gemora in Kiddushin (58b). The Gemora states: One who tells his friend to marry a woman for him (as an agent), and he goes ahead and marries her for himself, she is married to the second one. We do not say that since he acted improperly, the Chachamim invalidated his marriage.

This can be proven from the fact that even if one betroths a woman who is subject to a negative prohibition, kiddushin, nevertheless takes effect. This is also true if someone marries a woman who is a secondary ervah to him. Obviously, sometimes this principle is applied, and sometimes, it isn’t.


Netiv Aryeh said...

HaRav Nebenzahl has this to say on the matter:

There are times when we find in the Gemara, the expression "afkinu Rabbanan Kiddushin minei" "the Rabbis abrogated his betrothal", but this is only valid because: "kol hamekadesh adaata d'Rabannan mekadesh" "whoever betroths a woman betroths her subject to the will of the Rabbis" (Gittin 73a). When a couple gets married it is on condition that the marriage be "kedat Moshe veYisrael" "according to the law of Moshe and Israel". A union that does not have the approval of the Chachamim is viewed as if it never took place - it was not done "kedat Moshe veYisrael". Despite the power to do so, Chazal were very hesitant to declare a marriage as retroactively null and void - its use was limited to specific cases. Even in situations of forbidden unions, such as those prohibited due to a "lav" or "asei" where the conclusion of the Gemara is that the marriage does take effect, Chazal did not annul the marriage. "Afkinan Rabbanan leKiddushim minei" was not an innovation designed to uproot the Torah, it was rather reserved for specific cases and served to strengthen observance of the Torah.

Today the situation is such that people feel they may do what they think is right. For example, I heard of a "Beit Din" that calls itself Orthodox - (not Reform or Conservative) in America. This "Beit Din" discovered a new way to uproot a marriage. A woman whose husband is missing for a lengthy period of time is asked had she known that her husband would be missing, would she have gotten married. Of course she answers "no!". She certainly would not have wished to remain an "aguna" for so long. Based on this the marriage is declared as having been made under false pretenses and is retroactively annulled. This woman is now permitted to remarry without a "get" - divorce document, or any witnesses that her husband has died, G-d forbid. This is scandalous! They claim to be Orthodox, yet they think they have invented something that all the Torah scholars of the previous generations did not think of. Were there not "agunot" during the times of the Gemara, Rishonim, and Achronim? Nobody else thought of this solution, it is only they who were given the wisdom to arrive at this solution, this can only be described as: "havel havalim".

If it were a vow then this type of system may be used to annul it. Business transactions, and a marriage is a transaction between a man and woman, cannot be annulled for this type of reason. If a man were to purchase a house and later come to the seller claiming that had he known war would break out and therefore the government decided to appropriate the house for their purposes, the sale would still be valid. Only a sale made under false pretenses that existed during the time of sale is invalidated - a war that broke out later is not a valid reason. They are attempting to annul the Kiddushin as a result of reasons that arose at a later stage - outrageous!

Even here in Yerushalayim there once was an individual who set up an office in the American Consulate. He busied himself by giving a "get" to all "agunot". You may wonder how it is possible for a man other than the husband to issue a "get", his answer was: "zachin le-adam shelo befanav" "One may act for a person in his absence to his advantage" (Ketubot 11a). Amazing! he discovered that divorce is a "zchut" and therefore the above principle can be applied resulting in the ability to divorce a woman without the knowledge or consent of her husband. Impeccable logic! as clear as two plus two. If he really believes that divorce is a "zchut", then he would say that it is forbidden to marry a woman not in the presence of the husband, a point discussed in the Node B'Yehuda, because marriage must be a "chov" - a disadvantage. What people decide for themselves is just terrible, the tragedy of it all is that we are talking about people who call themselves Orthodox.

We already know that the Conservative and Reform tailor the Torah for their own convenience. They permit marriage between Jew and non-Jew, there is equality of the sexes in the marriage ceremony. They perform the ceremony together with a priest to insure the marriage is "kedat Moshe veoto haish" - "lehavdil elef alfei havdalot". What they are doing is terrible! The Reform movement did not begin with such a radical breach of the Torah. The Torah scholars of the time, however, foresaw what it would lead to over a period of time. It begins with slight changes in Jewish customs that perhaps are not of great significance. If the goal in instituting these changes is to uproot the Mitzvot in the Torah, anything can result. Chazal's purpose in instituting laws was to bring us closer to the Torah. Their goal is to bring the Torah closer to them, to make it more convenient. This is the basic difference between Chazal's enactment's and the destruction they are causing.

Yeshivat Netiv Aryeh