Class Notes - Class #3

Mitzvah #579 sets out the requirements for divorce.  Mitzvah #580 prohibits a couple from remarrying after divorce if the wife has married someone else in the interim.  In discussing divorce, the author takes the opportunity to give us an extended lesson in contract law.

The source verse for mitzvah #579, Deut. 24:1, discusses how a husband divorces his wife.  There is no corresponding verse describing how a wife divorces her husband.  Hence, in halachah, only a husband has the power to divorce, and then only if he follows the procedures prescribed:  writing his wife a document of divorce, a get; delivering the document to the wife; and sending her out of his house.   Thus, according to the source verse, a husband initiates divorce; apparently a wife cannot initiate a divorce and can be divorced against her will.

The source verse also mentions the circumstances under which a husband can divorce his wife: if she does not find favor in his eyes, and/or if he finds “ervat davar,” something inappropriate, especially something sexually forbidden, in her behavior.  The two reasons do not fit well together and our author expands how that tension plays out in halachic literature.  All authorities agree that a husband may, and perhaps even should, divorce a wife whose behavior is improper.  But the authorities disagree on whether the husband can divorce his wife if he is displeased about minor things like the wife burning his dinner. 

            Before we discuss the details in this mitzvah/essay, let’s start with some context.  Several policy concerns are relevant to how couples divorce.  When a married woman has sex with a man other than her husband, the relationship is adultery and any children are mamzerim.  Therefore it is important for the community as a whole to know which women are married.  We saw earlier that a marriage can only take place in the presence of witnesses who create a communal presence.  Similarly, divorce requires witnesses. 

We also saw that the marriage relationship was the primary economic unit, and was the crucial source of economic support especially for women.   In many Middle Eastern societies a husband can divorce his wife simply by making a statement.  This permits rash action by the husband that can have catastrophic economic consequences for the wife.

Each of the two creation stories at the beginning of Genesis discuss the creation of two genders of people.  Gen. 1: 26 – 28 describes God creating humans, male and female, and blessing them.  Men and women in that story are exactly equal, each created in the image of God.  In Gen. 2:18, the man is created and then woman is created secondarily from the man’s rib, in relation to man. The woman is described as an “ezer k’negdo” to the man.  That phrase is difficult.  The woman will be an “ezer,” “help,” and her relationship to the man is that she will be “k’negdo.” That might mean “against” him, or “corresponding” to him, among other possibilities.  

Most of us probably think of the first story as the paradigm of how men and women, husbands and wives, should relate to each other: as respected equals.  In earlier times, though, the second story was the basis.  These themes appear in the author’s discussion of the shoresh, where he explains how he understands the complex and ambivalent ways husbands and wives relate to each other.  It is hardly surprising that our author speaks from a male point of view. 

Ideally the husband should recognize his wife as a partner made for him by God, made, like him, in the image of God.  But the wife is also seen as secondary, in service of her husband.  Sex is a crucial element of marriage for both husband and wife.  Thus, our author cites the Talmud for the proposition that a woman would only consent to marriage if the husband will have sex with her, “make her into a vessel.”  A woman is an ezer to her husband if their sexual relationship is good.  Since the wife is made in the image of God, intelligent and insightful, a husband should show her respect and tolerate minor disagreements.

But if the relationship, sexual or otherwise, is unpleasant, the husband need not tolerate that and can divorce his wife. Since the woman was created to serve the needs of the man, if a husband is not satisfied with the wife’s service he need not continue the marriage.  In fact, the author encourages a husband whose wife is behaving badly to divorce lest the husband endure the living hell of a failed marriage.  (The author does not mention that the wife is also suffering.)

Our author lived in a cosmopolitan society, among Jews, Catholics and Moslems.  Catholics prohibited divorce, although the church did provide for annulments of marriages, whereas Moslems permitted husbands to divorce their wives by making a statement.  Our author saw that divorce in each of these cultures was problematic and our author responded.  If the husband has no possibility of divorce unhappy couples are stuck.  Further, wives might feel free to behave badly knowing that their economic situation is secure.  If the husband can easily institute divorce, the husband is apt to act in anger rather than calming down and thinking carefully about what he is about to do.  Also, it is important for the community to know who is married and who is not.  If divorce is too informal, women will claim that their husbands divorced them if they are suspected of adultery.  Divorce needs ceremony.

The author provides extensive detail about the process of divorce and about formal documents in general.  The source verse that outlines the process of divorce says the husband must write a divorce document, deliver it to his wife, and send her away.  A close reading of those verses generates the d’oraita requirements for a divorce ceremony: 

·         The husband writes a get specifically for the purpose of divorcing this wife.  The husband can write it himself or commission someone else to write it on his behalf. 

·         The husband must act of his own free will.  The author notes there are cases where the husband can be coerced, and we will return to that topic shortly.

·         The get must clearly convey that this husband is divorcing this wife.  The text must express the idea that this particular husband is divorcing this particular wife such that she may now marry someone else.

·         The husband must deliver the get to his wife or her agent, either personally or through an agent.  The get is not effective if the wife takes the get. The get must be placed in her hand, or delivered to her property when she is present and knows it is there.  Dropping the get on her property when she is not there does not suffice since the get is a detriment and actions which are detrimental to someone are only effective if done if the person is present so the person has notice to defend his or her interests. 

·         The get must be delivered to the wife in the presence of qualified witnesses.

All other details about gittin are rabbinic.  Our author expands on several aspects of this procedure: the role of witnesses in a divorce, what a witness is required to do, the role of the parties intentions where the document attesting to the transaction does not reflect their intent, whether the husband’s agent to deliver the get may also be a witness, situations where the husband may have authorized several different divorces of the same woman, considerations about the text of the get.

A get requires two witnesses.  The author says that since the get changes the status of the wife it needs public attestation.  If a get is delivered in private, without witnesses, it is ineffective even if both husband and wife attest that the get was delivered.  Despite the ceremony, the couple is still married.  The efficacy of a get delivered in front of one qualified witness is more problematic.  If the husband authorized an agent to write a get, and that get is delivered before one witness, the get is ineffective.  But if the husband personally wrote the get and delivers it before one witness, the get is a “get pasul,” a disqualified get.  This rabbinic construct means that the husband is still required to deliver a proper get, but the woman is considered divorced so that she may not subsequently marry a cohen and so that her children with a different father are not mamzerim.  Our author here is explaining one of several cases of get pasul delineated in Mishnah Gittin 9:1.  The author does not explain why it should matter whether the husband wrote the get himself of authorized an agent to write the get.

 For a get, and in other situations as well, the witnesses do more than just witness and attest to what happens.  The witnesses are facilitating a transaction, and they bear some responsibility for the transaction itself.  The witnesses are charged with checking to see that the parties understand the transaction and that the transaction is fair to all.  People can sometimes be naive and easy to fool.  Witnesses ought not facilitate unfair transactions where one party to the transaction is taking advantage of the other party.  The role of the witness as surety of fairness is something our author sounds very proud of.  It is another manifestation of the goal that God wants the Jews to create a society that is honest and fair to all.

Even if a contract is evidenced by a document, the provisions of the contract might not be what the parties intended.  The intentions of the parties control as against the provisions of the written document or even what the parties said.  One aspect of fair transactions is that the parties understand any implied conditions on the transaction.  Our author gives several examples of transactions with implied conditions.  For example, someone offers something for sale because the seller is desperate for the money.  If the seller were not desperate for cash the seller would not sell the item. If the seller comes into some money and can afford to, the seller will want to buy the item back and will want to pay the buyer the same price as the price in the original sale.  The seller thinks of this transaction more as a pawn than a sale.  All of that is fine, but only if the buyer understands the transaction in the same way.  So if the seller told the buyer about the intent to repurchase the item if financially possible, the buyer may void the sale, refund the seller’s money and get the item back.  But if the seller did not explain that situation to the buyer, the buyer is not required to return the item to the seller.

Similarly, someone planning to move to Israel might sell off his or her goods only because of the impending move.  The seller moves to Israel, but then decides to return.  At that point the seller would like to repurchase the household goods for the price the buyer paid for them.  The buyer knew the seller was planning to move to Israel. Presumably, had the seller not moved to Israel the seller could have rescinded the sale.  But the seller did move to Israel, so the buyer thinks the condition on the sale was fulfilled and the buyer can no longer rescind the sale. That works well as long as the buyer understands the sale as conditioned on the seller actually moving to Israel.  But the seller here makes another argument:  the buyer fully intended to live in Israel but just couldn’t make it.  Had the seller returned voluntarily the seller could not rescind the sale. When people move to Israel they typically intend to stay, so we assume the seller was forced by circumstances to return and therefore the seller can rescind the sale.

A husband can appoint an agent to act for him, allowing the agent to authorize a get to be written and delivered.  A husband can streamline the process of giving a get to his wife by appointing two agents, each of whom is appointed to serve as both an agent to deliver the get and as a witness.  The Mishnah in Gittin distinguishes that case from several other cases where a husband appoints several agents to be involved in the process of divorcing his wife but appoints some larger number of agents or gives unclear instructions.

The ability of a husband to divorce his wife through an agent raises a myriad of possible complications if the husband does apparently contradictory things.  For example, consider a case where the husband appoints an agent to divorce the wife and then the husband changes his mind and revokes the agency?  Or consider a case where the husband appoints two different agents each of which is instructed to divorce the same wife? 

To help avoid such problems that rabbis tried to keep the husband’s actions under control.  The husband is instructed to nullify any potentially contradictory prior instructions, to give precise direction to the scribe to write a get from the husband to one clearly identified wife, and to stay close at hand while the get is being written.  Keeping the husband on site solves another problem.  If the husband were to die before the get was delivered to his wife, the wife would be a widow rather than a divorcee.  If the husband is on site, we know for sure he is still alive.  But if the husband leaves, he is still presumed to be alive.

Although a get must contain only minimal information, which the author describes, the act of writing a get became more complicated and formalized.  A get can be written in any language, but Aramaic text became standard. More information was added to the text: date, place, aliases of the husband and wife, home towns of the husband and wife and their families, attestation that the husband is acting voluntarily, legalistic synonyms describing the new state of divorce and the woman’s new status.  The date is given according to the Jewish calendar but the year is given according to the local calendar.  The get ends with formalized language, “according to the law of Moses and Israel,” and is traditionally written in twelve lines.  The witnesses sign on the bottom.  Other documents may be post-dated, written before the transaction takes place, but a get may not be post-dated, so the get must be delivered the day it was written. 

Many of the requirements for the written text of a get reflect typical problems with written legal documents and the author takes the opportunity to discuss how binding documents are written. A document may be written on parchment from which prior writing has been removed, but only because someone looking at the document could identify different layers.  Each document ends with a formal ending phrase that identifies the end of the document.  That makes it hard for someone to add language to the document after the document is complete.  Nothing new and significant should be written on the last line of the document because it is easy to fraudulently add a line at the end of a document. New content that appears on the last line of the document is not accepted as part of the document. The witnesses should sign without leaving space between the text and the signatures.  If they left one line that is acceptable since nothing written on the last line of the document can add new meaning to the rest of the text. The meaning of the text should be clear and carefully formulated to avoid ambiguity.  Even expressions that could be misread in a confusing way should be avoided. The penmanship should be clear enough for a child of ordinary intelligence to read. 

The author explains some requirements for written documents other than divorces.  Loan documents should explicitly mention what will happen to the loan in shmittah. Property being bought or sold should be described in detail.  Lines of text should not end with numbers lest someone change the number by adding zeros.  If a line of text ends with a number the scribe should erase the text and rewrite it with different spacing.  If a particular amount of money is described in the document the scribe should be careful that the amount is the same all the way through the document.  If the amount varies, the last amount mentioned in the document is taken as the valid amount.  If the scribe erases or corrects part of the document, the content of the correction should be repeated later in the document to confirm that the correction is legitimate.  Specific phrases might be used to accommodate specific legal rules that apply to the situation.  Many of these concepts will be familiar to those of us who remember writing checks.

In halachah, a document is only effective as evidence if the person making a claim based on the document has the document. We saw above that the husband must deliver the get to his wife.  The author does not go into the complex topic of what does and does not constitute delivery.  The divorced wife keeps the get as proof that it is legitimate for her to remarry.  (Under current procedure, the beit din keeps the get and gives the divorced wife a document attesting that the beit din supervised a proper divorce.  That prevents later parties from reexamining the get and finding grounds, legitimate of otherwise, for challenging its validity.)

The author expands on the notion that a document is only effective if the person making a claim based on the document has possession of the document. Consider a case where a lender lends something to a borrower.  A receipt is written, evidencing that the borrower now has something that belongs to the lender.  If the lender wants to force the borrower to return the item, the lender needs to have the receipt.  The receipt does not help if the borrower has the receipt.  If the borrower returns the item, the borrower should get possession of the receipt so the borrower has proof the item was returned. 

Since possession of the document is so important, there is danger of cheating if documents are created when a party to the transaction is not present.  Again, consider the loan.  The receipt in that case benefits the lender, who needs it to document a claim if the borrower does not return the item.  The borrower has no need for a receipt since the borrower has the item.  In this case the receipt can be written when the borrower is present but the lender is absent since only the lender benefits from the document.   But where either party could have use of the document, for example a contract for a sharecropping arrangement or rental of land, the document can only be written with both parties present and able to protect their interests.

The author intersperses discussion of the formal considerations for properly writing a get with a list of forms for other documents:  manumissions, receipts, wills, loans, sale of debts, a court’s attestation that certain witness signatures are valid.  (I will refrain from pondering the implications of the fact that the text of a divorce document and a manumission document are so closely parallel.)  Note, for example, that a will describes the competence of the testator.  For some of those the author includes some detailed rules about the particular type of transaction involved.  Our author explicitly says this “form book” is beyond the scope of an essay about the mitzvah governing the process of divorce.  But sometimes the author has some material he is just determined to discuss.

As usual, even when our author provides lots of detail there are lots of other sub-topics he does not cover.  Here, for example, the author does not expand on questions related to the husband and wife agreeing to a divorce.  We mentioned earlier that divorce is in the hands of the husband.  Apparently the wife can be divorced without her consent as long as the ceremony proceeds properly.  That practice was changed in the early middle ages through legislation attributed to Rabbenu Gershon which prohibited a man from divorcing his wife against her will. 

The husband must give a divorce of his own free will.  Apparently there is nothing a wife can do if she wants a divorce but her husband is unwilling or unable to give a divorce.    Response to that problem has a long, complex history.  The Talmud records narrow situations where a marriage can be retroactively annulled.  There are also cases where the wife makes a compelling case to a beit din that she deserves a divorce, in which case the beit din forces the husband to divorce her by hitting him until he says “I want to divorce her.”  The author makes brief reference to that situation.  More recently, though, emphasis has returned to the husband acting voluntarily and that limits the kinds of coercive pressure that can be put on husbands.  Whatever help a beit din might provide, though, if the wife does not have compelling grounds for a divorce or where the husband is no longer competent, the wife is stuck.  Without a proper get, the wife is still considered married, according to halachah she cannot marry anyone else, and any children she has fathered by a man other than her husband will be mamzerim.

The laws of divorce in halachah are based in the assumption that a woman needs a husband to survive economically and that women would generally prefer to be married to anyone than to be single.  They also assume some formal or informal coercive power within the Jewish community.  Now, though, the Jewish community has very little coercive power and women can support themselves.  The rules no long fit the reality.

If a couple divorces, they are permitted to remarry.  But if the wife marries someone else after the divorce, according to mitzvah #580, after that second marriage ends the original couple are forbidden from remarrying. This prohibition only applies if the wife marries someone else after the original divorce; if the wife has extramarital sex after the divorce, the couple may still remarry.  The author seems to find the shoresh as an attempt to limit serial polygamy.   The prohibition on remarriage applies both to the husband and to the wife.  Ramban cites the source verse for this mitzvah as the basis for another mitzvah prohibiting a husband from having sex with his wife if she has committed adultery while married to him.