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(Photoillustration: Tablet magazine; main photo: Still from 'The Return of Martin Guerre,' 1982)

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

The main subjects of Tractate Yevamot are marriage and death. Initially, the rabbis were concerned with a man’s responsibilities toward his dead brother’s widow, who is his sister-in-law or yevama. Much of the tractate so far has dealt with whether and how such a man should marry his yevama, or else release her from her obligation by performing the ceremony of chalitza. This week, however, as Daf Yomi readers began chapter 10 of Yevamot, the subjects of death and marriage were brought together in a different way. Now the rabbis shift their attention from the brother-in-law to the widow herself. What happens, they ask, if a widow remarries, only to discover later that her first husband is in fact still alive?

This situation is a classic subject of literature—as in the story of the Renaissance husband Martin Guerre, who disappeared and then returned years later, after his wife had already settled down with another man falsely claiming to be him. (Martin Guerre’s story has been retold in an influential 1983 book by the historian Natalie Zemon Davis, as well as in a movie starring Gérard Depardieu.) Going back even further, there is Penelope in the Odyssey, a wife who struggles to remain faithful to her vanished husband, despite the insistence of many suitors that she give him up for dead.

How often such situations actually arose in Talmudic-era Jewish communities is an open question—surely it could not have been an everyday occurrence. But in an era without reliable long-distance communication, a woman whose husband simply disappeared without a trace would have been left in a precarious position. She was an agunah, an abandoned wife, unless and until a court declared her husband legally dead. Even then, as the mishna on Yevamot 87b makes clear, she would pay a high price if she made a mistake and her first husband eventually turned up alive. In that case, both her first marriage and her second marriage were considered invalid: “She must leave both this man and that one, and she requires a bill of divorce from this one and that one.” She could not claim any property from either husband, and any children born to the second husband were considered mamzerim, illegitimate. In short, she was left abandoned and destitute.

To the rabbis, of course, such a case is significant not for its literary potential, but for its legal ramifications. The mishna distinguishes in a counter-intuitive way between a woman who got remarried with the permission of a court and one who got remarried without consulting a court, simply on the basis of witnesses who had informed her that her first husband was dead. One might think that a woman who obeyed the letter of the law and went to the trouble of having a court declare the first husband dead would enjoy the advantage here. After all, if the court itself made a mistake by declaring a living man dead, why should the wife suffer from following the court’s error? But in fact, the mishna holds the other way around. A wife who does not consult a court but remarries on her own initiative and then finds that her first husband is alive, is permitted to leave her second husband and go back to her first. Conversely, a wife who does consult a court, has her husband declared legally dead, and then finds that he is alive, cannot go back to him. Why is this?

The Gemara takes up the question on Yevamot 91a, where Rav Sheshet draws an analogy with the case of a married woman who has been raped. If a married woman commits adultery voluntarily, she must leave her husband; but if she is coerced or raped, then she is considered not responsible and she may continue to live with her husband. Is this not a similar situation, Rav Sheshet asks? After all, the woman who believes she is a widow is in a sense having sex with her second husband “unwillingly,” that is, without the intention to commit adultery. For this reason, “it is as though he raped her”: In this case, too, she should be considered guiltless and allowed to go back to her first husband if he turns up alive. It seems unfair to hold her responsible for following a court order; as Sheshet asks, “What [else] could she have done?”

This raises the question of how far a person is responsible for following a court order that turns out to be erroneous. Several rabbis come to give examples of cases where, even if a person is following the court in good faith, she is nonetheless responsible if she comes to commit a sin. Say, for instance, that a woman obtains a bill of divorce from her husband, but the scribe who writes out the document makes an error: He fills in the wrong date, or the wrong place of residence. This renders the divorce invalid, so the woman is technically still married, and if she goes on to contract a second marriage, she will be guilty of adultery. Yet how could she have known of this mistake, since she is no legal expert and in many cases probably could not even read? To this Ulla gives a stern reply: “She should have had the bill of divorce read by a scholar.” It is up to the woman to make sure that her paperwork is in proper order.

What is the point of having sages and courts if their rulings can’t be relied on?

Later on, the Gemara raises an analogous case with regard to Shabbat. “If the court ruled that the sun had set” at the end of Shabbat, and people started to work, and then the sun continued to shine—perhaps it had been behind a cloud—who is to blame for the violation of Shabbat, the court or the people who followed its ruling? And which party is liable to bring an offering for an unwitting sin? According to Ze’eiri, here too the responsibility lies with the individual Jew, not the rabbinic court. This does not seem entirely fair, since it seems to put the burden of following the law on unlearned individuals, rather than on learned interpreters; and what is the point of having sages and courts if their rulings can’t be relied on?

Related to this question is another issue that threads through the discussion. How many witnesses does it take for a court to rule a missing husband legally dead? For most matters of Jewish law, two independent witnesses are required. But in this case, the court may rely on the testimony of a single witness. The reason, the Gemara says in Yevamot 88a, is to make things easier for an agunah: “Due to the case of a deserted wife, the sages were lenient with her.” This witness could be relying on hearsay—”from the mouth of another witness”—or even be a woman or a slave, categories of people whose testimony was ordinarily not accepted in Jewish courts.

The easier it is to declare a husband dead, however, the more likely it is that the court will rule in error and that he will one day turn out to be alive. And what happens, the rabbis ask, if a man comes to town claiming to be the dead husband, but there is some doubt about his true identity? This is the Martin Guerre scenario—or, as the rabbis think of it, the Joseph scenario, since Joseph in Egypt went unrecognized even by his own brothers, thanks to the changes time made in his appearance. What happens if two witnesses say that the man is dead, while two others insist that he has come back alive? The answer turns out to depend on timing. If two witnesses insist that the man is alive but his wife disregards them and gets remarried, and then he actually turns up, then she is obligated to divorce her second husband. However, if she gets remarried first and only later do witnesses come to insist her first husband is still alive, then she is permitted to stay with the second husband. In this case, she is considered to have acted in good faith when she remarried.

What goes unspoken in this whole discussion is that the situation of the remarried widow is not symmetrical with that of the remarried widower. That is because, under Talmudic law, a man may have plural wives, but a woman may not have more than one husband. If a man’s wife is considered dead, and he remarries, and then she turns up alive, there is no problem, because he can simply be married to both of them. But this was not true under later Jewish law—famously, Rabbi Gershom banned polygamy for Ashkenazi Jews around the year 1000. I wonder, then, if the strictures applied to widows in this section of Yevamot are also applied to widowers under modern Jewish law.

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