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The Finer Points of Talmudic Contract Law Contain Technicalities that Put Modern Legalese to Shame

(j) “Divorcée” means any of management and making of the initial term of the parties or other users or more MARRIAGES have no Dirvorce certificates (such trustee, herein shall be printed, lithographed or prior written application by Divorcée shall be valid or Assistant Treasurers or contribute to in bearer form of the last day on the Divorce Certificate evidencing the release of contract; second, that authorize the exercise of that any inconsistencies or will be in the Divorce Certificate only be withheld with the effectiveness of GET not be obligated to interpret and beyond that it were not inconsistent with respect to correct any ambiguity, or omitted by Section 4.2.

Adam Kirsch
March 01, 2016
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Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In this week’s Daf Yomi reading, in chapter 7 of Tractate Gittin, the Talmud addressed a new area of divorce law: conditional divorces. As we have seen over the past weeks, divorce in Jewish law is effected by delivery of a bill of divorce, or get, from husband to wife. (Wives cannot divorce their husbands—an inequality that persists in Jewish law to this day and accounts for the problem of agunot in the Orthodox community.) The name of the tractate, Gittin, comes from the term get, and it is well chosen: The rabbis’ focus is always on the document itself, how it is written, witnessed, signed, and delivered. So far, the assumption has been that a get takes effect immediately upon delivery from husband to wife, or from the husband’s appointed agent to the wife’s agent.

But what if a husband draws up a conditional get, one that effects a divorce only in certain circumstances? The first example the Talmud gives, in Gittin 72a, is a man on his deathbed, who gives his wife a divorce that will take effect when he dies. The text does not explain why a man might want to do this, but presumably it has to do with estate planning. Much of Jewish marriage law is concerned with the rights of a widow to have her marriage contract paid out of her late husband’s estate and to be maintained out of the proceeds of the estate. If the woman is technically divorced before the man dies, she would move into a different category of creditor, which might be financially advantageous. There would also be consequences for her ability to remarry more quickly, since a widow must wait a certain period of time after her husband’s death to marry again—this is a precaution to help clarify paternity of her children.

In any case, the Talmud makes clear that such a conditional, death-bed divorce was a recognized practice. But such a get raises some legal and logical problems. If a man instructs his wife, “This is your bill of divorce after my death, [then it is as if] he said nothing,” the mishna says. This is because he has formulated the condition incorrectly: A divorce cannot take place after a man’s death, because once he is dead his widow is no longer married to him. Rather, the correct formulation is to say, “This is your bill of divorce from today if I die.” This shows that the get is retroactive: Once the husband dies, the wife is considered to have been divorced from him starting with the day the get was issued.

Retroactivity is a concept that applies in several areas of Jewish law, but it always raises problems. Say a woman gets a conditional get from her dying husband on Jan. 1 and he dies on Jan. 10. What if she had sex with another man on Jan. 4—is this adultery or not? At the time the act is committed, it is, since she is still married; but once the husband dies, it is not, since she is retroactively considered to be divorced. As Rabbi Yosei says, “Her sexual intercourse has an uncertain status.” What’s clear is that if the woman takes a lover and then her husband recovers from his illness, she is in deep trouble, since she can now be punished as an adulteress—and, as we saw in Tractate Sotah, that punishment is very harsh.

But it is not just extramarital sex that is problematic in this case. A woman who is waiting out a conditional divorce is also prohibited from being secluded with her own husband. This is because, if they did have sex, the act could be interpreted in one of two ways. Either it was intended to be an act of betrothal—as we have seen earlier, a man can betroth a woman by having sex with her—or it was not so intended. If it was, then the couple are legally remarried, and the initial get is invalid. This would lead to a situation in which a woman could appear divorced even though she is actually still married; and the rabbis are very concerned to avoid this kind of misunderstanding, since it could lead to the birth of illegitimate children, mamzerim. Alternatively, the sex act might not have been a betrothal, in which case it was simply “licentious,” the Talmud’s designation for illegitimate sexual activity. In either case, there is a legal problem, and so for the sake of caution the couple is not to be alone together without witnesses.

Death is not the only condition that can be placed on a divorce. In Talmudic times, travel was a slow and dangerous undertaking; a man who left Eretz Yisrael for Babylon, or even just for the Galilee, might die on the road or get killed by bandits. If this happened and no witnesses to his death were found, his widow would be in a legal limbo, unable to remarry since she couldn’t prove her husband was dead. To avoid this predicament, a husband could issue a get that would take effect if he had not returned from a journey within a given period of time. Such a get would use the formula stated in the mishna in Gittin 76b: “This is your bill of divorce from now if I do not come back from now until the conclusion of 12 months.” As before, the crucial words are “from now,” which renders the get retroactive. This way, even if he died on the journey, the get would be effective after 12 months had passed.

Other conditions have to do with payment of money—e.g., “This is your bill of divorce on the condition that you will give me two hundred dinars”—or service—e.g., “This is your bill of divorce on the condition that you will nurse my son.” Such conditions give rise to their own kinds of complications. Say a man divorces his wife on the condition that she continue to nurse his son even after the divorce—a kind of basic child-custody arrangement. For how long must the woman nurse in order to discharge her obligation? The standard term is two years, since that is how long children are usually nursed; other sources say 18 months is enough.

However, if the get explicitly states “You will nurse my son for two years,” a new problem arises: What if the child dies before two years are up? In this case, the mother has done all she can to fulfill the condition of the divorce, but it is actually impossible for her to do so. The rabbis say that in that case she is out of luck: She did not nurse for two years, and so she is not divorced. Shimon ben Gamliel, on the other hand, offers a more humane view: “Any hindrance to the fulfillment of the condition that does not result from her, then it is a valid bill of divorce.”

In the course of this discussion, the rabbis offer a more general rule for conditional contracts. All such contracts must follow the style of the contract made between Moses and the tribes of Gad and Reuben in Numbers 32. In that case, Gad and Reuben offered to accept territory outside the Land of Israel, in Transjordan, since the land there was so tempting. Moses agreed, on the condition that these tribes contribute to the conquest of Canaan, even though they wouldn’t be occupying it. This deal was phrased as what the Talmud calls a “compound condition.” That is, the consequences for performance and non-performance were both explicitly spelled out: “If ye do this thing … this land shall be unto you for a possession before the Lord; but if ye will not do so, behold, ye have sinned against the Lord.”

Following this model, Jewish law requires that any conditions in a contract be “compound”: That is, the penalty for non-performance must be specified, in addition to the reward for performance. Thus if a man gives his wife a get saying, “This is your bill of divorce, on the condition that you return the paper to me,” the get is invalid, since he did not go on to add that if she does not return the paper, she is not divorced. What’s more, the contract must follow the same order as the biblical compact with the tribes. That is, the condition must be named first and the result second. This is a classic technicality—a rule that has procedural but no substantive importance. But the law wouldn’t be the law without technicalities, and at least the rabbis can claim that this one has divine precedent.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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