Last week, Daf Yomi readers learned that, under Jewish law, divorces can be given conditionally. For instance, a man can write a get, a bill of divorce, saying that his wife is divorced provided that she pays him a certain sum of money, or agrees to continue nursing his children. But what happens, the rabbis wondered in this week’s Daf Yomi reading, if the husband deliberately writes an impossible or illegal condition into the get? Can such conditions be enforced, and if not, what happens to the get that includes them?
These questions were raised in chapter 9 of Tractate Gittin, the final chapter of the tractate. In Gittin 84a, the Gemara lists some examples of impossible conditions: “This is your bill of divorce on the condition that you ascend to the sky, or on the condition that you descend to the depths of the sea, or on the condition that you swallow a four-cubit reed.” In these cases, the husband clearly doesn’t expect the condition to be fulfilled, since such things cannot be done. The only reason to say them, then, would be malice. One imagines a situation in which a woman is begging for a divorce, and the husband spitefully says he will grant it if she flies up into the air.
According to the rabbis—whose collective opinion, in the Talmud, always determines the law—in this case the get “is not a get.” Because it includes an unfulfillable condition, it is null and void. But there is also another way to interpret the situation, one that is potentially more favorable to the divorce-seeking wife. According to Rabbi Yehuda ben Teima, the get itself remains valid, and it is only the impossible condition that is voided. This is because it is assumed that the husband “is only hyperbolizing,” and that his real intention is to grant the divorce. If this view prevailed, the spiteful husband would be hoist by his own petard: Intending to make the divorce impossible, he would find that he had granted it nevertheless.
Flying into the air or diving to the bottom of the sea is physically impossible. But what about other conditions, which ask the wife to do something that is legally or morally impossible? Say, for instance, that a man gives his wife a bill of divorce that will go into effect only if she eats pork, which is of course a sin under Jewish law. This is something the wife should not do, but she could do it if she were willing to undergo the prescribed punishment—in this case, flogging. Should the law consider pork-eating an impossible condition and therefore nullify the divorce? Or should it be considered a valid condition, leaving the woman facing an awful choice—to remain an unhappy or abandoned wife, or else commit a sin?
Here, again, the rabbis are divided. According to Abaye, the rule of Yehuda ben Teima applies here too: A legally forbidden act is like a physically impossible one, and so the condition is void and the divorce is effective. But Rava disagrees, stating that the analogy between these cases is flawed. To test Rava’s conclusion, the Gemara then raises an even more extreme case: What if a husband divorced his wife on the condition that she committed incest with her father? Here, again, she is being asked to sin, but the sin and its punishment are a great deal more serious than violating kashrut.
However, Rava has a ready response. Incest, he argues, should be considered not just a legally forbidden act but a physically impossible one, since it is so deeply tabooed that the woman’s father would never agree to do it. “Would your father perform a forbidden act?” Rava asks hypothetically, and the presumed answer is no. In this case, then, the condition is nullified, since asking a woman to commit incest is like asking her to fly—simply unthinkable.
There is, however, another legal principle at stake here. We have learned several times before in the Talmud that “anyone who stipulates counter to that which is written in the Torah, his condition is void.” This was particularly an issue in Tractate Ketubot, where it was established that a man cannot write a marriage contract that stipulates he will not provide his wife with food and clothing. Since providing for his wife is the very definition of a husband’s duty under Torah law, the man cannot avoid it, even if his wife were willing to consent. Isn’t the present case, in which the husband divorces his wife on an illegal condition, a similar “stipulation counter to that which is written in the Torah”?
The answer depends on who is really responsible for the sin—eating pork or committing incest, to use the Talmud’s examples. According to Rav Adda, “here it is she who is uprooting”: If a woman commits a sin, the responsibility falls on her, not on the husband who encouraged her to do it. This feels deeply unfair, since the woman is being forced to sin against her will, and “Ravina strongly objects: Isn’t she uprooting only to fulfill his condition?” Yet Ravina finally concludes that, even in this case, the woman bears responsibility for sinning, since after all “she may not eat [pork] and not get divorced.” The condition in the get does not directly contradict the Torah, since it only incentivizes the woman to sin, it doesn’t actually force her to do so.
The rabbis are concerned enough about this issue to argue it in depth; but about another, equally cruel kind of stipulation, they seem to have no doubts. If a man says to his wife, “This is your bill of divorce on the condition that you engage in sexual intercourse with so-and-so, and the condition is fulfilled, this is a valid bill of divorce,” the Gemara says. Such a sex act would not be adultery because, as we saw last week, a get can be retroactive: Once the woman has sex with the designated man, her marriage is dissolved, so she is not being unfaithful. (She might still be guilty of licentious sexual intercourse, however; the Talmud doesn’t address this possibility.)
In other words, a husband could effectively force his wife to have sex with another man—a stranger, or someone she hates—in order to secure a divorce. One could easily imagine a tragedy being written about a woman facing such a choice. Here again, the basic inequality in Jewish divorce law—a man can divorce his wife, but a woman can’t divorce her husband—proves to have deeply inhumane consequences.
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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.