ME'A TOFSIM BAH (Kiddushin 59)

  • Rav Yair Kahn
Rav and Shmuel
                The mishna (58b) rules that if one marries a woman stipulating that the kiddushin will take effect "now and in thirty days," and the woman subsequently marries someone else within those thirty days, she is "married and not married."  This phrase indicates "kiddushei safek" - a marriage of dubious halakhic validity.  The Amoraim differed in their interpretation of this ruling.  According to Shmuel the stipulation "now and in thirty days" is an ordinary condition (tnai) indicating that if he does not change his mind within the next thirty days the kiddushin will take effect now.  The safek is created only if someone else marries the woman within this period, because the original condition may or may not be fulfilled at the end of the thirty days.  However, once the condition is met, and no change of heart takes place before thirty days, the woman is unequivocally married to the first man since his marriage preceded that of the second man.
                Rav, on the other hand, maintains that the statement "now and in thirty days" may also be interpreted as indicating that the man is recanting.  Although originally the man considered marrying immediately, perhaps he reconsidered and decided that the marriage should take effect only in thirty days.  If so, even when the thirty day period has elapsed, the marriage to the second man remains binding since it preceded the original marriage.  According to Rav, the mishna is unsure whether to define the stipulation as a tnai or as a recantation.  Therefore, even after the thirty day period the mishna has a safek whether the woman is married to the first man (because he fulfilled his tnai) or to the second (because the first man recanted).
Rav Yochanan
                R. Yochanan explains the mishna in a totally different manner.  According to him, the first man left an opening for a second person to effect an additional marriage within the thirty day period.  He therefore claims that both marriages take effect.  It is upon the opinion of R. Yochanan that we will focus in this shiur.  We will try to clarify his interpretation of the stipulation "now and in thirty days," and we will also deal with his interpretation of the mishna's ruling "married and not married."  Moreover, we will attempt to explain the shocking halakhic possibility endorsed by R. Yochanan: that a woman can be married to two men simultaneously.  (This sugya is known to be difficult.  I further realize that the distinctions in the shiur are subtle at times.  Nevertheless, I hope that this shiur will help illuminate some of the important issues under discussion.)  Before proceeding, a brief look at a sugya in Gittin will be instructive.
                The ninth chapter of Gittin begins: "If one divorces his wife and says to her 'You are hereby permissible to every man except for one particular person,' R. Eliezer validates [the get] and the Chakhamim disqualify [it]."  The gemara (82b) relates a question raised by R. Abba.  What is the parallel halakha concerning kiddushin?  (For example, what if a man says to a woman, "You are hereby married to me, with the exception of one other man?")  Do the Rabbis, who disqualify the get, disqualify a similar kiddushin as well, since the two (get and kiddushin) are related in the Torah?  Or is there perhaps room to distinguish between them since only a get requires an absolute break (keritut), while in kiddushin a limited acquisition is sufficient.  The gemara concludes that there is no discrepancy between gittin and kiddushin regarding this issue.
                According to this gemara it would appear that kiddushin (like gittin) must be exclusive.  Going back to our discussion in Kiddushin, how then can R. Yochanan claim that the kiddushin of the first man left an opening allowing for a subsequent kiddushin?  Would not such an opening make the first kiddushin non-exclusive and consequently invalid? 
                Rashba and Ra'avad
                The Rashba and Ra'avad sidestep the entire problem.  They claim that R. Yochanan agrees with the possibility raised and rejected by R. Abba which distinguished between gittin and kiddushin, thereby allowing for a limited kiddushin.  In fact, they interpret the stipulation "now and in thirty days" as being conceptually identical to the limitation discussed by R. Abba; i.e., "You are hereby betrothed to me now with the exception of anyone who will marry you within the period of thirty days." According to R. Yochanan, an absolute break is a specific requirement of gittin.  In the case of kiddushin, though, a partial acquisition is sufficient. 
                Hence, our gemara (60a) proceeds to challenge R. Yochanan from the analogous case of gittin: "...However according to R. Yochanan who maintains that it [kiddushin with the stipulation "now and in thirty days"] is defined as being incomplete, a get which is incomplete is worthless."
                This approach solves our problem by explaining that R. Yochanan disagrees with the conclusion of the gemara in Gittin.  Furthermore, R. Yochanan's opinion that a woman can be married to two men simultaneously, is merely a theoretical possibility -  after all, it is clear that his ruling is not accepted halakha.  Nevertheless, this approach is not without difficulties.  Why, according to the Rashba and Ra'avad, are no cross-references found between the gemara in Gittin and our sugya?  Moreover, the Talmud Yerushalmi in a number of places (Kiddushin 3:1, Yevamot 3:4, 5:1) indicates a different understanding of R. Yochanan.  Let us therefore proceed and explore an alternate approach.
                The Ramban (whose approach is presented and subsequently rejected by the Rashba) claims that R. Yochanan's ruling is consistent with the conclusion of the gemara in Gittin.  True, an incomplete kiddushin is invalid.  Nevertheless, in the case of "now and in thirty days" the kiddushin is not incomplete, it is merely slow.  "Now and in thirty days" indicates that the kiddushin will begin now and be completed in thirty days.  It is a process in which a complete kiddushin is slowly evolving.  Although within this thirty-day period kiddushin to a second person can be effected, nevertheless this stipulation does not violate the demand for an absolute kiddushin introduced by R. Abba.  Consequently, the ruling of R. Yochanan is consistent with the conclusion of the sugya in Gittin.  Nevertheless, the logic of R. Yochanan remains elusive.  If the first kiddushin do not take effect till day thirty, and if at that time the marriage to the second man has already been consummated, how can the first kiddushin be subsequently validated?  If, on the other hand, we claim that the first kiddushin take sufficient effect immediately, how can the second kiddushin be validated?  (See the Rashba.)
                In order to solve this problem, we must attempt to accurately define the process through which this kiddushin develops.  What occurs now, what takes effect only on day thirty, and how does this change evolve?  There are various solutions to this problem.  For the sake of clarity, however, we will limit the scope of our discussion.
  1. A Function Of Time
                Theoretically, we can view the process that commences now and is completed in thirty days as a continuum.  The kiddushin begin now and gradually develop during the entire period, eventually culminating on the thirtieth day.  A second kiddushin can take effect by reaching maturity prior to the first kiddushin.  Nevertheless, the first kiddushin, which took initial effect before the second kiddushin, cannot be undermined.  Similarly, a third marriage, although unable to uproot the second marriage, can take effect by maturing before the second.  The Ra'avan (65) uses this model and consequently insists that the second kiddushin are completed prior to the first, and the third prior to the second.  [The Rashba (consistent with his approach) argues that even if the stipulation of the second is "now and in forty days," both take effect according to R. Yochanan.]
                The approach of the Ra'avan provides us with a working model with which we can logically explain R. Yochanan.  However, despite the theoretical appeal, the application to kiddushin is somewhat empty.  What is the meaning of being married forty percent?  In what way is this worse than being married fifty percent?  And how, despite all our explaining, is it possible for a woman to be married to two men?  According to this approach, we have to assume that R. Yochanan accepted this model - which is reasonable per se - and then applied it rigidly, leading to absurd conclusions.  This is certainly possible, and would not be unique in halakhic literature.  Nevertheless, let us attempt an alternate approach which will give some meaning to partial kiddushin.
    2. Factoring
                Our gemara (60a) introduces a case parallel to R. Yochanan: "You are hereby divorced from now until my death."  The mishna in Gittin (72a) rules that in such a case the woman is not subject to yibbum (levirate marriage), indicating that the divorce had some validity.  However, the gemara claims that according to R. Yochanan, this get should be null and void.  (We already noted the explanation of the Rashba that even R. Yochanan admits the requirement of completeness regarding divorce.  This explanation cannot be accepted by the Ramban, who views such a case as being complete though slow in developing.  See Tosafot s.v. Kol)  The Ramban explains that since there is no meaning whatsoever to a posthumous divorce, a divorce which will become complete following the death of the husband is not valid.
                Rava, in an attempt to answer this question, explained that this divorce has validity even according to R. Yochanan.  "A get removes [the woman from her husband] and death [of the husband] removes [as well], what is incomplete in the get is completed by [the husband's] death."  The Ramban explains that since the divorce began while the husband was still alive, the man-wife relationship was dissolved immediately, and therefore the woman is not subject to yibbum (which is the continuation of this relationship through the brother of the deceased).  And although the divorce was not completed during the life of the husband, and the woman is not permitted to remarry, after the husband's death it is permitted.  Likewise, the husband's death will complete the divorce and allow her to marry someone other than his brother.  The Ramban apparently understands that divorce is composed of two distinct factors: 1. The disintegration of the husband-wife relationship.  2. The permission to remarry.  When the husband divorces stipulating "now and later," we interpret this to mean the relationship will dissolve now, while the possibility to remarry will take place later.  (The Rashba admits that according to his approach Rava's answer is incomprehensible.)
                We have shown that according to the Ramban, "now and later," which means "begins now and is completed later," can be interpreted as, "one factor begins now, while the remaining factors will take effect later."  (See Bava Batra 136a.)  We should therefore investigate whether a similar formula can be applied within the context of kiddushin.  In previous shiurim (see for instance shiur # 16) we developed the possibility that kiddushin is complex.  It is comprised of various elements; the husband-wife relationship, some form of acquisition by the husband, the creation of the prohibition to have relations with someone else.  Let us suggest that "now and in thirty days" is redefined as, "the acquisition of the husband begins now while the remaining elements of kiddushin will only begin on day thirty."  If we accept the claim that the acquisition that the husband now has on his wife is limited and therefore not exclusive, it would be possible for another kiddushin to take place in the interim.  Nevertheless, the first kiddushin would remain intact even after the completion of the second kiddushin, since the acquisition was effected prior to the second marriage.  In other words, the din of R. Yochanan can be understood as a partial kiddushin which therefore allows for another kiddushin to be effected.
                The Tosafot Rid's reading of the mishna is consistent with this approach.  The mishna rules that in our case the woman is married and not married.  According to Rav and Shmuel this is due to a safek.  However, according to R. Yochanan she is married to both.  The Rashba twists the mishna into meaning she is "married" to both and "not married" only to the second.  The Rid has a much more convincing explanation of the mishna.  Accordingly, "married and not married" means that the woman is partially married; specifically, she is married to both but can have relations with neither.  This fits well with the above approach which breaks kiddushin down to its basic components, so that a partial kiddushin can be entertained.
    3. Rambam
                We already pointed out, that according to the Rashba, R. Yochanan's din cannot be accepted as halakha, since it is incongruous with the conclusion of the gemara in Gittin.  According to the Ramban it is possible to accept R. Yochanan as halakha, and some Rishonim actually chose this course.  The Rambam (Hilkhot Ishut 7:12) rules that in the case of R. Yochanan the woman is safek mekudeshet (suspected of being married) to all the men, and she therefore requires a get from all of them even after the thirty day period.  At first glance this ruling is inexplicable, since it is not consistent with any of the opinions found in the sugya.  According to Shmuel, the safek would be resolved on the thirtieth day, and at that point the woman would clearly be married to the first man only.  According to Rav, the first man would be suspect as  well as the last.  However, the woman could not possibly be married to any  of the others.  While according to R. Yochanan, there is no safek whatsoever, and the woman is actually married (at least partially) to everyone.
                The simplest solution is to suggest that the Rambam himself was unsure whether to accept R. Yochanan.  Therefore, he required a get from all the men involved to counteract the possibility that the woman is married to all.  This answer can be supported by the following halakha in the Rambam, which relates to the sugya in Gittin.  The Rambam rules that if one marries a woman excluding a particular person, the marriage has the status of a safek.  Instead of accepting the conclusion of the gemara in Gittin which totally rejected such a marriage, the Rambam is unsure.  Perhaps the Rambam, like the Rashba, felt that R. Abba is at odds with R. Yochanan.  While the gemara in Gittin accepts R. Abba, the sugya in Kiddushin seems to adopt R. Yochanan.  This dilemma is expressed in the Rambam's ruling of safek in both cases. (see Tosafot Ri Ha-zaken.)
                Personally, I find it difficult to endorse this explanation.  I am convinced that the Rambam's ruling of safek is motivated by another issue: How is R. Yochanan's explanation of the mishna congruous with the ruling "married and not married?"  (It is obvious that the safek of the mishna cannot be based on the dubious conclusion of the gemara in Gittin.)  Furthermore, if the above explanation is correct, the primary halakha is that kiddushin which excludes someone is a safek.  The case of R. Yochanan is merely an application in which a number of people are married to the same woman incompletely.  The Rambam should have introduced the basic halakha and subsequently its applications.  The Rambam, renowned for his impeccable organization, presents the reverse order.
                Finally, there is an additional halakha in the Rambam where this phenomenon (safek in a case of simultaneous kiddushin) is found.  The case involves kiddushin with a partial slave-woman.  It is impossible to marry a slave-woman.  Therefore, a woman who is half slave-woman can only be partially married.  The Rambam (Hilkhot Ishut 4:16) rules, that if a married half slave-woman is freed, and is then married to another man, the woman is safek mekudeshet to both.
                Here it is difficult to base the safek on R. Abba, since no one was excluded from the marriage.  Although the marriage is limited, this is due to the woman partially retaining her status as a slave-woman.  Still the Rambam rules that the marriage is only a safek.
    A Positive Safek
                My Rebbe, Rav Soloveitchik zt"l, suggested that there are actually two distinct types of safek.  Usually we talk of  a negative safek, where we are unsure of something due to a lack of information.  However, there is an additional type: a positive safek because of too much (contradictory) information.
                For instance, the safek created by conflicting witnesses can be either a rejection or an acceptance of all the witnesses.  If they are rejected, we have a lack of information.  We don't know whether "x" occurred.  If we accept the witnesses, then we know (legally) both "x" and "not x."  This is impossible, and translates halakhically into a safek.
                This approach is spelled out by the Rav regarding the safek of bein ha-shemashot (twilight).  According to the Rav, there are two independent definitions of day and night.  One is a function of light and dark, based on the pasuk "...and God called light day and to darkness He called night." (Bereishit 1:5).  The second is based on the sun "... the greater luminary to rule the day and the lesser luminary to rule the night." (Bereishit 1:16).  The Rav claimed that the period after sunset prior to the appearance of the stars is designated in two separate and contradictory ways.  From one perspective it is still considered day, since darkness has not yet fallen.  On the other hand, since the sun has set, it is already considered night.  Therefore a new halakha of bein ha-shemashot emerges which has the status of a safek.  This safek does not indicate a doubt in the minds of Chazal, who could not decide whether this time frame is day or night.  This period has a dual characteristic of both day and night.  These two contradictory characteristics create a safek which expresses the conflict between day and night.  Another example is the status of an androgyne which is not based on lack of knowledge, but rather on the simultaneous appearance of male and female characteristics.  (See Shiurim Le-zekher Abba Mori Vol. 1, pp. 103-4.)
                The Rav used the same principle to explain the Rambam under discussion.  By applying one of the above models, we reach the conclusion that the woman is married to all the men involved.  However, this contradicts the basic definition of kiddushin which is a singular relationship possible with only one man.  We are faced with tension created by this conflict.  This tension is expressed halakhically as a safek.  Therefore, according to the Rambam, R. Yochanan's explanation is consistent with the ruling of the mishna "married and not married."  Technically, the kiddushin to both are legitimate.  However, due to the unique nature of kiddushin, a woman cannot simultaneously be married to two men.  Therefore, both the marriages are safek.  The next halakha in the Rambam is in the proper order, being an extension of this idea.  A kiddushin which excludes someone is technically valid (since for some reason the Rambam does not require this type of keritut by kiddushin).  However, a kiddushin which allows room for another kiddushin violates the unique nature of the marriage relationship.  This similar conflict is also translated by halakha as a safek.  It is obvious that this approach will also explain the Rambam's ruling of safek in the case of a slave-woman who was partially freed, and therefore for technical reasons was married to two men.
                 The basic problem posed by our sugya is the possibility that a woman be married to two men simultaneously. According to the previous approaches we either ignored or elegantly sidestepped this issue. In the current explanation, however, this problem functions as a basic factor in Rav Yochanan's interpetation of the mishna. It is this problem, which creates the tension of both married and not married which is translated as a safek.
                We tried to explain this very difficult opinion of R. Yochanan, which constructs a case whereby a woman can be married simultaneously to a number of men.  We developed a number of approaches.
                1.  The Rashba maintains that R. Yochanan endorses the opinion (rejected by halakha) that kiddushin to one person can in fact be limited, allowing for the possibility of multiple kiddushin.
                2.  It is possible to regulate the kiddushin such that it gradually develops with the passing of time.  In a situation where one kiddushin began before a second kiddushin; however, the second kiddushin finished before the first, both kiddushin would take effect.
                3.  Since kiddushin is complex it can take effect partially.  If the one component that took effect is not exclusive, a simultaneous kiddushin is possible.
                4.  It is technically possible (using the above models) to have a simultaneous kiddushin.  However, this violates the very nature of kiddushin which is a singular and unique personal relationship with one man only.  This contradiction expresses itself halakhically as a safek.  The woman is simultaneously both married and not married - or safek mekudeshet to both.
Sources for next week's shiur:
Be-inyanei tnai Tosafot Kiddushin (6b) s.v. Lo HechziruTosafot 62a s.v. HinakiTosafot Ketubot 74a s.v. TnaiTosafot Nazir 11a s.v. DehaveiTosafot 63a s.v. Kegon.  And Chiddushei Ha-Rashba.Rambam Hilkhot Ishut 6:14.Rambam Hilkhot Geirushin beginning of perek 9.Rambam Hilkhot Zekhiya u-matana 3:8 and Raavad there.
                How does tnai relate to ta'ut?  When does each apply?In what cases are the mishpetei ha-tnaim applicable?What is the reason that a tnai must be a milta de-ita be-shlichut?What exactly does a tnai control?  Ma'aseh, chalut etc.Explain the Rambam's distinction between Im and Me-akhshav?