The fourth Mishnah in the seventh perek of Masechet Gittin presents a case where a husband offers his wife a get that will only take effect should he die from his current illness. R’ Yehuda and R’ Yosi argue regarding the status of the wife during this interim period – between the handing over of the get and the husband’s subsequent death. R’ Yehuda maintains that the wife is considered “a married woman in every regard” while R’ Yosi maintains that her married status is in doubt. Raba (Gittin 73b) explains that the circumstances of the Mishnah relate to the husband stipulating that the get is to take effect a moment before his death.
On the surface there does not appear to be any practical halachic difference between the two opinions, as even R’ Yosi who states that the marriage is in doubt would still require the woman to behave as if she is still married avoiding any potential catastrophic outcome. Understanding the nature of the argument between R’ Yehuda and R’ Yosi highlights the practical implications of the differing views.
According to Rashi (Gittin 73b, s.v. “u’Mashni”), their argument pertains to the application of the principle of Breirah. This principle enables the status of a current act to be determined retrospectively by a subsequent outcome. R’ Yehuda applies the principle of Breirah while R’ Yosi does not. Rashi distinguishes between the two opinions by applying them to a case where the woman engaged in an adulterous relationship during the interim period between delivery of the get and the husband’s death. According to R’ Yehuda, even if the husband dies, the woman and her adulterous partner are subject to capital punishment for adultery. Considering that the principle Breirah is applied, whereby we declare that the get only takes effect the moment before the husband’s death, the wife is regarded as a “married woman in every regard” and subject to the punishment for adultery. However according to R’ Yosi, who does not agree to the application of Breirah, every moment subsequent to the handing over of the get is potentially the moment prior to the husband’s death, and her marital status is in perpetual uncertainty. Under these circumstances, the nature of any adulterous relationship is uncertain, and her punishment is to bring a korban ashum talui (which is brought when a person is unsure if they committed a sin whereby if committed inadvertently they would be required to bring a korban chatat). However, elsewhere Rashi (74a, “R’ Yosi”) explains that if the husband recovers from his illness the punishment is to bring a korban chatat, as the adulterous relationship is deemed inadvertent.
Many Rishonim disagree with Rashi’s interpretation of the argument between R’ Yehuda and R’ Yosi. The Rashba and Ran question Rashi’s explanation of R’ Yosi, in the circumstance where the husband recovers, and maintain that the wife should still be required to bring a korban ashum talui, as at the time of her adulterous relationship, it could potentially have been the moment before the husband’s death. Moreover, to change the punishment in the event of the husband’s recovery confers an element of retroactivity, which, according to Rashi, R’ Yosi does not recognise. Tosfot emphasises another implication of Rashi’s interpretation of R’ Yosi, where the husband dies from his illness and there are no issues regarding an adulterous relationship, but simply the question of the wife’s status. There is no certainty of the moment prior to the husband’s death when the get should take effect, and therefore, the status of the divorce is problematic. The logical extension of this would suggest an undesirable position where it would remain unclear if she is a divorcee or a widow.
In contrast to Rashi, many Rishonim understand that both R’ Yehuda and R’ Yosi agree to the application of the principle of Breirah. While sharing a common thread, the alternate explanations presented by these Rishonim, differ slightly. By way of example, the Ran explains R’ Yehuda in the same way as Rashi. However, he understands R’ Yosi as being unsure whether stipulating that the get take effect immediately prior to death is valid. Accordingly, issuing a get under these circumstances could be seen as being effective immediately prior to death as instructed by the husband, in which case the wife will be put to death for adultery. Alternatively, this condition of the husband could be disregarded and the get takes effect retrospectively from the time of delivery, and the wife would not have committed a sin of adultery. Owing to this doubt, the wife must bring a korban ashum talui. The Ran concludes by claiming that R’ Yosi would agree that if the husband recovers, the wife would be put to death for adultery.
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