Exclusions in Gittin

Gittin (9:1) | Yisrael Bankier | 6 years ago

The ninth perek opens as follows:

Regarding one who divorce his wife and says to her, “you are permitted to all men except for so-and-so”, R’ Eliezer says she is permitted [to marry] and the Chachamim forbid her [to remarry].

We shall attempt to understand this debate.

The Gemara tries to clarify the case that is debated in the Mishnah. Is the debate where the husband said “except for (chutz) from so-and-so” or is it where he said “on the condition (al manat) that you do not marry so-and-so”? They may be arguing about “chutz” with the Chachamim maintaining that it is invalid since the get itself is not complete; because of the exclusion the get does not complete sever their relationship. If al manat was used however, the get is a complete get with no inherent exclusions. “Al manat” is type of condition (tenai) that does not invalidate the get therefore everyone agrees that the get is valid. Alternatively everyone could agree that the case of chutz is invalid as a get with exclusions is probematic. Instead they may be arguing about the case of al manat. The Chachamim would maintain that this case of al manat is different to other conditions since the consequence of this tenai is that it restricts whom she can marry.

The Gemara concludes that the debate in our Mishnahis focused on the case of chutz. The Gemara however adds that our Mishnah argues with a Beraita that maintains that the debate is specifically about the case of al manat.

According to a straightforward reading of our Gemara the debate in our Mishnahis only in the case of chutz, whereas everyone would agree that in the case of al manat the getis valid. Indeed this is how the Bartenura explains our Mishnah.

The Tosfot R’ Akiva Eiger raises in interesting question regarding the case of al manat regarding which we have said that everyone agrees that it is a valid get. Consider the situation where the woman then marries the brother of the person she was forbidden to marry. Her (second) husband then passes away without having any children. Ordinarily the brother (yabam), who she cannot marry, would be obligated to perform yibum or chalitzah. If she was forbidden to the yabam by an issur arayot (family-related forbidden relationship) then not only would she be exempt, but the co-wife (tzarah) would be exempt as well. TheTosfot R’ Akiva Eiger explains that in this case, the tzarah would not be exempt. The reason is because if she indeed violated the original tenai and performed yibum, then the original get would be annulled, she would not have been considered married to the second husband that passed away and the tzara would be the one that required yibum. With respect to this woman however, if there was no tzara, he notes that the Rashba is not sure whether she would require chalitz or not.

Returing to our Mishnah,the Ramban however maintains that R’ Eliezer and the Chachamim really argue about both cases – both al manat and chutz. The reason that the Mishnah focuses on the case of chutz is to highlight that even in that case, where the husband excludes people, R’ Eliezer still rules that the divorce is valid.

The Rambam (Gerushin 8:12) rules that with respect to al manat it depends on what the husband says. If the husband placed a time limit on the tenai then the divorce is valid. If however the tenai was forever, it is not a complete severance, and the divorce is not valid. He explains that this is the same for all other conditions. If, for example, the husband said the divorce was on the condition that she could not drink wine again, then it is not a valid get as she is still bound to her husband.

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