SHIUR # 19: ME'A TOFSIM BAH

                      by: 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.

Ramban

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.

Summary

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 Hechziru Tosafot 62a s.v. Hinaki Tosafot Ketubot 74a s.v. Tnai Tosafot Nazir 11a s.v. Dehavei Tosafot 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.

Questions:

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?