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There is a Gemara in Kesuvos (2b–3a) where it says that if someone divorced someone on condition and then didn't fulfill the condition, the woman doesn't become divorced, she becomes un-married retroactively.

There were many discussions how to solve mamzeirim problems. Why not have the man give his wife a divorce al tnai and then not fulfill the condition BeOnes (like tell his wife on 1 Adar that she will be divorced if he doesn't come back by the 1st of Nissan and then be so far out of town then that he won't make it back on time).

From the fact that this idea was never proposed, I suspect that it isn't a valid trick.

Why not?

Menachem
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ertert3terte
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    Shmuel Brin, If the Divorcer's intent is not to return, how is that an oneis? Why would we need to apply afkinhu there? – YDK Aug 01 '12 at 17:35
  • @YDK, what if he doesn't intend to return, so he puts himself out of range of his wife on purpose. Then when he can't make it back, he is an anus. Though I like your example more for this reason – ertert3terte Aug 01 '12 at 23:26
  • Related: http://judaism.stackexchange.com/q/28114 – msh210 Apr 22 '13 at 17:19
  • @ShmuelBrin How far back does the retroactive unmarriage go? Till the beginning of the marriage...? – SAH Aug 01 '18 at 21:45

2 Answers2

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Fist of all, making women un-married retroactively is possible due to gzeira (decree) of Hazal (the rabbis), and gzeira has strength because "כל דמקדש אדעתא דרבנן מקדש" ("anyone effecting kidushin (marriage) does so intending it to be effective only to the extent instituted by Hazal") and the like.

Tosafot in Gittin 33a ד"ה ואפקעינהו proposes this, and says that in such a case the women doesn't become un-married retroactively becuase Hazal didn't make the gzera in such a case where women would willingly sin with intention of retroactively annulling the get as this would cause moral depravation.

Citation from Tosafot:

ומה שהקשה אם כן יחפה על בת אחותו ויכולין ממזרין ליטהר אי ידעינן שלכך מתכוין לא מפקעינן קדושין מיניה דלתקנה עשו חכמים ולא לתקלה שמתוך כך יהיו בנות ישראל פרוצות בעריות

yosefkorn
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jutky
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  • @msh210 I'm not sure that "by the grace of" is correct translation of "אדעתא" (thanks for translation and fixes) – jutky Aug 01 '12 at 06:53
  • "intending it be effective only to the extent instituted by"? – msh210 Aug 01 '12 at 06:59
  • Just looking at your quote, it appear that Tosafot is addressing a different case than the question. Tosafot is talking about Lechatchila marrying with the intention of removing the Kiddushin through a divorce condition that is not fulfilled. The question is asking why not use this method to rectify a situation that already happened. Wouldn't this fall under "לתקנה עשו חכמים"? – Menachem Aug 01 '12 at 07:11
  • @Menachem I think you are wrong. Tosafot proposes to solve problem of mamzerim by giving a divorce and then nullifying the divorce with out witnesses. In such case the wife becomes unmarried due to gzeira. When marring, the couple had no intention to remove the kiddushin. Where do you see that Tosafot is talking about lechathila? – jutky Aug 01 '12 at 08:10
  • @jutky: I was interpreting "אי ידעינן שלכך מתכוין" in Tosafot as referring to this part of Tosafot "אם כן יחפה על בת אחותו". If someone lechatchila marries his niece with the intent to un-mamzerfy the children later", then we retroactively nullify the Kiddushin. – Menachem Aug 01 '12 at 08:27
  • @Menachem the meaning of "אי ידעינן שלכך מתכוין" is: if we know that husband nullified divorce without witnesses in order to retroactively nullify kiddushin and avoid mamzerim problem the kissushin are not nullified. According to your interpretation it sould be התכון not מתכון. See the context in the gemarah and it would be clear. – jutky Aug 01 '12 at 08:36
  • @jutky, I believe Menachem is correct. Besides that his reading seems to be a-the simplist and b-the lesser chidush from the original suggestion, the language of Tos. indicates such: If the original act was not with intent that worst case scenario his sister and brother-in-law will perform the above trick, and only after-the-fact the idea is employed, what takala will come about? The mamzer will be cleansed and everyone goes home! And if we are worried that the perpetrators will play dumb, then Tos. shoudn't apply "Ee Yadinan" for the get either. – YDK Aug 01 '12 at 13:16
  • I have always understood that line in Tosfot like jutky. But there is another answer in Tosfot as well in the beginning: why didn't you include that? – Double AA Aug 01 '12 at 14:50
  • @DoubleAA, the first A is going on a different Q and apparently will not answer the 2nd Q. The 1st Q is- this concept will cause a travesty of justice when a husband tries to cover for his niece-wife. Tos. answers there is no travesty since l'maase she is patur. The 2nd Q seems to be concerned about potential pritzus among the Jews. This has nothing to do with her undone status, but about a real threat. Tos. answers that chazal limits these "fixes" to cases where there is no such concern. – YDK Aug 01 '12 at 16:18
  • @DoubleAA, also, I take back that the simple reading is where the original act was with that intent because that would mean that the uncle-husband was complicit in the relationship. Though I still question how you can have a takala when she doesn't know at the time of the act whether her uncle-husband would do so for her. – YDK Aug 01 '12 at 16:25
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    @YDK I understood it to mean that since she knows it's possible she will be less careful about arayot. – Double AA Aug 01 '12 at 16:56
  • @DoubleAA, I understood how you are learning. It's certainly plausible, it just doesn't sit well with me that girls will take the chance and cause a takala. – YDK Aug 01 '12 at 17:37
  • @YDK she wouldn't take her chance deliberately, but she would be less careful if she would know that there is a possible "clean exit", and this can lead to takala. – jutky Aug 02 '12 at 21:00
  • @YDK Re: a-the simplist and b-the lesser chidush from the original suggestion. a - why do you think it's more simple to talk about intention of the husband when he married. The sugiya is about nullifying the get not in front of shliah, so it is simpler to explain that "אי ידעינן שלכך מתכוין" goes on the intention of the husband at time of divorce. b - I'm not sure I understand what original suggestion you mean. – jutky Aug 02 '12 at 21:16
  • @jutky, re: a- see 5 comments ago. re:b-if the original hava amina is that this tactic does work and in all circumstances. Applying the chidush that it doesn't work to lesser cases is the ideal. But I grant that your way there is less movement between the hava amina and maskana, which is ideal as well. So what I am saying is that pashtus is the reading is like you, I just have a kashye. – YDK Aug 03 '12 at 00:24
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I don't know about the above case, but my Rav was commissioned by the gedolim in eretz Yisrael to cleanse a mamzer in the U.S using a similar tactic:

The mishna says that a man threw a get to his wife in a public domain: If it lands "close to her", she's divorced. "Close to him", she isn't divorced. ""1/2 by 1/2", "she's divorced and not divorced.

The Rosh says on this doubt that the rabbis revoke their (original) marriage.

My rav explained to me that "close" means control. The case of doubt is where one party did not have control over the document more than the other party. I don't know every detail, but he set up the case where the get was thrown over a car in such a way where none of the parties had control over the get more than the other. The son was then permitted to a bas yisrael.

(Btw, my rav said he never would have done this on his own without told to do so by the gedolim.)

YDK
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  • Why did he use this instance of afki'inhu instead of the shliach case? This seems much more convoluted, and plus does anyone argue on the Rosh? – Double AA Aug 01 '12 at 17:33
  • @DoubleAA, see my comment on to the OP. The Rosh seems to be the only one to spell this out, but no one seems to say differently. – YDK Aug 01 '12 at 17:39
  • I was asking about the shiach case from gittin 33 not the oneis case from ketuvot 2/3. It seems to be the easiest to arrange and AFAIK it is indisputable. – Double AA Aug 01 '12 at 17:43
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    @DoubleAA, sorry, you did say shaliach. In G 33a he will be transgressing a takana by being mevatel lechatechila. – YDK Aug 01 '12 at 17:50
  • Really? Interesting. I didn't realize such a prohibition existed. – Double AA Aug 01 '12 at 18:12
  • @DoubleAA, actually, I like YDK's case better as it doesn't have YDK's other issue (perhaps he isn't considered ones if he tried to arrange it that he wouldn't be able to make it on time). – ertert3terte Aug 01 '12 at 18:29
  • However, if there is a way to mevatel a kiddushin retroactively, how could anyone ever be killed for Eishes Ish? The husband can always mevatel the kiddushin and any warning would be a haasraas sofek. – ertert3terte Aug 01 '12 at 18:32
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    @ShmuelBrin That is the question in Tosfos from jutkey answer. You should see the whole thing inside if you can. – Double AA Aug 01 '12 at 18:47
  • @DoubleAA, I thought that was implicit from the braisa. Otherwise, according to Rebbi, what is the takana for if there is no restriction to nullify and bediavad the bitul works. Unless you say that he doesn't hold of the gezeira and the tanna only uses a bediavad language of bitlo to learn the chidush of RSb"G. But that's not the simple reading and it is farfetched that he would go against RG hazaken. – YDK Aug 01 '12 at 21:08
  • @DoubleAA (and YDK) this now raises the question of how did the Gadol allow YDK's Rov to do this? – ertert3terte Aug 01 '12 at 23:28
  • @ShmuelBrin I heard a similar story once. It was a post holocaust case where someone got remarried and found out years later that her husband was still alive. So to save all the kids from mamzerut, the rabbi (don't remember who; it was a big name) told the husband he had a way out but didn't really explain. They set them up in different homes, wrote out a get, sent it with a shliach, and then as soon as the shliach left, the rabbi said to the husband "oh no! I forgot a certain detail. quick, be mevatel the shliach". So in this way, it wasn't done with the intent to do the trick. – Double AA Aug 01 '12 at 23:32
  • @DoubleAA, The case I mentioned does not have a takana not to throw the get that way. – YDK Aug 02 '12 at 02:03
  • @DoubleAA, was the intent of the Rabbi to do the trick? – YDK Aug 02 '12 at 02:04
  • @YDK Yes. (I can't source this story at all btw.) – Double AA Aug 02 '12 at 04:07
  • @YDK This is awesome. – SAH Aug 01 '18 at 21:43