Yerushalmi Gittin 9:1 ירושלמי גיטין ט׳:א׳

MISHNAH: If somebody in divorcing his wife says to her: Herewith you are permitted to any man except Mr. X, Rebbi Eliezer permits¹He permits the wife to remarry; the Sages prohibit since they reject the possibility of a divorce which permits control of the divorced wife by the former husband. but the Sages prohibit. What should he do? He should take the document back from her and deliver it again while saying, herewith you are permitted to any man. If he had written the condition²Which restricts the divorcee in the choice of her future husband. in the document it would be invalid even if he had later erased it.

HALAKHAH: “If somebody in divorcing his wife,” etc. Rebbi Ilai⁴In the Babli (82b) this is ascribed to R. Yannai. There, the objection is that “she became another man’s” could be interpreted as “she became any other man’s”. said, the reason of Rebbi Eliezer: “She left his house, went, and became another man’s⁵Deut. 24:2.”, even if he did permit her only to one other man. This argument proves more than the Mishnah⁶By the mathematical principlequi nimium probat nihil probat, R. Ilai’s argument proves nothing.! The Mishnah said if she was permitted to all but forbidden to one other man; the argument is that he forbade her to all but permitted her only to one other man. What is the reason of Rebbi Eliezer? Death permits and divorce permits. Since death permits only partially⁷The pool of possible marriage partners available to a widow is smaller than the pool which was available to the same woman before her marriage since she is forbidden any close relatives of her deceased husband., so the bill of divorce permits only partially⁸Since the divorce does not remove the incest prohibitions, it seems possible that the husband can add prohibitions of his own.. What is the reason of the rabbis? “She left his house, went, and became another man’s”; it brackets marriage and divorce. Since her divorce is without participation of a third party, so her marriage must be without participation of a third party⁹If the former husband could impose marriage restrictions on his former wife, her remarriage would be subject to the former husband’s edict. This would create a kind of polyandry..

¹⁰Different versions of the following discussions are in the Babli, 83a/b, Tosephta 7:1–5, Sifry Deut. 269. After Rebbi Eliezer’s death, four Elders assembled to object to Rebbi Eliezer’s words: Rebbi Eleazar ben Azariah, Rebbi Yose the Galilean, Rebbi Tarphon, and Rebbi Aqiba. Rebbi Joshua told them, one does not contradict the lion after his death¹¹He rejects all the following arguments (as does the Babli, except an argument attributed to R. Eleazar ben Azariah not mentioned in the Yerushalmi.). Rebbi Tarphon objected: If he said to her, you are permitted to any man except Mr. X; she went and married [the latter’s brother who]¹²Missing in the text; to be added from the parallel attributed to R. Jeremiah. died childless; how can she contract the levirate marriage¹³If the prohibited man was the only brother of the deceased husband, the widow should have to marry him but she is prohibited by the former husband’s stipulation. In the Babylonian sources (Note 10) the conclusion is stated explicitly that “this is no cutting loose” (referring to the bill of divorce which in Deut. 24:1 is called “scroll of cutting loose” the wife from the husband’s power. This really refers to the rabbis’ argument, Note 9.)? Does it not turn out that he¹⁴The first husband would in effect stipulate that his ex-wife cannot fulfill the commandment of the levirate marriage. stipulated against what is written in the Torah, and anybody’s condition contradicting what is written in the Torah is invalid. Then nobody should be permitted to marry his brother’s daughter, lest he come to stipulate against what is written in the Torah¹⁵If the uncle married to the niece died childless, the widow clearly is forbidden to marry her own father in levirate. But the possibility of a marriage of the niece to the uncle is one of the doctrines of Pharisaic Judaism, in contrast to the Sadducees (cf. Introduction to Tractate Yebamot.). Rebbi Yose ben Rebbi Abun said, one understands the reason. There, the Torah forbade her to him¹⁶In fact, the greater part of Tractate Yebamot is devoted to cases where levirate marriage is impossible.. But here, he forbids to him¹⁷The first husband forbids levirate marriage to the brother of the second husband.! Rebbi Ḥananiah objected in the name of Rebbi Phineas: Should one not state “sixteen women” following Rebbi Eliezer¹⁸Mishnah Yebamot 1:1 enumerates 15 categories of women who are forbidden levirate and, in the opinion of the House of Hillel, automatically free their co-wives from levirate. According to R. Eliezer, should one not add the woman who married the brother of a man forbidden to her by divorce stipulation?? Rebbi Mana said, the reason was already explained: there, the Torah forbade her to him. But here, he forbids to him¹⁷The first husband forbids levirate marriage to the brother of the second husband.! Rebbi Jeremiah¹⁹It seems that this has to read “R. Simeon ben Eleazar” (Tosephta 7:5.) asked: If he said to her, you are permitted to any man except Mr. X; she went and married the latter’s brother who died childless, how can the latter permit what the first forbade²⁰This is a non sequitur. It seems that one has to read with the Tosephta: “She went and married an unrelated person who then divorced her unconditionally”, i. e., the second husband by his divorce annulled the condition of the first divorce.? His words imply that death and divorce permit what the first [husband] prohibited²¹The condition “except Mr. X” according to R. Eliezer refers only to the next marriage of the divorcee. If the divorcee married according to the stipulation and then the second marriage is dissolved either by divorce or by the husband’s death, the widow or divorcee is free to marry anybody she wishes. The Babli agrees with this interpretation, 83a, which shows that R. Tarphon’s objection cannot be sustained.. Rebbi Jeremiah said, he said only death and divorce; therefore, not marriage²²R. Eliezer, who declares the divorce valid, will insist that the first remarriage satisfy the first husband’s condition..

Rebbi Yose the Galilean said: Do we find in the Torah that what is forbidden to one is permitted to the other and what is permitted to one is forbidden for the other? Forbidden to one she is forbidden to everybody;permitted to one is permitted to everybody²³His argument is the same in the Babylonian sources (Note 10). It is difficult to accept the statement at face value.. Rebbi Aqiba objected: If the one to whom she was prohibited was a Cohen and the divorcer died, would she not be considered a widow for him but a divorcee for all his clan of Cohanim²⁴The situation would be paradoxical in that the divorcee would be forbidden to all Cohanim (Lev. 21:7) except the Cohen to whom she was forbidden since for him she is a widow who is forbidden only to the High Priest. (One might ask why a man would forbid his divorcee to a Cohen since she is forbidden to him anyhow.)? Where was the Torah more restrictive, for a divorcee or for a widow²⁵The lengthy amplification refers to the prior case that the person whom the divorcee could not marry was a Cohen, forbidden to her in any case.? The Torah was more restrictive for a divorcee than for a widow. But since a divorcee, where one is more restrictive in all aspects, does not become forbidden with respect to what was permitted by her divorce²⁶As a married woman she was forbidden to everybody except her husband; as a divorcee she is permitted to most men., would it be logical that the widow should be forbidden from what was permitted her from her aspect of married woman²⁷This is an involved argument repeating the paradoxical situation described in Note 24.? Even him did the divorce touch²⁸The arguments of Notes 24, 27 are to be rejected. A divorcee who cannot be married is still a divorcee; the argument of R. Aqiba is invalid.. Since both a widow and a divorcee were forbidden²⁹To the High Priest. even if her aspect of married woman was permitted, with restrictive divorce certainly she should be forbidden even in the aspect³⁰Forbidden to the rank-and-file Cohen. The sentence is an amplification of the argument of Note 28. that was permitted by her divorce.

Another argument³¹In the Babli, 83a, this argument also is attributed to R. Aqiba.: “Assume that he said to her, ‘you are permitted to every man except Mr. X;’ she went and married another and had children by him. Then her [second] husband died³²In the Babli: “died or divorced her.” This is implied by the sequel here also.; she went and married Mr. X. Will not her children by her second husband become bastards³³The third marriage violates the conditions of the first divorce. If the first divorce is invalidated, the second marriage retroactively becomes adulterous and the children bastards. The argument does not disprove R. Eliezer’s position; it shows that from a practical point of view, that position should not be tolerated.?” His argument implies that divorce does not permit what the first husband had forbidden³⁴Contrary to what was asserted in the name of R. Eliezer (Note 21), a later divorce or widowhood does not eliminate the conditions of the first divorce.. Rebbi Shammai said, do we find that a woman was not originally forbidden to a man because of adultery and then retroactively became forbidden as adulterous³⁵He doubts that anybody can agree that the second husband, who contracted his marriage within the parameters of the first divorce, can become an adulterer without his knowledge by an action of the wife after his death or after a divorce.? Rebbi Mana said to him, to what can you compare this? To one who told his wife, “this is your bill of divorce on condition that you sleep with Mr. X.” At the start, he is forbidden to have sexual relations with her. If he transgressed and slept with her, the divorce was retroactively validated³⁶Even according to the Babli which holds that any expression “on condition that” means “from today, on condition that”, Mr. X is barred from marrying the divorcee as long as he had not slept with her since she is not yet divorced and, therefore, unable to contract any marriage. Therefore, when he goes to bed with the divorcee, it is an adulterous act. But at the moment of penetration, the condition of the divorce is satisfied and the aspect of adultery has disappeared. This is just the opposite of the situation which caused discomfort to R. Shammai. (Rashba, Novellae ad 84a.).

Rebbi Joḥanan said³⁷Here starts the discussion of the statement by the Mishnah, that the husband cannot simply annul the condition he had imposed but has to take the bill back and bodily deliver it while declaring his ex-wife free to marry any man she chooses., the practice follows Rebbi Simeon ben Eleazar, since Rebbi Simeon ben Eleazar said³⁸Chapter 8, Note 27; Babli 78a. it never is a bill of divorce unless he declares at the moment of delivery: “This is your bill of divorce.” Rebbi Jacob bar Aḥa in the name of Rebbi Yannai: There is not even a hint of invalidity on her³⁹An imperfect bill of divorce will nevertheless make the woman a divorcee according to the rules of the priesthood. Only a bill which clearly is null and void does not have this consequence (and if the woman became a widow before a corrected version could be delivered to her, she would be able to marry a Cohen.) In Yerushalmi language, the invalid bill implies no “hint of invalidity” for the woman. In Babli terminology (86b), there is “no hint of a bill of divorce” on the document (רִיחַ הַגֵּט אֵין בּוֹ).. Cahana said, this implies that they did not worry⁴⁰The Tanna of the Mishnah accepts the statement of R. Yannai that the document delivered with the exclusion of a possible marriage partner is null and void. (In the Babli, 84b, R. Joḥanan in the name of Cahana adopts the position here described as R. Aḥa’s.). If they did worry, might he not have said “you are permitted to any man” when it was still in her hand⁴¹If the delivery were valid to disqualify the woman from marrying a Cohen, it also should be valid for a full divorce upon a public disclaimer by the husband of the condition imposed.? Rebbi Aḥa said, this implies that they did worry⁴²The Tanna of the Mishnah must reject the statement of R. Yannai. The Babli agrees, 84b.. If they did not worry, could he not divorce by any power he has to divorce⁴³He also rejects the determination of R. Joḥanan that the Mishnah follows R. Simeon ben Eleazar. The fact that the Mishnah requires the husband to retake possession of the bill after the wife already had it in her hand means that the wife already had acquired the bill, became forbidden to a Cohen, and, therefore, a simple statement by the husband would be invalid. (Rashi’s explanation, 84b).?

Rebbi Ze‘ira said: Shila bar Binah stated: Anything which is invalid containing a condition if delivered on condition is also invalid⁴⁴This refers to the last statement in the Mishnah, that the condition written in the bill of divorce invalidates the bill. It is stated as a general principle that any condition, which written in the bill will invalidate it, also invalidates if not written but imposed orally at the time of the delivery. (The Babli, 84b, takes the opposite track: A written condition invalidates if and only if it invalidates if imposed orally. The Babli invalidates any condition formulated using the term “except” but validates every “on condition that”. This is foreign to the Yerushalmi.).