Talmudic pages

Gittin 28

Presumed dead.

A man asks a messenger to deliver a get to his wife, who lives in a different region. The messenger arrives and delivers the get. The rabbis now ask: Is the woman a divorcee or a widow? 

This may seem a strange question, but in the days before cell phones and other forms of rapid communication, it was entirely possible that in the time between the writing and delivery of the get, the overseas husband could have died and his (ex-)wife would not know about it. To put this question in more legal (and slightly morbid) terms: Is a person presumed living or presumed dead until there is evidence to the contrary? 

We have already seen that if a building collapses on Shabbat and there were people inside it, one is permitted and even obligated to dig them out — even though we don’t know if they survived the collapse. When it comes to pikuach nefesh, saving a life, we presume that the person is alive. But in that case, there is an incalculable cost if we presume someone dead and turn out to be wrong. How about in the case of sending a get? 

The mishnah on today’s daf offers the following answer: 

One who brings a bill of divorce, and when he had left the husband was elderly or sick, he gives her the bill of divorce based on the presumption that the husband is still alive.

According to the mishnah, the woman is considered a divorcee and not a widow. That presumption has real implications for who she can marry: a divorcee cannot marry a priest, but a widow can, for example. Even if the husband is old or sick, we assume that they are alive until proven otherwise. 

Or do we? The Talmud opens its discussion of the mishnah with a challenge. 

Rava says: They taught this only concerning an elderly man who has not reached strength (i.e., the age of eighty) and a sick person, as the majority of sick people live. But if the husband was an elderly man who had reached his strength, or if he was actively dying, then, as the majority of actively dying people do die, he is not presumed alive (by the time the get is delivered).

Uncomfortable as it might be, Rava insists that it is unreasonable to always presume that someone is alive. After all, people die, and the very old and the actively dying are more likely to die than most. 

Abaye then disagrees with Rava, quoting an earlier rabbinic tradition:

One who brings a bill of divorce and left the husband when he was old, even one hundred years old, he gives it to her, based on the presumption that her husband is alive.

As a friend of mine who is a gerontologist often insists, people don’t die of old age. They die of illnesses or diseases that a stronger or healthier immune system could have fought off. Just because someone is old doesn’t mean that they are actively dying. And so Abaye here agrees with my friend — a centenarian should be presumed to be alive. The elderly are presumed to be alive; their (former) wives are legally divorced. 

Note, however, that the tradition Abaye cites does not address the actively dying; perhaps we are meant to assume that someone actively dying could have died in the time it took for the agent to deliver the get. And indeed, that is exactly the conclusion that the medieval halakhist Maimonides comes to: “Similarly, when an agent brings aget from a man who was sick or elderly, he may give it to the woman under the presumption that the husband is still alive. If, however, the husband was in his death throes when the agent left, even when he gives the get to the woman the status of the divorce is in doubt.” (Laws of Divorce 6:2).

It’s profoundly uncomfortable to assume, in the absence of proof, that someone has died. But sometimes — as in this case when there is a possible benefit for her and no real harm to him — it is the right thing to do.

Read all of Gittin 28 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 13th, 2023. If you are interested in receiving the newsletter, sign up here.

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