Gittin 74

Retroactive divorce, retroactive exoneration?

By Rabbi Elliot Goldberg

A husband who is suffering from illness hands his wife a bill of divorce and says, “This is your get from now if I die from this illness.” As we have learned, by using this language, the husband has initiated a divorce that is conditional. Should he live, the couple remains married. Should he die, their divorce takes effect retroactively from the time of declaration.

The Gemara has been exploring many implications of such a declaration — including a striking hypothetical on today’s daf:

Rabbi Meir says: If she engages in sexual intercourse with another man (while her husband is still alive), the legal status of her sexual intercourse is dependent upon whether or not her husband dies from his illness.

Rabbi Yosei says: Her sexual intercourse has an uncertain status.

If, during her husband’s illness, the woman with a conditional divorce has sexual relations with another man, is she committing adultery? Let’s stipulate that this feels wrong, whatever his fate, but the question is not whether it’s advisable, but what transgression, if any, has taken place.

At first glance, it may look like both Rabbi Meir and Rabbi Yosei are uncertain. But a closer look reveals a difference between their approaches. Rabbi Meir says it depends on the outcome. This means that time, and her husband’s fate, will ultimately clarify whether she was married or divorced and if the sexual act was permitted or adulterous. If her husband dies, she did nothing wrong. If he lives, she and her paramour are guilty of adultery. 

Rabbi Yosei would agree that the husband’s recovery makes the woman’s actions adulterous, but he is not so quick to clear her if the husband dies. Her actions were made at a time when their marital status was uncertain, and therefore uncertainty about her guilt remains.

The Gemara now explores the practical implications of both positions:

Rabbi Yohanan said: The practical difference between them (Rabbi Meir and Rabbi Yosei) is with regard to the bringing of a provisional guilt-offering.

Provisional guilt offerings are brought when a person is uncertain about whether or not they are required to bring a sin-offering. According to Rabbi Meir, one is not required in this instance, as if the husband dies, the condition placed on the divorce has been met. Since no uncertainty remains, no sacrifice is required.

Rabbi Yosei, on the other hand, requires the paramour to bring a provisional guilt-offering. Though ultimately the woman was retroactively divorced, what’s important here is that her status was not clear when the sexual act took place. Since it might have ended up being adulterous, their guilt is still uncertain and the sacrifice is required.

Here’s another way to look at it: Rabbi Meir appreciates that the couple’s actions are either permitted or forbidden, and that the determination is dependent upon the fate of the husband as stipulated in the divorce decree. In other words, he holds them accountable for the outcome — what ultimately happened and not for what might have happened. Rabbi Yosei does not agree. Though the husband ultimately died and she was declared retroactively divorced, we cannot say that at the time of the relationship it was OK, since the woman and her lover didn’t know for certain the husband would die. And this, according to Rabbi Yosei, makes their actions ethically dubious no matter how later events affected their legal status.

“Don’t do it, if you can’t be sure of the outcome,” suggests Rabbi Yosei.

“You decide if it is worth the risk,” replies Rabbi Meir. 

Which stance resonates most with you?

Read all of Gittin 74 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 29th, 2023. If you are interested in receiving the newsletter, sign up here.

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