Lesson 50: Ki Teitzei

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• Definitional mitzvot (commandments).
• A definitional mitzvah cannot be transgressed.
• The two-storey model as an alternative to viewing a mitzvah as definitional.
• The Jew and the Noahide as a two-storey structure.
• Constitutive and directive mitzvot.
• She’erut and acquisition in the marital bond.

Abstract

In this week’s essay we deal with the essence of the marital bond. We begin by characterizing the “mitzvah (commandment) of divorce.” At first glance this seems to be a definitional mitzvah, that is, a mitzvah that imposes no duty on anyone but merely defines who is married and who is divorced. Yet several sources suggest that it is a genuine mitzvah, and that one who does not carry it out has even failed to fulfill a positive commandment. The explanation we propose is that from the moment a person decides to divorce his wife, she is already “divorced in his heart,” and a mitzvah then rests upon him to divorce her completely, by means of a get, in order to permit her to marry others.

We explain this by arguing that the marital bond contains two components: a formalistic-particular component, namely kiddushin (formal betrothal), and an essential-universal component, namely nissuin (marriage proper). The component of kiddushin is dissolved only by a valid get. The component of nissuin is dissolved by “divorce” in its everyday sense, that is, sending the woman out of the house, or out of one’s heart. We discuss the meaning of this two-storey model and consider its implications for the basic conception of halakha (Jewish law) in several areas.

The second chapter is devoted to proving this claim. We show, through analysis of sources, that even when the marital bond is dissolved, this can at times occur in two stages: first the dissolution of nissuin and a return to a quasi-betrothal state, and only afterward the dissolution of the betrothal, that is, the kiddushin. From the moment a person decides to divorce his wife, various legal changes take place, some rabbinic and some rooted in Torah law. We explain all of them by arguing that what has occurred is a return to a kind of betrothal state.

We then explore several implications of the two-storey model. We discuss the bond of she’erut, which underlies the essential component of marriage. The Talmud even raises the possibility that this component still exists after the woman’s death. We point to implications for the permission of a priest’s wife to eat terumah, the priestly portion. In the final chapter we examine the legal implications of the bond of she’erut, which lead us to the conclusion that this bond creates something like an identity between husband and wife. Several implications of that identity are presented there, such as the rule of splitting testimony, the law that a wife’s slaves may eat terumah, and the disqualification of a person from testifying regarding his wife. We conclude with homiletical remarks by the author of Tzofnat Paneah, who points to the same idea.

On Kiddushin and Marriage: Another Look at Two-Storey Models

Introduction

Maimonides, at the beginning of Mishneh Torah, Laws of Marriage, defines the Torah concept of marriage in contrast to what was customary among the nations before the giving of the Torah, and what remained in force for them even afterward:

Before the giving of the Torah, if a man encountered a woman in the marketplace and he and she wished to marry, he would bring her into his house and have relations with her privately, and she would thereby become his wife. Once the Torah was given, Israel were commanded that if a man wished to marry a woman, he must first acquire her before witnesses, and only afterward would she become his wife, as it is said: “When a man takes a woman and comes to her.”

In other words, Israel were commanded to precede the act of marriage with an act of kiddushin. The act of marriage itself remained what it had been before: bringing the woman into his house. But now there is a condition that kiddushin must come first. After kiddushin the woman is betrothed to her husband, and this finds expression in several laws: she is forbidden to every other man and permitted to him by Torah law, though not by rabbinic law. If he is a priest, then even if she is an Israelite she may, in principle, eat terumah, and so forth. Most of the husband’s obligations toward his wife begin only at the stage of nissuin, some by Torah law and some by rabbinic enactment.

Some ask why Maimonides found it necessary to preface his discussion with this historical introduction, which apparently has no legal significance after the giving of the Torah. In this week’s essay we will try to answer that question.

We will deal with the meta-halakhic essence of the bond between husband and wife. We will try to explain the meaning of the two stages in the creation of that bond, kiddushin and nissuin. We will then identify various legal expressions of these two stages in the dissolution of the marital bond as well, and we will examine their significance.

A. The “Mitzvah” of Divorce

Introduction

In our weekly Torah portion, the Torah addresses a situation in which a married couple decides to part. In such a case, the husband must write the woman a “bill of severance,” that is, a get, and placing it in the woman’s hand is the halakhic act of separation. That act effects the divorce, and from that point on the woman is free to marry others.

Is there a mitzvah to divorce a wife? Clearly not. This is a halakhic procedure: one who wishes to divorce his wife must do what halakha requires. If he does not, the woman is not divorced. But clearly he has not failed to fulfill a positive commandment.

The Enumerators of the Commandments

Yet we find that the classical enumerators of the commandments do count as a mitzvah the requirement to divorce a woman by means of a get. For example, Maimonides writes in Sefer HaMitzvot, positive commandment 222:

The 222nd commandment is that we were commanded to divorce by means of a document in every case when we wish to divorce. This is His statement, exalted be He: “And he shall write her a bill of severance and place it in her hand.” The laws of this commandment, that is, the laws of divorce in full, are explained in the tractate devoted to this matter, namely Tractate Gittin.

So too the author of Sefer HaHinukh writes, in commandment 579:

It is a mitzvah for one who wishes to divorce his wife to divorce her by means of a document.

We were commanded that when we wish to divorce our wives, we must divorce them in writing. This writing is what Scripture calls a “bill of severance,” and what our rabbis of blessed memory call a get. So too the translator rendered this book as a get. Concerning this it is said: “And he shall write her a bill of severance and place it in her hand and send her from his house.”

Thus it is clear that there is no mitzvah to divorce one’s wife. But when a person wishes to divorce his wife, he is commanded to do so by means of a get and not by mere speech, as was the practice before the giving of the Torah.

Is There Really a Mitzvah Here?

If so, there is no mitzvah here, but at most a prohibition. It is forbidden to divorce without a bill of severance, that is, without a get. But even that definition is puzzling. Is there really any prohibition against divorcing by speech alone rather than by document? One who “divorced” his wife verbally, without a bill of severance, violated no prohibition; he simply did not divorce her. So long as the required legal procedure has not been carried out, the woman is not divorced. If so, what prohibition is there?

One possible answer is that this is a contingent mitzvah, not merely a non-obligatory one, as many tend to define it. That is, if a person wishes to divorce his wife, he must do so by means of a get and not by speech. This is exactly parallel to the case of a four-cornered garment: if a person wishes to wear such a garment, he is required to attach fringes to it, but fundamentally there is no prohibition against walking around in some other garment without fringes. A contingent mitzvah applies only once the background conditions that generate the obligation are present. Outside those conditions there is no duty at all, nor even any prohibition in failing to fulfill it. According to this possibility, the mitzvah to divorce by get applies only in circumstances in which the person already wants to divorce his wife, as we saw in the early authorities above. One who wishes to divorce his wife, but does so verbally rather than by get, violates a prohibition.

But is that really the correct legal definition? It would seem that one who does not do it by get has simply failed to divorce his wife; he has not violated anything. What is prohibited about saying, as it were, “I divorced my wife,” when in fact he did not? Is it forbidden to say nonsense?

Is Divorce a Definitional Mitzvah?

In our essay on Parashat Re’eh, 5767, we encountered a similar situation. According to most opinions in halakha, at the end of the sabbatical year a debt is remitted automatically, without any action by the lender. If so, we asked there, why is it forbidden to press for repayment of the debt? Is a person forbidden to indulge in fantasies? If someone approaches his friend in the street and demands repayment because he imagines that the other owes him money, has he violated anything?

There we suggested that the mitzvah of remission of debts is a definitional mitzvah, that is, a mitzvah that defines a legal state but imposes no duties or prohibitions on anyone. In the case of debt remission, that apparently does not fit the views of the early authorities, and we explained there why not; but the definition itself remains valid. At first glance, the present case would also seem to involve nothing more than a definitional mitzvah. It is a mitzvah that imposes no duty or prohibition on anyone. Its purpose is to define a legal-juridical state: only use of the exact halakhic procedure for divorcing a woman can achieve the husband’s desired result. A woman divorced in a way that does not conform to halakha is simply not divorced. In that earlier essay we brought additional examples of this kind from Maimonides’ list of positive commandments. It would seem that the mitzvah to divorce by means of a get should likewise belong on the list of definitional mitzvot.

The Difficulty from the Wording of Sefer HaHinukh

One of the basic characteristics of definitional mitzvot is that their non-fulfillment involves no prohibition whatsoever. For example, there is a mitzvah that defines one who touched a corpse as impure with corpse-impurity. One who did not touch a corpse is of course not impure. Has he thereby failed to fulfill any positive commandment? Certainly not. There is no way to fail to fulfill the positive commandment that establishes that one who touches a corpse is impure. It is merely a definition, nothing more. Thus the clearest mark of a definitional mitzvah is that it cannot be transgressed. There is no possibility of “violating” a definitional positive commandment.

And yet the author of Sefer HaHinukh concludes commandment 579 with the following surprising words:

The commandment regarding bills of divorce applies in every place and at every time.

One who transgresses this and divorces his wife without writing her a get in accordance with the Torah’s command and as our sages of blessed memory explained, has failed to fulfill this positive commandment. His punishment is very severe, because legally she remains a married woman while he treats her as divorced, and the punishment relating to a married woman is known, for it is among the gravest transgressions in the Torah.

Thus, one who divorces a woman without a get as the Torah requires has failed to fulfill this commandment, and his punishment is severe. If so, it is possible to fail to fulfill this positive commandment, and therefore it is clear that this is not a definitional commandment.

At first glance, the explanation for his severe punishment is that he created a problematic situation: the woman is treated as divorced, while in reality she remains a married woman, and this may lead to grave consequences. And so Sefer HaHinukh writes earlier:

Among the roots of the commandment… the Torah commanded us, when sending her away, not to send her away by speech alone, lest this become for us a stumbling block and a source of transgression, and promiscuity come to dwell among our people. For the adulterous woman might claim to her husband that he divorced her, and acts of divorce would become very common. But now that we have been required to write the matter in a document and have witnesses, anyone claiming divorce must show a document…

But clearly this is not Sefer HaHinukh‘s intention, for that description concerns not the failure to fulfill the positive commandment of divorce, but another prohibition altogether: causing the woman and others to stumble into sin, the prohibition of leading others astray. If Sefer HaHinukh writes that one who divorced his wife without a valid get has failed to fulfill a positive commandment, his meaning is that he violated the “mitzvah” to divorce by get. The severity of the punishment is explained by the grave legal consequences of the state created, but the failure to fulfill the positive commandment is still the failure to discharge an obligation imposed upon him by halakha.

The conclusion, then, is that according to Sefer HaHinukh, one who divorces his wife with an invalid get, or without a get at all, has failed to fulfill the positive commandment of divorce. From this it clearly follows that, at least in his view, divorce by get is not a definitional mitzvah, for a definitional mitzvah cannot be violated at all. We will explain this further below, but first let us note another hint in the same direction.

A Remark from the Question of Birkat Shmuel

Maimonides writes in Mishneh Torah, Laws of Divorce 2:7:

What is the difference between “invalid” and “void”? Everywhere in this work that it says concerning a get that it is void, it is void by Torah law; everywhere it says “invalid,” it is invalid by rabbinic law.

Maimonides thus distinguishes in the laws of divorce between two types of defects in a get:

1. Defects that render the get void.
2. Defects that render the get invalid.

A void get is no get at all, as though no act of divorce has taken place. By contrast, an invalid get is valid by Torah law, but the Sages disqualified it.

Throughout Tractate Gittin the Talmud discusses various defects in a get, and each category has different laws. Some defects nullify the divorce altogether, and if the woman marries another man on the strength of such a get, even the children born from the second man are treated as mamzerim by rabbinic law. Some defects require the remarried woman to leave the second husband, but ex post facto her children are not treated as mamzerim even by rabbinic law. Some defects are such that, if children were born, the woman need not leave the second husband at all. Some defects are such that even ab initio she need not leave, but the husband must give her another valid get. And some defects do not even require a second delivery of the get at all, meaning that they have no legal consequence whatsoever apart from the ideal manner of writing or delivering the get.

Now Birkat Shmuel raises a difficulty: is giving a get a mitzvah, such that we can speak of an ideally performed mitzvah and a less ideal performance? What is the meaning of defects that have no legal consequence at all? Has the mitzvah of divorce been fulfilled in a non-ideal way? After all, there is no mitzvah to divorce one’s wife. The only relevant question is whether the woman is divorced or not. If she is divorced in every legal respect, then what is the significance of these defects? Put more generally: how can there be ab initio defects in a definitional mitzvah?

According to our approach, however, even though we have not yet explained the matter conceptually, this mitzvah is not definitional but substantive. If so, there is greater room to understand why even here there can be ab initio defects. The question of Birkat Shmuel is therefore yet another hint that the mitzvah of divorce is not a definitional one.

First Possibility: Cases in Which There Is a Mitzvah to Divorce

There are situations in which there is indeed a mitzvah to divorce the woman. In some such cases, the husband may even be coerced into doing so. If so, one might suggest that Sefer HaHinukh means only those cases: in such situations there is a mitzvah to divorce the woman, though not as a general rule. Wherever there is a mitzvah to divorce, one who does not do so has failed to fulfill a positive commandment.

But this suggestion cannot explain Sefer HaHinukh. He does not mention the special cases in which there is an obligation to divorce; he speaks in general terms. His reason for the severity of the punishment also does not mention the problem that generated the obligation to divorce, but rather the problem created by presenting a woman who is not divorced as though she were divorced. Clearly he means to say something about every act of divorce.

Another Remark in Light of the Law of Debt Remission

As we have already noted, the move here parallels the discussion we held two weeks ago about remission of debts. There too, the difficulty that led us to view the mitzvah as definitional lay in the absence of any real anchor for the prohibition. What prohibition is there in demanding payment of an imaginary debt from someone who owes me nothing? Here too we ask: what prohibition is there in performing an act that looks to us like divorce, when from the legal point of view it is not divorce at all?

Now if the mitzvah is really not definitional, we must look for some deeper level of reality in the prohibition. With regard to debt remission, we proposed that even after the sabbatical year the debt still exists, even though there is no mitzvah to repay it. If so, demanding the debt after the sabbatical year is not like demanding an imaginary debt that does not exist at all. The same is true here. We must look for an additional, more abstract layer in marriage, one that is also undone by an invalid get, or by sending the woman away without any get. If we find such a dimension, then the prohibition can be defined as the prohibition against removing that abstract layer without completing the act of removal, that is, without fully releasing the woman to the outside world.

Hypothesis: Two Storeys in the Structure of the Marital Unit

The hints above lead to the hypothesis that in the marital relation there is another layer, one that is loosened by the very act of sending the woman away from the house, even if no valid get has been given. A plausible suggestion is to connect this layer to the layer that exists in every human marital bond in the world, namely nissuin, as they existed before the giving of the Torah. As we saw, nissuin mean actually bringing the woman into his house, and it is only reasonable to say that the dissolution of this marriage bond occurs in the opposite manner: taking the woman out of his house, even without a valid get, which is needed only to permit her to marry others.

If so, kiddushin, which is a formal legal act, done by giving money or a document, is undone by a formal legal act, namely giving a valid get before witnesses. Nissuin, by contrast, which is a non-formal act of creating a marital unit, is undone in a non-formal way, by the actual dismantling of that unit.

If this is correct, the questions raised above are well resolved. The mitzvah to divorce one’s wife is indeed not merely a definitional mitzvah, and therefore it can be violated. The mitzvah to divorce by get is addressed only to one who has already decided to divorce his wife. In such a situation, he is commanded not to suffice with physically sending her from his house, that is, dissolving the nissuin, but to complete the process all the way to final dissolution, that is, by dissolving the kiddushin through a valid get. One who gave his wife an invalid get severed the nissuin between them, and it is precisely this incomplete state that he is forbidden to leave standing. This is exactly like remission of debts, where the sabbatical year cancels the duty to repay but not the debt itself, and therefore the prohibition against pressing for payment still has meaning. In both cases, the solution is to point to two storeys in the relevant structure.

Now it is clear that the words of Sefer HaHinukh concern every person who divorces his wife, not only those special cases in which there is a legal obligation to do so. In every divorce there is a stage at which the woman is already “divorced in his heart,” that is, the man has already decided to divorce his wife and, at least mentally, has put her out of his house. In such a case he is obligated to complete the act and sever the bond definitively.

Connection to a More General Two-Storey Model: Jew and Noahide

The structure we have pointed to here hints at a more fundamental underlying structure. In our essay on Parashat Noah, 5767, we raised two possible ways to understand the attitude of halakha to the distinction between a Jew and a Noahide, that is, a non-Jew bound by the Noahide laws. One approach viewed the Jew as an entirely new creature with nothing Noahide left in him, from the halakhic standpoint. The second approach viewed the Jew as a two-storey structure: a universal storey, shared with all humanity, and a particular storey, unique to him alone. In the end, we sided with the second model.

We now see an expression of this idea in the area of marriage law. The marital edifice of the Jew is composed of two storeys. The first is universal: nissuin. This storey is very similar to what we find among Noahides. The second is particular: kiddushin. This storey is unique to Jews. In other words, the marital bond between two Jews is a universal marital bond plus an additional particular component that exists alongside it, even though it is not created at the same moment, since kiddushin precedes nissuin.

If so, the Noahide level exists in our case as well, even after the giving of the Torah. Every Jewish marriage includes a Noahide component. This explains why Maimonides brought the historical description at the beginning of the laws of marriage. It is not merely historical; it is a chronological description of how the present legal structure came into being. Every element of that description remains relevant for us even today. Below we will see more concrete legal implications of this claim.

At this point we will only briefly note the discussion in our essay on Parashat Ekev, 5767, where we dealt with a two-storey model dividing the formalistic from the essential. The model proposed here is also an instance of that. Nissuin are the essential part of the marital bond, and kiddushin are its formalistic part.

Constitutive and Directive Mitzvot

At the end of our essay on Parashat Korah, 5767, we introduced the distinction between a directive mitzvah and a constitutive mitzvah. A constitutive mitzvah is one where the domain defined by the mitzvah does not exist without it. A directive mitzvah is one whose purpose is to direct or shape a domain that exists even without it.

According to our approach, divorce is not a concept constituted by the Torah. Divorce existed before the giving of the Torah, and therefore precedes the Torah and halakha. The Torah merely directs us how to perform the act of divorce properly. In these terms, our claim here is that in the mitzvah of divorce the Torah does not define the act of divorce but directs it. This is the opposite of the conception that lay behind the earlier difficulty, according to which the Torah constitutes the concept of divorce, and therefore we assumed that invalid divorces are utterly meaningless. On that conception there is no divorce outside the exact procedure defined by halakha.

Thus the question of direction or constitution is itself parallel to the distinction we made here between the two storeys. The conception of mitzvot as directive rather than constitutive means that they contain a universal component in addition to a particular one. The universal component exists before halakha and without it, and on top of that halakha adds particular components whose purpose is to direct the performance of the legal act so that it is carried out in a more correct manner.

“And She Betrays Her Husband” — The View of Maharik

Halakha rules that a woman who knowingly commits adultery while married becomes forbidden both to her husband and to the adulterer. If she does so inadvertently or under coercion, she does not become forbidden. Now Maharik, in responsum 167, makes a major innovation on this topic, and its basis seems rooted in the principle developed here.

Usually we distinguish between two kinds of inadvertence: legal error and factual error. A person may be inadvertent because he did not know the act was forbidden, or because he was unaware that he was performing the forbidden act. For example, a person may trap on the Sabbath because he did not know that trapping is prohibited on the Sabbath, or because he did not know that today was the Sabbath.

Maharik argues that with regard to the prohibition of an adulterous wife to her husband, there is no equivalence between these two forms of inadvertence. If the woman thought that the man with whom she had relations was her husband, then her status is that of one who acted inadvertently, and she truly does not become forbidden to her husband. But if she knew that he was not her husband and simply did not know that it was forbidden to have relations with him, in that case she does become forbidden to her husband, just as in a case of intentional adultery.

Why is the second case not regarded as inadvertence for this purpose? Maharik explains that in the second case the woman has betrayed her marriage, even if she was not aware of the formal prohibition. After all, she wanted to have relations with someone who was not her husband. Therefore, even if there had been no legal prohibition, she would still have betrayed the marital bond between them. Such betrayal dissolves the marital bond and forbids her both to her husband and to the adulterer.

The meaning of this is that Maharik sees the marital bond as something not merely halakhic. As far as the prohibition is concerned, the woman is fully inadvertent, since she did not know that what she was doing was forbidden by halakha. But as far as the reality of the marital bond is concerned, she acted intentionally, for she wanted to violate that bond. Her becoming forbidden to her husband stems from betrayal of the marital reality, not from violation of the prohibition.

This is another demonstration that the marital bond is not constituted by halakha but only directed by it. Put differently, the halakhic aspects do not exhaust the marital bond; they are only a particular addition to the universal meaning of the bond. Thus, the Torah marital bond is simply the ordinary human marital bond familiar in the broader world, with halakhic additions. Maharik claims that this way of looking at things also has novel legal consequences.

B. The Two-Storey Model of Marriage

Introduction

In this chapter we will examine the legal implications of the model outlined in general terms in the previous chapter. We will argue that each of the two storeys has legal consequences of its own, and that these consequences are not necessarily dependent on one another. In an ordinary divorce, both components are dissolved together. But even in the mere physical sending away from the house, something is dissolved: the universal component, with all its legal consequences. The particular component, of course, remains in such a case, and it too remains together with its legal consequences.

Once He Has Set His Eyes on Divorcing Her, He No Longer Has Rights to the Produce

The Babylonian Talmud, Gittin 17a, discusses why a date must be written in a bill of divorce. Two possible explanations are offered:

It was stated: For what reason did they enact a date in bills of divorce? Rabbi Yohanan said: because of a man’s sister’s daughter. Resh Lakish said: because of produce. Why did Resh Lakish not say like Rabbi Yohanan? He could say to you: sexual misconduct is not common. And why did Rabbi Yohanan not say like Resh Lakish? He holds that the husband has rights to the produce until the time of delivery. It works well according to Resh Lakish, and that is why Rabbi Shimon validates it; but according to Rabbi Yohanan, what is Rabbi Shimon’s reason for validating it? Rabbi Yohanan can say to you: I am not speaking according to Rabbi Shimon, but according to the Rabbis. It works well according to Rabbi Yohanan, for that is the difference between Rabbi Shimon and the Rabbis. But according to Resh Lakish, what difference is there between Rabbi Shimon and the Rabbis? The produce from the time of writing until the time of signing is the difference between them.

According to Rabbi Yohanan, the purpose of writing the date is to make the time of divorce clear, so that a man will not be able to protect his wife if she committed adultery by claiming that she was already divorced. Resh Lakish bases the requirement on the fact that after the get is written, the profits of the wife’s usufruct property no longer belong to the husband, and the time must therefore be clarified so that the husband cannot sell the produce from her property. Rabbi Yohanan disputes this and maintains that the husband retains rights to the produce until the time of the actual divorce.

Later in the passage, everyone agrees that according to Rabbi Shimon in the Mishnah, who validates a get written by day and signed by night, the husband has rights to the produce only until the time of writing. And on Gittin 18a the Talmud states this as obvious:

Rabbi Shimon validates it. Rava said: What is Rabbi Shimon’s reason? He holds that once he has set his eyes on divorcing her, he no longer has rights to the produce.

And as a practical ruling the Talmud says on Gittin 18b:

The case came before Rabbi Yehoshua ben Levi, and he said to him: Rabbi Shimon is worthy of being relied upon in a time of necessity.

At first glance it seems that the law does not follow Rabbi Shimon except in a time of necessity, and that is how the legal authorities rule (see Shulhan Arukh, Even HaEzer 127:2¹, and Maimonides, Mishneh Torah, Laws of Divorce 1:25). Some, however, wrote that the law actually follows him fully.

Thus we find a tannaitic opinion, one that may even have practical legal standing, according to which from the time the get is written the husband no longer has rights to the profits of the wife’s usufruct property. Why, in fact, do those rights lapse from the time of writing? What takes place at the writing of the get that removes the husband’s rights? One would have expected everything to take place only at the time of the divorce itself, that is, at the time of delivery, as Rabbi Yohanan maintains.

To understand this, one must notice that Rava formulates Rabbi Shimon’s reasoning in a slightly different way. He does not base it on the moment the get is written, but on the fact that the husband has already set his eyes on divorcing her. In other words, there is here a state of “divorced in his heart”: the man has already decided to dismantle the family unit, but has not yet given a valid get in the proper legal way. In such a state, something in the marital bond has already come apart, and one legal expression of this is Rabbi Shimon’s view that the husband loses his rights to the produce. According to Rabbi Yohanan this happens only at the final divorce, whereas according to Rabbi Shimon it happens already when he has mentally “sent her from his house.”

There is here an identification between the state in which the husband wrote a get and the state in which he merely decided to divorce her. The writing of the get is nothing more than an expression of the decision to divorce, and that is the decisive parameter.²

A Return to the State of Betrothal

Among the early authorities there is an explicit disagreement over whether the husband retains rights to the produce after the get is written. The Rif explains that the produce remains his until the time of delivery, since his obligation to redeem her from captivity certainly lasts until the get is actually delivered. In Ketubot 47b we are told that the duty to redeem her was instituted in exchange for his right to the profits of her usufruct property, and Ketubot 52a explains that the reciprocity among these obligations is preserved. However, the Ran and Ramban ask there why we should not say that his obligation to redeem her also lapses from the time of writing.

As a matter of practical law, it is not entirely clear whether the husband truly loses the profits from the time he sets his eyes on divorcing her or only from the time he actually divorces her. In any event, there is certainly such an opinion, and perhaps it even has legal standing.

Now Korban Netanel, in his commentary to the Rosh there, writes that one cannot say that the obligation to redeem her ceases from the time of writing, since redemption is her right against him, not his right against her. It should be impossible for an act of his to remove rights that belong to her.

But according to our approach there is no difficulty at all. From the moment he sets his eyes on divorcing her, we explained that the nissuin lapse while the kiddushin remains. In practice this means that she returns to the status of a betrothed woman until she receives a valid get from her husband. If so, the laws that follow are simply the result of this new status. On the one hand, he is no longer obligated to redeem her; on the other hand, he is no longer entitled to the produce of her property. The obligations tied to nissuin lapse, and only those analogous to the state of betrothal remain.

The conclusion from the picture described so far is that just as in the construction of the marital bond there are two stages—the formal-particular stage of kiddushin and the essential-universal stage of nissuin—so too in the dissolution of the marital bond there are two stages. First comes the state of “divorced in the heart,” from the moment he sets his eyes on divorcing her or writes her a get. At that point the nissuin lapse and she returns to the status of a betrothed woman. Only afterward comes the stage of giving the get, which removes the kiddushin and permits her to others. So far we have seen two legal implications of the claim that “divorced in the heart” is a return to the state of betrothal: the lapse of the duty to redeem her and the lapse of the husband’s rights to the produce of her property. Below we will see further implications of this picture.

Once He Has Set His Eyes on Divorcing Her, It Is Forbidden to Have Relations with Her

In that same discussion, Gittin 18a, the Talmud asks from what point one counts the ninety-day waiting period that a woman must observe after divorce before remarrying, so that the paternity of any later child will be clear:

Rav Kahana, Rav Pappi, and Rav Ashi counted from the time of writing. Rav Pappa and Rav Huna the son of Rav Yehoshua counted from the time of delivery. And the law is: from the time of writing.

Thus what determines matters is the time of writing the get, not the time of the divorce itself, and so too the law is ruled in practice (see Maimonides, Mishneh Torah, Laws of Divorce 11:19, and Shulhan Arukh, Even HaEzer 13:1).

Once again the question arises: why does the time of writing the get have legal significance? The answer lies in another law that also belongs to our discussion. Maimonides writes there:

For a divorced woman, the count begins from the day the get was written; even if it was conditional, or even if it did not reach her hand until many years later, the count begins from the day of writing, for after it has been written for her, he no longer remains secluded with her.

In other words, from the time the get is written, the husband is forbidden to have relations with her. So too in the Shulhan Arukh there, although the Rema also records opinions that are stringent and count from the time the get is delivered.

The source of this rule is the discussion in the Babylonian Talmud, Gittin 90a:

Rav Mesharshiya said to Rava: If his heart is set on divorcing her, and yet she sits beneath him and serves him, what is the law? He applied to him the verse: “Do not devise evil against your neighbor, while he dwells securely with you.”

That is, there is a prohibition derived from the Writings against having relations with one’s wife while one is thinking in his heart of divorcing her. And so too in the Babylonian Talmud, Nedarim 20b:

“And I will purge from among you the rebels and those who transgress against Me” — Rabbi Levi said: these are children of nine defective dispositions: children of fear, children of coercion, children of a hated woman, children of excommunication, children of substitution, children of strife, children of drunkenness, children of a woman divorced in the heart, and children of confusion.

Thus the children of a “woman divorced in the heart” are one of the nine defective categories.

The early authorities disagreed about the scope of this prohibition. Some hold that the prohibition is only against having relations with her, whereas others hold that it is forbidden to continue living with her even without relations. But according to all opinions, something has certainly occurred at the stage of divorce in the heart.³ It seems that yet another component of nissuin has lapsed at this stage.

It should be noted that according to those views that forbid him to continue living with her, and not merely to have relations with her, it is obvious that there is then a mitzvah to divorce her. This strongly reinforces our claim at the end of the previous chapter about Sefer HaHinukh: the mitzvah to divorce is a contingent mitzvah, not a definitional one. When a man wants to divorce his wife, and when she is already “divorced in the heart” for him, there is a positive mitzvah to divorce her, that is, to complete the severance of the bond and thereby free her to the outside world. It is forbidden to leave a woman chained to him when he cannot live with her. The reason for the prohibition is either to prevent her from becoming trapped and unable to realize her right to marital life, or to prevent a situation that opens the door to promiscuity, as Sefer HaHinukh described above.

In light of what we saw above, after the stage of divorce in the heart the husband is also no longer obligated to redeem her and no longer entitled to the produce of her property. We explained this as a return to the state of betrothal prior to final dissolution of the bond. In such a situation it is only reasonable that he should also be forbidden to have relations with her, for in the prior state of betrothal before nissuin there is likewise a rabbinic prohibition against relations. Thus the symmetry between a woman “divorced in the heart” and a betrothed woman is preserved with respect to intercourse, to redemption from captivity, and to rights in her produce.

Admittedly, in the state of ordinary betrothal there are authorities who forbid divorcing her, whereas here we have seen that there may even be a mitzvah to do so. But clearly the direction and tendency of the process matter. Ordinary betrothal is on the way to marriage, whereas “divorced in the heart” is a state on the way to divorce. Therefore the prohibition against relations here is rooted in Scripture, not merely rabbinic as in the ordinary state of betrothal. And therefore, according to all opinions, there is no prohibition against divorcing her, and apparently there is even a mitzvah to do so.

Torah-Level Implications

Up to this point we have dealt with laws whose foundation is rabbinic. We saw that they lapse from the moment he sets his eyes on divorcing her, and we explained this by saying that she returns to the state of betrothal. But we also find additional aspects, some of them rooted in Torah law, that lapse from the same moment.

The Babylonian Talmud, Bava Batra 146a, discusses a man who followed his wife into a ruin in order to test whether he should divorce her:

Rav Yehuda said in the name of Rav: There was an incident involving a man to whom people said, “Your wife has bad breath.” He followed her into a ruin in order to test her. He said to her, “I smell the odor of radish in the Galilee.” She said to him, “Who would give us dates from Jericho so that we could eat them with it!” The ruin collapsed upon her and she died. The Sages said: since he entered after her only in order to test her, if she died, he does not inherit her.

Most legal authorities explain the passage as speaking of a betrothed woman, and he does not inherit her because he had not yet married her fully; inheritance depends on nissuin. But Rashbam, in his commentary there, writes:

The ruin collapsed upon her and she died. The husband then came before the court and wished to inherit his wife, and the Sages said: since he had entered with her not in order to have relations, but to examine her and divorce her, and she died in the meantime, he does not inherit her. Some versions read the text this way and explain it as speaking of a betrothed woman, but that does not seem correct to me. For even if he had had relations with her during the days of betrothal, before entry under the canopy, he would not inherit her, as Hanan bar Ami taught: “If his wife is betrothed, he is not an onen… and if she dies, he does not inherit her,” because a husband does not inherit his wife until she enters the canopy, as we derive above from “his close kin that is nearest to him, and he shall inherit her,” that is, after she has entered the canopy.

Therefore we explain the case as one of a married woman, and the text should read: “Since he entered after her to examine her, if she died, he does not inherit her.” For since it was in his mind to divorce her if he found that she had a blemish, and in the meantime she died before they were reconciled, he does not acquire the inheritance. From here we learn that one whose wife dies amid conflict, when he had it in mind to divorce her, no longer inherits her, as we say in Tractate Gittin 18a: once he has set his eyes on divorcing her, the husband no longer has rights to the produce.

Rashbam rejects the explanation that the case involves a betrothed woman, and instead reads the Talmudic passage as dealing with a married woman. According to him, we learn from here that in every case, once he has set his eyes on divorcing her, he no longer inherits her, just as we saw that from that point he no longer has rights to the produce.

Most legal authorities did not interpret the Talmud that way, but at least the Rashbam—and likewise Rabbi Joseph ibn Migash, as cited in Ramban’s novellae there, and Tosafot Rid—hold that once he has set his eyes on divorcing her, he no longer inherits her.

Later authorities have already noted that Rashbam here compares a Torah law, namely the husband’s inheritance of his wife, which is derived from the word “his close kin” referring to his wife, to a rabbinic law, namely the husband’s right to the produce. Thus his claim is not immediately clear. It is interesting that the earlier authorities who disagreed with him did not cite this as a problem, except perhaps by allusion in the language of Ritva there.

According to our approach, however, the explanation of Rashbam and those who agree with him is straightforward. There is no comparison here between loss of produce and loss of inheritance as two isolated laws. Rather, because the woman “divorced in his heart” returns to the state of a betrothed woman, all the laws of betrothal apply to her. One of those laws is that the husband no longer inherits her. Those who objected understood the fact that the husband loses the produce as a local enactment or a special rabbinic penalty, and therefore saw no reason to compare it to inheritance. But Rashbam sees here a sweeping principle: the marital bond has reverted to the state of betrothal, and the loss of produce and the lapse of the duty to redeem her are merely rabbinic consequences of a state that has already changed at the Torah level. Therefore it was obvious to Rashbam that even Torah laws dependent on nissuin would lapse in this state.

Rashash adds there that according to Rashbam, the husband would likewise not become impure for her, since the duty of a priest-husband to become impure for his wife is also learned from a parallel exposition of the term “his close kin” as referring to his wife. He further adds that the husband would not mourn for her either, and that too is derived from the same exposition. The bottom line from Rashbam, Tosafot Rid, and Rabbi Joseph ibn Migash is that we are not dealing with local legal carve-outs, but with a principled return to the state of betrothal, with all its consequences. It stands to reason that, according to at least these views, all other Torah and rabbinic obligations that apply to and with respect to a married woman, but not to a betrothed woman, would likewise lapse, in parallel to the aspects we have seen.

See also Meshekh Hokhmah on Parashat Beha’alotekha, who asked who served as the priest in Moses’ Sanhedrin, much as Tosafot asked who the priest was that inspected Miriam’s leprosy. The problem was that all the priests were relatives of Moses and could therefore not sit with him on the Sanhedrin. He explains there, in a way similar to Rashbam above, that once Phinehas separated from his wife he no longer inherited her, and therefore he was qualified to testify regarding her relatives.

We find something similar in the Babylonian Talmud, Gittin 35b: a priest who is married to a divorcee is disqualified from Temple service, yet from the moment he vows to divorce her he is again fit to serve in the Temple. Here too we are dealing with a Torah law that changes from the moment he sets his eyes on divorcing her, even though no actual divorce has yet taken place, although in that case a vow is also required.

Summary: She’erut and Kiddushin

We have seen that there are two distinct legal dimensions in relation to a wife: she’erut and kiddushin. The woman becomes her husband’s she’er from the stage of nissuin onward, and it is this she’erut that generates almost all the reciprocal obligations between them: inheritance, ritual impurity, and mourning by Torah law, and other duties such as redeeming her from captivity and rights to the produce of her property by rabbinic law. Kiddushin, by contrast, provide a formal infrastructure with only a small number of legal consequences.

We also saw that this doubling of layers accompanies the couple throughout their marriage, and that when they decide to part, they must sever both of these bonds. A valid get severs both bonds together. Sending her from his house, physically or mentally—from the moment he sets his eyes on divorcing her, that is, the state of “divorced in the heart”—severs only the bond of she’erut.

In the next chapter we will consider several implications of these two storeys.

A Brief Methodological Note

There is room to discuss the meaning of the methodological move we have employed here. At first glance we have gathered examples from different sources which, when combined, create a picture according to which the dissolution of the marital bond takes place in two stages, and in the first stage there is a return to something like the state of betrothal. Yet a close look at the sources shows that each of these legal facets has its own specific reason. We have not found anyone who states explicitly that the basis for his legal claim is the view that the state of “divorced in the heart” is a type of divorce, or a return to the state of a betrothed woman, and certainly not that the marital bond itself is built on a two-storey model.

Is it legitimate to collect facts, each of which rests on a different basis, and from their combination build a comprehensive meta-halakhic theory? Would it not be more correct to say that each legal position had its own specific reason—a derivation from “his close kin,” a local enactment denying rights to the produce and thereby also the duty of redemption, and so forth—and that there is therefore no place for this meta-halakhic generalization? Does this generalization really capture what stood at the basis of the thinking of the legal authorities—amoraim, early authorities, and later authorities? And should we even try to capture that?

These are weighty questions, touching a very fundamental layer of the dispute between traditional yeshiva study and academic research. Because of the limits of space, this is not the place to expand on them. In any case, it is clear that this methodology is not merely a technical tool. It expresses a worldview and a cluster of far-reaching assumptions that require examination in their own right. It involves viewing halakha as an object that stands in its own right, and not merely as a collection of local rulings, each of which should be examined in isolation and whose sum produces the whole.⁴ This obviously also touches the question of the relation between particulars and general rules, a question we have addressed more than once over the years from different angles.

C. Implications of the Two-Storey Model

First Implication: She’erut After Death

Later authorities noted differences between these two layers.⁵ For example, when either the husband or the wife dies, the marital bond between them lapses, just as though a get had been given. Yet we find views according to which the bond of she’erut remains even after the woman’s death, and what lapses is only the kiddushin between them.

The source is the Babylonian Talmud, Yevamot 55b:

Rava said: Why did the Merciful One need to write “emission of seed” with a designated maidservant, “emission of seed” with a married woman, and “emission of seed” with a suspected adulteress? As for the designated maidservant, it is as we have said. As for the married woman, it is to exclude one who has intercourse with a lifeless organ. This works well according to the one who says that one who has intercourse in the forbidden relations with a lifeless organ is exempt. But according to the one who says he is liable, what can be said? Rather, it is to exclude one who has intercourse with a dead woman. For one might have said: since even after death she is still called his close kin, I might say that one should be liable for her as for a married woman; therefore Scripture teaches us otherwise.

The Talmud explains that those who hold that one who has intercourse with a lifeless organ is liable must read the verse as referring instead to intercourse with a dead woman. Why is a verse needed to teach that one who has intercourse with a dead woman is exempt? The Talmud explains that one might have thought that since the woman is still called her husband’s she’er even after death, one who has intercourse with her corpse should be liable under the category of intercourse with a married woman. The conclusion is that the verse teaches that one who does this is exempt, and so too the law is ruled by Maimonides and the Shulhan Arukh. One might have understood the Talmud to mean that after death she is no longer called her husband’s she’er, but the language of the passage quite clearly suggests a different novelty: even though she is indeed still called his she’er after death, nevertheless one who has intercourse with her is exempt. The wording even suggests that there may still be some prohibition.

By contrast, in the Babylonian Talmud, Bava Batra 114b, in a discussion of inheritance, it is taken for granted that a husband does not inherit his wife in the grave:

This teaches us that the case of a woman and her son is analogous to that of a woman and her husband: just as a husband does not inherit his wife in the grave, so too a son does not inherit his mother in the grave in order to pass the inheritance on to his paternal brothers.

It would seem that in this passage the Talmud does not regard the woman as her husband’s she’er, and from that it derives that a son too does not inherit his mother in the grave.

Now Tosafot, in their comments to Yevamot there, ask:

But in the chapter Yesh Nohalin it is obvious to us that a husband does not inherit his wife when he is in the grave, and there too it says: just as a man does not inherit his wife in the grave in order to pass it to his relatives, so too a son does not inherit his mother in the grave in order to pass it to his brothers from the father. The reason it is more obvious with a husband than with a son is from this exposition here, which teaches us that after death she is no longer called his close kin.

Tosafot thus understand the conclusion of the passage to be that there is no she’erut after death, in the way we rejected above. However, Tosafot in Bava Batra there ask:

But it is puzzling: why is it more obvious with a husband than with a son? What Ribam explained—that it is more obvious with a husband because his she’erut lapses through death just as through divorce—does not seem right, for in the chapter HaBa al Yevimto it says that even after death she is still called his close kin.

Ribam interprets things like Tosafot in Yevamot, namely that the husband’s she’erut lapses after death just as it does through divorce. Presumably he therefore explains the passage in Yevamot in the way we rejected. But Tosafot themselves reject his words and prove from the formulation there that she’erut does remain after death, as we saw above. They then offer a different answer to Ribam’s question according to their own position, saying that although there is she’erut after death, it is only partial she’erut, and therefore it is limited with regard to certain modes of inheritance. We thus learn that the Tosafists themselves were divided over whether there is she’erut after death.

According to our approach, however, one might look at this apparent contradiction differently. The discussion in Yevamot concerns intercourse with a dead woman, and the prohibition under discussion is the prohibition of intercourse with a married woman. That prohibition stems from kiddushin, not from nissuin, for from the time of kiddushin the woman is forbidden to the whole world; nissuin add nothing in that respect. By contrast, the discussion in Bava Batra concerns inheritance, and as we have seen, the law of a husband’s inheritance depends on nissuin rather than kiddushin. At first glance, this suggests that in Yevamot the Talmud was unsure whether death removes the kiddushin, whereas with regard to nissuin it is obvious in Bava Batra that they lapse with the woman’s death.

But then the terminology in Yevamot is difficult, for it says that after death she is still called “his close kin,” whereas, as we saw, the term she’er refers specifically to nissuin rather than to kiddushin.

According to the opinion that the novelty of the verse is that there is no she’erut after death, one could explain that in Yevamot the Talmud may have considered the possibility that something of the legal acquisition created by kiddushin remains even after death, and the novelty is that it does not. In Bava Batra, by contrast, the discussion concerned she’erut, and there it was obvious to the Talmud that she’erut lapses after death. But the view in Tosafot—and this is also the plain sense of the passage in Yevamot—that she’erut remains even after death still requires further investigation.

Second Implication: Eating Terumah

Another topic with respect to which later authorities distinguish between she’erut and the acquisition of kiddushin is the right of a priest’s wife to eat terumah. As is well known, terumah may be eaten only by priests and not by Israelites. What is the law when an Israelite woman marries a priest? The Torah itself states that she may eat terumah. But does this apply already to a betrothed woman, or is eating terumah dependent on nissuin? It turns out that even a betrothed woman may already eat terumah.

The Sages, however, present two different derivations for the permission of a priest’s wife to eat terumah. In the Babylonian Talmud, Ketubot 57b and parallels, they derive it from the verse, “And if a priest acquires a person, an acquisition of his money,” learning from this that his wife may eat terumah because she is his acquisition, that is, she was acquired through the money of kiddushin. In Kiddushin 5a it is clarified that, by Torah law, this includes even a betrothed woman. We also find another derivation in rabbinic literature, for example in Rashi to Numbers 18:11: “Every pure person in your household may eat the holy things.” Later authorities propose that the first derivation concerns the betrothed wife of a priest, whereas the second concerns only the wife, that is, the she’er, of a priest.

There are several legal implications of this distinction, though we will not enter into them here. The basis of the distinction is that the tie of a betrothed woman to her husband has characteristics of acquisition,⁶ and it is therefore possible to derive her right to eat terumah from the verse “an acquisition of his money.” By contrast, a married woman has an additional bond with her husband, namely she’erut. She also eats terumah by virtue of being “every pure person in your household.” As noted, this has various legal implications, but this is not the place to elaborate. The early authorities in Yevamot 66a even raise the possibility that a priest’s wife eats terumah by virtue of her own status and not merely through the priest. This implication too seems connected to our distinction.

D. Another Look at the Bond of She’erut

Introduction

We have seen that there are two kinds of bond between husband and wife: acquisition and she’erut. What is the essence of the bond of she’erut? If kiddushin concern the sexual prohibitions—her prohibition to the world and her legal availability to her husband—then the bond of nissuin is what turns the two of them into family. Yet in several contexts, legal and otherwise, we find that the closeness between husband and wife is not the same as ordinary family closeness. We mentioned above the rabbinic expositions that derive from the word “his close kin” that it includes his wife. She’erut is not just any familial closeness; it is specifically the closeness of marriage. The uniqueness of the marital bond, then, lies in its being a bond of she’erut. What exactly is this? In this chapter we will address that question and bring several examples that illuminate it.

Husband as Wife and Wife as Husband

The Babylonian Talmud, Sanhedrin, discusses the disqualification of relatives from testifying. Among other things, it addresses the disqualification of a wife with respect to her husband and vice versa:

They asked: What is the law regarding a man’s testifying about his stepson’s wife? In Sura they said: a husband is as his wife. In Pumbedita they said: a wife is as her husband. For Rav Huna said in the name of Rav Nahman: From where do we know that a wife is as her husband? For it is written: “You shall not uncover the nakedness of your father’s brother; you shall not approach his wife; she is your aunt.” But she is his uncle’s wife! From here we infer that a wife is as her husband.

The Talmud thus sees the wife as part of her husband. The early authorities expand on this and say that in all other family relationships, each additional step increases the distance between the two ends of the chain. For example, a person’s maternal uncle is two steps removed from him. But when one of the steps is a marital bond, then in at least some cases the distance does not increase. The reason is that the bond between husband and wife is a bond of identity, and therefore it adds no distance.

The Babylonian Talmud, Berakhot 24a, uses a similar principle, though in a slightly different formulation, namely “his wife is like his own body”:

Rav Yosef the son of Rav Nehunia asked Rav Yehuda: If two people are sleeping in one bed, may one turn his face aside and recite the Shema, and the other turn his face aside and recite the Shema? He said to him: Thus said Shmuel—even if his wife is with him. Rav Yosef challenged him: His wife—and need one even mention another person? On the contrary: his wife is like his own body; another person is not like his own body.

This principle appears in another context as well in Bekhorot 35b.

Now Tosafot, in Ketubot 52a, explain the husband’s obligation to redeem his wife from captivity even at an exorbitant price, despite the prohibition against redeeming captives for more than their value, by the principle that his wife is like his own body. Tosafot add that in the case of his daughter, by contrast, the prohibition against overpaying for captives remains fully in force.

This aspect is especially interesting for our purposes, because, as we saw above, the obligation to redeem one’s wife exists only from the stage of nissuin onward. That is, it is an obligation that flows from she’erut and not from acquisition. If so, the principle that “his wife is like his own body” describes only she’erut and not acquisition. A betrothed woman is not “like his own body,” because she is not yet his she’er.

Splitting Testimony

The Babylonian Talmud, Sanhedrin 9a, deals with the rule of splitting a statement. The idea is that in certain cases where a person’s testimony contains one part that is problematic and another that is admissible, instead of disqualifying the entire testimony we divide it: the problematic part is erased, while the admissible part remains and is accepted.

The Rosh, in Makkot 7a, cites in the name of the Raavad that such a division of testimony is performed only where the invalidity of the problematic part stems from the fact that the witness is an interested party testifying about himself. But where the witness is testifying about his relative, the invalid part cannot be erased, and therefore that invalid part disqualifies all the rest of the testimony, under the rule that if part of the testimony is void, the whole of it is void.⁷

For example, if a person testifies about himself, “So-and-so lent me money at interest,” there is one valid part to his testimony: the testimony about the lender, that he lent at interest. But there is also an invalid part: the person’s testimony about himself that he borrowed at interest. Borrowing at interest is also a Torah prohibition, and the rule is that a person cannot render himself legally wicked by his own testimony. In such a case we split the statement and accept the testimony about the lender but not about the borrower. The invalid part is, as it were, erased from the record. By contrast, if a person testifies that so-and-so lent money at interest to his relative, then the invalid part is invalid because it is testimony concerning a relative, not because it is self-incriminating testimony. In that case the invalid part remains in place, and because the testimony contains an invalid element, it disqualifies the valid part as well, and the whole testimony falls.

Now in the Talmudic discussion in Sanhedrin we find a case in which a man comes and testifies: “So-and-so had relations with my wife.” What is the law there? At first glance, according to the distinction of the Raavad, one would expect the entire testimony to be disqualified. The reason is that the man is testifying here about his relative, and therefore the invalid part of the testimony remains in place and disqualifies the other part as well. Yet at least in the Talmud’s initial assumption, it is understood that we do split the statement even in this case. That possibility is very difficult to understand according to the Raavad’s distinction.

It therefore seems proven from here that the Talmud understands a man’s testimony about his wife not as testimony about a relative, but literally as testimony about himself, and that is why the possibility of splitting the statement arose here. Once again we see that the bond of she’erut is a bond of identity. We should note that according to our approach, this possibility would arise not with a betrothed woman but only with a married woman.

The Words of the Author of Tzofnat Paneah

We conclude the essay with homiletical remarks by the author of Tzofnat Paneah, who explains a rabbinic teaching in a similar spirit. The Babylonian Talmud, Sotah 17a, says:

Rabbi Akiva expounded: If a man and a woman are worthy, the Divine Presence dwells between them; if they are not worthy, fire consumes them.

Rashi explains there:

The Divine Presence is between them, for He divided His Name and placed it between them: a yod in the Hebrew word for “man” and a heh in the Hebrew word for “woman.” If they are not worthy, fire consumes them, for the Holy One removes His Name from between them and what remains is fire and fire.

That is, one letter of the Divine Name is associated with the man and one with the woman. If they are worthy, the Name—made of those letters—joins them into one entity. If not, the Divine Name departs from between them, and what remains is “fire” twice over. The author of Tzofnat Paneah explains the intention more deeply. He argues that the doctrine of divine unity implies that the Divine Name is one and undivided, not a composite made of parts. He adds that the Name of God shares those same properties: all of its letters combine into a single essence—what he calls an integrated composition, meaning that the letters fuse into one entity—and it is not made up of separate letters standing side by side in mere juxtaposition.

He brings a legal illustration of this principle from the Jerusalem Talmud. There is a dispute about someone who writes on the Sabbath the two letters shin and mem from the word “Shimon”: is he liable for writing two letters on the Sabbath, or exempt because these are only part of a longer name and not an independent word? The Jerusalem Talmud rules that with regard to the Divine Name there is no dispute: one who writes two letters from the Divine Name is liable according to all opinions. The explanation proposed by the author of Tzofnat Paneah is that the Divine Name has no parts, and when those two letters stand alone they are not part of the Divine Name at all, but simply two ordinary letters. Therefore this is like one who writes two ordinary letters on the Sabbath, and he is of course liable.

Now, explains the author of Tzofnat Paneah, one can understand the rabbinic teaching in a deeper way. If the man and woman are not worthy, and there is no enduring bond between them, then the yod associated with the man and the heh associated with the woman each stands by itself, for there is no connection between them. If so, they cannot form the Divine Name, because the Divine Name is not composed of separate parts. Only when the couple are worthy do the two letters join into one entity, and then together they constitute the Divine Name, thereby binding the couple into an enduring bond. The author of Tzofnat Paneah explains that there is no need to say that the letters of the Name are removed in order for only fire to remain. It is enough that they become disconnected from one another, for in that very disconnection they cease to be parts of the Divine Name.

In our terminology, this is the meaning of she’erut. The third partner of the two spouses is what creates from them one composite organic entity.

Insights

1. The mitzvah of divorce appears to be a definitional mitzvah, but the words of several commentators indicate that it contains a real legal obligation.
2. Definitional mitzvot cannot be violated, and in that sense cannot truly be “fulfilled” either.
3. The marital bond is built in two stages: kiddushin and nissuin. Nissuin are the creation of a marital bond that existed among Noahides as well, and before the giving of the Torah.
4. The stage of kiddushin has a formal character: it requires witnesses and specific legal conditions, and it exists only within halakha, not in the marriages of Noahides. It is therefore particular. The stage of nissuin is what creates the marital bond in its full sense, and from that point most of the reciprocal obligations of the spouses begin. This stage is universal, because it exists among Noahides as well.
5. The Torah’s directives regarding the marital bond are directive rather than constitutive. That is, the marital bond is already defined even prior to halakha, and that component remains present within the structure of halakhic marriage.
6. This is an example of the two-storey model, which we have encountered elsewhere as well. At times the two storeys are divided as form and essence, and at times as universality and particularity.
7. Even when dissolving the marital bond, one must dissolve both components. Usually a valid get performs both actions. But when the husband sends the woman out of his house, or separates from her mentally—that is, she is already “divorced in his heart”—the essential component of the bond is dissolved, while the formal component remains.
8. Therefore, from the moment the husband sets his eyes on divorcing the woman, her status returns to that of a betrothed woman.
9. The full marital bond is called in the Torah and by the Sages “she’erut,” and according to some views it continues even after death.
10. We have examined the conceptual significance of the bond of she’erut as the creation of the family unit as one organic entity composed of two individuals. We also considered several legal implications of that condition and brought an explanation by the author of Tzofnat Paneah of a rabbinic teaching that is based on it.

Footnotes