Annulment of Kiddushin by Force of a Conclusive Presumption[1]

With God's help

Mavoi Satum – 5774

Rabbi Abraham Dov Levin,[2] Rabbi Michael Abraham[3] and Rabbi David Bigman[4]

Introduction

A case came before us of a woman who married at a young age a man who had undergone conversion as a child together with his mother. One day after the wedding he fled abroad, where he apparently lived with a non-Jewish woman, and he refused to give his wife a get.

When we examined the matter, we saw that there was room to consider annulling the kiddushin here on several different grounds: the validity of the conversion, the validity of the act of kiddushin, and also annulment of the kiddushin on the basis of mistaken transaction or a conclusive presumption.

The case came before the religious court in Netanya, which, as emerges from the protocols and decisions, did not conduct an exhaustive halakhic inquiry into the substance of the matter. Without issuing a formal ruling, it decided, for its own reasons, to persuade the husband to give a get. In the end, after our ruling had already been signed and issued, the husband wrote and sent a get in exchange for payment of 40,000 NIS (we were told that the Chief Rabbinate’s ‘Agunot Fund’ covered this). We note that the examination of the presiding judge, Rabbi A. D. Levin, showed that the get itself also suffered from several defects that could invalidate it.

At the stage when the husband refused to give the get, the woman approached us and asked that we examine the possibility of annulling the kiddushin as mistaken kiddushin. Since the Netanya religious court had not conducted the halakhic inquiry and had not issued a decision, they saw no place for an appeal to the Supreme Rabbinical Court of the Chief Rabbinate. At the beginning of our ruling, we explained that in such a case there is room to discuss the matter, even though on its face this may seem like one court acting after another court, and especially because the hearing took place without the husband’s presence, since he was abroad.

Moreover, the conduct of this case throughout was, in our eyes, problematic for many reasons: beginning with the conversion process, which was not reexamined once he reached majority; continuing with his protest and non-observance of commandments after reaching majority; problematic registration for marriage; the actions of the officiating rabbi (as described in the protocols of the Netanya religious court); the formulation and signing of the ketubbah; the failure to investigate the issue of a woman pregnant by another man (she was three months pregnant at the time of the kiddushin, and throughout the process no one addressed this at all); the substitution of witnesses between the ketubbah and the wedding; and, with all due respect, also the mode of conduct of the Netanya religious court and the Chief Rabbinate in general, which preferred to yield to extortion rather than enter into the halakhic substance and rule regarding the kiddushin and the conversion themselves. Some time after we signed our ruling, the get was sent by mail and was lost, but in the end it reached the woman.

Although shortly after we signed the ruling the husband gave a get, we nevertheless found it appropriate to publish the ruling for the following reasons:

• The get itself is quite questionable on several grounds.[5]
• Our conclusion, once clarified in the course of our deliberations even before the get was given, did not thereby shift from its place.
• The Netanya religious court has still not written a ruling to this very day (and apparently will not do so), and it seems that they did not enter into the halakhic depths of the case, but immediately required the giving of a get out of doubt. They even decided to pay for it out of the Agunot Fund.
• According to our determination, in such a case no get was needed at all as a matter of basic law, and the payment was unnecessary and even harmful (the surrender of a state institution to arbitrary extortion, and opening the door to additional extortionists, at the public’s expense).
• The section of our ruling dealing with annulment on the basis of conclusive presumption constitutes a precedent which, to the best of our knowledge, has not been used until now. In our understanding, this principled mechanism of permission is well grounded in the words of the Talmud and the medieval authorities, and it is therefore proper and important that religious courts everywhere take it into account and use it in places and situations where it is called for, with the full caution that is of course required.

In this article we present to readers only the part of the ruling that deals with annulment of kiddushin on the basis of conclusive presumption. We have already mentioned that the religious courts do not use these halakhic tools (for understandable reasons), but we have the feeling that some judges do not even recognize the existence of this tool at all, at least on the practical plane, and therefore do not use it even in places where it is called for (below we shall mention the ruling of the Tiberias religious court headed by Rabbi Yo’ezer Ariel, which explicitly discussed this possibility and rejected it in principle).

In our opinion, when the husband cannot give a get (because he became insane or vegetative), or when he refuses to do so (or demands money in exchange for compliance), there is room to examine the use of this halakhic tool—of course not in every case and situation. In any event, it is important that this tool stand before the judges’ eyes, and also before the eyes of potential extortionists in the future.

Necessary factual background

The husband is the son of an Afro-American mother (whose relatives are ‘Hebrew Israelites’ living in Dimona) who married an Israeli Jew abroad, and after they arrived in Israel the mother was required to convert again in accordance with Jewish law, and they remarried. All this took place when her son, the husband in our case, was a ten-year-old child. There is substantial doubt whether, after the husband matured, he upheld his conversion, but we will not enter into that here.

In the period preceding his marriage, he tried to persuade several women before her to become pregnant by him and marry him. One of them even became pregnant by him. At a certain stage, the woman and the husband began seeing each other and lived together in the woman’s parents’ home. After a few weeks she became pregnant, according to her claim by him.

At that point they spoke about marriage (both before the pregnancy and afterward). Throughout the entire period he said that he wanted to return to the United States, with her or without her. According to her, he showed her pictures of a beautiful house and a business he had there. The woman said she wanted to give birth in Israel (and apparently afterward relocate to the United States). Therefore his flight to the United States, even if it had been planned, does not appear to us to be grounds for determining with certainty that this was mistaken kiddushin.

They registered for marriage with the Netanya Rabbinate. There as well a Jewish-status inquiry concerning the husband was conducted and apparently approved. We shall skip the problems we found in the process carried out there. According to her, only there did it become clear to her that he was the son of converts, but this did not bother her. Nor did his statements that he was both Christian and Jewish bother her, because of her love for him. Therefore here too, in our opinion, there is no basis to regard this as mistaken kiddushin.

During the preparations for the wedding, the groom’s family undertook to pay the cost of the wedding. In the eleventh week of her pregnancy they were married in Netanya. We shall skip here various problems in the process of kiddushin and the wedding itself. After the ceremony, the groom’s mother took the checks from the safe (accompanied by the head waiter, as is customary) to her home. Afterward she came and claimed that the envelopes were empty and that most of the money had been stolen. A police complaint was filed. We do not know what became of that complaint. To this day the debt to the hall owner has not been paid (these days some sort of arrangement is being made with him).

The young couple went to a hotel and slept there. The next day at 11:00 a.m. the husband left for his mother’s house. Toward evening the woman felt ill because of the pregnancy and was hospitalized. According to her, there was danger to the fetus. The husband did not know about this, and when the woman’s mother called to inform him, he asked whether he needed to be there. The mother told him that this was his wife and it was his duty, and he came to visit her for about five minutes and left. The following day he disappeared from his mother’s house, and no one (including his mother) knew where he was. After a few hours it became clear that he was already in the United States.

The hall owner did not receive payment from the groom’s family and sued them in civil court. An order prohibiting their departure from the country was issued and their passports were taken. Later it became clear (through Skype conversations and emails, copies of which they have) that the husband was living there with another woman, apparently a non-Jew, and even his mother told him to continue living with her there and asked whether he needed more money.

He now communicates with them through an intermediary and is unwilling to give a get. After some time it became clear that he was conditioning the giving of the get on payment of 40,000 NIS, so that his mother could come to him and as payment to the hall.

At that stage the woman approached us, and we sat as a religious court of Rabbi Abraham Dov Levin, at 28 Chayei Adam Street, Jerusalem. After a brief principled discussion we heard the women’s statements (the woman and her mother) and sent them home. After some time we also read the protocols of the Netanya religious court, including the testimony given there. Finally we reached a conclusion and signed the ruling.

General description of the ruling

The permission granted to the woman in our ruling is based on an examination of four foundations, one resting on the next (in the form of cumulative alternatives):

• The husband’s gentile status.
• The kiddushin were not performed lawfully and not in accordance with the religion of Moses and Israel.
• There was a mistaken transaction.
• There is a conclusive presumption that on such a basis she would not have accepted kiddushin to him.

Each of these sections, if it has substance, is sufficient by itself to permit her without a get by Torah law (the question whether a rabbinic get is needed is discussed in the ruling and will be addressed here briefly). In our article here we will deal only with the fourth section, for several reasons: by itself it is sufficient to permit the kiddushin in the opinion of all of us; it was the principal basis for the permission (at least in the opinion of two of us); and it is the permission whose importance is principled (in the view of all three of us).

In the end we reached the conclusion that the woman is permitted to the world at large, except for a priest. According to the majority opinion, a get was required ab initio on the rabbinic level. However, if the get is not given or if payment is demanded for it, in all of our view she is to be permitted to remarry without a get. We will not discuss here the husband’s status or the daughter’s status, since that was not what was before us. Moreover, there is a sufficient basis to permit the woman irrespective of the husband’s status (as will be explained below, she is permitted even if he is Jewish). These matters are set out in detail in our ruling, and here we will only summarize our conclusions briefly as background to what follows, according to the sections above:

• Regarding the conversion, the presiding judge, Rabbi A. D. Levin, concluded that the conversion was entirely null and void, and he based himself on Rabbi Elyashiv’s view regarding conversions performed by the state conversion system in general. According to his approach, that alone is sufficient to permit the woman, and no additional grounds are needed (although in his view those too are correct).[6] On this matter we did not agree among ourselves. Nevertheless, the specific conversion of this husband was conducted in a highly problematic fashion. Therefore, in all of our view, there is at least serious doubt regarding the husband’s Jewish status, and that certainly serves as a subsidiary factor in support of permission.
• Likewise, regarding the validity of the act of kiddushin, all of us had substantial doubts. The presiding judge was more decisive, and in the end this too certainly serves as a supporting consideration joining the permission.
• Regarding mistaken transaction, in the opinion of all of us it is likely that there was no mistake here. The woman knew of and accepted his strange apostasy already before the kiddushin (as she also testified before us), and his flight abroad does not necessarily indicate an original lack of intent to marry, since their plan from the outset had been to live abroad.
• Regarding the conclusive presumption, in the opinion of all of us this case involves a clear and compelling presumption that on such a basis she would not have accepted kiddushin, and that alone is sufficient to annul the kiddushin.

The conclusion is that the woman is permitted without a get, except to a priest, and there is not even any need to resort to the Rema’s statement in Choshen Mishpat 25:2 regarding a majority in a religious court that is reached on the basis of differing reasons. As stated, the subject of this article is only the fourth section (conclusive presumption), because it has principled and general importance.

Introduction: why this inquiry is necessary

Before beginning the discussion of annulment of kiddushin and mistaken kiddushin, in order to sharpen the need for what we will say, we shall bring here excerpts from a ruling of the Jerusalem Regional Religious Court dated 1 Adar II 5763, 5.3.2003, file no. 1-14-1393, which dealt with a case of a husband who was discovered to suffer from lack of virility and left the home, and the woman petitioned the religious court to annul her kiddushin under the law of mistaken kiddushin.

The ruling written by Rabbi H. Y. Rabinovitch, the presiding judge, opens with the following words:

Now, since there is no dispute concerning the husband’s physiological condition, and the matter is supported by the opinion of the above-mentioned physician as well, and as stated the woman’s words appear true, there is room to discuss whether this may be a mistaken transaction, since according to her she knew nothing at all of this defect before her marriage, and there is room to annul her kiddushin. And even if we do not accept all her words and suspect that perhaps she knew and accepted it, even in that there is room to consider whether her acceptance has no effect. The matter is lengthy, and its source lies in several passages and depends on the methods of the medieval and later authorities. I have addressed this because of the affliction and suffering of this miserable daughter of Israel, whose lot in life has not been favorable.

That is, he sees room to annul kiddushin on the basis of mistaken transaction, and in view of the suffering of this unfortunate Jewish woman he enters into the depth of the matter. He then discusses at length the words of the decisors in both directions, and it appears that he finds a broad basis for permission. Yet, to our astonishment, at the end of his words he writes:

From all the above, it appears that there is a dispute among the decisors, both medieval and later authorities. According to some decisors, the concept of mistaken transaction does not exist in such a way that kiddushin may be annulled without a get, at least on the rabbinic level. By contrast, there are medieval and later authorities who agree that where the defect is extremely great the kiddushin may be annulled, and so too is the view of Iggerot Moshe by Rabbi Moshe Feinstein, the London chief rabbinical judge Rabbi Y. Abramsky, and likewise Yabia Omer cites that the Supreme Religious Court in Jerusalem voided the kiddushin.

According to the rabbis of France and Rabbi Yaakov Haviv, rabbi and halakhic decisor in Kiryat Moshe in Jerusalem, who is handling the matter, this particular chained woman cries and cries out, and there is no one to save her. I am among those who fear to issue rulings, and I cannot rule in this severe case without the consent of the great Torah authorities and decisors. Therefore I propose that the religious court investigate once again the physician in France, the circumciser there, and the rabbis who dealt with the couple, in a thorough inquiry to determine that the woman never agreed to waive and forgive this defect. Likewise, that the administration of the religious court send a special emissary to the husband to speak to his heart once more. If he agrees to accept a sum of money, as has been proposed, in order to arrange a get. If he absolutely will not agree, and the religious court sees that he continually evades giving a get and toys with us, then, with no choice, only with the agreement of the great Torah authorities and decisors to annul the marriage; and of course then the religious court will discuss and decide the matter of permitting this woman to remarry.

He describes himself as belonging to those who fear issuing rulings, and therefore he refers the matter to the great decisors, leaving the crying woman in her suffering. We do not understand how he thereby helped her cry of pain or her misery. Where did the things he wrote at the beginning of the ruling disappear to? One who counts himself among those who fear to issue rulings should not enter into judgment and serve as a judge. Because of precisely that fear, he proposes beginning with a search for a way to obtain a get in exchange for money, and only if that fails to turn to the great authorities. This disturbingly resembles what happened in our case in the Netanya religious court.

Now, the presiding judge at least proposed some practical path toward obtaining permission. But his colleague, Rabbi Zion Algrabli, reinforced his position, brought many more sources and arguments in favor of permission, and used language from which it clearly emerges that in his view she should be permitted as a matter of law in this case. Yet even he concludes:

Now, since this is a weighty matter, I do not have the ability to permit it in practice, and it must be brought before the well-known great authorities of the generation for an opinion, since there are positions that hold that where he lacks virility the marriage may not be annulled. And although the cases are different, nevertheless in this difficult case I am unable to issue a ruling and to compare one matter to another in the place of the great authorities of the generation.

That is, he permits in principle but not in practice. If the presiding judge at least proposed some practical path for the unfortunate woman, Rabbi Algrabli leaves the matter to the great authorities of the generation, and nothing more.

The third judge on the panel, Rabbi Eliezerov, reinforced them as well:

My colleagues on the religious court have written lengthy reasons in order to find permission for this chained woman, and indeed most of the members of the court tended to say that there are grounds of permission in this case to free her from her state of being chained, when there is no other way to obtain a get from him, and that one may rely on and say that there are sides on which to annul the kiddushin from the outset because of mistaken transaction, while there is another view that supports the position that it is difficult to permit her in such a case without a get.

But because of the gravity of the matter, the religious court does not decide in practice, and the decision should be transferred to the great judges and decisors, who will decide in practice regarding the permission of this particular chained woman, who has been chained for several years and is a young woman whose situation is extremely difficult.

He too leans toward permission, but recoils from actually doing so, and because of her difficult situation he leaves the matter to the great decisors.

We do not understand whether the intention of this respected court was that the miserable woman should herself wear out her feet trying to gain access to the great authorities in order to obtain a ruling. Do the great authorities of the generation work for the Chief Rabbinate? The woman turned to a religious court appointed by the state to decide her matter, and that is what it is obligated to do, both by law and by statute. Of course, if some judge wishes to consult additional eminent decisors, he may honorably go to them himself and hear what they say, and then decide the woman’s case. But the religious court is obligated to decide the case that comes before it.

In the end, the matter remained with the great authorities of the generation, and the cry of the unfortunate woman continues to reverberate through the world—all this even though it is plainly evident that, in the opinion of the entire panel, she is permitted as a matter of law. Can this be?

That is the situation regarding mistaken kiddushin. But as stated above, our subject here is annulment of kiddushin on the basis of a conclusive presumption (‘she did not accept kiddushin on such a basis’; below we will distinguish between the cases). As far as we know, this ground is not used at all in the religious courts, and it seems that in their view even the greatest authorities are not entrusted with it. To be sure, this mechanism was explicitly discussed in the ruling of the Tiberias Regional Religious Court, headed by Rabbi Yo’ezer Ariel, dated 10 Shevat 5773, file no. 861974/1. The case before that court concerned a husband who had suffered a severe head injury and had lain in the hospital unconscious and nonfunctional for about six years (from 2007). The court entered into the depth of the matter, examined the words of Tosafot on Ketubot 47 (see below), and in the end rejected the possibility of annulling the kiddushin by virtue of a conclusive presumption. Regarding that case, in our opinion too there is room for what they say, but the analysis of Tosafot’s words in that ruling was incomplete and imprecise. At first glance, their words seem to imply that there is no possibility at all of annulling kiddushin on the basis of a conclusive presumption because of the presumption that a woman prefers some married life to remaining alone. But as we shall see below, that claim is incorrect. The obvious implication will be for the case with which we are dealing here.

Mistaken transaction and conclusive presumption: a general survey

We will now enter the topic of annulment of kiddushin on the basis of conclusive presumption, and the relation between that and mistaken kiddushin. Afterward we will return to our case and show that this tool can be applied to it. Because of the breadth of the subject, we will not enter into the details of the various sources regarding mistaken transaction and conclusive presumption in general, and will suffice with a general survey to the extent necessary. After that we will enter the question of conclusive presumption in kiddushin, which we will analyze in greater detail.

Mistaken kiddushin are rooted in the law of mistaken transaction. Here we find two categories that subdivide into four: (a) where there was a defect in the transaction at the time of the purchase; (b) where a defect arose afterward. In each of these two possibilities, the defect can be either a deficiency in the very object acquired (the object is not what he thought he was buying), or a change in circumstances that clarifies that one of the parties did not want the transaction on such terms (see the discussion of one who sold his property with the intention of moving to the Land of Israel in Kiddushin 49, and likewise Ketubot 97a, ‘that drought that occurred in Nehardea’).

A defect that arose after the transaction can also annul the transaction by virtue of conclusive presumption, and not by the ordinary law of mistaken transaction. The claim is that on such a basis a person would not have agreed to the transaction. On a simple understanding, this is a mechanism of stipulation; but, as Tosafot wrote there in Kiddushin, we do not require here the formal laws of stipulations (double formulation, stating the positive before the negative, and the like), because these are matters in his heart and in the heart of every person.

Regarding mistaken transaction, several later authorities understood Rabbi Akiva Eiger’s position (in his responsa, second edition, no. 51, and also there in no. 106) to mean that it works through the law of stipulation, that is, there is an implied condition here. When the mistake is discovered, the sale is void as though the condition had not been fulfilled. By contrast, the author of Beit HaLevi (III, no. 3) and many other later authorities[7] held that it is a law in its own right. Only where a defect arises after the transaction and nonetheless annuls it does the annulment operate under the law of stipulation.

The laws of stipulations operate such that, if the condition is not fulfilled, the transaction is annulled. But according to Beit HaLevi and the later authorities, the foundation of mistaken transaction is that the buyer never intended to buy this transaction at all; consequently, the acquisition never took effect, and therefore there is no need here for the laws of stipulations. The same is true of his consent to a contract: if this was not the correct contract, there was no consent here at all, rather than consent that later became retroactively null.

So too we find in the Mishnah in Bava Batra 83b:

There are four rules regarding sellers: if he sold him good wheat and it turned out to be poor, the buyer may retract; poor and it turned out good, the seller may retract; poor and it turned out poor, good and it turned out good, neither of them may retract. If dark wheat was found to be white, or white found to be dark, olive wood found to be sycamore, or sycamore found to be olive, wine found to be vinegar, or vinegar found to be wine—both may retract.

If a person sold his fellow vinegar and it turned out to be wine, or the reverse, both may retract. That is, the transaction is void, because the object that was acquired is not the object to which the buyer intended.

And so too this seems from the language of Maimonides in Laws of Sale 17:2:

But if one sold dark wheat and it was found to be white, or white and it was found to be dark; olive wood and it was found to be sycamore, or sycamore and it was found to be olive; wine and it was found to be vinegar, or vinegar and it was found to be wine—each of them may retract, because this is not the type that he said he would sell him, and so too in every similar case.

He explains that the acquisition never took effect at all, because this is not what the buyer wanted to buy. His wording does not seem to indicate that this is based on an implied condition.

The practical difference arises where both parties want to uphold the transaction despite the mistake. According to our approach, a new acquisition should seemingly be required, because in such a case the original will never created an acquisition with respect to this object. But some have written that in such a case no new acquisition is needed, because the first acquisition is effective to acquire it even now (see the ruling of the Jerusalem Regional Religious Court mentioned above).

This can be said where the defect is in the transaction itself. If we are dealing with relatively minor and marginal defects, then an explicit stipulation according to the laws of conditions is required in order to annul the transaction, because this is the same object he intended to acquire. But where the defects invalidate the transaction in the eyes of every person, and perhaps even turn it into a different object, there no stipulation is needed, because this is simply a mistake. He did not intend to acquire this, and therefore the acquisition performed in error never took effect. By contrast, if the essential change is in the circumstances surrounding the transaction and not in the acquired object itself, then even if the change already existed at the time of the transaction it seems that this indeed operates through an implied condition. Such a change in circumstances exists in the case of one who sells his property in order to move to the Land of Israel (Kiddushin 49), because there there is no defect in the assets themselves. What changed was the circumstances. It should be noted, however, that there this is a change that arose after formation of the contract. A mistake because of a change in circumstances that already existed at the time of the contract itself appears in Bava Batra 132b, which discusses a person who wrote all his property to a certain individual and later it became clear that his son was alive. There the mistake already existed at the time of the gift and did not arise later, but there is no defect in the transaction itself, only a change of circumstances (ignorance of reality). Here one cannot say that the seller did not intend to sell this object but rather another object, and therefore the annulment apparently rests on a mechanism of implied condition. Even here, however, one may discuss whether a mechanism of stipulation is needed at all, but this is not the place.

Rabbi Akiva Eiger’s words are, at first glance, difficult. If there is indeed an essential defect in the object, what need is there for the laws of stipulation? As we explained, he did not intend to buy this object, and therefore the acquisition never took effect (and several later authorities raised precisely this objection and therefore rejected his view). But according to our approach above, one can certainly say that even Rabbi Akiva Eiger, who explains mistaken transaction through the law of implied condition, meant this only where the change is in the circumstances. But where the defect is an essential defect in the object acquired, there the transaction is surely void even without the laws of stipulation, because he never intended to buy this object at all. And indeed Rabbi Akiva Eiger there is discussing one who betroths a woman on condition that she has no vows or blemishes, which is a stipulation about the past, and the question is whether the formal laws of stipulations are required even for a stipulation about the past. But that applies when the stipulation concerns something ancillary to the transaction and not the identity of the transaction itself. It is clear that Rabbi Akiva Eiger’s responsum deals with vows or blemishes that do not constitute mistaken transaction in and of themselves, but only by force of the stipulation; otherwise there would be no need for the husband to state the condition explicitly. If so, this is not a defect in the body of the transaction (the woman), but an ancillary condition, and therefore he links it to the laws of stipulation. But in a mistaken transaction in the object itself—meaning a case where an essential defect in the transaction is discovered, something that is in the heart of every person—there perhaps even he agrees that the transaction is not void by the law of stipulation but by the law of mistake, because this is not the object he wanted to acquire.

According to our approach, on this point there is really no dispute among the decisors at all: where we are dealing with a change in circumstances, all agree that it operates through stipulation (although one can perhaps still discuss a change in circumstances that already existed at the time of the transaction, whether that too operates through stipulation). But where the defect is an essential defect in the object itself (that in the view of every person he would not have acquired), no stipulation is needed; this is simply an acquisition made in error.

Thus far we have dealt with mistaken transaction, meaning that the defect or change in circumstances took place before the transaction. We must now consider the law where the object was damaged or the circumstances changed after the transaction. In such a case, even if the defect is in the object itself, it seems difficult to say that this is not the object that was acquired, for at the time of the transaction it was the correct object. Therefore, if there is to be a law of annulment here, it appears that it would have to rely on the laws of stipulation, even in a case involving a defect in the transaction itself. Of course, we are dealing only with a situation in which there was no express stipulation at the time of the transaction, and nonetheless there may be annulment by force of an implied condition. This occurs where there is a conclusive presumption that such indeed was the view of one of the parties to the contract. So it appears in the case of one who sold his property in order to move to the Land of Israel (Kiddushin 49), and likewise in Ketubot 97a regarding ‘that drought,’ as will be explained below.

A further introduction: a woman’s stipulation in kiddushin

Since our concern here is not an ordinary sale but kiddushin, there would seem to be room to distinguish between mistaken kiddushin and conclusive presumption. Mistaken kiddushin is a possible mechanism, for the woman’s consent given in error is not consent, and without her consent there is no kiddushin. But annulment by force of conclusive presumption (as also annulment by force of an error in circumstances at the time of the transaction) is based on a mechanism of stipulation, and it is not clear whether in kiddushin there can be annulment by force of a stipulation made by the woman.

Some of the medieval authorities wrote that the act of kiddushin is performed by the husband, and the woman merely consents to it. Several later authorities drew this inference from their words.[8] If so, one might argue that the woman cannot impose conditions on her kiddushin, because she is not the one performing the act. This may depend on whether the stipulation merely suspends the legal effect or uproots it. If it merely suspends the legal effect, this is possible even on the woman’s side, because without her consent the legal effect cannot take hold. But an uprooting stipulation can be made only by the one who performs the act and brings about the legal effect.

Even without entering into the depths of the matter, we may determine that as a matter of law this is certainly incorrect, for two reasons: (a) we find in the Shulchan Arukh the possibility of a woman’s stipulating regarding her kiddushin (see Shulchan Arukh, Even HaEzer 38:24 and 39, but especially 35).[9] (b) As we shall see, in the passage in Bava Kamma 110 this is proven from the passage itself, for the passage opens the door to a conclusive presumption that retroactively annuls the kiddushin, and as we have seen, conclusive presumption works through the laws of implied stipulations. Thus, at least on the principled level, the existence of a mechanism of conclusive presumption in kiddushin is solid and clear.

Annulment by force of conclusive presumption in kiddushin

First, let us note that regarding mistaken kiddushin (for example, defects that existed in the husband before the kiddushin and of which she was unaware), the medieval and later authorities have already written at length (see the Jerusalem Regional Religious Court ruling mentioned above). But regarding conclusive presumption we found far fewer discussions among the decisors. There are quite a number of discussions regarding the force of presumption in Jewish law generally,[10] but these usually revolve around presumption in the law of evidence, whereas here our concern is presumption in the law of contracts (see also Encyclopedia Talmudit, entry ‘Umdana’).

There is a passage that deals explicitly with a conclusive presumption that annuls kiddushin, in Bava Kamma 110b. The Mishnah there on 110a discusses a robber who robbed a convert. If the convert dies, the robber must give the money to the priests, and thereby he gains atonement (together with a guilt-offering for robbery). What happens if the robber dies before his atonement and has already given the money to the priests? The question arises whether the priests must return the money to the robber’s heirs, because if he did not gain atonement it is retroactively clarified that there was no reason to give the money, and he presumably did not intend to give it on that basis. In such a case, the money would seem to belong to the robber’s heirs (because the victim died, and as a convert he has no heirs). Nevertheless, the Mishnah rules that if he already gave the money to the priests, it is not taken from them:

If he gave the money to the members of the priestly watch and died, the heirs cannot recover it from them, as it says: ‘And whatever a man gives to the priest shall be his’ (Numbers 5).

From this the Gemara infers there on 110b:

If he gave the money to the members of the priestly watch [etc.], Abaye said: we learn from this that the money effects half the atonement. For if it did not atone, I would have said it should be returned to the heirs. Why? Because he did not give it with that in mind.

If the money did not play a role in achieving atonement, it would certainly have had to return to the heirs, because the giving to the priests was only for the sake of gaining atonement through the money. From here Abaye proves that giving the money constitutes part of the atonement. For our purposes, what matters is that it is clear from here that if there had truly been no atonement, the money would have returned and the gift would have been nullified. Note that we are dealing here with an event that occurred after the transaction, that is, with conclusive presumption and not with ordinary mistake. The conclusion is that even a case that occurs after the transaction can annul it, because on such a basis he did not consent to it.

Afterward the Gemara says that even in the designation of a sin-offering, if its owners died, that would annul the designation, were it not for the law given to Moses at Sinai that a sin-offering whose owners died must die and does not return to ordinary unconsecrated status. Here too the Gemara’s simple assumption is that an event after the transaction can annul it.

We now arrive at our issue. The Gemara objects:

If so, then a yevamah who falls before a levir afflicted with boils should go free without halitzah, because she did not betroth herself with that in mind!

A woman whose husband died childless becomes subject to levirate marriage with his brother, and that brother is afflicted with a loathsome skin disease. The Gemara’s objection is that if conclusive presumption is effective, as we saw above, then in such a situation the kiddushin should be annulled and she should be exempt from levirate obligation, since there is a conclusive presumption that she did not intend to become betrothed to the deceased husband on the understanding that she would later fall to levirate marriage before a brother afflicted with such a disease.

First, we must clarify why this is indeed a matter of conclusive presumption and not of mistaken transaction. For on the face of it, the brother was already afflicted from the outset. True, some later authorities suggested the possibility that the brother fell ill only afterward (see Seridei Esh I, no. 90, which will also be cited below),[11] but that does not appear to be the plain meaning of the Gemara. In any event, the reason seems to be that from the outset it was not clear that the husband would die childless and that she would become subject to a brother afflicted with this disease; therefore this is not a mistaken transaction but a conclusive presumption.

And perhaps even if the brother became ill only after the kiddushin, this is not a defect in the transaction itself but rather a change in ancillary circumstances. We have already noted that such a change, even if it already existed at the time of the transaction, can be regarded as conclusive presumption and not mistaken transaction. Of course, this depends on whether a brother afflicted with such a disease is considered a defect in the transaction itself or a change in surrounding circumstances. On the face of it, this is a change in surrounding circumstances, since the husband’s death is not itself the problem; the problem is her falling before his brother. This is not a defect in the husband himself. Yet one may reject this and say that the kiddushin include within themselves the possibility of falling before the levirate brother (the levir is part of the acquired halakhic reality). A hint to this is the opinion that the bond to the levir derives from the first husband’s kiddushin. Especially so since the matter begins with the husband’s death, and the husband himself is indeed like the object within the transaction.

Be that as it may, from the words of Tosafot and the medieval authorities to be brought below, it clearly emerges that this case is not dealing with mistaken transaction but with presumption based on an event that occurred after the transaction. Thus for our purposes, whatever the reason, the Gemara here is not dealing with mistaken transaction but with presumption, and this Gemara proves that an event occurring after the kiddushin can annul them by force of a conclusive presumption that she did not accept kiddushin on such a basis.

It should be remembered, however, that the Gemara raises this here as an objection, meaning that it is obvious to it that in such a case the kiddushin are not annulled. On the other hand, as we have seen, the Gemara also assumes that in principle there can be annulment of kiddushin because of conclusive presumption. Precisely for that reason the Gemara asks why, in fact, the kiddushin here are not annulled. It does not even entertain the possibility of a principled distinction between kiddushin and sale. That is, the Gemara proves that if there is annulment of a sale or contract on the claim of ‘on that basis’ by force of conclusive presumption, the same applies to kiddushin.

So why, in fact, are the kiddushin here not annulled? The Gemara explains as follows:

There, we are witnesses that she is content with even a minimal married life, in accordance with Reish Lakish, who said: ‘Better to live as two than to live alone as a widow.’

The Gemara answers that in principle we really ought to annul the kiddushin because of the presumption, but because of the presumption that a woman prefers some married life to remaining alone, the woman apparently did intend to marry her husband despite the fact that the levirate brother is afflicted with this disease. For the sake of married life she is prepared to pay the heavy price of possible levirate marriage to such a brother.

Summary arising from the plain sense of the passage

In conclusion, we see from the Gemara that on the principled level kiddushin are indeed like a sale, and where there is a conclusive presumption it can retroactively annul them. However, in kiddushin on the woman’s side there is the presumption that she is satisfied with even minimal married life, and therefore in such situations in practice there is no conclusive presumption that she would want to annul the kiddushin, and thus the kiddushin are not annulled. But if there were a case in which such a presumption did exist with respect to the woman, then the Gemara explicitly proves that the kiddushin would indeed be annulled.

In truth, the matter is simple and needs no further elaboration. Kiddushin require the woman’s consent, and without her agreement she is not betrothed. Therefore, if Jewish law recognizes retroactive annulment of consent by force of conclusive presumption, then the same must work in kiddushin. Hence, if it is proven that the woman did not consent on such a basis, it is clear that the kiddushin are retroactively void. All that remains to be discussed on this matter is solely the factual question in each case that comes before us: in this case, did the woman in fact consent to these kiddushin, or not? That is what will determine the fate of the kiddushin. The meaning of this is that what remains in order to decide each case before us is solely a factual inquiry, not a halakhic one.

We must now preface and clarify one more important point. The factual question of what a woman is prepared to consent to, and what she is not, may vary from one period and place to another. Therefore the sources from the Sages and the medieval authorities are not necessarily the best way to determine that question. It is possible that women in the time of the Sages or the medieval authorities wanted one thing, whereas women in our time want something else. It is likely that women today are not prepared to pay such a high price in order to live in a relationship. Therefore the inquiry into the factual question, which is critical for our discussion, can be conducted on two levels: (a) an analytic inquiry into what the Talmud, the medieval authorities, and the later authorities assessed regarding the women they knew; (b) an empirical inquiry whether there has been change in our time. For some reason, decisors and religious courts generally do not conduct empirical inquiries of the second type, although it is not clear to us why.

But because of the severity of the matter, we will show here that regarding the case we are discussing, even the analytic inquiry alone proves that these kiddushin are void. That is, even according to the criteria of the Sages and the medieval authorities, the woman is not comfortable in such kiddushin, and therefore these kiddushin are void. Changes in our own time obviously only strengthen our ruling.

By way of aside, let us note that some later authorities wanted to claim that all this annulment was stated only with respect to exemption from levirate marriage, but if the question concerned the kiddushin themselves, then clearly there is no mechanism in Jewish law for retroactive annulment of kiddushin. Below we will see from the words of the medieval authorities that this is not so. Beyond that, the claim is intrinsically unreasonable. If kiddushin can indeed be annulled in this way, why should it matter what the result of the annulment is—levirate consequences or the kiddushin themselves? Either this mechanism is valid or it is not. Is there some doubt here, or some rabbinic leniency? We are speaking of a Torah-level mechanism under which, as a matter of fundamental law, the transaction is void. If it is void, then it makes no difference for what purpose we are discussing it, whether annulment of levirate obligation or annulment of the kiddushin themselves.

The factual inquiry: when there is a conclusive presumption that annuls kiddushin

We have seen that for the kiddushin to be annulled, there must be a state in which there is a conclusive presumption on the part of the woman (or the man). In essence, we must examine what price women are prepared to pay for married life, and the source of the matter is the criterion that emerges from the Gemara itself. The Gemara says that in situations where the woman has even some minimal satisfaction, she prefers to be betrothed and does not wish to annul the kiddushin. Our goal is to clarify whether there are situations in which she does not have even minimal satisfaction, and what those situations are.

The medieval authorities on this passage disagreed as to what that ‘minimal satisfaction’ is. Rashi here wrote:

She is content—to be betrothed to the first man, who is whole, despite this risk that if he dies she will become bound to his brother.

We see in Rashi that the minimal satisfaction is the fact that she had been married to the first husband. Because she merited some kind of married life with him, she is willing to take the risk that the husband will die and she will fall to levirate marriage before his brother afflicted with the disease.

What if the husband himself were stricken with the disease immediately after the marriage? In such a case, according to Rashi, it seems that the woman has no satisfaction at all, since he ties that minimal satisfaction to the fact that at first she lived a full married life with a healthy husband. From the fact that the Gemara discusses only a levirate brother afflicted with the disease, it follows that where the husband himself is afflicted there is not even minimal satisfaction. If so, one may infer from Rashi here a first case in which there is no minimal satisfaction whatever, and then the kiddushin would be annulled by force of conclusive presumption. Below we will qualify this.

Rashi adds that she is willing to enter the kiddushin because there is only a doubtful possibility that she will fall to levirate marriage. It follows from Rashi that if it were clear that the husband would die and she would fall before his brother, then clearly she has no satisfaction in that. That is, even if she has life with a healthy husband until his death, this still is not necessarily even minimal satisfaction, unless the fall to levirate marriage is only a possibility. According to Rashi, there are two conditions for the kiddushin not to be annulled: that she be married to a healthy husband, and that there be only a possibility that she might later fall before a brother afflicted with this disease. If one of these conditions is absent, this is a case in which there is a conclusive presumption that on such a basis she did not accept kiddushin, and then the kiddushin are void.[12]

Now, Mordechai, Yevamot ch. 4, nos. 29-30, brings the view of the Geonim that where the levirate brother is an apostate (not afflicted with the disease, as in the Gemara in Bava Kamma), the kiddushin are indeed void and she is permitted to remarry without either levirate marriage or halitzah:

If the husband was an apostate and she lived with him under compulsion, and he died in his apostasy without children, she is not bound to the levir, for this one is not his brother, nor is she bound to halitzah either. This is the language of the sage Baal Ha-Itur, of blessed memory, end quote. It is written in the responsa of the Geonim that a yevamah who falls before an apostate is exempt from both halitzah and levirate marriage where there is no other levir but him, though they brought no proof for their words. And Rashi wrote in one responsum that we do not rely on them at all, for even though he has sinned, he remains a Jew in every respect.

And if he betrothed her, the betrothal is valid, and he performs halitzah and does not marry her levirately. Maharam seemed to bring proof for the Geonim from the chapter HaGozel: ‘If so, a yevamah who falls before a levir afflicted with boils should go free without halitzah, because she did not betroth herself originally with that in mind.’ And it answers: ‘She is content with even any sort of husband—better to live as two than to live alone as a widow.’ That is, she is content with any husband at all. But with an apostate one cannot say this, for we are witnesses that she does not want to undergo levirate marriage with him, since he will cause her to violate the faith by having relations with her in his gentile way, and certainly while she is menstruating we are witnesses that she does not want this. Therefore she should go free even without halitzah if there is no other levir but him. And Maharam wrote: although I have brought proof for the words of the Geonim, my heart does not permit me to go against Rashi when such a case came before me.

Maharam, as cited there, explains this by saying that in the case of an apostate, unlike one afflicted with the disease, there is not even minimal satisfaction. In light of Rashi’s words that we have seen, this distinction is puzzling. Even with an apostate levirate brother there is still life with the first husband until he dies, and it is only possible that he will die. If so, there is satisfaction there not because of the apostate but because of the husband. According to Rashi, there is therefore no room to distinguish between an apostate levirate brother and one afflicted with the disease; in both cases there is some minimal satisfaction.

We are forced to conclude that Maharam’s understanding of the Geonim is that the minimal satisfaction in the Bava Kamma passage is not based on life with the husband until he dies (as Rashi held), but on life with the afflicted brother himself. According to Maharam, the Gemara determines that even life with a man afflicted with this disease is worth something to the woman, because it gives her companionship. Therefore she does not annul the kiddushin even if she falls to levirate marriage before such a man. It is now clear why there can be a distinction between an apostate levirate brother and one afflicted with the disease. Maharam’s assumption is that with an apostate levirate brother the life is worth nothing to the woman, and therefore in that case the kiddushin are void.

We thus learn that even according to Maharam there are situations in which there is a conclusive presumption that the woman did not enter kiddushin on such a basis: where the levirate brother is an apostate. Obviously, all the more so the same should be true where the husband himself is an apostate. There she certainly receives no benefit or satisfaction from the kiddushin.[13]

Let us further note that according to Maharam an even more far-reaching conclusion emerges. Life with the husband until he dies is not considered minimal satisfaction if the resulting situation is itself worth nothing. The earlier life does not cause such a situation to count as satisfaction. If so, where a husband married her as a proper Jew and later apostatized, then now, at the time that he is an apostate, she has no satisfaction from him at all. It seems that even in such a situation, according to Maharam, the kiddushin are void, despite the fact that she had good life with him until he apostatized. This is a conclusion of decisive importance for cases that are harder to permit than ours, where the husband apostatizes or otherwise fundamentally betrays his obligations long after the marriage and not on the very day of the wedding, as in our case.[14]

Now, Maharam there cites a responsum of Rashi that disputes the Geonim, and according to him an apostate levirate brother still gives rise to levirate obligation. There are two ways to understand this: (a) according to Rashi, even life with an apostate provides some minimal satisfaction, like the man afflicted with the disease; (b) with an apostate there is no satisfaction at all, but according to Rashi the relevant satisfaction lies in the life with the deceased husband, and in that respect there is no difference between an apostate levirate brother and a diseased one, as above. Now, in Beit HaLevi III, no. 3, the possibility was raised of explaining Rashi’s responsum in the first way. But as we saw from Rashi on our passage, it is far more reasonable to explain him in the second way.

In Tosafot, s.v. ‘de-ad’ata,’ Bava Kamma 110b, at the beginning of their remarks, they wrote:

‘Because she did not betroth herself with that in mind’—it appears that the case concerns a fall to levirate obligation from betrothal; for if it were from marriage, then she certainly betrothed herself so that she would be married to her husband, since on account of what may happen after her husband’s death she would not keep herself from being married. Therefore the case concerns betrothal, from which she derives no benefit at all.

Tosafot here is dealing with the Gemara’s initial assumption, according to which conclusive presumption indeed annuls the kiddushin. Tosafot states here that the passage speaks only of a case where the husband died while they were still only betrothed. But if he died after full marriage, then certainly her intention was not to annul the kiddushin, because she is content to be married to him even if the price is levirate marriage before a diseased brother. It seems that Tosafot takes the minimal satisfaction to be the married life with the deceased husband, as we saw in Rashi. Therefore, in death from betrothal, where the woman derived no benefit, there is no minimal satisfaction and the kiddushin are void. At first glance this is precisely Rashi’s view, not Maharam’s.

However, all this is the explanation of the Gemara’s initial assumption. It is now unclear what the conclusion of the passage is according to Tosafot. In the conclusion, the Gemara says that these kiddushin are not void because she is satisfied with even minimal benefit. But if the case is a fall to levirate obligation from betrothal, as Tosafot wrote—then from what exactly is she satisfied? She never lived with her first husband, and Tosafot themselves explicitly wrote that she had no benefit from that. How are we to understand the principle that some married life is preferable, when there was no married life there at all? On the face of it, we are forced to say that Tosafot’s explanation of the Gemara’s conclusion is precisely like Maharam above, namely, that the minimal satisfaction comes from life with the diseased brother and not from life with the first husband. According to Tosafot, there is minimal satisfaction from even brief married life until the husband dies, and even if he dies while they are only betrothed and she is subject to a diseased levirate brother, there is still some minimal satisfaction from life with that brother. It therefore seems that Tosafot understood the Gemara’s conclusion like Maharam, that the satisfaction is from life with the levirate brother and not from life with the husband (I later saw that Seridei Esh I, no. 90, cites one of the later authorities as making this inference from Tosafot). According to Tosafot, the Gemara’s initial assumption follows Rashi, while its conclusion follows Maharam.

Yet it seems that Tosafot would not accept Maharam’s view regarding an apostate levirate brother where the husband died after full marriage, because in their opinion in such a case there is minimal satisfaction from the earlier life with the deceased husband, unlike Maharam. But where the apostate levirate brother becomes relevant while they were only betrothed, the kiddushin would indeed be annulled even according to Tosafot.

As a matter of law, in the Shulchan Arukh, Even HaEzer 157:4, the dispute is brought regarding whether an apostate creates levirate obligation. In the Biur HaGra there, subsection 7, it seems this is treated as a doubt. In the responsa Har Tzvi, Even HaEzer no. 99, it is written that one can still say that the doubt exists only where the levirate brother is an apostate, because at the time of the kiddushin there was no mistake, and with respect to the possible levirate obligation one can say, as the Gemara did, that a woman is satisfied with even some married life. But where it becomes known that the husband himself is an apostate (even if only after the marriage, as above), one may certainly say like Maharam’s reasoning that she surely did not enter kiddushin on such a basis.

Summary of the views of Maharam, Tosafot in Bava Kamma, and Rashi

Thus, according both to Maharam and Tosafot, and to Rashi as well, there are situations in which the woman has no minimal satisfaction at all, and then the presumption that a woman prefers some married life does not apply, and the kiddushin are retroactively void. The dispute is only over what those situations are. According to Rashi, this is where she receives no benefit from married life with the husband himself. According to Maharam and Tosafot, benefit from the levirate brother also helps, even without benefit from the husband. But where there is no benefit from the levirate brother, Maharam holds the kiddushin are void, and where there is no benefit from either of them, the kiddushin are void also according to Tosafot (and of course according to Rashi). It therefore follows that so long as she derives no minimal married companionship from the husband, all the medieval authorities hold that the kiddushin are void because of a conclusive presumption that she did not accept kiddushin on such a basis.

An additional secondary dispute between them concerns the presumption that some married life is preferable: whether life with a levirate brother afflicted with this disease counts as some kind of satisfaction for the woman (Rashi says no; Maharam and Tosafot say yes). By contrast, life with an apostate husband apparently contains no such satisfaction according to all views.

Again we see for our purposes that the ground that ‘on such a basis she did not accept kiddushin’ is a ground that can be applied to kiddushin in various cases. In our case, the woman had no married life at all with the husband, for he fled the day after the wedding, and the night itself was spent in a hotel. He had not even yet brought her into his home. In such a situation, it is reasonable that according to all views the woman had no satisfaction from life with him, and on such a basis she did not enter kiddushin. Therefore, it seems that according to all opinions in our case the kiddushin are void.

We will now examine the words of Tosafot in Bava Kamma and Ketubot, which raise a fundamental difficulty regarding the whole picture we have described thus far, and especially regarding the implications for our case. At first glance, their words imply that where there is a contract between two parties, such as kiddushin, perhaps the woman’s conclusive presumption that on such a basis she did not enter kiddushin is not enough to annul the kiddushin. The reason conclusive presumption is effective in the cases we saw is only because the husband had died. The implication for our case is critical, since here the husband did not die but fled, and therefore there are still two parties to the contract. The question is whether in such a situation all that we have seen so far is still relevant. Many decisors and judges assume that in such a case kiddushin truly cannot be annulled, and that the reasoning of ‘on such a basis she did not accept kiddushin’ does not apply. Below we will prove that this cannot be the meaning of Tosafot’s words, and that in our case too the kiddushin are void.

Tosafot’s question: the relation to the law of conclusive presumption in acquisitions

Continuing their remarks there in Bava Kamma, Tosafot ask:

If so, if a person bought something from another and it later deteriorated, should the sale be void because he did not buy it with that in mind?

Tosafot objects that if we are discussing annulment of a sale or kiddushin on the basis of a future event—that is, if the mechanism of conclusive presumption is indeed valid in the law of contracts—then in an ordinary sale too, when the object deteriorates after purchase, the sale should be void, because he did not buy it on that basis (as we saw above in the case of a husband who was immediately stricken after the wedding). Tosafot assumes here as obvious that such annulment after completion of the sale is impossible.

First of all, it is important to note that already here Tosafot proves that it understood the passage in Bava Kamma to be dealing with annulment of kiddushin on the basis of conclusive presumption, not mistaken kiddushin (see our discussion of this above). Tosafot asks from the passage of kiddushin and claims that according to it, in every sale where a defect arises after the sale the sale should be annulled. That is, Tosafot understood that our case involves a defect that arose after the kiddushin, and not the ordinary case of mistaken kiddushin. This is exactly our point above.

If one accepts Tosafot’s premise—that a defect arising in the object after the transaction cannot annul the transaction, and indeed it is hard to dispute this—then its question is extremely powerful. How can Jewish law have a mechanism of ‘on such a basis she did not accept kiddushin’ by force of conclusive presumption, without any explicit stipulation? Surely, if someone bought an animal and it died after he bought it, then had he known this would happen he would never have entered the transaction. If so, every such sale should be annulled. But we find no such law anywhere. On the contrary, it is obvious that in such a case the seller says to the buyer: your fortune caused it, and the sale remains in force (the money need not be returned).[15]

Tosafot answers:

It can be said that there the matter does not depend on the buyer alone, but also on the seller’s intention; and the seller sold it with that in mind. But here kiddushin depends on her, and he does not concern himself with how she regards becoming betrothed. So too in the case of one who consecrates property, it depends on him, and likewise one who gives restitution for theft—it depends on him.

Tosafot distinguishes between a sale contract, which has two parties, such that the sale is not retroactively annulled even if the object deteriorates, and a transaction involving only one side (such as a gift, kiddushin, restitution of theft, or consecration), where everything depends on the mind of only one party, and therefore there the transaction is retroactively annulled if the matter is ruined. If so, it appears at first glance that according to Tosafot the mechanism of ‘on such a basis’ by force of conclusive presumption does not exist in a bilateral contract, but only in a one-sided transfer or obligation.

The problem is that our passage deals with kiddushin, which is a contract between two parties. If so, how does the Gemara even raise the possibility of annulling kiddushin by means of ‘on such a basis,’ when the kiddushin contract has two parties—the husband and the wife? Put differently: why are kiddushin like a gift? On the face of it, they are like a sale, because they depend on the will of two parties, and then a presumption concerning one party alone would not help.

Tosafot itself senses the difficulty and explains that the man who betroths does not concern himself with how she regards becoming betrothed. Its intention is not clear. The parallel Tosafot in Ketubot 47 (see below) explains that here the husband died and the problem arises after his death, when she falls before the levirate brother. In such a case the husband does not care what happens to the woman after he dies, and therefore he leaves it to her. That is why this case is considered like a one-sided act dependent only on the mind of one party.[16]

What would be the law if the husband himself became afflicted with the disease? It seems that there he would not be willing for the woman to annul the kiddushin, because that would turn his prior relations into promiscuity. Besides, he is still alive, and he loses the woman (and now no one will want to marry him). Therefore in such a case it seems that according to Tosafot the kiddushin would not be annulled, because they depend on the will of two parties, and both are still present.

And what would be the law if the husband apostatized? There it seems that he may no longer care whether his prior relations retroactively become promiscuity, but it is still not clear that he is willing to forfeit the kiddushin. Even so, there is a reasonable argument that the kiddushin no longer interest him in his state as an apostate, and therefore perhaps in such a case the kiddushin would indeed be annulled by force of her conclusive presumption, since it becomes like a one-sided contract.[17]

What would be the law in a case like ours, where the husband fled and left the woman the day after the wedding? At first glance, since the husband is still alive here, according to Tosafot in Bava Kamma and Ketubot, conclusive presumption in her mind cannot annul the kiddushin through the mechanism of ‘on such a basis she did not accept kiddushin.’ If so, according to Tosafot it seems that our whole permission has collapsed. This is indeed what Rabbi Yo’ezer Ariel concluded in the ruling to be cited below, but below we will show that this is not the necessary conclusion from Tosafot’s words. On the contrary, we will show that even according to Tosafot, in our case the kiddushin are certainly void.

Two ways of understanding annulment under the logic of ‘on such a basis’

To understand this, we must ask ourselves what explains the distinction Tosafot makes between a two-party contract and a one-sided act. Before explaining that, let us preface two possible ways of explaining annulment of a transaction because of conclusive presumption and the logic of ‘on such a basis’:

• The annulment of the kiddushin is retroactive, as with a stipulation. When something arises after the kiddushin, it is clarified retroactively that on such a basis the woman did not want to become betrothed, and this is as though the condition (made implicitly rather than explicitly) was not fulfilled. The kiddushin are annulled because the condition was not met.
• The annulment of the kiddushin is not retroactive, but part of the calculation the woman makes from the outset. For example, if a woman is about to become betrothed to a husband whose brother is afflicted with the disease, she weighs all the possibilities: either the husband will die childless and she will fall before his brother, or he will not. She must now weigh whether this contract—with all the possible developments that may emerge from it—is worthwhile for her as a whole or not. If she becomes betrothed to him, then thereby she proves that the contract is worthwhile for her, no matter what happens—in other words, that she waived annulment of the kiddushin even if she were to fall before a diseased brother.

According to this understanding, annulment of kiddushin does not occur retroactively. The annulment works only where the overall initial calculus is such that it is not worthwhile for the woman to enter into this contract. The benefit in it is not worth the harm that may come from it. Regarding application of the reasoning of ‘she understood and accepted,’ see below.

We must now examine which of these two possibilities is the correct interpretation of Tosafot’s distinction. In the situation discussed in the Bava Kamma passage, it is very difficult to explain Tosafot according to the first possibility. If the presumption that some married life is preferable came to block retroactive annulment like a stipulation, then it is not clear why, when she has some minimal satisfaction, the kiddushin are not annulled. In practice, she already lived with him, whether the kiddushin are annulled or not. Even if the kiddushin were annulled, she still lived with him in fact and gained that companionship; so why should she not want the kiddushin annulled?[18]

It therefore seems simple that the correct approach is the second one: the minimal satisfaction is meant to describe her considerations at the time of the kiddushin—whether she is content with this transaction in light of all the possibilities that may develop from it, or not. In this sense we say that she entered the transaction even with that possibility in mind, and therefore she waived her rights and the various conditions she might otherwise have wished to impose.

Explaining Tosafot’s distinction: application to our case

We can now also understand the difference between a bilateral contract and a unilateral act. The simple explanation is that where a contract has two parties, we must necessarily say that each party takes the other party’s mind into account, and therefore is prepared to accept burdens that he would not have been willing to bear had the matter depended on him alone. The reason is that if one party does not defer to the view of the other, the other party will not enter the transaction with him—and he wants the transaction. A person who wants to engage in a sale accepts upon himself the possibility that a defect may develop in the animal he bought, for if the transaction remained contingent on future defects, no seller would ever enter such a deal. One who wants the transaction and in fact concluded it has apparently waived the right to annul it if a defect later arises.

According to this description, however, it would seem that any time the woman in fact chose to enter the contract, there can never be annulment of kiddushin because of a case that arises after the kiddushin, for she should have taken it into account in advance. If she married her husband, she thereby waived all the presumptions that could annul the contract and accepted all the consequences. Therefore, in a bilateral contract, Tosafot holds that there is no annulment by force of presumption. Yet according to this explanation, it would seem that there can never be any annulment of a sale or kiddushin because of conclusive presumption, but only by force of mistaken transaction.

But this is a mistake. Even according to this understanding, annulment of kiddushin or of a sale is possible—namely, in cases that the woman did not contemplate and did not weigh in advance. Unforeseeable cases are not included in the implied waiver she made at the time the contract was formed. One can also see this from another angle. Tosafot’s reasoning is that in a bilateral contract the woman did not stipulate that she could annul in such cases because, had the husband heard such a stipulation, he would not have betrothed her, and therefore she remained silent. Since she wanted the contract as a whole, she waived the stipulation; and the proof is that she did not expressly state it. The very making of the contract without such a stipulation proves that she subordinated her own view to his. But in an unforeseeable case, this reasoning is plainly false. The fact that she did not stipulate it is simply because she did not imagine that such a situation would arise, not because she waived it. Therefore here one can indeed see an implied condition.

We may formulate the point differently as follows. Tosafot’s reasoning is that if the husband had heard that the kiddushin were conditioned on X, he would not have betrothed her, and therefore she does not stipulate X and waives the condition. Now let us ask whether this can be said where X is the condition that the husband must not flee and leave her alone. Suppose the husband had heard her stipulating that if he flees and leaves her alone, the kiddushin are void. If she had stipulated this, would he really not have agreed to marry her? At the time of contracting, would he have said that he cannot accept a condition obligating him to fulfill the contract? Clearly not. And if he would say such a thing, then it would be clear that he had no interest in living with her, and therefore it would be equally clear that she would not have entered the contract at all. Therefore, the reason she did not state this explicitly is only that she never imagined such a possibility, not that she subordinated her view to the husband’s. No woman anticipates in advance that her husband may flee from her the day after the wedding, and it is absurd to say that because she did not stipulate this, she accepted it.

Let us now see how this applies. First, consider a woman who marries a man whose brother is afflicted with the disease. In the Gemara’s initial assumption, it understood that in such a case the kiddushin are void, because on such a basis she did not accept kiddushin to him. But in the conclusion, the Gemara explains that this was a possibility the woman ought to have taken into account in advance, especially if the brother already had the disease at the time of the kiddushin (and from the very law of levirate obligation it is clear that the husband may die childless). Therefore there the Gemara concludes that the kiddushin are not void, because if she married the husband, she accepted upon herself the possibility of falling to his brother if necessary. That is exactly what the Gemara means when it says that she has some minimal satisfaction and that some married life is preferable. Since she wants the transaction (because she wants married life), she waives the possibility of annulling it and takes all the possibilities into account in advance. The principle of Tosafot is written explicitly in the Gemara’s conclusion in Bava Kamma, and it is true of every transaction, not only kiddushin. The Gemara and the medieval authorities do not distinguish between the cases. The presumption that some married life is preferable exists in every party to a transaction, in the sense that one who wants the transaction therefore waives his rights of annulment even if a defect later arises.

But when the husband apostatizes or flees, this is an act that depends on him and not on Heaven, and therefore there is no reason in the world for the woman to take it into account in advance. Therefore, in such a case it is incorrect to say that when she made the contract she waived her rights even if the husband later apostatizes or does whatever comes into his mind. And what if the husband flees the day after the wedding, as in our case? It is obvious that a reasonable woman does not foresee this in advance, and it is equally obvious that this is an act done at the husband’s own initiative and not some outside calamity. Therefore here too it is clear that she does not subordinate her own will to his, and here she did not waive her rights when the contract was formed. The reasoning of ‘she understood and accepted’ has no place here, for it is obvious that she did not give him permission to do whatever he wishes after the kiddushin.

What is the difference between this and a defect that arises in the purchased object? After all, she also does not foresee such a defect in advance, especially if it is a major one. Here Tosafot’s reasoning comes into play. If the husband is stricken or the purchased object develops a defect, the other party has waived his right. Anyone who wants to enter a transaction must understand that he cannot leave the other party hanging on luck. If the seller knew that the buyer could cancel the transaction if a defect developed in the object through no fault of the seller, he would never want to enter such a deal. There is a value of finality: when one makes a transaction, it is meant to be final. But when the husband apostatizes or flees, this is an act taken at his own initiative. It is not an unforeseen condition that befell him just as it befell her. The husband is not left hanging on the wife’s good fortune not to cancel the contract, because if he simply refrains from these acts, she will not annul the kiddushin. Therefore here it is obvious that the woman is not prepared to give him the ability to treat her however he wishes, and thus in such a case the kiddushin will indeed be annulled.

If so, Tosafot’s claim that in a bilateral contract there is no annulment of a transaction because of conclusive presumption was not stated regarding every case. There are situations in which even a bilateral contract is annulled by force of presumption and the logic of ‘on such a basis.’ This is when two conditions are met: (1) the case was not foreseeable in advance (and therefore the reasoning of ‘she understood and accepted’ does not apply); (2) the case depends on the other party, who intentionally abused his counterpart (or his wife), and not on some external force beyond either party’s control. When these two conditions are met, even a bilateral contract is annulled under the logic of ‘on such a basis.’

This reasoning is even stronger where one party exploits Tosafot’s logic in order to abuse the other party, and in effect not to fulfill the contract at all. The husband who fled in fact exploits the fact that the contract depends on his will in order to do whatever he wants intentionally, to mistreat the woman, and in effect to provide her with none of what the contract obligates him to provide—married companionship. It is obvious that the woman is not prepared to subordinate her will to his in such a case, because, as we explained above, all she does in subordinating her will is in order to receive married companionship. If that itself is not given to her, then Tosafot’s entire reasoning has no relevance at all. It is obvious that even if she is willing to pay prices where there is no alternative and the husband is not at fault, she certainly is not willing to give him the power unilaterally to destroy the transaction and simply not give her what she seeks.

It must be remembered that in kiddushin the woman’s consent is required. The fact that kiddushin are bilateral does not change this basic principle. The fact that there is a bilateral contract changes matters only because in such a contract the woman indeed consents, since because she wants the transaction as a whole she subordinates her will to the husband so that he will marry her. But if that waiver yields her no married life—then there can be no doubt that the woman does not consent and does not waive on the husband’s behalf.

Proof for our distinction from Tosafot’s own words

Up to this point we have concluded that in our case the kiddushin can be void even if one accepts Tosafot’s reasoning regarding bilateral contracts. The analysis was one of logic—in other words, Tosafot’s reasoning does not require the conclusion that in a case like ours there is no annulment by force of conclusive presumption and the reasoning of ‘on such a basis.’ We will now see that in practice this is proven from the Talmud and Tosafot themselves, and not only from logic.

Tosafot’s distinction between a bilateral contract and a unilateral act is, at first glance, contradicted by explicit sugyot. It is understandable in the case of one who wrote his assets to someone and discovered that his son was alive, because there we are dealing with a gift, which is a unilateral contract, and therefore it is annulled. But in Kiddushin 49, regarding one who sold his assets with the intention of moving to the Land of Israel, this is not a gift but a sale, and therefore there is another mind involved in that contract (the buyer’s); and still we see that a future event annuls the sale because of conclusive presumption. According to Tosafot, there should not be annulment there, since there are two parties to the contract. Likewise in Ketubot 97a, regarding ‘that drought,’ where again we are dealing with a sale, a bilateral contract, and because of a change in circumstances it became clear to him that he did not need the money from the sale. There too we see annulment of the sale because of conclusive presumption, despite the fact that it is a contract between two parties. How can Tosafot’s words be reconciled with these cases?

At first glance one might have said that those are cases of sale and purchase, whereas Tosafot is speaking only of kiddushin. In kiddushin there is no room for annulment by force of ‘on such a basis,’ unlike sale and purchase. But that is certainly incorrect, because Tosafot itself asks from kiddushin to sale and purchase and assumes that they are the same thing. Its proofs and formulations all compare and mingle kiddushin with sale and purchase, and it is therefore clear that it sees kiddushin as a kind of contract between two parties. What is true of ordinary contracts will be true of kiddushin as well.

If so, it is impossible to understand Tosafot in a sweeping way, namely that in a bilateral contract there is no mechanism at all for annulment of a transaction by force of conclusive presumption (‘on such a basis’). We are compelled to say that there are cases in which even in a bilateral contract Tosafot must concede the existence of such a mechanism. At the end of Tosafot in Bava Kamma there is a reference to the parallel Tosafot in Ketubot 47b, and there an explanation of these points indeed appears. We will now examine its words.

The sugya there deals with annulment of a financial transaction because of conclusive presumption (Rashi and Rabbenu Tam disagree there as to the exact case, but that is not our concern here). In Tosafot, s.v. ‘shelo,’ there on 47b, it notes that the reasoning of presumption is found in several places in the Talmud, and immediately objects:

There is no reason to wonder at this logic, for in many places in the Talmud we find it. But if so, whenever a person buys a cow from another and it later becomes non-kosher or dies, are we not witnesses that he did not buy it on that condition? It can be answered that there we are witnesses that he was willing to enter that risk; even if one had told him, ‘If it becomes non-kosher, you will have to bear the loss,’ he would still have bought it. But here he wrote only on condition that he would actually bring her into the marriage, and he had no intention at all of entering such a risk. And the same applies to the case of one who sold and ultimately did not need the money.

First, it is important to note that the formulation here plainly resembles our second possibility above. The annulment of the transaction is the result of an overall calculus of possibilities made by each party from the outset, and not a retroactive annulment by the mechanism of an implied stipulation. On that basis Tosafot writes that where the purchased cow later becomes non-kosher or dies, this is a case in which the buyer certainly was prepared to enter that risk; the proof is that he made the purchase and did not stipulate otherwise, although he knew that such a possibility existed. He did not stipulate because he knew that the other party would not agree to it, and therefore he preferred to conclude the transaction without such a condition. If so, one cannot say here that even though he did not stipulate explicitly, there was still an implied condition. Such a condition would have to be accepted by the other party to the transaction as well. More than that: the very making of the contract proves that he waived it. He weighed the totality of the possibilities and decided to sign the contract. He cannot now claim that on such terms he would not have signed. This possibility was foreseeable in advance and he should have stipulated it explicitly.

But in the case discussed there in Ketubot, the father wrote his property to his daughter on condition that her husband marry her fully. The husband’s death before the marriage was a rare and extreme case that was not taken into account in advance, and therefore there one does not say that the father should have stipulated it explicitly in advance. Nor does one say that when the father weighed the various possibilities in advance, he accepted the contract as a whole. Therefore here annulment of the transaction is possible even though this too is a bilateral contract. Let us note that although the husband died, it is still not reasonable to assume that he would waive the money that the woman received from her father, because he would want it to go to his heirs. The woman herself he is prepared to forgo after his death, as we saw in Tosafot on Bava Kamma and as we will see below, because after his death it makes no difference to him whether or not she had been married to him. But with regard to money, that reasoning does not apply.

And the same is true in the case of ‘he sold and ultimately did not need the money,’ which is the case in Ketubot 97a. There too, a man thought there would be a drought, and in the end it stopped unexpectedly. This was not a possibility he had contemplated in advance, and therefore here too there is room to annul the transaction because of presumption.

The conclusion up to this point is that Tosafot in Ketubot holds that annulment of a transaction because of presumption exists only in unforeseeable cases. In such cases one cannot say that the woman foresaw them in advance and nonetheless accepted the contract. And if she did not stipulate it, that is only because she did not foresee it in advance, not because she waived it. The conclusion is that even according to Tosafot, in unforeseeable cases there is annulment of a transaction even in a bilateral contract. The distinction between a bilateral and unilateral contract applies only with respect to cases that were foreseeable in advance.

We should note that according to this explanation, an animal becoming non-kosher after the transaction is a foreseeable event that might well be taken into account. Therefore there it is reasonable that if we are dealing with a bilateral contract, the transaction is not annulled because of conclusive presumption. This is precisely Tosafot’s answer in Bava Kamma to the question why a sale in which a defect later arose is not annulled.

Tosafot in Ketubot now continues and raises a further objection:

And as for what the Gemara asks at the end of the first chapter of HaGozel (Bava Kamma 110), ‘A yevamah who falls before a levir afflicted with boils should go free without halitzah, because she did not betroth herself with that in mind’—even though, presumably, at the time of the kiddushin she was willing to enter that risk.

Tosafot asks why, in kiddushin, even though the assessment is that the woman is willing to enter this uncertainty at the time of the kiddushin, the Gemara’s initial assumption is still that if she falls before a diseased levirate brother the kiddushin are void (were it not for the fact that she has some minimal satisfaction and the presumption that some married life is preferable). Here too the wording speaks of entering that uncertainty, that is, her consideration in advance. Tosafot is really arguing that the woman there entered the kiddushin while taking into account the possibility that the husband would die childless and she would fall before his diseased brother, and if she entered that arrangement then clearly she was willing and waived the condition. Tosafot is in effect raising the same question as Tosafot in Bava Kamma: why should there be any difference between kiddushin and a sale? Even without the presumption that some married life is preferable, if she entered the contract this proves she was prepared to accept the risk of falling to levirate obligation before that brother. In truth, Tosafot is asking two things here: (a) what was the Gemara’s question in Bava Kamma at all? (b) Why did the Gemara need the reasoning that some married life is preferable? After all, there we are speaking of a possibility that was foreseeable in advance, and in such a case there is no annulment of a transaction at all, even without that reasoning.

Rabbeinu Yitzhak answers the question as follows:

Rabbeinu Yitzhak says that the Gemara asks there only because it is analogous to what it says there: if he gave the money to the members of the priestly watch and died, it remains theirs; and it concludes there that we learn from this that the money effects half the atonement, for if it did not atone, one would say: he did not give it with that in mind. Since that matter depends only on the giver, we follow his intention; and because it depends on him alone, he certainly does not wish to enter any uncertainty. This is unlike someone who buys an object and then an unavoidable mishap occurs to it, where we do not say that he did not buy it with that in mind and thereby void the sale, because the matter does not depend on the buyer’s intention alone, since there is also the seller’s intention—who would not have sold it on that basis unless it were stated explicitly. Therefore the Gemara properly asks from a yevamah who falls before a levir afflicted with boils, because in her case the kiddushin depend on her, for it is clear to us that he would not object on account of anything that happened after his death, since he has no concern for what happens after him.

Tosafot’s claim is that, although in kiddushin she is indeed willing to enter this arrangement, there is no second party to the contract there (because the husband is not troubled by what happens after his death), and therefore in such a case even though the possibility was foreseeable, the contract would still be void were it not for the reasoning that some married life is preferable. But in a contract that has two parties, if they intended to enter the contractual arrangement with all its different possible outcomes, it is never annulled. These are exactly Tosafot’s words in Bava Kamma, with the additional explanation already mentioned—that when the husband dies, the contract becomes like a unilateral one.

Tosafot concludes:

And for that reason the Gemara does not ask from a case where a woman’s husband became blemished, that she should go free without a get because she did not betroth herself with that in mind, since that too depends on the intention of the betrothing husband. Likewise, all the other cases mentioned there depend only on his intention.

He explains that when the husband becomes blemished and does not die, he is certainly still the second party to the contract and does not want it annulled. Only after death does he no longer care whether the woman annuls the kiddushin, as in the Bava Kamma passage. But in such a state the contract is bilateral, and therefore conclusive presumption cannot annul the contract in foreseeable cases—that is, where she knew and weighed the various possibilities in advance.

Summary of what emerges from Tosafot

According to Tosafot, then, there is annulment of kiddushin or of a sale because of conclusive presumption in two distinct types of case: either when an event occurred that was not foreseeable in advance; or when the event was foreseeable but the contract is one-sided and depends only on her.

In this several commentators on Tosafot erred (see Har Tzvi, Even HaEzer no. 99, and the ruling of Rabbi Yo’ezer Ariel mentioned above, and others), understanding Tosafot to mean that in a contract with two parties there is no possibility at all of annulling a transaction because of conclusive presumption. This is not so. As we have seen, in unforeseeable situations Tosafot too agrees that there is annulment of a transaction even in bilateral contracts.

We have seen that this conclusion is not merely an assumption regarding Tosafot; it is proven from the Gemara’s sugyot. For in Kiddushin 49 and Ketubot 97, both of which deal with bilateral contracts, we see that a transaction is annulled because of conclusive presumption. We can now understand that in both those sugyot the event in question was not foreseeable and was not taken into account when the contract was formed.

I later saw that the Mishneh LaMelekh on Laws of Gifts 6 already noted this point, and wrote that in a very extreme event there is annulment of a transaction even in a bilateral contract. See also the responsa Sho’el UMeishiv, first edition, part III, no. 100, which will be mentioned below. But according to our approach it is important to sharpen that the main point here is not merely that the event be extreme and weighty in its consequences, but that it be unforeseeable in advance. Then the reason she did not stipulate it is simply that she never thought of it. It is true that if the event is not sufficiently extreme there will be no annulment of the transaction, but that is only because the reasoning of ‘on such a basis’ does not exist there. Only where there was a substantial defect in the outcome of the contract can one assess that from the outset one of the parties would not have agreed had he thought about it. That is obvious, and that is not the novelty of Tosafot or of the Mishneh LaMelekh. The more important point is that the event must have been unforeseeable.

Let us again recall the further point we saw above, which is important for our purposes. If the substantial injury to the contract is caused at the husband’s own initiative, then this is a much clearer case than a merely unexpected defect. As we explained above, the woman’s waiver of a stipulation—meaning her willingness to bear costs—is only in order to obtain the substance of the contract, namely married life. Surely she would not be prepared to waive that and receive no married life at all. Therefore, where the husband gives her no married life whatsoever, it is obvious that she has no satisfaction at all, and the kiddushin are void. Moreover, the waiver toward the other party exists only because otherwise he would not conclude the contract with her. But if the other party does not in any event give her what the contract is supposed to give, then obviously there is no waiver. And further, the waiver is surely meant only for events that happen against the will of both parties. But where the event is the initiative of one of the parties, who maliciously and culpably harms the other party, the other party certainly did not give him permission or waive it. On such a basis she certainly did not enter the contract with him.

The view of Tosafot HaRosh in Ketubot

In Tosafot HaRosh on Ketubot 47 (also cited in Shitah Mekubbetzet there), it is written regarding Tosafot’s words, after bringing the distinction between a unilateral and bilateral contract:

It is difficult, for here and in many places in the Talmud we say according to this logic; and if so, when one buys a cow from another and it becomes non-kosher, are we not witnesses that he did not acquire it on that condition? It can be answered that it is not comparable, because there, at the time of the purchase, he is willing to enter that risk; and if one had told him that perhaps it would become non-kosher, he would not have refrained from buying on that account, for such is the way of buyers of animals—they do not refrain from buying because of the possibility of non-kosher status. But here we follow the assessment of his intention, for we are witnesses that he would not have written to her if he had feared dying before the marriage was consummated.

And the essence of the distinction is this: with one who buys a cow, even though it became non-kosher, he nevertheless derived benefit from the purchase; he simply suffered a loss, and it is the way of buyers to enter into both possible loss and possible gain. But if he died before the consummation, then he derived no benefit from the transaction at all, and in such a case we are witnesses that he would not have written to her had he feared dying before the consummation. And similarly in the case of one who sold because he needed money: since he sold only because he was pressed for money, once there is no pressure because he did not end up needing the money, we are witnesses that he would not have sold.

We see from his words that he understood like our second interpretation, namely that the issue is an overall assessment of the contract. We also see that his explanation of the difference between a unilateral and bilateral contract is as we explained above—that one party subordinates his own view to the other so that the contract can be concluded, and thus he assumes the risks. And we further see that everything depends on estimating the minds of the parties. If one of the parties gains nothing at all from the transaction—as in our case, where there was no marital life at all—then even in a bilateral contract the transaction is void because of conclusive presumption, for it is clear that the party’s overall evaluation of the contract would not justify entering it.

A sample case

A case in which we found the distinction between conclusive presumption and mistaken kiddushin, and in which there was a direct and explicit discussion of permitting release from kiddushin by force of conclusive presumption, is the ruling of the Tiberias Regional Religious Court written by Rabbi Yo’ezer Ariel, dated 10 Shevat 5773, file no. 861974/1. As stated, the case before that court concerned a husband who had suffered a severe head injury and lay in the hospital unconscious and nonfunctional for about six years (from 2007). The court there discussed whether to annul the kiddushin by force of presumption, and not by mistaken transaction, since the injury arose only after the kiddushin (and marriage). The main discussion was based on a detailed analysis of the above Tosafot in Ketubot 47. Its conclusion was that in this case the contract is bilateral, because the husband did not die and perhaps he would not want his kiddushin annulled even in his present state. Therefore, as a matter of law, there is no possibility of annulling the kiddushin in such a case.

As we have seen, this conclusion is not necessary. In an unforeseeable event like that, one that the woman did not foresee in advance at the time of the kiddushin, there is certainly room to annul kiddushin by force of conclusive presumption even in a bilateral contract, and it is possible that this does not depend on the husband’s consent. It is true that in kiddushin, unlike in an ordinary sale, one must also take into account the presumption that the woman prefers some married life to none, and therefore, although in principle the kiddushin may be annulled, an inquiry is still needed whether she is satisfied to remain with him even in such circumstances. It still also requires further analysis whether such a case is indeed unforeseeable, or whether the risk of an accident is like a later defect or the animal becoming non-kosher, and therefore one may say that she understood and accepted it.

On its face, one might have linked this to the disputes among the medieval authorities that we saw: whether the woman’s minimal satisfaction is because of her marriage to the husband until now (like Rashi in Bava Kamma), or because even a diseased levirate brother still gives her married companionship (as Maharam, the Geonim, and Tosafot in Bava Kamma appear to hold). For where the husband is in such a state, it is obvious that she has no satisfaction at all from life with him. Therefore, if the satisfaction is because of life with the prior husband, like Rashi, then even here one could not annul her kiddushin, since she lived with him until the accident. But if the satisfaction is measured only in relation to the person with whom she is living now, as Maharam and the Geonim hold (and perhaps Tosafot in Bava Kamma as well),[19] then it would seem that we measure the satisfaction only with respect to the person she is currently with. According to that, one could say that now, when the husband is unconscious and nonfunctional, she has not even minimal satisfaction, and therefore the kiddushin are void.

Thus, in the end, it is not clear whether Rabbi Yo’ezer Ariel’s ruling is correct, and even if it is, not necessarily for the reasons he gave. But his conclusion that kiddushin can never be annulled by force of conclusive presumption because kiddushin are a bilateral contract is certainly incorrect, as we have seen. And in our case (where the husband fled the day after the marriage), it seems obvious that even according to Tosafot the kiddushin would be annulled.

Summary and conclusions regarding our case

Let us now summarize whether in our case the kiddushin can be annulled by force of a conclusive presumption that on such a basis she would not have accepted kiddushin.

We saw that the Gemara in Bava Kamma makes it clear that, in principle, there certainly exists a mechanism of conclusive presumption even in kiddushin. We further saw there that what prevents its application is only the presumption that a woman prefers some married life to none—in other words, the factual assessment that the woman agrees to the contract as a whole even if it involves unpleasant costs. We further saw that according to all the medieval authorities there is a limit to the height of those costs, meaning that there are cases in which that presumption does not exist, and then according to all views the kiddushin can be annulled, exactly as with an ordinary sale. We further saw a limitation arising from the fact that kiddushin are a bilateral contract, and therefore where the husband has not died perhaps this mechanism cannot be applied. And we also saw that even this qualification is not always accurate: in unforeseeable cases, and especially where they were caused by the husband’s malicious intent, and even more so where the injury is so severe that the contract is not fulfilled at all, there the kiddushin can be annulled even though the husband did not die—that is, even though the contract is formally bilateral.

In our case, this is certainly an unforeseeable event that she did not contemplate in advance. What woman thinks in advance that her husband will flee from her the day after the marriage and never return? Would we expect a woman to stipulate at the time of the kiddushin that if her husband flees, the kiddushin are void? A woman assumes that the husband married her in order to live with her.

Moreover, this is an event that depended on him and did not come from Heaven (unlike the husband’s death or defects that befell him after the kiddushin). It was at his own initiative that he fled from her, and he did not give her the married life he had undertaken to provide under the contract. So this is not only unforeseeable; it is also his own doing.

And more than that: his flight is in effect a non-fulfillment of the contract itself. We saw that the woman’s entire waiver of the option of annulment exists only because of her desire for the contract’s fulfillment. But where that very waiver itself causes the contract not to be fulfilled, she obviously does not waive. If she receives none of the married companionship for whose sake she waives her rights, why should she waive them?

If so, it would seem self-evident that there is room here for annulment of kiddushin by force of presumption even according to the distinction made by Tosafot in Ketubot and Bava Kamma, even if the contract here is bilateral. But we saw that this still depends on whether the presumption that some married life is preferable applies or not. In other words, can one say that the woman still has even minimal satisfaction here, and that she prefers to remain married to him despite the price? In this case, however, it seems self-evident that the woman is not satisfied and that that presumption does not apply.

According to Rashi’s view, that the minimal satisfaction lies in the marriage before falling to levirate obligation, it seems certain that there is no such satisfaction here. She did not live with him from the wedding day onward at all, except for the night in the hotel, and that certainly does not amount to the kind of companionship for which she would be willing to pay such prices. And according to Maharam and Tosafot in Bava Kamma, who hold that the satisfaction lies in life with the levirate brother himself (and in our case, with the husband himself after his flight), now he himself does not live with her and does not want to continue living with her. More than that, he himself wants to divorce her, except that he conditions this on receiving money. In such a life there is certainly no minimal satisfaction at all, and it is obvious that she does not wish to remain with him. If so, in our case, according to all the medieval authorities, there is no minimal satisfaction at all and therefore no such presumption. In general, we have not found among our great medieval authorities or the later decisors any minimal satisfaction for the woman where there was no life together at all. All such satisfaction is based on at least some married life. Here the situation is that there was no married life or companionship at all.

If so, in our view the conclusion is simple: this case is an example of a conclusive presumption that annuls kiddushin according to all views and without doubt. The problem was created by him and was not forced upon him. She is not prepared to consent to giving him such power. There was no married life at all, and therefore no minimal satisfaction at all. In our opinion this is a much simpler case than cases of blemishes and other defects that arose before or after the kiddushin and were not dependent on the husband or his initiative.

An important note regarding the presumption that some married life is preferable in our time

We saw that annulment of kiddushin depends on the question whether one applies the presumption that a woman prefers some married life to none. Usually halakhic discussions of this issue are conducted on the basis of precedents from the Talmud and the decisors, as is the way of Torah. But it is clear that in our time the situation is entirely different. Women today are less prepared to pay prices simply in order to be married. If a comprehensive and systematic in-depth survey were conducted to show what women think, it might turn out that even in the case of a diseased levirate brother they are not satisfied with such a situation. Even without such surveys, it is clear that women today are more selective and less ‘pressured’ to marry, and there is quite a bit of statistical data indicating this. But our concern here is only the principled discussion, and therefore for present purposes we will assume that women’s views have in fact changed.

The principal conclusion from the sugya is that when the presumption that some married life is preferable does not exist, one must annul kiddushin on the basis of conclusive presumption. The question whether such a presumption does or does not exist regarding the specific woman or women before us is a factual question and not a halakhic one. As such, it is a matter for each decisor and judge in his own time and place, and one need not necessarily bring proofs from sources that dealt with different societies at other times and places. Therefore it is possible to annul a woman’s kiddushin even without all the discussion we have conducted thus far, solely on the basis of the judges’ assessment that women today do not subordinate their will and do not consent to kiddushin under such conditions, unlike in the time of the Sages and the medieval authorities.

Only to clarify, because of the gravity of the matter, we repeat that the permission we reached is not contingent on the question whether the presumption that some married life is preferable has changed in our time. As has been explained thus far, this particular woman is permitted beyond doubt even by the standards of the Sages and the medieval authorities. Here we only wished to note the point for the sake of discussing additional cases of a different character.

A further note on the importance of precedents and the significance of our ruling

Various arguments raised against our ruling rested on the fact that the decisors until now have not ordinarily annulled kiddushin on this ground. That is, even if one accepts the entire analysis, the fact remains that common practice has not been to use this ground to annul kiddushin by force of the presumption that ‘on such a basis she did not accept kiddushin.’

Here we would like to respond to this claim on several levels:

A. Our ruling is not really an act creating a new legal status. A single Torah scholar could have arisen—even one who is a halakhic decisor and not a judge—and informed the woman that she is not betrothed because her kiddushin contract is void. This ruling is only a diagnosis of an existing legal-halakhic state, not the creation of a new one. Therefore, if we are correct, then even had we not sat over the matter, and even had no one else informed the woman that her kiddushin were void, halakhically she truly would not have been betrothed, and another man’s kiddushin would have taken effect with her, because on such a basis she did not accept kiddushin. It is therefore hard for us to understand whether the absence of precedents requires us not to tell that woman the truth. If we had not ruled and annulled the kiddushin, would she then have been betrothed? She is not betrothed not because of our actions and words in the ruling, but because in the actual halakhic reality there are no kiddushin here. Therefore all we could do at most is refrain from telling her the truth—meaning, leave her under the illusion that she is betrothed. But we cannot tell her that she is betrothed, because that would be false. Can it conceivably be argued that this is what judges are required to do? The meaning of this is that if we are correct, there is no possibility of claiming that one may not, or should not, rule in this way.

B. On the merits of the claim itself, there are quite a few precedents that at least seriously considered annulment of kiddushin, and therefore they at least support our position, even if they are not practical precedents. We will not now return to the words of the medieval authorities that we already saw (Maharam, Rashi, and Tosafot), but rather to precedents from practical rulings.

First, Rabbi Yo’ezer Ariel, in his above-mentioned ruling, although he ultimately decided not to annul, did so only because he interpreted Tosafot incorrectly. If his conclusion had been that the presumption that some married life is preferable did not apply, he would have annulled kiddushin.

Second, Seridei Esh I, no. 90, discusses at length the Bava Kamma sugya and Tosafot in Ketubot. He definitely raises several possible grounds to annul kiddushin in the case of Jewish women from Yemen whose husbands apostatized, which is a harder case than ours because there was at least some minimal satisfaction in the life until the apostasy.

Third, Rabbi Moshe Feinstein in Iggerot Moshe, Even HaEzer IV, no. 121, used this argument in practice as well, in a case of a soldier who died in the army and whose wife fell before an apostate levirate brother. It should be noted that he assumes there that since the husband was about to go out to the army, and it is known that in the army people sometimes die, it is obvious that the woman did not intend to become betrothed to him, because there is no minimal satisfaction in a married life with him for only a few days. His words prove that there is no minimal satisfaction in living only a few days with the husband, and all the more so in our case, where they had no married life at all. However, his own substantive reasoning there is difficult to reconcile. If she married him, then it is obvious that she accepted the matter upon herself. Therefore the required ruling would seem to be exactly the opposite: in such a case it is clear that she understood and accepted in advance the possibility that he would die and she would fall before the apostate levirate brother, because the possibility of his death was foreseeable (he was a soldier going to war). Therefore precisely there there should be no logic for annulling her kiddushin. But in our case, where the event was not foreseeable, then certainly Iggerot Moshe too would agree that the kiddushin should be annulled, for had she known he would flee, she would not have married him.[20]

Fourth, let us note that this mechanism is used in several responsa of Rabbi Uziel, in Mishpetei Uziel, II, Even HaEzer. See responsa nos. 49, 58, and 80 there.

C. In most of those precedents, as noted, there is no practical precedent for actual use of this annulment. But one must remember that our case is unusual, in the sense that here there is no doubt that the kiddushin are void. Most of the cases that came before the decisors were not so unequivocal, and there was always some doubt about whether there was at least minimal satisfaction. Therefore, in our opinion, in our case—where the woman had no satisfaction at all—everyone would agree that the kiddushin are void.

D. There are a number of precedents among the decisors for setting aside the presumption that some married life is preferable in various cases, especially cases that arise in the reality of our own time, even if not specifically with respect to annulling kiddushin by force of the presumption that on such a basis she did not accept kiddushin. We will not enter that here, because we did not need it in our case. We will bring only by way of example the words of Sho’el UMeishiv, first edition, III, no. 100, discussing a groom who betrothed a woman while sitting in prison:

Accordingly, the Gemara says in Bava Kamma 110: ‘If so, a yevamah who falls before a levir afflicted with boils should go free without halitzah, because she did not betroth herself with that in mind.’ And it answers there that we are witnesses that she is content with even a minimal married life, as Reish Lakish said: ‘Better to live as two…’ Accordingly, it seems to me an a fortiori argument: if there, where she truly became betrothed to her first husband and only with respect to the levir who is afflicted with boils one might have said that she should go free without halitzah, were it not for ‘better to live as two’—then all the more so with respect to a husband who is already sitting in prison and under sentence by the government, and no one knows what his end will be. ‘Better to live as two’ certainly does not apply, since she cannot live with him. It is obvious that she did not wish to become betrothed with that in mind, and there is no greater defect than this. Certainly it never entered her mind to become betrothed under such circumstances, and the kiddushin are not kiddushin at all. So it seems clearly to me that there is no concern here for kiddushin. And although Tosafot in Ketubot 47b and in Bava Kamma there contains many complications and qualifications on this matter, in our case certainly everyone would agree. See also Mishneh LaMelekh, ch. 6 of Gifts.

True, one cannot derive from him annulment of kiddushin by force of conclusive presumption, because there the discussion is whether she wanted to become betrothed at all from the outset. But one certainly sees there that the presumption that some married life is preferable does not apply if she gains nothing and cannot live with him. In such a case there is no minimal satisfaction whatever. So too we saw above from the inference from Rashi regarding a husband afflicted with the disease, and from the other medieval authorities regarding an apostate husband.

Note: a get as a stringency

To the question of annulling the kiddushin one must add the question of the get. We will deal with it here briefly and only in outline, because it is not our principal concern in this article. Even so, the question is important, because if we require a get only as a stringency, then the annulment of the kiddushin has no practical significance. She still remains chained and dependent on him until he gives her a get—so what has the annulment helped? Let us further note that regarding any residual taint of a get, there seems in our case to be no practical implication, because she has had relations with a gentile and in any event is forbidden to a priest. In our ruling we permitted her to all the world except a priest.

We must first say that even if the kiddushin are void because of mistake, there are still decisors who require giving a get as a stringency (see the above Jerusalem Regional Religious Court ruling at length), both out of concern or doubt that perhaps the kiddushin are nevertheless valid, and because of a decree lest people say that a woman leaves marriage without a get. In our case, to the best of our understanding, there is no concern that there are valid kiddushin, but one might still have said not to permit her without a get so that people would not say a woman goes out without a get.

In our case, according to the presiding judge’s view that the husband is a gentile, no get is needed at all. But according to the majority view, a get is in principle required on the rabbinic level. However, the husband apparently refuses to give a get, or at least conditions it on her paying him a large amount of money (40,000 NIS), and this raises the question of a get required only as a stringency. It also raises the question whether one should pay the husband a large sum of money, as he demands, in order that he give her the get. And finally: if he refuses to give a get, is she to be permitted even without a get?

Since this is a rabbinic obligation to give a get, and since there is a dispute among the decisors on the matter, this is a rabbinic doubt. Moreover, there is room to say that even according to those decisors who require a get as a stringency, they may permit her in such a case to leave without a get despite the concern that people might say that a woman leaves marriage without a get, because of aginut (since the husband is unwilling to give a get).

Moreover, in Iggerot Moshe, no. 79, it is written that the entire obligation to give a get exists only regarding defects in the woman, because the husband can divorce her. But where the defects are in the husband, the woman knows that she has no power to divorce him, and therefore it is obvious that on such a basis she never consented to become betrothed to him, and consequently in such a case no get is required at all (and the above Jerusalem Regional Religious Court ruling brought proof for this from Sanhedrin 69). They further added there that this is all the more so where it is not the practice of the religious court to coerce the husband to divorce—as in our courts—where it is obvious that from the outset the woman does not consent to such a possibility. And they also brought this reasoning from the Noda B’Yehuda, no. 122 in the addenda, and Maharshal on Ketubot 74, cited in Achiezer, Even HaEzer no. 27.

One may also discuss whether the duty to give a get is a duty resting on the husband, or whether there is an independent prohibition upon the woman remarrying without a get. There is room to connect this to the reason for the duty to give a get: if it is because of a rabbinic concern regarding the kiddushin, then by simple reasoning the duty would appear to rest on both parties. But if it is because people should not say that a woman leaves marriage without a get, then there is room to say that it is a duty on the husband who sends her out. This, however, is not necessarily decisive.

Is the woman obligated to pay the husband in order that he give a get? In our humble opinion, certainly not. If the obligation is his, then it is obvious that she need not pay him in order to fulfill his duty. And even if the obligation is hers, this is no worse than other commandments, for which one is not required to spend more than one-fifth of one’s property in order to fulfill them. As far as we could tell, she has no money at all, and everything involved is her parents’ money, and they certainly are not obligated to pay in order for her to fulfill such an obligation. Especially since in this case the get is only a rabbinic obligation, if at all, and with respect to a rabbinic commandment the decisors were uncertain whether it is equivalent to a positive commandment (see Pri Megadim, Eshel Avraham 656:8, and Yam Shel Shlomo, cited in Magen Avraham there subsection 7 and in Biur Halakhah there s.v. ‘afilu’). And certainly here there is also room to permit because of preventing extortion by this husband and by husbands generally, and because of aginut.

Therefore it seems to us by straightforward reasoning that ab initio one should obligate him to give a get, but there is no place to leave her chained if the husband refuses to give a get or demands payment for it.

Summary

Beyond the annulment of kiddushin because of the conclusive presumption that on such a basis she would not have accepted kiddushin, our case also includes several additional subsidiary grounds for permission. The husband’s conversion was highly problematic (and we already noted that in Rabbi A. D. Levin’s opinion this alone is enough to permit her without a get). Ownership of the ring and the intention in the act of kiddushin are in very serious doubt. There is concern that he planned the flight abroad from the outset (for it happened immediately after the marriage, and the tickets were apparently already in his possession); if so, this would be mistaken kiddushin and there would be no need to rely on conclusive presumption. All these matters require separate discussion, and our conclusion was that all of them at least raise serious doubts that join as supporting factors to the permission accepted by all of us on the basis of conclusive presumption, and to Rabbi A. D. Levin’s permission on the basis of the invalidity of the conversion.

These matters were detailed in our ruling. Here we did not enter into all of that, because in this article we wanted to focus on the mechanism of conclusive presumption and the reasoning of ‘on such a basis.’ The religious courts are accustomed not to use it at all, and in our opinion at least in some cases this stems from an error in understanding the sugyot, or from unjustified concerns and doubts. In our article we have tried to correct that distortion, and may God grant success to the work of our hands. Women refused a get and chained women can be saved from their fate if we are prepared to add this tool to the halakhic toolbox and to use it, with the caution required, of course.

As we already noted, in our time the tool of annulling kiddushin because of a conclusive presumption is much more important, because the presumption that a woman prefers some married life to none is today probably far narrower than it once was (although in our case we did not need that).[21] This greatly expands the possibility of annulling kiddushin on this ground. This presumption in our time requires renewed examination and redefinition, and in our opinion it would be desirable to do so by means of in-depth surveys conducted by skilled and reliable research institutes, in careful coordination with and under precise rabbinic guidance. Such surveys could examine and redefine the views of women who enter into a kiddushin contract, and delineate the boundaries of the presumption that some married life is preferable in a way that suits women in our own time.

[1] Based on a ruling of the three signatories above, written and signed in the month of Elul 5773.

[2] Presiding judge of the religious court for monetary and lineage matters, Jerusalem (28 Chayei Adam Street).

[3] The Institute for Advanced Torah Studies, Bar-Ilan University.

[4] Head of Yeshivat HaKibbutz HaDati, Ma’ale Gilboa.

[5] The presiding judge, Rabbi A. D. Levin, who examined the get, determined that it is invalid on several grounds. The reasons will be published in Piskei Din Yerushalayim.

[6] His reasons will be published separately in Piskei Din Yerushalayim.

[7] See, for example, in the writings of Rabbi Chaim Soloveitchik (stencil), ‘On mistaken halitzah’; Rabbi Shimon Shkop in Shi’urei Rashei Yeshivot Lita, p. 90; Chelkat Yoav, Even HaEzer no. 25; Chazon Ish, Even HaEzer no. 56 subsection 9; Chiddushei Rabbi Shimon Shkop on Yevamot and Ketubot, p. 61; and Zikaron Yehoshua by Rabbi A. Borodiansky, p. 358.

[8] See Chiddushei Rabbi Chaim on Maimonides, Laws of Levirate Marriage and Halitzah 4:16, and Kovetz He’arot no. 76. But see Sha’arei Yosher VII, ch. 12, and Rabbi Shimon Shkop’s novellae on Kiddushin no. 1, where he wrote that the woman too acts in kiddushin.

[9] Let us note that several conditions for the woman’s benefit, such as ‘on condition that I am righteous,’ can be interpreted as conditions that the husband makes for her benefit. So too the language of the Gemara and the decisors tends in that direction, namely that the husband is the one stipulating (‘on condition that I am righteous,’ not ‘on condition that you are righteous’). But in section 39 there it is stated explicitly that the woman herself can also stipulate. Moreover, even if these are stipulations on the husband’s side for the woman’s benefit, a conclusive presumption can likewise be based on such stipulations.

[10] See, for example, Rabbi Benjamin Lipkin, Bnei Binyamin, Harry Fischel Institute, ‘Presumption and Majority,’ p. 137 onward (especially there subsection 7, pp. 145–146, around footnote 6).

[11] See also Har Tzvi, Even HaEzer no. 99, second section, who raised the possibility that this is mistaken transaction and not conclusive presumption (regarding an apostate levirate brother—see below). At the end of his words there he remains uncertain whether one should distinguish between one who apostatized before the kiddushin and one who apostatized afterward.

[12] This is a theoretical discussion, for in a case where it is certain that the husband will die and she will become subject to levirate obligation, if she nonetheless married him then thereby she understood and accepted it, and the kiddushin are not void. Our intention here is only to show the level of minimal satisfaction the woman has, and what women are prepared to bear in order to obtain married life. Rashi here implies that where a husband will certainly die and leave her to a diseased levirate brother, our assessment is that no reasonable woman wants that (unless she said so explicitly or did something showing agreement). For our purposes, this is a limitation on the presumption that some married life is preferable. See the responsum of Iggerot Moshe to be cited below, which assumes this as obvious.

[13] Again, this is theoretical, because if she married an apostate husband then she understood and accepted it. But if he apostatized immediately after the marriage (and perhaps even long after the marriage; see immediately below and the next note), then she does not have even minimal satisfaction at all, and on such a basis she did not accept kiddushin; in that case her kiddushin are retroactively void.

[14] One might have said that Maharam holds that life with the husband until his death, together with whatever minimal satisfaction comes from the diseased levirate brother, together make up the relevant minimal satisfaction (but not life with the diseased brother alone). But this is forced, and on that reading it is not clear at all why Maharam is so certain that with an apostate there is no satisfaction whatsoever. Why should there not be satisfaction from the earlier married life? Is life with the apostate of negative value (and not merely valueless), so that it cancels the earlier satisfaction? That is plainly implausible.

And indeed, see the responsum of Seridei Esh I, no. 90, discussing Jewish women from Yemen who came up to Israel while their husbands apostatized after the marriage and remained there, where he leaned toward annulling the kiddushin on this basis.

[15] Unless, of course, he knew in advance that there was a defect in the animal.

[16] It should be remembered that according to Tosafot in Bava Kamma, the husband died while they were still only betrothed—that is, before intercourse—so annulling the kiddushin would not retroactively turn his acts of intercourse into promiscuity, and therefore he indeed does not care if the kiddushin are annulled retroactively.

[17] I later saw that this reasoning was also written in Har Tzvi, Even HaEzer no. 99.

[18] One might have argued that the woman herself also does not want her sexual relations to become retroactively promiscuous, and therefore she does not want the kiddushin annulled. But this can be rejected on several grounds: (a) Maimonides (Laws of Divorce 10:19) and the Shulchan Arukh, Even HaEzer 149:5, ruled that no such presumption exists except with respect to a man and his divorcée. (b) The presumption that a person does not make his sexual relations promiscuous does not seem to be said on the woman’s side, for several reasons. (c) Beyond that, when the relations become promiscuous not because of her fault (for the annulment is because of the husband’s acts), then obviously there is no transgression on her part, and she certainly prefers that the kiddushin be annulled so that she can live with another. (d) We have already seen that according to all views, where she has no minimal satisfaction at all, the kiddushin are indeed annulled, and no concern is shown for the fact that the relations thereby become promiscuous. (e) We may add that in our case there is certainly no such presumption, because the husband and wife had regular relations even before the kiddushin.

[19] Let us note that Tosafot in Ketubot does not state that the husband died while they were still only betrothed. Either it relied on Tosafot in Bava Kamma, or it disagreed with it and held that where death occurs from betrothal there is no minimal satisfaction at all. If the second possibility is correct, then Tosafot in Ketubot follows Rashi and not Maharam.

[20] On this see Dr. Avishalom Westreich’s article, ‘A Woman Did Not Betroth Herself on Such a Basis: Annulment of Marriage on Grounds of Mistake or Condition Following a Future Development,’ unpublished. And in an English version:

AVISHALOM WESTREICH, UMDENA AS A GROUND FOR MARRIAGE ANNULMENT: BETWEEN MISTAKEN TRANSACTION (KIDDUSHEI TA‘UT) AND TERMINATIVE CONDITION.

Here we only note that Westreich’s analysis of the sugya and of the responsum of Iggerot Moshe differs somewhat from ours, and this is not the place to enter into it.

[21] To be sure, the words of Rabbi Joseph B. Soloveitchik are well known, as cited in the pamphlet Divrei HaRav (edited by Rabbi Zvi Schachter), p. 115, where he wrote that presumptions such as the presumption that a woman prefers some married life to none, and others, never change. But these words are very puzzling, and the decisors we have cited, along with many others, certainly disagree with him on this point; this is not the place to elaborate.