Annulment of Kiddushin and Women Denied a Get – The Paradoxical Structure (Column 147)

With God’s help

Dedicated in friendship to my student and fellow teacher Dr. Meirav Tobul Kahana,

at whose request this column was written.

 

In recent days a ruling was published by a private religious court headed by Rabbi Professor Sperber (together with two additional unnamed judges), which annulled the kiddushin (the formal Jewish marriage act) of a woman denied a get (Jewish bill of divorce) on the ground of "with this in mind" ("not on this understanding"; among other things—there were additional grounds as well), and thereby freed her from being an agunah. Following my criminal record on this issue (it seems to me that in certain respects I, humble as I am, am the father of this ground)[1], I was asked from all directions whether I had been involved in the matter, or why I had not been involved. So first, I was not involved (when I am involved, it is done under my full name, and that is a matter of principle for me). The main reason is that I was not invited. But beyond that, there is a fair chance that this case was sent to me in the past (quite a number of cases have been sent to me), and I apparently did not see a way to apply the mechanism of with this in mind to this case.

Not surprisingly, this ruling aroused sharp criticism (see, for example, the remarks of Rabbi Yoel Katan here, hereafter: RYK), but rather more surprisingly, I partially share that criticism. As stated, in a considerable number of cases it is impossible to apply the mechanism of with this in mind. As I try to explain again and again (without much success), this is not a magic device for freeing agunot (women unable to remarry because they have not received a get) whenever the need arises. I thought this would be an opportunity to try to clarify the matter, since many people are confused and do not understand it properly (including rabbis and halakhic decisors). Of course I will not enter here into the details of the analysis of the sources, and to understand the principle there is no real need to do so. Here I want only to clarify the main lines of the discussion and the fundamental problem that accompanies it. As I shall try to show, the perplexity involved in this confusing discussion is rooted in the structure of a classic paradox, and therefore I shall begin by clarifying that logical structure. In the next column I will enter somewhat more into the halakhic level.

A methodological introduction: what is a paradox and how is it solved

Let us take as an example the paradox of Achilles and the tortoise, one of the paradoxes raised by the Greek philosopher Zeno of Elea, in order to undermine the concept of motion (that is, to argue that no such thing exists). Even before discussing the paradox, it is worth pausing for a moment and noticing an important point. It is obvious to each of us that Zeno is talking nonsense, for there is motion in the world (and some would say, following Heraclitus, that everything in it flows). So why bother with this nonsense? Ostensibly this is just another philosophical absurdity, nothing more. Is there really any possibility that we would infer from such an argument that in truth there is no motion in the world? I will return to that point immediately after describing the paradox for the benefit of the very few who are not familiar with it.

Think of a footrace between Achilles and a tortoise. For the sake of discussion, let us assume that Achilles runs ten times faster than the tortoise; for example, he runs at a speed of 10 meters per second, and the tortoise runs at a speed of 1 meter per second. In order to make the race more even, Achilles gives the tortoise an initial advantage (a head start) of 10 meters, and the starting gun is fired. When Achilles reaches the point from which the tortoise began the race, the tortoise is already one meter ahead. When Achilles reaches that point (having run 11 meters), the tortoise has already advanced another 10 cm. When Achilles reaches that point (11.1 meters), the tortoise is already another centimeter ahead (11.11 m), and so on. Ostensibly Achilles will never catch the tortoise, since each time he reaches the point where the tortoise stood at the previous stage, the tortoise itself has already managed to move a bit farther on.

Conclusion: Achilles will never catch the tortoise. Q.E.D.

Now those same few think to themselves: what nonsense. We can see with our own eyes that Achilleses always catch tortoises; that is, in a race between two runners, the faster one will always catch the slower one even if he gives him a head start. The punctilious among them will even do the calculation (you surely remember those high-school rate-time-distance problems: a truck leaves Haifa at 10:00 and the train leaves from there at 11:00… explain, spell out, justify, and prove) and discover when and where Achilles will catch the tortoise, thus solving the paradox. The next question, of course, is why one should bother with such nonsense when the answer is so obvious.

Well, there are good answers to the question of why one should deal with it (because searching for and locating the mistake can lead to important insights in many areas, as often happens. See below), but that is a matter of taste. Each person will decide whether it interests him or not. Here I want to dwell on a point that is seemingly similar, but in truth entirely different. If we have already decided to deal with the problem, does the calculation described above really constitute a solution to the paradox? Many think so, but the answer is of course no. On the contrary, that calculation is the very essence of the paradox. The essence of a paradox is that it has two horns: the first horn is a theoretical description of the race that seems credible, from which it follows that Achilles will not catch the tortoise. Opposed to it stands the second horn, the calculation—and indeed life experience even without a calculation—which shows that Achilles will catch it. This is precisely the background to the paradox. The paradox comes to challenge our experience, which tells us that there is motion, and it tells us to try to find the mistake in the theory in order to reconcile it with our experience. Pointing to the second, empirical horn—that life experience tells us Achilles catches the tortoise—does not solve the paradox. On the contrary, it is what creates it (as noted, Zeno wanted to infer from this that the concept of motion is paradoxical and therefore does not exist, at least not as we perceive it). A solution to the paradox will be achieved only if we point to the defective point in the first horn, that is, if we identify the failure in the argument that leads to the opposite conclusion.[2]

The solution

To complete the picture, I will only say that in the case of Achilles and the tortoise it is fairly easy to point to that point. The theoretical description presented above (the first horn) describes only the first 1.1111 seconds of the race, during which the tortoise covers 1.1111 meters (and Achilles 11.1111 meters). And indeed, up to that stage Achilles does not catch the tortoise. But at precisely that point in time (and at that distance) he catches it and passes it. This description broke the initial part of the race down into a description involving infinitely many stages, but all those stages add up to 1.1111 seconds and 11.1111 meters.[3]

Incidentally, this itself is a good reason to deal with such a paradox even though the result is known in advance (that there is motion). Here, after all, we gained an exceedingly important and useful mathematical insight: there are infinite series that sum to a finite total. Because of considerations like these, mathematical knowledge accumulated, and only because of them does a high-school student today know what the greatest philosophers of Greece did not know.

Back to the annulment of kiddushin

As stated, the topic of annulling kiddushin on the claim of with this in mind has exactly such a structure, and the arguments raised in it suffer from the same problems I described above. On the one hand, it is clear that kiddushin can be annulled on the basis of with this in mind. This can easily be shown from basic principles of Jewish law. This is the theoretical horn of the paradox. On the other hand, as RYK argues in the criticism cited above, in practice throughout all the generations from the time of the Talmud onward, halakhic scholars do not make use of this, and they even become terribly entangled in coercing gets and in get-refusal precisely because they are unwilling to do so. This is the empirical horn of the paradox.

The situation is that theory seems to show that this halakhic mechanism is fully valid and available, but experience indicates that there is no such mechanism and that it does not really exist. This is exactly the structure of a paradox, as we saw above, and it explains the main problematic feature of the topic. Whoever understands it understands the entire discussion (though not necessarily how to untie the knot), and can also understand why RYK’s criticism is incomplete and does not contain a solution to the problem (he merely points to the empirical horn, but does not identify the defect in the halakhic-theoretical argument). I will now try to show this in greater detail, but first a few conceptual preliminaries.

Between annulment of kiddushin and abrogation

I have already encountered repeated mistakes on the conceptual level in discussions of this kind, and therefore it is important to begin by distinguishing between two concepts that get mixed together in the discourse: annulment of kiddushin and abrogation of kiddushin. Abrogation of kiddushin is an authority given to the Sages to abrogate valid kiddushin solely by virtue of the fact that they do not agree to them ("the Rabbis annulled his betrothal"). I should note that some understand this authority as an implicit condition made by the man effecting the kiddushin, but in my view that is unlikely. As I understand it, this is an authority of the Sages to uproot kiddushin (this is actually a condition that the Torah itself makes, not the man effecting the kiddushin).

In any event, the authority to abrogate kiddushin is vested only in the supreme religious court of the generation, and in the halakhic tradition almost no use was made of it beyond the cases explicitly stated in the Talmud (for the Talmud itself is regarded as the supreme court for this purpose, and in fact its Sages were the ones who abrogated the kiddushin in those cases). Therefore the mechanism of abrogation of kiddushin is not relevant to our discussion. It was not used in this case, and it seems that today as well it cannot be used.[4]

What we are discussing here is a different mechanism, which may be called annulment of kiddushin. Abrogation is done to kiddushin that are valid. In certain cases the Sages have the authority to abrogate them. In abrogation, the Sages forcibly alter the existing legal state. By contrast, annulment of kiddushin is essentially a declaration that from the outset the kiddushin were never valid. This is really a diagnosis of an existing state, not a change or uprooting of it. When a religious court determines that the kiddushin are void, it is really saying that we have been living under a mistake. This couple was never married, because a defect occurred in the kiddushin.

The defect is the non-fulfillment of some halakhic requirement that is indispensable for kiddushin. For example, there may be a case in which a religious court discovers that the witnesses to the kiddushin were disqualified, or that there were not two witnesses, or that the ring was not worth a perutah, or that it turns out that the couple cannot marry one another (one of them is non-Jewish, or theirs is a prohibited kinship relation, and the like). As stated, in all these cases there were in fact never any kiddushin at all (though until now we did not know this), not that the religious court is abrogating them.

Therefore in such cases, strictly speaking, a religious court is not needed at all. Any rabbi—or really anyone versed in Jewish law—can make the diagnosis and realize that a defect occurred in the kiddushin and that they are void. The rabbi or the court performs no legal act here (unlike in the case of abrogation), but merely diagnoses the existing state. In truth, the couple were not married even before that determination; they and the public were simply living under the mistaken impression that they were. The diagnosis exposes the situation for what it really is.

Lack of genuine assent

Another type of defect in kiddushin is lack of genuine assent. Like any contract, kiddushin too are subject to the agreement of the parties, both the husband and the wife. If the agreement was given in error, and in truth there was no real agreement, then there is no agreement here, and in the absence of agreement there is no kiddushin. If the religious court or halakhic decisor now discovers that at the time of the kiddushin there was no real agreement, this is another type of defect that annuls the kiddushin.

What is the nature of such lack of agreement? Sometimes the kiddushin are performed against the woman’s will, without her consent. Sometimes she or the husband did not understand at all the significance of the act they were performing (kiddushin in jest). Sometimes the husband imposes a condition in the kiddushin (for some reason I have not found reference to a case in which the woman conditions her consent to the kiddushin on something, but this is not the place). For example, he betroths her on Sunday on condition that she travel to Jerusalem during the coming week. If she did not travel there that week, the kiddushin are void, because the condition was not fulfilled. What really happened here is that the husband’s assent to the kiddushin was lacking, for he conditioned his will on the woman’s traveling to Jerusalem, and she did not do so. On that basis he did not agree to betroth her, and therefore there is no consent on his part and the kiddushin are not valid.

Here we arrive at the first horn of the dilemma in our paradox.

Horn A: the halakhic-theoretical consideration

In the law of contracts in Jewish law, as in any legal system, there is a requirement for genuine assent on the part of the parties. Without it, the contract is not valid. If a person thinks he bought a car, but in fact they sold him a boat in the package, the sale is void. That is not what he intended to buy. The same is true if a person bought an ox for plowing and it turned out to be suitable for slaughter and not for plowing (it was not strong enough and could not withstand plowing): the sale is void.[5] In other words, concealment of material information from one of the parties at the time of the transaction voids the sale.

But it turns out that there is another type of voided sale, and it is based on future information. Thus, for example, a person sold all his property in Babylonia because he planned to immigrate to the Land of Israel. In the end he did not succeed and remained in Babylonia. The Talmud says that in such a case the sale is void, because the sale was made only with the intention of going up to the Land of Israel, that is, only on the understanding that he would go up to the Land of Israel. It is important to understand that this is a different case from the previous one, since the information that he would not go up to the Land of Israel was not in the possession of either party at the time of the transaction. It is something that happened afterward. Neither one misled the other, nor concealed relevant information from him. And yet the transaction is void, because he did not sell on that basis (he did not intend to sell under such circumstances).

How does this happen? How can a future mishap bring about the voiding of a sale that was already completed earlier? At the time of the transaction everything was fine, and therefore the contract was concluded. So a future occurrence suddenly annuls it?! This is commonly interpreted as part of the law of conditions. The seller did not indeed state a condition that the sale would be void if he did not go up to the Land of Israel, but we assess that his intention was that if he did not go up, it is obvious that he would not have wanted to sell. This is an implicit condition, that is, as if he had stated it explicitly. The innovation is that although in the law of conditions there is ordinarily a requirement that the interested party state the matter explicitly at the time of the transaction (with all the formal rules of conditions: a doubled condition, the affirmative preceding the negative, the condition preceding the act, etc.), when the matter is known and obvious to all there is no need to say it explicitly (and apparently not even to think it). From our standpoint it is as though such a condition was stipulated here, because it is clear to the parties and to the whole world that this is the basis for the desire to execute the transaction.

Is this mechanism, which usually appears in commercial contexts, also relevant to the "transaction" of kiddushin? At first glance, clearly yes. From a legal standpoint, kiddushin are regarded as a transaction in every respect,[6] they depend on the consent of both parties, and when consent is lacking there is no kiddushin, just as in a commercial transaction. Moreover, conditions can also be stipulated in kiddushin, and therefore at first glance there seems to be no obstacle to applying here too the mechanism of an implicit condition regarding a present or future event. If it is clear that one of the parties would not want to enter kiddushin in some state of affairs, then from our standpoint it is as though he or she explicitly stipulated it. Thus, for example, if a man wishes to betroth a certain woman and discovers that another woman was brought to him, there is no kiddushin here (as in the example of the car and the boat). Likewise, if after the kiddushin he discovers that the woman he betrothed has serious defects that were concealed from him, there is no kiddushin. This is a "mistaken transaction," and it exists in commercial transactions just as it does in kiddushin.

All this is agreed and clear (at least when the concealed information is material). The question is: what about future information? That is, if the woman entered kiddushin because she wanted a man who would support her, and it turns out that the husband is incapable of working. Here there is room to say that the kiddushin are void, because she was not betrothed on that basis. Relevant information was concealed from her at the time of the kiddushin, and her consent to enter kiddushin was given in error. But what if the husband loses his ability to support his wife several years after the kiddushin? One can still say that had the woman known this, she would not have entered kiddushin with him (as in the case of the sale made in order to go up to the Land of Israel). Ostensibly, even in such a situation one can say that she was not betrothed to him on that basis, and the kiddushin are void, exactly as we saw with regard to a commercial transaction. One can describe a case that would be truly parallel: think of a situation in which it is clear to everyone that the woman entered kiddushin with her husband in order that he bring her to the Land of Israel, even though she did not declare this and did not stipulate such conditions at the time of the kiddushin. After several years something happened, and he could not do so. Ostensibly the kiddushin are void, exactly as we saw in the sale transaction. This is the ground of with this in mind, and it differs from the ground of "mistaken transaction," since it comes into being after the completion of the transaction.

And what of a husband who turns out to be violent and abusive, or a husband who cannot have marital relations, or a husband who refuses to give his wife a get in a situation where a religious court has ruled that he is obligated to do so? Ostensibly, in these cases too the "transaction" is void, for surely she did not enter kiddushin on that understanding. Had she known this in advance, she would not have agreed to marry, and this is obvious to everyone, so there is no need for any stipulation at all. True, all these are events that occurred after the kiddushin (no information that existed at the time of the kiddushin was concealed from her)[7], but as we saw in commercial transactions, even in such a case the transaction is void, and as we saw, kiddushin are discussed like any other transaction.

The conclusion is that there is no principled obstacle to annulling a kiddushin transaction following relevant developments that occurred after the kiddushin. This is the theoretical horn of the paradox. We now turn to the empirical horn.

Horn B: the empirical consideration

What RYK claims, like many others, in his criticism, is essentially the following simple argument: it cannot be that kiddushin can be annulled on the ground of with this in mind, because as a matter of fact Jewish law does not recognize this. It is a fine theory, but it does not stand the test of facts. RYK argues that if it were possible to annul kiddushin on such a ground, then all agunot and all women denied a get could be freed with no difficulty whatsoever. We could simply say that if the woman had known that she would be denied a get, or that she would remain an agunah, she would not have agreed to enter kiddushin. This is certainly a correct assessment of the intent of the reasonable woman. If so, the kiddushin are void, and there is no reason that the husband should have to give a get, and the religious court need not pursue him, imprison him, or compel him by various means to give the get. But the fact is that from the Talmud onward all the halakhic decisors agree that this is not the case. Religious courts labor over the issue, coerce gets, and when the husband refuses, the woman remains in a state akin to agunah status. If there were such a ground for annulling the kiddushin, none of this would have to happen. Sophisticated and creative responsa to free agunot would not have had to be written, and religious courts would not have had to coerce gets. In fact, in a considerable number of cases no get at all would have been required, for a situation arose such that, had the woman (or the husband) known of it in advance, they would not have consented to the kiddushin. In such a situation the kiddushin are void of themselves, and there is no need for a get at all. Reality proves that the theoretical argument is invalid.

Back to the paradoxical structure

Notice that this consideration is exactly like the empirical consideration in the case of Achilles and the tortoise. RYK here points to the absurdity in the halakhic argument, despite the fact that it seems persuasive and correct on the logical-halakhic plane, and sets it against our life experience. The theory deserves all respect, he argues, but in practice it is obvious that this is not correct. Exactly as the description of the race above certainly seems right, yet no one would think of saying on that basis that there is no motion in the world.

But it is important to notice that RYK does not explain where precisely the failure in the theory occurred. He did not solve the paradox; he merely pointed to the empirical horn and by means of it to the correct halakhic conclusion. Ostensibly, on the halakhic plane that is enough for us, since beyond the theoretical issue we want to know whether there is or is not such a mechanism. RYK ostensibly proved conclusively that there is not and cannot be such a mechanism. The question why—that is, what is incorrect in the halakhic reasoning I described (the comparison to sale)—of course remains open, but ostensibly that does not matter.

But that is not the end of the story. First, perhaps all the religious courts described in the critical argument are mistaken? Is it not possible that they simply did not think of this mechanism, while in truth it really could have been used? Well, that is a very far-reaching claim: that all the sages of Israel throughout the generations were mistaken, especially given that the mistake is not on some esoteric or overly sophisticated subject. Ostensibly, any Torah scholar should understand that such a mechanism ought to be relevant to annulling kiddushin. Therefore, it does not seem reasonable to me to rely on such a counterclaim. In this sense I accept RYK’s criticism. He does indeed prove that there is something flawed in the halakhic theory presented above, but as noted he does not explain exactly what the flaw is.

But it is possible that if we nevertheless seek an explanation of what is flawed in the halakhic-theoretical argument, we will discover that there are situations in which it works and situations in which it does not. That is, perhaps it is correct only in certain cases, and in most cases of agunah and coercion of a get it is not relevant, and that is why it is not used there. If that is the situation, it may be that there are cases in which it can indeed be used. Therefore, until we put our finger on the flaw in the halakhic description, one cannot make do with the empirical claim that there is no such mechanism.

Therefore, although as stated I agree in principle with RYK’s criticism, in my opinion he presented only half the picture. His argument is similar to that of someone who offers a "solution" to the paradox of Achilles and the tortoise by pointing out that in reality Achilleses do catch tortoises. As we have seen, this is not a solution to the paradox, but at most a pointer to the correct factual conclusion.

In the case of Achilles and the tortoise, we saw that one can refrain from dealing with the paradox and from finding the flaw in the description proposed there, because the factual conclusion is certainly correct. If we do not solve the paradox, at most we will lose theoretical insights (such as the sum of an infinite series; see above), but we know the truth. By contrast, in our case, as we shall see, failure to deal with the matter and failure to find the flaw in the halakhic theory results not only in a lack of theoretical halakhic insights, but also in incorrect halakhic conclusions.

My position is that RYK’s claim is correct, but it presents only one side of the equation, only the empirical side. So long as he has not solved the paradox—that is, located the flaw in the halakhic theory—he has not really shown what he purported to show (that there is no mechanism of with this in mind in kiddushin). In the next column we shall try to advance toward a "solution of the paradox," that is, we shall try to locate exactly where the problem lies, and we shall see how the empirical horn to which RYK pointed can be reconciled with the halakhic theory described here. After that we can try to draw practical halakhic conclusions regarding the mechanism of with this in mind in kiddushin.

[1] It seems to me that our ruling was the first to use it in practice. Admittedly, after us there was the ruling of the religious court in Safed headed by Rabbi Lavi (who came under heavy criticism, not entirely without justification).

[2] In the first notebook I discuss a similar failure in Kant’s criticism of Anselm’s ontological proof. Anselm proposed a logical argument that infers the conclusion that God exists from what he claimed was a purely logical argument (mere conceptual analysis), by a sort of logical-philosophical hocus-pocus. In his criticism, Kant points out that the argument must necessarily fail, since it infers a factual conclusion about the world from a purely logical argument, and that cannot be.

But it is hard to see this as a real attack on Anselm. So long as Kant does not show what is flawed in Anselm’s argument, the necessary conclusion is that God exists. And from this it follows that one actually can derive a factual conclusion from a purely logical argument, since that is precisely what Anselm claims. His argument, so long as it has not been refuted, ostensibly proves this. Kant declares the opposite proposition (that this cannot be done), and by doing so dismisses the logical argument. This is not criticism, but mere begging the question.

[3] The sum of the times taken by all the segments of the race in the description above is a convergent infinite geometric series:

 1+0.1+0.01+0.001+ …= 1.1111

[4] There is a legislative proposal based on the proposal of Prof. Berachyahu Lifshitz, according to which in certain cases the Knesset would declare the kiddushin money ownerless, since the Knesset is the sovereign (the governing authority) and it has the power to declare the money ownerless. I will not enter here into this interesting subject.

[5] There is discussion among the halakhic decisors whether here one must resort to the law of an (implicit) condition, or whether even without that the sale is void.

[6] This does not mean that the husband acquires the woman or that he is her owner as one owns property. It is agreed by almost all the medieval authorities (Rishonim), and certainly the later authorities (Acharonim), that he does not. There is no ownership here at all. This is a transaction only in terms of its legal characteristics, but not in terms of its content. It is a contract between two parties that requires consent, but it does not create ownership in the proprietary sense.

[7] If the husband had had a violent character all along, even before the kiddushin, and that information was concealed from her and discovered by her after the kiddushin, that is a stronger ground for annulling the kiddushin, because at the time of the transaction relevant information was concealed from her. But our concern here is with future information, that is, a state of affairs that arose after the kiddushin.