Ethics, Faith, and Halakha – Lesson 22 – Rabbi Michael Avraham

[Rabbi Michael Abraham] Last time we talked about a two-story model. We started from the idea that moral obligations belong to the lower, universal level, and above that there are particular halakhic obligations that belong to the second level. A Jew, in terms of his normative structure, is really built on two levels. The first level is universal, found in every human being, and the second level is the level of additional obligations. And then at the end of last time I said that this structure is reflected not only in moral issues. I arrived at this structure through a survey of moral obligations, and the conclusion was that there are obligations on level one that, even though they do not appear in the Torah, nevertheless bind every Jew because they bind every human being — and a Jew is included in that. I want to say the same thing about obligations that are not necessarily moral, and that’s the model of the laws of marriage. And I began with Maimonides at the beginning of the laws of marriage, where Maimonides says that before the giving of the Torah, a man would meet a woman in the marketplace, bring her into his house, and if she agreed, they would live together and that’s how they got married. And if they decided to divorce, he would send her out of his house and that’s how they divorced. And I asked: why does Maimonides find it necessary to give us this historical introduction to the laws of marriage? What is it supposed to teach us? So my claim was that this is not just some purely historical remark. Rather, this statement actually describes the laws of marriage in a sense that still exists today after the giving of the Torah. And the claim is that the laws of marriage as they exist today are built of two levels. The first level is the level of marriage that existed before the giving of the Torah, which still exists today among Noahides, where there is a social institution called marriage, and when a couple decides to live together they establish a household — that is the universal social institution of marriage that exists everywhere. The Torah added another level, saying that beyond this general social institution, it requires us to precede marriage with betrothal. In other words, you have to perform some formal halakhic act of acquisition — acquisition not in the sense of buying the woman, but in the sense of an act that creates a legal effect — and add that to the regular institution of marriage. Therefore, when a Jewish man after the giving of the Torah wants to marry a woman, he can no longer just bring her into his house and start living with her the way it was before the giving of the Torah. He has to perform betrothal first — by money, document, or intercourse — and only afterward can they begin living together. Okay? Then the question that arises is: what happens if someone didn’t do this? He starts living together with a woman without preceding it with the institution of betrothal. According to the Torah, which required betrothal before marriage, he transgressed — he didn’t do that. Does the status created between him and his partner have halakhic standing, or did really nothing happen, and their life together is just the life of an unattached man and woman? Does it have no halakhic standing at all? So my claim was that Maimonides’ introduction comes to teach that even such a situation — although the Torah disapproves of it — nevertheless has halakhic standing. Basically, when we live together without preceding it with betrothal, we are married to each other in the Noahide sense. That is, there exists this social institution of marriage that existed before the giving of the Torah — that remains — just without the dimension of betrothal. Okay? And it still has some significance, just as marriage has significance among Noahides. That’s why, for example, I think there is a prohibition against having relations with the woman in such a situation. The prohibition is not the prohibition of a married woman, and you’re not liable to death for it, because this is not the halakhic prohibition. The halakhic prohibition relates to betrothal. In other words, if you have relations with her after betrothal, then you are liable to death. But if there was no betrothal, then there is no halakhic prohibition carrying liability to death. But there is the general social prohibition that exists also among Noahides: if a woman is someone’s wife, someone else is not supposed to have relations with her. Okay, so in that universal, social, broadly human sense, this exists among Jews too — there’s no difference. The fact that you didn’t precede it with the act of betrothal means the second level is missing, but the first level still exists. Admittedly, the order in which the levels are created is the reverse. In terms of formation, first you create the second level — the betrothal — and only afterward the first level, which is the marriage. But in terms of hierarchy, the level of betrothal is something particular, found only among Jews. Marriage exists for everyone. Therefore I call marriage the first level, and betrothal the second level. Okay? That is essentially the claim. What I want to do now is show you sources and implications of this, so you’ll see that it’s not just a cute insight — there’s real substance behind it.

[Speaker C] Rabbi, “Do not commit adultery” is included in the seven Noahide commandments, right? Again — “Do not commit adultery” is included in the seven Noahide commandments, right?

[Rabbi Michael Abraham] Sexual prohibitions are included there. Yes.

[Speaker C] Because when the Rabbi says universal morality, is that only the seven Noahide commandments, or beyond that too?

[Rabbi Michael Abraham] Noahides are obligated in all universal morality, even what is not formally included in their list of seven commandments. I cited Rav Nissim Gaon in his introduction to the Talmud, who says that anything dependent on what is obvious to the heart — meaning basic human understanding — has always bound a person, even if he was never commanded. So maybe I want to add just one more sentence about the picture I’ve described so far. Basically, I’m not bringing here just another example of the two-story model. It’s the very same example. What we are seeing here in the laws of marriage — and we’ll see even more in a moment — is really just another angle on the two-story model I discussed in the previous lecture. Because what was the two-story model in the previous lecture? There it dealt with morality; here I’m dealing with marriage. Superficially these are two different topics. But what stood behind it? What stood behind it was the same conception that says every Jew is also a human being. And on top of that, he is a human being of a certain type — a Jew. Okay? Species and genus — we talked about definition, about definitions. If I want to define a Jew, I say: a human being whose religion is Jewish, or whose mother is Jewish, or something like that. You have to give the genus and the species, define the species against other species within the same genus. So a Jew is defined as a human being who meets certain conditions. Okay? That’s what’s called a Jew. So the claim is that every Jew is also, in particular, a human being. Beyond that he is also supposed to fulfill further conditions, right? That’s basically the foundation. So what follows? There are two implications, or two kinds of implications. One implication is moral obligations. Moral obligations that exist for every human being will of course also exist for a Jew because of his first level, right? The same thing in the laws of marriage. It’s not about morality, but it’s still the same. Because if it exists among all Noahides — not because it’s moral, but for other reasons, doesn’t matter now — if it exists among Noahides because it is a general, universal social institution, then it exists among Jews too. Because on level one, the Jew is a gentile. All right? On level one, the Jew is just a human being. After that there is level two: he is a human being of a certain type, yes, of a certain species. So in that sense, the description of the two levels of morality and the description of the two levels of marriage are simply two aspects of a more basic structure. And that structure is Jew versus human being. And that has two implications: the moral obligations that bind all human beings and therefore also a Jew, and the marital obligations or laws of personal status that, just as they exist among all human beings, also exist for a Jew. But this isn’t another example. It’s another implication of the same example. Okay. Overall I want to show that everything that exists for every human being should also exist for a Jew, plus the things unique to a Jew. Now I want to show you a few points. For example, let’s start with the first point, which is the commandment of divorce. Commandment 222 — I’ll read, not important right now, I won’t read the whole thing — commandment 222 in Maimonides. Commandment 222 is that we were commanded to divorce by means of a document, whenever we want to divorce, and this is what Scripture says: “וכתב לה ספר כריתות ונתן בידה” (“and he shall write her a bill of severance and place it in her hand”). And the laws of this commandment, that is, the complete law of divorce, have already been explained in the tractate devoted to it, namely tractate Gittin. So there is a commandment to divorce. Commandment 222: that we were commanded to divorce by document, whenever we want to divorce. What does it mean to divorce by document when we want to divorce? There is no commandment to divorce. If someone didn’t divorce, he hasn’t violated a positive commandment, right? If you want to divorce, you have to do it by document — that’s basically the claim. How would you define this commandment? So I’ll give a short introduction, even though it’s not directly related here. Regarding positive commandments, we distinguish between a direct positive commandment and a fulfillment-based positive commandment. A direct positive commandment is one you have to do, and one who doesn’t do it has violated a positive commandment. A fulfillment-based positive commandment is one where, if I do it, I have a commandment, and if I don’t do it, nothing happened — meaning there is no violation of a positive commandment in not doing it. So yes, for example, according to Rabbi Moshe Feinstein, the commandment to immigrate to the Land of Israel is a fulfillment-based positive commandment. Meaning: one who goes up to the Land of Israel has a commandment, and one who doesn’t — nothing happened, there’s no complaint against him. Most of the positive commandments we know are direct commandments, not fulfillment-based ones. They are commandments you have to do — you have to put on phylacteries, and if you didn’t put on phylacteries, then you violated a positive commandment. It’s not that if you put on phylacteries, then wonderful, and if not, nothing happened. If not, then you violated a positive commandment. So now—

[Speaker B] What? Someone who wants to put them on again that same day?

[Rabbi Michael Abraham] Yes, right. Most of the fulfillment-based commandments that are cited are fulfillment-based from a certain threshold and up. Let’s say charity: you have to give at least a third of a shekel per year, and that is obligatory. If you didn’t give that, you violated the positive commandment of charity. Beyond that third of a shekel, it’s a fulfillment-based commandment. If you gave charity — great. If you didn’t — nothing happened; you’re not obligated. Or Torah study beyond reciting the Shema morning and evening: if you didn’t recite the Shema morning and evening, then you neglected Torah study, you violated the positive commandment of Torah study. But if you did recite the Shema morning and evening, then everything beyond that — if you do it, you have a commandment; if not, nothing happened. Yes, a prohibition repaired by a positive commandment. A fulfillment-based commandment is a commandment that can be fulfilled but not violated.

[Speaker C] A prohibition repaired by a positive commandment is something that can be violated but not fulfilled.

[Rabbi Michael Abraham] Exactly — the dual opposite. “והיה לכם פירות הארץ לאכלה” — “the produce of the land shall be for you to eat”: to eat, and not for commerce. What does that mean? There is no commandment to eat Sabbatical produce. One who eats Sabbatical produce is not fulfilling a commandment. But one who does not — meaning, one who trades in it, for example — has committed a transgression. Because we learn from “והיה לכם פירות הארץ לאכלה” — to eat and not for commerce. Now, “to eat” only comes to say “not for commerce”; not that eating is itself a commandment, but that if you do something else that is not for eating, then you have violated a prohibition. But this is a prohibition that is not a negative commandment in form; it is a prohibition inferred from a positive commandment, because the Torah’s formulation was “והיה לכם פירות הארץ לאכלה” — a positive formulation, the language of a positive commandment. Therefore there is here a transgression consisting in neglecting a positive commandment, even though the act of fulfillment is not itself a commandment. Now what would you say about the commandment of fringes, for example? If I have a four-cornered garment, then I am obligated to place fringes on it. But if I don’t wear a four-cornered garment, nothing happened. How would you classify this commandment? Fulfillment-based? Does everyone agree?

[Speaker D] Unless you have a four-cornered garment.

[Rabbi Michael Abraham] Again, how do you define the commandment? Not “unless” — how is the commandment defined? The data are that you are obligated only if you want to wear a four-cornered garment — that’s true. Now I’m asking what that means in terms of the definition of the commandment. It’s not a fulfillment-based commandment. That’s a common mistake, by the way, even among later authorities. It’s not a fulfillment-based commandment, because a fulfillment-based commandment is one that cannot be violated, only fulfilled. Right? But with fringes, you can violate it. If you have a four-cornered garment and did not put fringes on it, then you have neglected a positive commandment. But this is a positive commandment for which neglect is defined — meaning, there is a state in which someone can come to you with complaints for having neglected this positive commandment — therefore it is not a fulfillment-based positive commandment. What is it, then? It is a conditional direct positive commandment. What does that mean? It is a direct positive commandment — if you don’t do it, you have neglected a positive commandment — but your obligation is conditional upon certain conditions being met. And if you want to wear a four-cornered garment, then the conditions have been met and you are obligated to place fringes on it. That is a full obligation, and if you didn’t put fringes on it, you violated the positive commandment. But all of that exists only if you are wearing a four-cornered garment. Now, this is a fully direct commandment; it is not a fulfillment-based commandment. It’s just that the obligation applies only under certain conditions. Almost every commandment is a conditional direct positive commandment. Is reciting the Shema not a conditional direct commandment? Only at the relevant time, right? Or grace after meals — is that not a conditional direct commandment? Sure. If you ate to satiety, you are obligated to recite grace after meals. And if not, then not. So there’s nothing special here. A conditional direct positive commandment is a direct positive commandment in every sense; the obligation is simply conditional on certain conditions being met, that’s all. Okay? Now I return to the commandment of divorce, an important commandment, okay? So how would you define the commandment of divorce? Conditional direct? Fulfillment-based? How would you define it? Fulfillment-based. Why fulfillment-based? Conditional direct. So you agree it’s conditional direct? Why is it a commandment? He said, it says, ‘וכתב לה ספר כריתות ונתן בידה’.

[Speaker B] But you can’t divorce without a bill of divorce. Why?

[Rabbi Michael Abraham] There is no—

[Speaker B] There’s no such thing as divorce not done through a bill of severance.

[Rabbi Michael Abraham] Why not? Here — if he divorced the woman and didn’t give her a bill of divorce?

[Speaker B] That’s not divorce.

[Rabbi Michael Abraham] Ah, right! So it’s not likely to be a conditional direct commandment. Why? Because there is really no way to violate this commandment. If it were conditional direct, then that would mean that if I decided to divorce the woman and did not give her a bill of divorce, then I violated this positive commandment, right? Because the conditions obligating me were met, and I did not carry out the obligation. Okay? That’s how a conditional direct positive commandment is defined. Okay? But here, if I decided to divorce the woman and didn’t give her a bill of divorce, what positive commandment did I violate? No — I simply didn’t divorce her. To say that I violated a positive commandment, you need to say: look, you divorced her, but you didn’t do it properly; therefore you violated the positive commandment. If I didn’t give her a bill of divorce, then I simply didn’t divorce her. So what positive commandment did I violate? Am I obligated to divorce my wife? I simply didn’t divorce her — what’s the problem?

[Speaker C] If according to the two-story model, bringing the woman in and sending her out is what defines her as married or divorced, then when we go to the other side and want to divorce without a bill of divorce, why is she not divorced?

[Rabbi Michael Abraham] Zoom isn’t responding for me — one second. So we said that the commandment of divorce, on the face of it, is a conditional direct positive commandment. If you want to divorce, then you have to divorce her by a bill of divorce according to the rules. But from that it should follow that if you want to divorce and you didn’t divorce by bill of divorce, then you violated the positive commandment. A conditional direct positive commandment can be violated. That doesn’t sound plausible. It doesn’t sound plausible because if you want to divorce the woman and you didn’t divorce her by bill of divorce, then she simply isn’t divorced — that’s all. You didn’t divorce her. How can one say that such a thing is a transgression? In other words, you didn’t divorce her and nothing happened. When you say that this is a transgression, you are in effect assuming that you divorced her, but not properly. Then one can say you committed a transgression — you divorced, but not by bill of divorce. Fine. But what does it mean to divorce not by bill of divorce? If I didn’t give a bill of divorce, then she’s not divorced. What — to send her out of the house? Am I forbidden to send my wife out of the house? Did I violate a positive commandment if I sent my wife out of the house? What?

[Speaker C] But we said this was built on two levels, so if the foundation is removed, doesn’t the whole building collapse?

[Rabbi Michael Abraham] What do you mean?

[Speaker C] That she’s already divorced the moment you sent her out.

[Rabbi Michael Abraham] Wait — that’s where I’m heading. I’m aiming toward the two-story model. For now I’m just asking a regular question, okay? On the face of it, the claim that there is a violation of a positive commandment here seems unreasonable. So at first glance, the accepted conception regarding the commandment of divorce is that this is a procedural commandment. A procedural commandment — yes, we talked about a direct commandment, which is one you can violate and fulfill. A fulfillment-based commandment is one you can fulfill and cannot violate. A prohibition inferred from a positive commandment is one you can violate but cannot fulfill. And a procedural commandment is one that can neither be violated nor fulfilled. Meaning, if you divorce your wife with a bill of divorce, you don’t thereby have a positive commandment. You are no more righteous than someone who didn’t divorce his wife with a bill of divorce, right? You have no positive commandment. And if you wanted to divorce her and didn’t divorce her with a bill of divorce, then of course you have no violation of a positive commandment either. Meaning, this is a commandment that can neither be fulfilled nor violated. So what is the point of such a commandment? It’s a procedural commandment. That is, if you want to divorce, know that this is how it is done. And if you don’t do it this way, the woman simply won’t be divorced. If you ask whether there really is such a category of commandments, the answer is yes. Maimonides talks about this in his Book of Commandments, commandments 95 and 96, where he says, for example, the laws of impurity — impurity from a creeping thing. One who touches a creeping thing becomes impure. There is no prohibition against touching a creeping thing and becoming impure, and of course no obligation to touch one and become impure. So in what sense is this a commandment? Maimonides says it is a procedural commandment, a commandment that defines: if you touched a creeping thing, know that you are impure. Or if I want to annul my wife’s vows, then the annulment is done in a specific way. There is no commandment to annul and no prohibition against annulling and no prohibition against not annulling — nothing. Do whatever you want. The commandment merely defines how vows are annulled. This is how vows are annulled. If you didn’t do it that way, then the vow isn’t annulled — that’s all. But there is no prohibition in your not annulling your wife’s vows. Okay, it’s just a definition. So at first glance, the commandment of divorce also belongs to this family. It is a procedural commandment. If you want to release the bond of betrothal, then you have to give a bill of divorce according to the rules, and then the woman is divorced. If you didn’t do that, then nothing happened — she simply isn’t divorced, that’s all. Okay? That’s the accepted view.

[Speaker C] But then how can a religious court compel someone to divorce? What’s the problem? If there’s no commandment on you to divorce.

[Rabbi Michael Abraham] They compel the commandment. They compel the—

[Speaker C] Which commandment? It’s not a commandment. Right?

[Rabbi Michael Abraham] It’s not compelling a commandment. It’s compelling a person not to abuse another person, to protect the woman from the husband. You don’t need a commandment for that. Certainly. If I want to beat you, the court will stop me and not let me beat you — not because there is a prohibition against beating and they are coming to save me; they are coming to save you. Meaning, if you say this is about a commandment, then the court is coming to save me from violating a commandment. But no — when the court stops me, it is coming to save you, not me, so that you won’t get beaten. Okay, now I’ll read you a passage from Sefer HaChinukh, commandment 579. “A commandment upon one who wishes to divorce his wife, that he should divorce her by document — for we were commanded that when we wish to divorce our wives, we should divorce them in writing, and this writing is what Scripture calls a bill of severance, which our Sages of blessed memory call a bill of divorce. And the translator too translated ‘book’ here as ‘bill of divorce.’ And concerning this it says, ‘וכתב לה ספר כריתות ונתן בידה ושלחה מביתו’ — ‘and he shall write her a bill of severance and place it in her hand and send her from his house,’ etc.” Fine, that’s the definition of the commandment. Up to this point it’s like Maimonides. If you want to divorce your wife, divorce her with a bill of divorce. But that doesn’t imply a conditional direct positive commandment. Plainly, it sounds like a definition, right? The surprise appears at the end of this commandment. At the end he writes as follows: “And one who transgresses this, and divorces his wife without writing her the bill of divorce according to the Torah’s command and in the manner explained by our Sages of blessed memory, has violated this positive commandment, and his punishment is very great, because in law she remains as a married woman, while he treats her as divorced, and the punishment concerning a married woman is well known, for it is among the gravest transgressions in the Torah.” What is he saying here? That someone who wants to divorce his wife — sorry, not someone who wants to, but someone who divorced his wife — yet did not write her the bill of divorce according to the Torah’s command, has violated a positive commandment. Now I don’t understand: what does it mean that he divorced his wife and didn’t write her a bill of divorce? So he didn’t divorce her, right? What does it mean to divorce his wife without writing her a bill of divorce? It means he didn’t divorce his wife. And what are you telling me — that someone who didn’t divorce his wife violated a positive commandment? That’s a strange story.

[Speaker B] And what comes next? That she really is a married woman?

[Rabbi Michael Abraham] Right, right, you’re correct. He says, “and his punishment is very great, because in law she is a married woman.” In essence she really is a married woman, and he treats her as divorced, so his punishment is very great. What — is there a prohibition on treating a woman as divorced even though she is a married woman? I mean, if a woman is my wife, okay? And now I put a sign above the house saying “this woman is divorced,” then I violated a positive commandment? I treated a woman who is a married woman as divorced. Not good, so I violated a positive commandment. Which positive commandment did I violate? Very strange. So I want to claim, in light of what we saw above from Maimonides, that in fact, yes, there is such a thing as divorcing her without giving her a bill of divorce. What is it to divorce her without giving her a bill of divorce? To send her out of the house! Exactly what Maimonides came to tell us at the beginning of the laws of marriage. If you send the woman out of the house, you divorced her. The Torah wanted you — or required you — to do it by bill of divorce, properly. But if you sent her out of the house, that means you divorced her, just not by document as the Torah said. Therefore you violated a positive commandment. Yes, you violated a positive commandment. Let me sharpen this. I spoke about this — I don’t remember in what context — sometime recently I talked about it. You can distinguish between two kinds of commandments: constitutive commandments and directive commandments. Directive commandments — for example, the model for that is the commandment of fringes in this week’s Torah portion. What do I mean? “והיה לכם לציצית” — “it shall be for you as fringes.” What does “it shall be for you as fringes” mean? What I have defined here in this passage, with the threads and the blue thread and all that business — that is what shall count for you as fringes. Meaning, the concept of fringes exists beforehand, and this passage is telling us that the Torah wants us to make our fringes in this way and not another. That’s odd. The concept of fringes doesn’t exist? This passage defines the concept of fringes, right? If you do it properly, you have fringes. If not, you simply didn’t make fringes. But no, the Torah doesn’t phrase it that way. It says, “והיה לכם לציצית”. Meaning, what you do here — that will count for you as fringes, not something else. So the concept of fringes already exists beforehand. This passage comes to direct it, not to constitute it. This passage doesn’t constitute the concept of fringes; it directs it. The concept of fringes means a symbol, as Ibn Ezra writes, like the lock of hair on the head. Symbols exist — every person has symbols. The Torah wants our symbol to be specifically this. Therefore it says, “והיה לכם לציצית”. That is a directive commandment. What is a constitutive commandment? Say, the prohibition on eating pork is constitutive, right? Without the Torah commanding it, there would be no such prohibition as eating pork. Or dwelling in a sukkah. The concept of sukkah is constituted by the Torah, right? The concept of sukkah doesn’t exist without the Torah’s command. The Torah commanded us to build a sukkah, to sit in a sukkah. Okay? So in the simple sense that looks like a constitutive commandment, the commandment of sukkah. You can argue even about that, but that’s the simple view. Think, for example — yes, this is the example I always bring in this context — I once heard, and soon the World Cup will start, a couple of World Cups ago, I don’t remember exactly when, I went to some pub in Tel Aviv with a couple of friends to hear a lecture on the philosophy of soccer. And among other things they discussed the question: what is a foul in soccer? You say you committed a foul — so what, did you violate the rules of the game by committing a foul? No. The rules of the game determine what a foul is and what sanction applies to it. You committed a foul, so the ball changes hands and there’s a penalty kick or not, whatever. There are rules. Part of the rules of soccer says what happens when you commit a foul. More than that, often the coach or the tactic is: at this point commit a foul in order to prevent a goal or something. Meaning, part of the game’s tactics is to commit a foul. Compare that, for example, to someone moving a rook in chess like a knight. Did he commit a foul? He didn’t commit a foul — he simply wasn’t playing chess, right? If you don’t move according to the rules, then you simply aren’t playing chess. So the rules of chess are a constitutive system of rules. Meaning, when you play according to the rules, that is what’s called the game of chess. The concept of chess is constituted by these rules. If you didn’t follow these rules, then you simply aren’t playing chess. There are no fouls in chess. There are no sanctions for fouls in chess. If you don’t go by the rules, then you simply aren’t playing chess — you’re playing something else. Okay? But in soccer it isn’t like that — or at least part of it isn’t like that. There, some of the rules are directive, not constitutive. The rule about a foul doesn’t say that if you committed a foul then you are no longer playing soccer. You are playing soccer. They’re just telling you to play soccer properly. Meaning, play this way and not that way, and if you play differently there will be a sanction, and so on. It comes to direct how you play. It doesn’t constitute the game; it directs the game, how one plays it. But the game exists independently of that direction. It doesn’t constitute the concept of the game. Okay? The same applies in commandments. The commandment of fringes comes to direct the concept of fringes; it doesn’t constitute it. The concept of fringes existed beforehand — it’s a symbol. The commandment of fringes says how to make that symbol. It comes to direct the concept of fringes, not to constitute it. Okay? Therefore, if someone made fringes in some other way, not as the Torah said, then he committed a transgression — in this case the transgression of neglecting a positive commandment. Why? Because he made fringes, but not in the way the Torah said. Okay? So he committed a transgression. Like in soccer, right? Meaning, he committed a foul. But if the concept of fringes were constituted by the passage, then if you didn’t make fringes, you simply didn’t make fringes. It wouldn’t be a matter of transgression. You simply didn’t make fringes. At least if the transgression were making fringes incorrectly — there’s no such thing as making fringes incorrectly. If you did it incorrectly, that’s not fringes. Now let’s come back to divorce. Is the commandment of divorce constitutive or directive? That’s really the question. Because Sefer HaChinukh — we would have thought that the Torah constitutes the concept of divorce. If you did it according to the rules, with a document and witnesses and whatever is needed, then the woman is divorced. And if not, then no divorce happened. But if that is the view, then there can be no transgression in not divorcing the woman according to law, right? If you didn’t divorce her according to law, then there simply is no divorce and that’s all. Something constitutive is not defined as a transgression, like chess, not like soccer. Right? You simply didn’t divorce — that’s all. The transgression would have to be divorcing improperly. But if when you divorce improperly you didn’t divorce at all, then there is no such transgression. You simply didn’t divorce, that’s all. The transgression is divorcing — just not properly. Okay? If Sefer HaChinukh says that there is a violation of a positive commandment for one who divorces improperly, what is he really saying? That the commandment of divorce is a directive commandment and not a constitutive one. He is basically saying: you can divorce even without a bill of divorce. It’s just not okay — it’s a transgression. But if you did it without a bill of divorce, it is still divorce. That’s why he says: one who divorced, but not by document as the Torah said, violated this positive commandment and his punishment is very great. But he did divorce. Now what does it mean that he divorced if he didn’t do it according to the rules? What — isn’t this constitutive? The simple understanding is that the laws of the bill of divorce constitute the concept of a bill of divorce, the concept of divorce. Here in Sefer HaChinukh it says not so. It directs the concept of divorce; it doesn’t constitute it. What does that mean? That the concept of divorce exists even before the Torah said how to do it, when to do it, and by what rules, and so on. What is that? Exactly sending the woman out of the house, dismantling the household. Right? Or in other words, just as there is a concept of universal marriage for Noahides, there is also a concept of universal divorce for Noahides. To dissolve the institution of marriage — that’s called Noahide divorce. That is the first level. On the second level we have betrothal. Right? That’s how we are supposed to effect marriage, by preceding it with betrothal. Okay? But that is a halakhic addition. It does not exist without Jewish law. Betrothal is constituted by Jewish law, not directed by it. The concept of betrothal comes to direct the concept of marriage, but betrothal itself is constituted by Jewish law, not directed by it. The concept of betrothal. Directive or constitutive regarding divorce?

[Speaker C] I mean betrothal first.

[Rabbi Michael Abraham] Betrothal — Jewish law constitutes the concept of betrothal. Without it there is no such thing as betrothal. It defined it. If you did it not as the Torah said, then you simply did not effect betrothal. But the entire concept of betrothal comes to direct the concept of marriage. It comes to say how to do marriage properly: you precede it with betrothal, and then you do the marriage, then you begin living together. So the whole concept of betrothal is really a concept that comes to direct the concept of marriage. Why? Because the Torah did not define the concept of marriage; it is an existing concept, a preexisting social concept. The Torah comes to direct how to do it properly, but the Torah is not the thing that defines it. The Torah defines the concept of betrothal. On the other side of the process, when you dismantle the household, it is exactly the same structure — a mirror image of the same structure. What do I mean? There is the giving of the halakhic bill of divorce according to the rules — that dissolves the betrothal. And what dissolves the marriage? Sending her out of the house. Just as bringing her into the house is marriage, sending her out of the house is divorce. Divorce, meaning the dissolution of marriage. So in effect, when you give a woman a bill of divorce, you are actually doing two things. You are dissolving the betrothal and dissolving the marriage. Both things. When you give a woman a bill of divorce, you have dissolved the betrothal, and now by sending her out of the house you have dissolved the marriage, and then she is completely detached from you. All right? If you send her out of the house but do not give a bill of divorce, then you have dissolved the marriage. You dissolved it — it no longer exists. But you left the betrothal in place, because you did not give a bill of divorce, and what dissolves betrothal is only a bill of divorce. Because betrothal is a halakhic institution; to dissolve it you need another halakhic institution, the document of divorce. Okay? If you did not give a bill of divorce, then the institution of betrothal is still in force, even though the marriage no longer exists. And that is a prohibition — a violation of a positive commandment. If you dismantled the institution of marriage, the Torah requires you also to dismantle the institution of betrothal. Don’t leave the woman tied to you by betrothal — and therefore it is also forbidden to have relations with her and so on, if you are no longer a couple. If you are no longer married because you have dissolved the marriage, then I demand of you, says the Torah, that you dissolve the betrothal too. Therefore this is a violation of a positive commandment. And his punishment is great. Why is his punishment great? This doesn’t explain why it is a violation of a positive commandment; it explains why his punishment is great — that’s what the midrash here is saying. Why is his punishment great? Because this really leads to very grave pitfalls. If you treat her as divorced, then she may panic or marry someone else, whereas in truth she is a married woman, because as long as the betrothal has not been dissolved, there is a prohibition on having relations with her.

[Speaker B] Maybe “in law she is like a married woman” — not literally your wife, but she has the halakhic status.

[Rabbi Michael Abraham] “In law she is like a married woman.” Possibly, maybe, I don’t know. It may be possible to read it that way.

[Speaker C] Rabbi, I have two questions. First: at a wedding, we do betrothal and then marriage, right? So in divorce, shouldn’t the order be the reverse? I mean, first let’s send her out—

[Rabbi Michael Abraham] There is a reverse order. We’ll see that in a moment. There is a reverse order. The order is first the dissolution of the marriage, and then the giving of the bill of divorce, which also dissolves the betrothal.

[Speaker C] But doesn’t Maimonides here say the opposite?

[Rabbi Michael Abraham] Why, what does he say?

[Speaker C] That first — if you want to, if you want to send her out of the house, you have to give—

[Rabbi Michael Abraham] No, you don’t have to give divorce. They tell you that besides sending her out of the house, also do divorce. Whether you do one before the other is not the point. Usually, in reality, first they send her out of the house and only afterward do the divorce. Yes, when a couple comes to divorce, they are already not living together. Right? You can’t really keep living together after you’ve decided on divorce. You still need the formal procedure. So usually sending her out of the house precedes the divorce. No problem — because the procedure takes time. But you do have to carry out that procedure. It’s not that every moment she is out of the house and you still haven’t divorced her, you are violating the positive commandment. You have to release her. That’s the point. Don’t leave her chained, tied to you.

[Speaker C] And second question: we gave up the idea that divorce could be a constitutive commandment because you can’t violate the—

[Rabbi Michael Abraham] If it’s constitutive, then you can’t talk about his divorcing her but not by document. If it’s not by document, then she isn’t divorced, because the document constitutes the concept of divorce.

[Speaker C] Can’t you say he violated the commandment to be fruitful and multiply because of this?

[Rabbi Michael Abraham] But what does that have to do with being fruitful and multiplying?

[Speaker C] After all, all these commandments of marriage are based on being fruitful and multiplying.

[Rabbi Michael Abraham] Being fruitful and multiplying is a preparatory framework for that commandment, but what is the issue in divorce? What in divorce interferes with fulfilling “be fruitful and multiply”?

[Speaker C] The moment you sent her out of the house but didn’t give her a bill of divorce, you caused the cancellation of the commandment to be fruitful and multiply in her world.

[Rabbi Michael Abraham] In her world? Why? I’ll take another wife and fulfill “be fruitful and multiply” with her — what does that have to do with her?

[Speaker C] Here you can’t do it with her, and no other man can do it with her either.

[Rabbi Michael Abraham] With her it doesn’t matter — she isn’t commanded in procreation. Only the man is commanded.

[Speaker C] You excluded yourself from the commandment—

[Rabbi Michael Abraham] I didn’t. I can take another woman and fulfill “be fruitful and multiply” with her. What does that have to do with her? A man can marry two women.

[Speaker B] In divorce, if someone wants to divorce halakhically, can he do such a thing?

[Rabbi Michael Abraham] What do you mean “halakhically”?

[Speaker B] A couple living together and all that — to divorce halakhically. Obviously. Why? What do you mean why? If it obligates, that means that when you want to divorce her, do it halakhically. Here he doesn’t want to divorce her and he also isn’t divorcing her, he’s only giving her a bill of divorce. No — if he gives her a bill of divorce, then he is saying he has dissolved the betrothal. He dissolved the betrothal, but they can still be married on the Noahide level. Just as I can take an unmarried woman and live with her, I can also take my divorcée and live with her. Right?

[Rabbi Michael Abraham] What’s the difference? He didn’t divorce—

[Speaker B] He didn’t—

[Rabbi Michael Abraham] He didn’t divorce her in the universal sense; he divorced her in the halakhic sense, he dissolved the betrothal. But if the halakhic sense is there in order to constitute the universal sense, and the universal sense doesn’t exist—

[Speaker B] What do you mean it doesn’t exist?

[Rabbi Michael Abraham] They are a couple and remain a couple. So then you did not violate the positive commandment — you’re right.

[Speaker B] No—

[Rabbi Michael Abraham] The commandment, but the question is whether it has legal force. Yes, you dissolved the betrothal — of course. The commandment of divorce dissolves the betrothal. That’s all. But the commandment he is talking about is: if you want to divorce her, then also carry out divorce by document. If you want to send her out of the house. Now if I don’t want to send her out of the house, then I’m not obligated to give her a document. And if I do give her a document, then that still dissolves the betrothal, only I have no obligation. Suppose I didn’t give— only if we aren’t living together and I didn’t give her a document, then I violated the positive commandment. Okay? Right, so let me give you another example of an implication. Maimonides, in the laws of divorce, writes: “What is the difference between ‘invalid’ and ‘void’? Every place where this code says concerning a bill of divorce that it is void, it is void by Torah law; and every place where it says invalid, it is invalid by rabbinic law.” We have terminology: when the bill of divorce is void, it means there is no bill of divorce at all; when it is invalid, that means it is rabbinically invalid. Now there are various kinds of rabbinic invalidity. For example, there is a bill of divorce that is rabbinically invalid, and therefore you need to divorce her again. Fine? There is a bill of divorce that is rabbinically invalid, and if she went and remarried, she has to leave her husband and marry him again. There is rabbinic invalidity that even affects her children; they are mamzerim by rabbinic law, because she is not divorced by rabbinic law, so she isn’t married to the second man by rabbinic law, and therefore her children are mamzerim by rabbinic law. Okay? There are many kinds of rabbinic invalidity in a bill of divorce. But there is one type of rabbinic invalidity that has no practical consequence at all: it’s rabbinically invalid, but if she got divorced, then she got divorced, and the children are not disqualified, and she does not have to leave her husband, and everything is fine. There are different types of rabbinic invalidity. The question raised by Birkat Shmuel is: then what is the meaning of “invalid”? That he didn’t do the commandment in the ideal way? That he divorced the woman? What does “ideally” mean here? When you say it’s invalid, you mean that what he did was not okay. What does “not okay” mean? The woman is divorced, right? You don’t need to do anything, the children are not disqualified, everything is fine. So what does it mean that the bill of divorce is rabbinically invalid? What consequence is there to its being rabbinically invalid?

[Speaker C] “After the fact” relative to what? That after the fact it worked?

[Rabbi Michael Abraham] What does “worked” mean?

[Speaker C] The divorce took effect.

[Rabbi Michael Abraham] Obviously, the divorce fully took effect. What do you mean “after the fact”? Divorce is always after the fact — once you gave the bill of divorce, the woman is divorced. Right? It’s always after the fact. Ah? When it’s forged from within. Forged from within — for example, various invalid witnesses signed, but you do have witnesses of delivery. So it’s forged from within. Why? Because there will be a problem of proof later, since the signatories are invalid witnesses, but in the divorce itself there’s no problem. Yet the rabbis invalidated the divorce. There are all sorts of rabbinic invalidities. So here too — he is basically saying: look, after all there is no commandment to divorce; it’s a procedure. If the procedure is effective and there is no consequence to the invalidity — the children are not disqualified, you don’t need to repeat anything, nothing — then in what sense is the bill of divorce invalid? What is the meaning of saying it is rabbinically invalid? It has no meaning. According to what I’m saying, though, it does have meaning. Because the woman is indeed divorced, but divorced in a non-ideal way. Why? Because there is a commandment to divorce. And you did not release her properly to the general public. Okay? You released her to the public after the fact, but you did not release her properly. You created here a situation in which the woman is still connected to you in some rabbinic sense, even though in fact you decided to separate. There is a commandment to divorce — that is what I want to claim. Once there is a commandment to divorce, then you can always talk about doing the commandment in the ideal way or not in the ideal way. His question was: after all, there is no commandment to divorce, so what does “invalid with no consequences” mean? That he didn’t do the commandment in the ideal way? What does “invalid with no consequences” mean? I say no — there is a commandment to divorce, as we saw in Sefer HaChinukh. So if you did it not as the Sages instructed, then it was not done in the ideal way, right? That is exactly the point. Okay? That is another implication. Now look at another implication. It says concerning a woman who “betrays her husband” — if she committed adultery while under him, then she becomes forbidden to the husband and to the adulterer. Okay? The wife of a priest becomes forbidden even if she was raped; the wife of an Israelite only if it happened willingly. Okay? What if it happened accidentally? A woman committed adultery accidentally. Then if she is the wife of an Israelite, she is not punished — sorry, she does not become forbidden. The wife of a priest becomes forbidden; the wife of an Israelite does not become forbidden. Okay? Now with accidents, we know in Jewish law that there are two kinds of inadvertence — Mishnah at the beginning of chapter Klal Gadol and elsewhere: a mistake about the facts and a mistake about the law. For example, someone sorts on the Sabbath inadvertently. What was his inadvertence? He didn’t know that today was the Sabbath — a factual mistake. Or he knew today was the Sabbath but didn’t know that sorting was forbidden on the Sabbath — that’s a mistake about the law. Okay? There can always be a mistake about the facts or a mistake about the law. Now in the case of a woman who betrays her husband accidentally, and therefore is not forbidden to her husband — does that apply to both kinds of inadvertence? The simple assumption is yes — this is inadvertence and that is inadvertence. Maharik claims not. Maharik says there is a difference between the two kinds of inadvertence. If it was a mistake about the law — she did not know that adultery was forbidden, but she knew that the man she had relations with was not her husband — then she does become forbidden to her husband. Everything said about her not becoming forbidden to her husband when it was inadvertent applies only to a mistake about the facts, not a mistake about the law. If she thought that the person having relations with her was her husband, and she was mistaken — she thought it was her husband but really it was someone else — then she does not become forbidden to her husband, because that is a factual mistake. But if it was a mistake about the law, then she does become forbidden to her husband. Why? What’s the idea? Maharik says that if she knew it was not her husband, then she betrayed him, because she wanted to have sexual relations not with her husband. She didn’t know it was forbidden, but as a matter of fact she wanted to have sexual relations not with her husband. That is to dismantle the marital unit, not because of the prohibition involved, but because of the reality involved. Someone who has sexual relations not with her husband has not preserved the marital unit with him. That is not what a marital unit looks like. Okay? It’s not because of the prohibition involved. Therefore, even if she did not know the prohibition, in terms of whether she committed a prohibition or not, she was inadvertent and there is no real prohibition here for purposes of culpability. But in terms of betraying her husband, she betrayed him in every respect. She intended to have sexual relations with someone not her husband. What does that mean? This too basically says that the state of husband and wife is first of all a social institution before it is a halakhic one. After that there are also laws, prohibitions, commandments, and so on. But first of all there is a social institution here. If she had sexual relations with someone not her husband, then she dissolved the social unit. It is not because of the prohibition involved, not because she violated a halakhic prohibition. Rather, the marital unit is a social institution, and if she has relations with someone else, she dissolved the social institution, even if no prohibition was involved.

[Speaker C] Because it’s not her husband — and I’m just thinking—

[Rabbi Michael Abraham] About marital units in agreements in the world generally — what is a marital unit? A marital unit involves exclusivity, meaning that sexual relations take place only between the spouses and not outward.

[Speaker C] But suppose a woman suddenly has Alzheimer’s, forgot who her husband is, and went and slept with someone else — okay—

[Rabbi Michael Abraham] That’s a legal question, but it doesn’t concern us here. I’m not dealing right now—

[Speaker C] With whether someone who goes and sleeps with someone else thereby dismantles—

[Rabbi Michael Abraham] The family unit or not — I’m saying that’s an interesting halakhic question, but it isn’t connected to our discussion. We’re not learning the topic of when exactly the marital unit is dismantled. I’m using a distinction in Maharik that comes to explain an idea, to express an idea, and the idea is that the marital bond has some dimension as a social institution even before the halakhic dimension. On top of it there is the halakhic dimension — what is forbidden, what is permitted, what one is obligated to do. But first there is the general human social dimension. Noahides who marry each other are, among other things, agreeing to exclusivity of sexual relations: we have sexual relations only with each other and not outside. Okay? Now here, even if from the standpoint of prohibition I wasn’t aware of it — I made a mistake about the prohibition — still, it is clear that I dissolved the social institution. At the end of the day, the marital unit is no longer exclusive; it doesn’t exist in fact. This is not a sanction for having committed a transgression. The marital unit no longer exists. We are divorced. We are divorced in the universal sense. No bill of divorce was given here. In order to release her and dissolve the betrothal, one must give a bill of divorce. But the marriage, which is a social institution, no longer exists. And I think there is another interesting aspect here. The Talmud says that we have not found “the wife of two dead men.” What does that mean? A woman whose husband dies childless is subject to levirate marriage. Okay? Can there be a woman who had two husbands, both of whom died, and she is subject to levirate marriage from both brothers? No, that’s impossible. Why? Because a woman cannot be married to two husbands. If she is married to one husband, the betrothal of the second one does not take effect, right? You can’t be married to two husbands. Okay? Clear?

[Speaker C] The first husband died, she was his widow, then she married someone else?

[Rabbi Michael Abraham] No, no, no. She can’t marry, because she is subject to levirate marriage. Fine. She cannot be simultaneously obligated in levirate marriage in two directions — that’s what the Talmud says.

[Speaker C] It would be from two brothers in any case.

[Rabbi Michael Abraham] No, it’s speaking of two different husbands, not brothers. She had two different husbands, both died, so the brother of the first and the brother of the second should both perform levirate marriage with her. No — there can’t be such a state. There cannot be a situation in which she is obligated in two levirate marriages. Only from the first? Obviously, because there is a first husband; there is no second husband. A woman cannot have two husbands.

[Speaker C] And if he died?

[Rabbi Michael Abraham] Fine, those are the laws of levirate marriage. If they’re not brothers then there is release, and she’s not obligated in levirate marriage. Okay? That’s what is meant by “we have not found the wife of two dead men.” Fine. Now there is the law of the designated maidservant. The designated maidservant is half slave and half free. Say I freed half my maidservant. Now she is half slave and half free, and she is married to a Hebrew slave. That’s called a designated maidservant — the details don’t matter now. Now, with a designated maidservant, the rule is that if someone has relations with her — she is the wife of the Hebrew slave — then he is liable to bring a guilt-offering. But he has not violated a prohibition. There is no prohibition. By the way, she did violate a prohibition, but he did not. And this is the only case in Jewish law where there are sexual relations in which only one side is liable and the other side is not. Meaning, one side committed a prohibition and the other side did not. All sexual prohibitions in Jewish law are symmetrical. Both parties to the relation commit the transgression. Here, no. It doesn’t matter whether it was consensual — both parties usually commit the transgression, or in coercion, whatever — usually both parties commit a transgression. Here this is the only case where there is a transgression only on one side: only she committed a transgression, he did not. He brings a guilt-offering, but he did not commit a prohibition. Okay? Now Pnei Yehoshua asks: if so, then we have indeed found “the wife of two dead men.” Take a designated maidservant married to a Hebrew slave, and now someone else betrothed her. Does betrothal take effect or not? Yes, because after all he can have relations with her, right? She is not a forbidden relation. He can have relations with her — there is no prohibition in having relations with her; he just brings a guilt-offering. So this is not like forbidden sexual relations where betrothal does not take effect because she is a forbidden relation and you can’t have relations with her. Here you can have relations with her, there is no prohibition. So betrothal takes effect. If the betrothal takes effect, then it turns out she is the wife of two husbands. So yes, we have found “the wife of two dead men” — that is Pnei Yehoshua’s question. Avnei Miluim says no, we have not found “the wife of two dead men.” Why? Usually, with forbidden relations, why does betrothal not take effect? Because of the severity of the prohibition. If you have relations with your sister, that is a very severe prohibition, and a forbidden sexual relation prevents betrothal from taking effect. If you betroth your sister, the betrothal does not take effect. Okay? With another man’s wife, that is a special category of forbidden relation. When I want to betroth someone else’s wife, why does the betrothal not take effect? Avnei Miluim says — or Pnei Yehoshua says — there are two reasons why betrothal does not take effect. One reason is the severe prohibition: she is another man’s wife; it is a forbidden relation to have relations with her. The second reason is that she is someone else’s wife. She is not available to receive betrothal; she is not on the open market. You can’t betroth her because she is already someone’s wife. That is another reason why betrothal does not take effect with another man’s wife, and this is unlike every other forbidden relation — sister, mother, daughter, whatever — where it is only the severity of the prohibition. With another man’s wife there are two reasons why betrothal does not take effect: both because of the severity of the prohibition and because she is someone else’s wife. Pnei Yehoshua says: if so, then someone who betroths a designated maidservant — his betrothal should not take effect. Why? After all, there is no prohibition; he can have relations with her and there is no prohibition. True — but she is someone else’s wife. That aspect does exist in her case. She is married to someone, and therefore the betrothal does not take effect. Again, what do we see, as with Maharik? That the institution of marriage is a social institution that exists even before the prohibitions. There is no prohibition on having relations with her, everything is fine, okay? Yes — but she is someone else’s wife. So what does that mean? That at the level of the social institution there is already a marital unit, she already belongs to a marital unit. That says nothing in terms of the halakhic prohibition — halakhically, you are allowed to have relations with her, okay? You may be forbidden to have relations with her under Noahide law, not important now. Halakhically, you may have relations with her. But she is someone else’s wife at the level of the social institution. The social institution exists: someone else’s wife. Exactly what we saw in Maharik.

[Speaker C] If the Hebrew slave husband is expected to go free in a few months, and she became pregnant from that other man, the child wouldn’t be a mamzer?

[Rabbi Michael Abraham] Why a mamzer? Because she’s another man’s—

[Speaker C] Wife.

[Rabbi Michael Abraham] But if she became pregnant after he went free?

[Speaker C] She became pregnant while he was still a slave.

[Rabbi Michael Abraham] So what’s the problem?

[Speaker C] By the time she gave birth, he was already free.

[Rabbi Michael Abraham] It doesn’t matter when she gave birth; what matters is how he was conceived.

[Speaker C] According to the time of the intercourse?

[Rabbi Michael Abraham] Obviously. But in any case, I think he would not be a mamzer in the regular halakhic sense anyway, because there isn’t the prohibited intercourse here that would make him a mamzer. Mamzer status is not just— he would be a mamzer here in a Noahide social sense. After all, if a Noahide has relations with someone else’s wife, then the child is a mamzer in some social sense, but he is not a mamzer with full halakhic status, because there is no betrothal there, no sexual prohibitions in the halakhic sense.

[Speaker B] And in what status? Yes, also among gentiles. Meaning, if he did the— he divorced her without giving a bill of divorce. Not “betrayed her husband.” Then even if she didn’t know it was forbidden — we said that if she didn’t know that it was—

[Rabbi Michael Abraham] You mean a woman who is still betrothed, but the marriage has already been dissolved — he sent her out of his house. And now she had sexual relations with someone else inadvertently. Inadvertently regarding the prohibition or regarding the facts? Regarding the prohibition. Then in principle she should become forbidden, because a mistake about the prohibition does not exempt her. Okay? And you’re saying that here apparently not, because the halakhic prohibition still exists — she is betrothed.

[Speaker B] So does she now count as having betrayed her husband?

[Rabbi Michael Abraham] Yes, because she is betrothed to him. True, the marriage no longer exists, but she is betrothed to him.

[Speaker B] She didn’t dismantle the couplehood, if we—

[Rabbi Michael Abraham] Why not? She dismantled the halakhic couplehood. The universal couplehood doesn’t exist, but she dismantled the halakhic couplehood. But the halakhic couplehood is halakhic couplehood—

[Speaker B] And in that she didn’t dismantle anything. Why? Dismantling is universal dismantling — the fact that she sleeps with— no, what?

[Rabbi Michael Abraham] If she has sexual relations with someone while she is betrothed to me, that is not universal — it is halakhic. But halakhically she is betrothed to me.

[Speaker B] Yes, but she isn’t dismantling the structure.

[Rabbi Michael Abraham] Yes, she is dismantling the betrothal. Betrothal also binds us; it’s just a halakhic bond. I’m only arguing that even without betrothal there is a bond — the universal bond. But betrothal too is a bond. I’m not saying betrothal is not a bond. I’m saying there is the halakhic bond and the universal bond. I’m not claiming there is no halakhic bond; I’m claiming there is, in addition to it, a universal bond. Now, the Talmud says in Gittin 17, there the Talmud says: if the bill of divorce was written by day and signed at night, doesn’t matter now — what is Rabbi Shimon’s reason? He holds that once he has set his mind to divorce her, he no longer has rights to the produce. What does that mean? The Talmud says that from the moment he wrote the bill of divorce — the man goes to the scribe to write a bill of divorce for his wife — he has already basically decided to divorce her, okay? From that moment on, he no longer has rights in her usufruct property. Usually the husband has rights in his wife’s usufruct property: the principal belongs to her, the produce belongs to him, okay? Once he has set his mind to divorce her, he no longer has rights to the produce. Now notice: she is his wife in every respect. He has not yet given her the bill of divorce; he merely went to the scribe and asked him to write it. Okay? He has only set his mind to divorce her; he hasn’t divorced her. So why no produce? The answer is that his rights to the produce are part of the state of marriage. When we are married, part of the rights is that the produce of your usufruct property belongs to me. But at the stage of betrothal, no; before marriage it doesn’t exist. Now, once he has set his mind to divorce her — what does that mean in effect? He has already sent her out of his house. That is, she is already what you might call “divorced in his heart.” Meaning, they no longer live together. Fine, he still has to dissolve the betrothal formally, but they no longer live together. If they no longer live together, that means they have in effect returned to the state of betrothal. And here — I said earlier, someone asked why on the way out this doesn’t happen in two stages? I think you asked. So here we see that it does. From the moment he goes to write a bill of divorce, that is basically an indication that he has decided to divorce her. If he has decided to divorce her, the marriage has been nullified. At this point they are really betrothed, not married. He hasn’t yet given her the bill of divorce, hasn’t done anything formal yet, but in practice they are betrothed and not married. Therefore all the laws of betrothal return, including for example that he loses his rights in her usufruct property, the produce of that property. Because they have gone back to being betrothed. After he gives her the bill of divorce, he dissolves the betrothal too, fine. But from the moment he has set his mind to divorce her — once he has already decided in his heart to divorce her and gone to the scribe and told him to write the bill of divorce — they have returned to being betrothed. They are no longer married.

[Speaker C] What is usufruct property?

[Rabbi Michael Abraham] Usufruct property is property the woman brings with her from her father’s house or brings into her husband’s house.

[Speaker C] And how far does “set his mind to divorce her” go? Only if he actually went to the scribe, or even if he just got upset and left?

[Rabbi Michael Abraham] No, just getting upset doesn’t count. It has to be a decision. Now the question is what counts as a decision. Here the Talmud says that if you went to the scribe and told him to write a bill of divorce, that means you already decided.

[Speaker C] And if he changed his mind afterward?

[Rabbi Michael Abraham] If he changed his mind afterward, then yes, he can change his mind. But as long as he hasn’t changed his mind, he’s in the state of having set his mind to divorce her. Because if he changes his mind, then basically he just has to marry her, since she is still betrothed to him. But marriage requires nothing formal — they simply have to live together. There is no act of marriage, and therefore it isn’t sharply defined, do you understand? If he changes his mind, then that’s it — they remarry. Meaning, the betrothal still exists. Okay. So yes, the claim is that they return to the state of betrothal. Now, for example, Rif says that the produce belongs to the husband until the moment the bill of divorce is given, not from the time of writing. Why? Because the produce was enacted in exchange for his obligation to redeem her. You receive rights to the produce of her usufruct property, and in exchange you have the obligation to redeem her from captivity if she falls captive. So rights in the marriage contract are defined in parallel to obligations. The produce corresponds to the duty to redeem her. You are obligated to redeem her, and in exchange you are entitled to the produce of her usufruct property, okay? So Rif says the obligation to redeem her certainly continues until the complete divorce. And since the duty to redeem is what corresponds to the right to the produce, then obviously the right to the produce also lasts only until the time of giving. But there are authorities who say no — once he has set his mind to divorce her, he no longer has rights to the produce. What about redeeming her? So what — he remains obligated to redeem her but receives only the obligations, not the rights? Some want to say yes. Why? Because after all, he decided to divorce her. You decided — bear the consequences. She should not lose her rights because you decided to divorce her. You decided to divorce her, so from your side you lost your rights. By your decision you cannot damage her rights. But there are those who want to argue that the duty to redeem her also no longer exists. Meaning, not only does he lose the produce from the moment he has set his mind to divorce her, but in fact he is no longer obligated to redeem her. And that sharpens even more the fact that from the moment he has set his mind to divorce her, they have returned to being betrothed. This is not just a specific law about produce; no — we have moved back from marriage to betrothal once he sets his heart on divorcing her. Look, for example, the Talmud says on the next page in Gittin: Rav Kahana, Rav Pappa, and Rav Ashi acted from the time of writing. When a woman is divorced, she must afterward wait three months before marrying someone else — familiar? Why? So that if she becomes pregnant after marrying someone else, it will be clear to us whether the child is from the first husband or the second. Now the Talmud assumes pregnancy lasts either seven months or nine months. There are two kinds of pregnancy. So if, say, she gives birth after seven months from marriage to the second husband, we have a doubt: maybe this is the child of the second husband and the pregnancy lasted seven months, or maybe it is the child of the first husband and the pregnancy lasted nine months. Therefore she must wait three months so that such a doubt does not arise, so we won’t be left with such uncertainties, okay? Therefore she has to wait three months. Now the Talmud discusses from when we count. Presumably from the time she received the bill of divorce — from the time she was divorced, three months. The Talmud says no: Rav Kahana, Rav Pappa, and Rav Ashi acted from the time of writing, while Rav Huna son of Rav Yehoshua acted from the time of giving, and the law is from the time of writing. From the time he wrote the bill of divorce, we count. Why? Separation. And Maimonides says: “For a divorced woman, we count from the day the bill of divorce was written, even if it was conditional or did not reach her hand until years later — from the day of writing we count. Why? Because he no longer secludes himself with her once he has written it for her.” Now one could have said that this is just the way of the world — he doesn’t seclude himself with her once he wrote it, because people no longer behave that way; they have already separated emotionally, psychologically, so they don’t do it. But no — in Gittin 90 we see that there is a prohibition against having relations with her once he has set his mind to divorce her. It is not merely that usually it doesn’t happen. No — it is forbidden. Rav Mesharshia said to Rava: if he intends to divorce her while she sits beneath him and serves him — meaning they continue marital relations even though he has already decided to divorce her — what is the law? About him it is read: “אל תחרוש על רעך רעה והוא יושב לבטח אתך” — “Do not devise evil against your neighbor while he dwells trustingly beside you.” It is forbidden. So this is called in tractate Nedarim “children of a woman divorced in the heart.” Yes, “וברותי מכם המורדים והפושעים בי” — “I will separate from among you the rebels and those who transgress against Me.” Rabbi Levi said: these are the children of nine categories. What are the nine categories? Various things; one of them is children of a woman divorced in the heart. If children are born from parents who are already basically divorced emotionally, these are children of a woman divorced in the heart — it is a blemish in the child. Fine? That means we really assume he does not have relations with her after she is divorced in the heart. There is a prohibition from the Prophets against having relations with her once she is divorced in the heart. I want to claim that this prohibition too joins or connects here. What happens after betrothal but before marriage? He is forbidden to have relations with her. Only after marriage — until then, like any unmarried woman, there is a prohibition on having relations with an unmarried woman. It’s not a severe prohibition, and it is considered that he had relations with an unmarried woman. He can only have relations with her from the stage of marriage. Therefore the Sages also instituted not to effect betrothal by intercourse but only by money, because they didn’t want intercourse before marriage at the stage of betrothal. Okay? So the claim is that in the state of betrothal, he is forbidden to have relations with her. Again — not the prohibition of another man’s wife, but the prohibition of an unmarried woman. In that respect she is considered unmarried; this is not yet marriage. The claim is that once he has set his mind to divorce her, they return to the state of betrothal. Therefore he is forbidden to have relations with her. You don’t need another source or another reason here — just as on the way in, at the stage of betrothal, it was forbidden to have relations with her, so too on the way out, at the stage of betrothal, it is forbidden to have relations with her. I’m trying to show that the path is symmetrical. Just as we build the marital bond, so too we dismantle it, in two stages. First of all she leaves the house and the marriage is dismantled, and afterward he gives the bill of divorce and the betrothal is dismantled. Last in, first out. Meaning, first I built betrothal and then marriage; in dismantling, first you dissolve the marriage and then you dissolve the betrothal. Okay?

[Speaker B] But Maimonides gives a different reason. What? Maimonides gives a different reason.

[Rabbi Michael Abraham] No, Maimonides brings a verse that it’s forbidden to do this, but because what?

[Speaker B] Because what?

[Rabbi Michael Abraham] Because it’s evil to do it. What does “evil” mean? Why is it evil?

[Speaker B] Because you are thinking evil thoughts.

[Rabbi Michael Abraham] She isn’t your wife.

[Speaker B] No — you’re thinking evil, and she knows nothing about it, and from her point of view—

[Rabbi Michael Abraham] So what? Then there is simply an obligation to tell her. What does that have to do with having relations? So tell her. There is an obligation to tell her. And if I told her, then is it okay to have relations with her? I told her that I’m going to divorce her, and we want to have relations — is that okay? The accepted view among the authorities is that it is not. Once she is divorced in the heart, no. Why not? Because one does not have relations with a betrothed woman.

[Speaker B] Why is that the reason the Talmud gives?

[Rabbi Michael Abraham] The Talmud doesn’t give a reason.

[Speaker B] It just says it’s forbidden, that’s all.

[Rabbi Michael Abraham] The Talmud says it’s improper. Yes. Well, you say it’s because of “do not devise evil…” If that were the reason, then why do we count the three months from the writing of the bill of divorce? If he told her, then everything is fine; he can have relations with her afterward too, right? If he told her.

[Speaker B] But there one could say it’s just the way of the world, that—

[Rabbi Michael Abraham] Not just the way of the world. In the simple sense it all connects. The fact that he doesn’t have relations with her is not because that’s the way of the world, but because it is forbidden to have relations with her. True, maybe one could force the reading that way.

[Speaker C] There are so many complications. If we say that we start counting the three months from the writing of the bill of divorce and not from the giving, why go into that unnecessary complication? He could have written the bill of divorce while she doesn’t know, then she gave him wine and got him drunk — it creates unnecessary complications.

[Rabbi Michael Abraham] What complications? He wrote the bill of divorce, but she is not divorced until he gives it to her. So what complications?

[Speaker C] Then why do we begin counting the three months from there?

[Rabbi Michael Abraham] Because from that point he doesn’t have relations with her. From the time he writes the bill of divorce. After all, the question is when the pregnancy began, right? The problem is attributing the child. So if he didn’t have relations with her, then there is no pregnancy from the first husband.

[Speaker C] Fine, but she may not know; there can be cases where he does have relations with her, whether intentionally—

[Rabbi Michael Abraham] It could happen, but we don’t go to that extreme. The assumption is that he doesn’t have relations with her. And it’s also forbidden. There is a Talmud in Bava Batra 146. The Talmud brings a case: Rav Yehuda said in the name of Rav: there was an incident involving a man who was told that his wife had no sense of smell. He went after her into a ruin to test her. He didn’t know this — it’s a defect — and so he wanted to divorce her. He went in to test whether she really lacked a sense of smell. He said to her: I smell radish in the Galilee.

[Speaker C] Isn’t one forbidden to enter a ruin?

[Rabbi Michael Abraham] Because— “and he went after her into a ruin to test her.” That was the incident.

[Speaker C] Why specifically a ruin?

[Rabbi Michael Abraham] I don’t know, she was there, it doesn’t matter.

[Speaker C] Is it a matter of going outside the city?

[Rabbi Michael Abraham] No, no. The prohibition against entering a ruin is in tractate Berakhot; that’s something else. He went after his wife into a ruin — doesn’t matter where — to check whether she really had no sense of smell, because if so he wanted to divorce her. He didn’t want a wife who couldn’t smell. He said to her: I smell radish in the Galilee. She said to him: who would give us dates that smell like that, so I could eat them with it? Fine? So that means she really doesn’t smell. Okay? He told her there was a smell of radish there and she agreed with him even though there was no smell of radish. Meaning, she doesn’t smell. Okay? Then the ruin collapsed on her and she died. He still had not divorced her, but obviously he wanted to divorce her, because after all he had gone in to test her in order to divorce her. And the test showed that she really lacked a sense of smell. Okay? The Sages said: since he entered after her only in order to test her — and she died — he does not inherit her. Fine? If she dies, he does not inherit her. So Rashbam there says as follows: yes, the ruin collapsed on her and she died. The husband came before the court and wanted to inherit his wife. And the Sages said: since he did not enter with her in order to have relations with her, but only to test her and divorce her, and she died in the meantime, he does not inherit her. There are versions that read this differently and establish the case as one of a betrothed woman. It is speaking of a woman who was betrothed. Why? Because she didn’t receive a bill of divorce, right? So why doesn’t he inherit her? She is his wife. Because she was betrothed, not married. And with a betrothed woman, you do not inherit — inheritance only comes after marriage. Okay? So they explained the case as concerning a betrothed woman. And when she died, she died before he managed to divorce her, right? So she died as his betrothed, and since she died as his betrothed, he does not inherit her.

[Speaker C] Was there any necessity to establish it as betrothed?

[Rabbi Michael Abraham] Because if she was married, then why wouldn’t he inherit her? So what if she died?

[Speaker C] He had gone in to divorce her.

[Rabbi Michael Abraham] So what? He still had not given her a bill of divorce. You’re already heading in exactly the direction I want to show here, but on the surface — what does “set his mind to divorce her” mean? Either he gave her a bill of divorce or he didn’t.

[Speaker B] If he didn’t give her a bill of divorce, then she is his wife, so why doesn’t he inherit her?

[Rabbi Michael Abraham] So indeed some of the early authorities said: no, it is speaking of a betrothed woman. Who cares? Exactly — they come to say that having set his mind to divorce her changes nothing, perhaps. Although even that doesn’t work, because if she is betrothed, then what difference would it make? Here it wouldn’t matter. Right? Therefore Rashbam rejects that. Rashbam says: “This does not seem right to me, because even if he had relations with her during betrothal before she entered the canopy, he still would not inherit her,” as taught by Hanan bar Ami, etc. Clearly. “The one who is his close kin from his family shall inherit her” — that is only after she has entered the canopy. Inheritance is only after she enters the canopy. She has to be his “close kin,” and that applies only after she has entered the canopy. Therefore, says Rashbam, we establish it as a married woman, not a betrothed woman — a woman who, in principle, if she died while married, he ought to inherit. And this is the correct reading: “The Sages said: since he entered after her to test her, and she died, he does not inherit her.” Since it was in his mind to divorce her if he would find her to have a defect, and in the meantime she died before they were reconciled, he does not acquire the inheritance. “And from here we learn” — now he draws a conclusion — “that one whose wife dies during a quarrel in which he had in mind to divorce her, he no longer inherits her, as we say in tractate Gittin: once he has set his mind to divorce her, the husband no longer has rights to the produce.” He explicitly connects it to the passage in Gittin. What is he saying? It’s not just that he went in after her to test her. Even if they merely quarreled and he decided he no longer wants to live with her — from that point on, he has no produce rights; from that point on, he does not inherit her. In other words, they have returned to the stage of betrothal. Now notice: there is a very big innovation here. Why? Because rights to the produce of usufruct property are a rabbinic law — that the husband acquires the produce of usufruct property. The marriage contract is rabbinic law.

[Speaker B] But inheritance is Torah law; we learn it from “his close kin.”

[Rabbi Michael Abraham] A verse. And what Rashbam is basically saying from the Talmud there — which is a rabbinic law, that from the moment he has set his mind to divorce her he has no produce rights — from there we learn the Torah law. Why? Maybe the rabbinic enactment was only that in such a situation he no longer has rights from the moment he has set his mind to divorce her. How do you know that for Torah law? Clearly he understood that once he has set his mind to divorce her, she simply reverts to being betrothed. That’s all. Consequently, all the laws — rabbinic, Torah-level, everything — revert to those of a betrothed woman. So the practical implication there regarding produce is a rabbinic implication. Therefore, what the Talmud is really saying is that she has reverted to being betrothed. If she has reverted to being betrothed, then the same applies also in Torah-level consequences. Therefore Rashash there writes that according to Rashbam, not only does he not inherit her, but he also may no longer become impure for her. If he is a priest, who is forbidden to become impure through contact with a corpse, when his wife dies he may become impure for her, because she is his close kin, at the beginning of the portion of Emor. Right? So he says no: if he has set his mind to divorce her, he no longer becomes impure for her. And that too is Torah law, because “his close kin” is learned from the Torah. Meaning, according to Rashbam at least, from the moment he has set his mind to divorce her she fully returns to the state of betrothal, including Torah-level laws, not just rabbinic laws but Torah-level laws too. Does he need to betroth her again when they reconcile? No, because she is already betrothed. He just has to marry her again — but marriage is nothing formal, it is simply beginning to live together again; that is called marrying. Wait — when she returns to the status of a betrothed woman, “betrothed” means after betrothal but before marriage. He has to marry her again, but marriage simply means beginning to live together; the laws of marriage are like the gentiles beginning to live together — that is called the laws of marriage. There is no halakhic act here, and Jewish law has nothing to say about it. Only betrothal, which is the innovation of Jewish law — there Jewish law also says what to do with it. Okay? So betrothal and engagement are the same thing? Yes, betrothal and engagement are the same thing. Okay, I won’t go into the last example, but there is another example where the Talmud at least — there is a dispute among Tosafot, but according to at least one of them — kinship remains even after death. What does that mean? If the husband — if the woman dies and someone has relations with her, a necrophiliac, someone has relations with her, okay? Then he is also having relations with a married woman. How can she be a married woman? She’s dead. So she is not married to the husband. If the husband dies, she is released; but what if she dies? If she dies, there remains kinship. What does that mean? The betrothal has lapsed; with the death of the woman or the death of the husband there is no longer a bond of betrothal, but the bond of kinship, which is the social bond, the social institution, still remains. And that is one side of a dispute among Tosafot. Again we see that even when the betrothal no longer exists, that still doesn’t mean that no bond remains; kinship can still remain in force. Okay? Good, maybe one more sentence. There is another implication regarding eating priestly food. The Talmud brings two different sources about a priest’s wife eating priestly food. One is “כי אם לשארו הקרוב אליו”, and another is “וכל טהור בביתך יאכל קודש” — no, “his close kin” is about impurity. “Every pure member of your household may eat holy food,” and “everyone in his house may eat of it,” something like that — I don’t remember the exact verse now. Two sources. Some later authorities explain that one source is for betrothal and one source is for marriage. When the woman is betrothed to me, she eats priestly food under the rule of “his money-acquisition may eat of it,” and after she is married to me, she eats under the rule of “everyone in his household may eat holy food,” I don’t remember the exact verse, something like that. What is the difference? In betrothal she is my legal acquisition, but we are not yet fully a couple, not yet married. So she eats — she’s no worse than my slave — she eats as the priest’s acquisition. Okay? But after marriage she eats because she is a priestly wife. She is, so to speak, a priestly person, because we are a couple, and a couple is one unit. Not because she is a monetary acquisition. Again you see practical implications. When the Talmud discusses “the acquisition of one who himself is an acquisition,” what about the acquisitions of his wife? Do her slaves also eat priestly food? Or her animal? During betrothal, no; during marriage, yes. Because during betrothal she eats by virtue of being his acquisition, so her acquisition is just the acquisition of one who is an acquisition — and that no longer eats priestly food. But after marriage she herself is, as it were, priestly — she eats priestly food because she is priestly like me. Then her acquisition is the acquisition of a priest, and it eats priestly food. Okay? So once again we see this transition between betrothal and marriage. Betrothal creates a certain bond, but kinship, the marital unit, is created with marriage. That is something universal. Good. Even during betrothal she is an acquisition of the priest? Even during betrothal — like what a slave acquires, no? Her acquisitions during betrothal do not eat priestly food? No, according to this, they do not. I don’t remember at the moment whether this is explicitly in the Talmud, but that’s what these later authorities say, because it’s “the acquisition of one who acquired an acquisition.” The acquisition of one who acquired an acquisition does not eat priestly food. For example, if my slave acquires another slave, okay? Does that second slave eat priestly food? The Talmud discusses there whether he eats priestly food.