We’re in the middle of discussing conditional divorce decrees. Some conditions, like not drinking wine for a period of time, have been relatively mundane. Others, like not remarrying with a specific person, have felt extremely personal. And on today’s page, the conditions get downright outlandish:
The sages taught (Tosefta 7:8) that if a man says to his wife: “This is your bill of divorce on the condition that you ascend to the sky, or on the condition that you descend to the depths of the sea, or on the condition that you swallow a four-cubit reed, or on the condition that you bring me a 100-cubit reed, or on the condition that you cross the Great Sea (Mediterranean) by foot …” or on any other condition that it is impossible to fulfill, it is not a valid bill of divorce.
These conditions are absurd, and intentionally so. No one is going to cross the Mediterranean on foot or fly. It’s like the equivalent of saying to one’s wife: You can have your divorce when pigs fly. One might think it’s a no-brainer to deem this an invalid divorce document, but the rabbis are not unanimous:
Rabbi Yehuda ben Teima says: A bill of divorce like this is a valid bill of divorce, as the condition is void.
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Rabbi Yehuda ben Teima said the following principle: With regard to any condition that cannot be fulfilled in the end, yet even so the husband stipulated it initially, he is only hyperbolizing. It is assumed that he did not really intend to attach a condition to the divorce, but rather, to cause her distress, and therefore the divorce is valid without her fulfilling the condition.
According to Rabbi Yehuda ben Teima, the husband is being a jerk, so we ignore him and treat the bill of divorce as valid. This fits with the general principle on Bava Metzia 94a that contractual conditions that cannot be fulfilled are void, and the Gemara tells us that the halakhah follows Rabbi Yehuda ben Teima’s position, not the majority (as is standard).
We’re then presented with three more possible conditions of a different nature: (1) that she eat pig meat; (2) that she have sexual intercourse with a specific person and (3) that she have sexual intercourse with either her own father or her husband’s father. All three are physically possible but a violation of the Torah — either through transgressing the laws of kashrut or committing adultery. Yet, the rabbis find the first two conditions legitimate, but the last not. Why?
Granted, with regard to pig meat, it is possible for her to eat it and be flogged. Similarly, if the condition is that she engage in sexual intercourse with so-and-so, it is also possible for her to bribe him with money to engage in sexual intercourse with her.
But with regard to the case of my father or your father, is it in her power to engage in sexual intercourse with them? Though she can potentially perform a forbidden act in order to fulfill her desire to get married, would my father or your father perform a forbidden act?
These actions are a violation of Torah but, in the case of the first two, something she could possibly complete. The woman could eat pork, and accept the punishment (flogging). She could bribe a non-relative to sleep with her. In contrast, presumably the fathers in question would be unwilling to sleep with her. As a result, this particular condition is consider as the ones we saw before — like flying, impossible to fulfill — and therefore the condition is meaningless and the bill of divorce stands without any action on her part.
You might think all conditions that violate halakhah, like eating pork, would be invalid, but that’s not what the Gemara concludes:
Rather, Ravina said: When we say that if one stipulates counter to that which is written in the Torah, that his condition is void, the reference is to a case such as that of a man who stipulates that he will not be obligated to provide his wife with her food, her clothing and her conjugal rights, as by attaching this condition he is definitely uprooting a matter of Torah law. But here, is he saying to her that it is not possible for her not to eat? She may not eat and not get divorced.
This, ultimately, is what gets codified in the Shulchan Aruch: The husband may not set conditions that allow him to escape his obligations under halakhah, but the wife has a choice (at least in some way) to abstain from pig meat and remain married or eat pork and get divorced. These are grotesque options, but the question is not whether this is decent on the part of the husband. The question is whether it is legally valid, and the Gemara finds in the affirmative.
Read all of Gittin 84 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 8th, 2023. If you are interested in receiving the newsletter, sign up here.
