On today’s daf, the Gemara references a mishnah from later in the tractate that says:
If a husband says, “This is hereby your bill of divorce if I do not return between now and 12 months from now,” and he died before the 12 months have passed, then it is not a valid bill of divorce.
A husband is about to set off on a journey and stipulates that he will divorce his wife in 12 months’ time if he does not return beforehand. If a year passes and he does not appear, the couple is automatically divorced.
However, if the reason that he does not return is that he died sometime during those 12 months, she is a widow and not a divorcee. And if the husband has died childless, his widow becomes subject to a levirate bond and must marry her brother-in-law or complete the halitzah ritual that severs the bond and allows her to remarry a person of her choosing.
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But, despite this mishnah, which is eminently clear on the halakhah, the Gemara on today’s daf states:
(In the event that he died childless during those 12 months) our rabbis permitted her to marry.
Despite what this mishnah says, some rabbis allowed the woman to remarry without halitzah. But which rabbis? Indeed, this is the Gemara’s next question:
Who represents the opinion cited as our rabbis?
Rav Yehuda says that Shmuel says: It is the court that permitted the consumption of oil manufactured by gentiles.
As we’ll learn, the rabbis limited (and sometimes prohibited) the use of items that were owned or made by non-Jews. Sometimes, this was out of concern that the items were used for idolatrous purposes, and other times these rules emerged from a desire to keep the Jewish community separate from their non-Jewish neighbors. A mishnah on Avodah Zarah 35b includes oil manufactured by gentiles on the list of forbidden items.
So whose court overturned these two rulings, one about using gentile-made oil and the one about the woman whose husband gave her a conditional get and then died? The mishnah suggests that it was Rabbi Yehuda HaNasi’s court, but the Gemara (Avodah Zarah 37a) reports that it was Rabbi Yehuda HaNasi’s grandson, Rabbi Yehuda Nesia, who had a similar name and title.
But even if we are not exactly sure who made the change, there is little confusion as to the reason why. Avodah Zarah 36a reports:
Rabbi Shmuel bar Abba says that Rabbi Yohanan says: Our sages sat and inspected the matter of gentiles’ oil and determined that its prohibition had not spread among the majority of the Jewish people, and our sages relied upon the statement of Rabban Shimon ben Gamliel and upon the statement of Rabbi Elazar bar Tzadok, who would say: The sages issue a decree upon the community only if most of the community is able to abide by it.
The people didn’t stop buying oil made by their non-Jewish neighbors, and so the rabbis retracted that rule.
In Tractate Gittin, we’ve been introduced to changes the rabbis made to the law to prevent conflict between neighbors (mipnei darchei shalom) and correct for unintended outcomes that create problems for those that the law meant to protect (mipnei tikkun olam). The conversation in Avodah Zarah tells us that the rabbis were also willing to reverse a rabbinic prohibition when the community was unable, or perhaps unwilling, to abide by it.
The Gemara does not tell us what motivated the court to allow a woman to remarry freely when her husband dies childless during the time that he is away but before the date upon which his failure to return triggers a divorce. Did they act because the community would not accept that she was under a levirate bond? Were they motivated to do so because the rule in the mishnah was flawed in their eyes? We are not sure.
What is clear is this was not the only occasion when this particular court made a change that uprooted the legal status quo, and they were willing to do so for reasons of social benefit and practicality. And that is how the Gemara remembers them.
Read all of Gittin 72 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 27th, 2023. If you are interested in receiving the newsletter, sign up here.
