Rabbi Eliezer's View of Divorce Ela Li-floni

  • Rav Moshe Taragin
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In loving memory of
Yitzchak ben Chaim Zvi Schwartz z"l, who passed away on 13 Shvat 5771
and Sheva Shayndel bat David Schwartz z"l, who passed away 13 Shvat 5778
Dedicated by Avi and Sarah Schwartz
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The first mishna in the ninth perek of Gittin (82a) discusses a husband who drafts a get for his wife in which he limits her “release.” In a classic get scenario, the divorced woman can marry any man she chooses - “Harei at muteret le-khol adam.” In the instance of geirushin chutz mi’floni described in the mishna, the husband stipulates that she is released from the previous marriage but cannot marry a specific individual or individuals — “Harei at muteret le-khol adam ela li-floni,” “You are hereby permitted to anyone, excluding so-and-so.” The Chakhamim disqualify this type of get since it contradicts the doctrine of keritut (severing), which stipulates that a get must completely annul the entire relationship between the husband and wife; by retaining a residual prohibition to even one marriageable person, the get hasn’t fully annulled the marriage. Rebbi Eliezer disagrees and validates geirushin chutz mi’floni where a residual prohibition remains.
 
This shiur will trace Rabbi Eliezer’s possible responses to this issue. Perhaps Rabbi Eliezer questions the very principle of keritut. Perhaps a get can be partial, and one which retains eishet ish (married woman) limitations for a ploni is valid despite its lack of comprehensive scope. To be sure, an earlier gemara (Gittin 78b) describes a get which is delivered while still tethered to the husband (get be-yada u-mshicha be-yado) and invalidates it based on keritut concerns. However, that scenario reflects an imperfect delivery of the get or a concern of keritut regarding the ma’aseh netinat ha-get (the act of delivering over the bill of divorce).  Perhaps Rabbi Eliezer concedes that a non-definitive delivery would be disqualified based upon keritut issues. However, limiting the scope of the woman’s halakhic release would not violate keritut and would not be disqualified based upon a failure to effect keritut.
 
A different approach to understanding Rabbi Eliezer’s view would assert that he too disallows non-comprehensive gittin which do not fulfill the keritut requirements. In fact, a different gemara does appear to disqualify a get with limited halakhic scope based on the keritut doctrine even according to Rabbi Eliezer. The gemara in Gittin (83b) describes a get given for one day with the aim of allowing the marital status to automatically be resurrected after that day. At least according to the Rambam, this get fails the keritut requirement even according to Rabbi Eliezer. Evidently, Rabbi Eliezer also demands keritut, yet somehow allows sculpting a get while still retaining residual prohibitions for certain people or for ploni.
 
Even though Rebbi Eliezer admits to keritut concerns perhaps he disconnects the halakhic release of the woman and removal of her eishet ish status from the annulment of the ishut relationship. A get performs two unrelated halakhic functions: it cancels the relationship and independently it creates a heter (allowance) of marriage to another by cancelling the eishet ish status. In a previous shiur, we elaborated upon these two components of halakhic marriage and explored the possibility that the status of eishet ish doesn’t derive from the ishut relationship but is autonomous and autonomously removed in the geirushin process.  
 
Rebbi Eliezer may claim that keritut only qualifies the relationship annulment or cancellation of ishut. Indeed, if the husband cancels the relationship for a day, he hasn’t created full severance. However, if he does create full severance but independently limits the scope of the heter eishet ish, he hasn’t violated keritut demands; in this instance of chutz mi’floni the entire ishut has been cancelled even though independently the woman remains prohibited to several people. Rabbi Eliezer adopts keritut concerns but develops a new paradigm for the functionality of a get. A get independently cancels the relationship between husband and wife and separately lifts the status of eishet ish which bans her from marrying others. Delimiting the scope of the release toward others in no way compromises the keritut levels of the get or the degree to which the ishut has been entirely cancelled.
 
If, indeed, Rabbi Eliezer develops a new mapping of the execution of a get, we might expect additional novel halakhot highlighting the independence of these two components namely the ishut relationship and the prohibition to marry others. For example, Gittin (82b) implies that a husband can divorce his wife while not releasing her to any additional marriages. By stipulating that she should remain prohibited to all other men, the husband seeks to annul their relationship without lifting the issur eishet ish at all. According to Rashi and the Tosafot Rosh, this is effective and she is defined as a divorcee (gerusha) and cannot marry a Kohen. This would indicate that Rabbi Eliezer completely severs the issur component from the status of eishet ish; the former can be relieved even without affecting the latter. Tosafot (82b) s.v. Afilu disagree, possibly because they cannot accept a complete separation between the ishut and the status of eishet ish, even according to Rabbi Eliezer. Perhaps Rabbi Eliezer is just arguing that geirushin doesn’t require complete keritut.
 
A reverse scenario would concern a person who delivers a get ela li-floni with residual prohibitions for certain people, which again is a valid get according to Rabbi Eliezer. The first get completely cancels the ishut relationship but sustains prohibitions for certain individuals. Subsequently, the original husband delivers a second get to lift the prohibition from the people who weren’t included in the first get. Abbayei (Gittin 82b-83a) poses this question and implies that fundamentally this process would be legitimate. The second get merely removes residual eishet ish prohibitions but doesn’t cancel any ishut, since that has been completely dismantled by the first get. Presumably, these two components are completely distinct and a typical get both cancels ishut as well as independently removes the eishet ish limitations. According to Rabbi Eliezer, a get may be calibrated to achieve only one of its separate and autonomous functions. By contrast, Rashi’s comments to that gemara may indicate that he disagrees with this dual-process get, perhaps because the second get doesn’t cancel any ishut and cannot be considered a halakhic get.
 
Perhaps understanding Rabbi Eliezer’s logic may assist in better appreciating an intriguing derivative halakha. What would occur if the woman previously divorced through a get ela li-floni were to remarry someone else who was included in the original geirushin only to be divorced (again) or widowed from this second husband. May she then circle back and marry a person who wasn’t included in the original get? Rabbi Eliezer claims that she may, which incites the opposition of Rabbi Shimon ben Elazar, who questions (Gittin 83b): “Heikhan matzinu she-zeh oser ve-zeh matir?” “Where have we found that this one prohibits and that one permits?” It is inconceivable that the original husband creates the initial issur of eishet ish (through their initial marriage) and the second husband creates a subsequent heter (through his divorce or death).
 
Perhaps Rabbi Eliezer disagrees with Rabbi Shimon ben Elazar’s entire premise: the issur of eishet ish doesn’t stem from any particular person’s relationship of ishut with a woman. It is an independent objective status which devolves upon a married woman much the way the status of basar be-chalav devolves upon meat and cheese which come in “cooked” contact - independent of how that contact is created. If a person cooks basar be-chalav, we would not identify the status and the prohibition as belonging to that person; similarly we would not identify a woman’s eishet ish status as a personal issur created by the launch of ishut in her initial marriage. In theory, the second husband — through divorcing the woman — can lift as residual issur created by someone else’s marriage (which was never fully removed by the original limited get ela li-floni from the first husband).
 
Perhaps the question of how to understand Rabbi Eliezer’s shita which validates geirushin chutz mi’floni is raised by Rabbi Abba when he considers (Gittin 82b) kiddushin ela li-floni according to Rabbi Eliezer. Would Rabbi Eliezer similarly validate a kiddushin which prohibits a woman but excludes individuals who may still marry her? If Rabbi Eliezer completely disconnects ishut from the eishet ish status, he should equally validate limited-scope geirushin and limited-scope kiddushin. The status of eishet ish is a completely autonomous status which can be calibrated during kiddushin and geirushin, independent of the separate creation (kiddushin) or disruption (geirushin) of ishut.
 
However, if his approval of a get ela li-floni is based upon his rejection of keritut as a condition for geirushin, kiddushin is different and certain unique factors may demand that it be comprehensive. As Rabbi Abba implies, the kinyan factor within kiddushin may demand that the acquisition be comprehensive. According to this second model, Rabbi Eliezer agrees in general that eishet ish stems from the ishut, but he isn’t concerned about a partial get. If kiddushin (unlike geirushin) must be comprehensive and eishet ish derives from ishut, Rabbi Eliezer may claim that kiddushin ela li-floni may be invalid despite the validity of geirushin ela li-floni.
 
Having established two different models toward understanding Rabbi Eliezer perhaps the differing logics may be discerned in the various pesukim cited (ibid.) as sources for his novel position. Rabbi Yannai cites the phrase describing a get as permitting a woman to marry a different man (“vehayeta le-ish acher,” Devarim 24:2) implying that even a get which only permits her to marry one person is legitimate. This verse may telegraph that halakha isn’t concerned with keritut. Indeed, the release of eishet ish stems from the cancelation of ishut, but that cancellation may be limited and not comprehensive — even for one man. By contrast, Rabbi Yochanan cites Vayikra 21:7, which designates a woman as a divorcee (and prohibited to marry a Kohen) even if she is only “gerusha mei-isha,” “divorced from her husband [alone].” This phrase doesn’t highlight the limited heter but rather the independence of the ishut cancellation. A divorce can address the ishut while totally ignoring any attempt to repeal an issur eishet ish, because the two components are completely independent.
 
Finally, questioning whether Rabbi Eliezer agrees to a concern of keritut (but merely disconnects ishut from the status of eishet ish) or completely ignores the keritut condition (as it applies to the scope of a get) will determine whether Rabbi Eliezer can accept other forms of keritut-based disqualifications. The original subject of the dispute between Rabbi Eliezer and the Chakhamim concerns a situation in which a man divorces his wife but retains residual issurim for certain individuals. Gittin 85a explores multiple forms of geirushin which fail because they don’t eliminate critical parts of the ishut relationship. What if the (ex-) husband retains the right to cancel the woman’s vows? What if the ex-husband retains the right to inherit the woman’s property upon her death? What if she retains the right to eat teruma by virtue of her ex-husband’s being a Kohen? Would any of these gittin fail because of the lack of definitive keritut?
 
The Gemara explores these options, and it is unclear whether the possible failure of these gittin is an issue only according to Chakhamim or even according to Rabbi Eliezer. If Rabbi Eliezer validates a get ela li-floni because he rejects keritut as a governing factor in the scope of a get, he would not consider these possible failures. A get doesn’t require keritut; just as a get can retain certain prohibitions to specific men it can also retain certain marital rights for the husband. If, however, Rabbi Eliezer validates a get ela li-floni because he views the issur of eishet ish as independent of ishut (so that its retention wouldn’t be a residue of the ishut) perhaps he, as well, may invalidate these gittin. The right to inherit and the right to cancel vows — unlike the issur eishet ish — may be considered derivative elements of the ishut. Therefore, their retention may constitute a flaw of keritut.