Avodah Zarah, Daf Lammed Zayin, Part 2
Introduction
In yesterday s section we learned that if a man writes a get and tells his wife that it is valid if he does not come back in twelve months, and then dies during that period, R. Judah Nesi a allowed her to remarry. He held that the date written in the get proves that the husband meant it to become valid retroactively on that day. The other rabbis held that the man meant his get to take effect only after twelve months. And since he died before the twelve months were up, her status is that of a widow and not a divorcee.
א"ל רבי (אליעזר) [אלעזר] לההוא סבא כי שריתוה לאלתר שריתוה דלא אתי או דלמא לאחר שנים עשר חודש דהא איקיים ליה תנאיה
R. Elazar asked a certain old man: When you permitted a woman [to remarry in the circumstances described above], did you allow her to do so immediately since he is not going to return, or perhaps it was after twelve months since his condition had then been fulfilled?
According to R. Judah Nesi a, who considers this get to be valid, is the woman allowed to remarry within the twelve month period?
ותיבעי לך אמתני’ דתנן הרי זה גיטך מעכשיו אם לא באתי מכאן עד שנים עשר חודש ומת בתוך שנים עשר חודש הוי גט דהא איקיים ליה תנאי ותיבעי לך לאלתר הוי גיטא דהא לא אתא או דלמא לאחר י"ב חודש דהא איקיים ליה תנאיה
Let him ask this question also in connection with the Mishnah as it is taught: [But if the husband said,] Behold this is your bill of divorce from now onward should I not return within twelve months, and he died within the twelve months, the divorce is valid because the condition had been fulfilled. And about this you should ask: does the divorce take effect immediately [on his death] since he could not return, or perhaps only after twelve months when the condition had been fulfilled?
The same question about whether the divorce takes effect immediately could also be asked about the continuation of the mishnah. In this case, all sages agree that she the bill of divorce is valid because the husband explicitly stated, from now onward. They only disagreed about a case where he might have been understood as saying that the divorce would be valid only when he did not return.
אין ה"נ אלא משום דהוית בההוא מניינא
[R. Elazar said to him:] Yes, even in this case [I ask my question] but [I asked you this] because you were in the count [of sages who voted to grant her permission to remarry].
R. Elazar responds to the old man saying that he had the same question about the mishnah as he did about R. Judah Nesia s decision to allow the woman in the other case to remarry. He asked this particular man because he evidently was one of the sages who voted with R. Judah Nesi a. Abaye s words below will answer this question.
אמר אביי הכל מודים לכשתצא חמה מנרתיקה לכי נפקא קאמר לה וכי מיית בליליא גט לאחר מיתה הוא
Abaye said: All agree [that if a man said to his wife that the divorce should take effect] when the sun comes out from its sheath, he intended the time of sunrise, and should he die during the night, it is then a bill of divorce which comes into effect after his death [and is invalid];
Abaye here tries to reduce the dispute between the sages and R. Judah Nesi a. He first brings up two points where they all agree. The man here is understood as saying that his divorce would be valid when the sun rises. Since he said when he clearly meant that it would not take place that night. Therefore if he dies at night, she is not divorced.
על מנת שתצא חמה מנרתיקה מעכשיו קאמר לה וכי מיית בליליא הא ודאי תנאה הוי וגט מחיים הוא כדרב הונא דאמר רב הונא כל האומר על מנת כאומר מעכשיו דמי
[But if he said to her that the divorce should take effect] on condition that the sun comes out from its sheath, he intended it to take effect from that moment onward, and should he die at night, this was certainly a condition, and the divorce thus took effect while he was alive [and is valid] in agreement with the view of R. Huna. For R. Huna said: Anyone who says on condition [in a bill of divorce] it is the same as if he had said, From now onward.
If he says on condition that the sun rise, he meant to say that the divorce would go into effect immediately. Thus the divorce took effect while he was alive and even if he dies at night, she is divorced.
לא נחלקו אלא באם תצא ר’ יהודה הנשיא סבר לה כר’ יוסי דאמר זמנו של שטר מוכיח עליו והוה ליה כמהיום אם מתי כמעכשיו אם מתי ורבנן לית להו דר’ יוסי והוה ליה כזה גיטך אם מתי גרידא
They only differ over the case [where he said], If the sun comes out [from its sheath] : R. Judah Nesi a holds like R. Yose who said, The date of the document proves its intent, and he holds it to be as if he said, From today if I die or From now onward if I die. The rabbis do not agree with R. Yose and hold that it is like, Here is your bill of divorce if I die.
The rabbis and R. Judah Nesi a disagree if the husband says, If the sun comes out. R. Judah Nesia says that in this case the date proves that his intent is for the divorce to go into effect retroactively once the sun comes out. It is like saying, From today if I die. So even if he dies at night, she is divorced. The other rabbis hold that that this is like saying when the sun comes out. So if he dies at night, the divorce never went into effect.
People may be wondering what all this hullabaloo is about after all, she is either a widow or a divorcee. The issue is levirate marriage. If she is a widow, she might have to marry her dead husband s brother. If she does not want to, she could be left without the ability to remarry.