Bava Kama

Bava Kama 110b: Annulling a Marriage Retroactively

Bava Kama 110b: If so [if a person’s korban reverts to his heirs when he dies without getting kaparah from it, since he consecrated it in error], shall we then say when a woman’s husband dies and his brother is afflicted with ugly boils, she should be free without chalitzah, for she married him in error? – There it is different, because we are witness that she is happy with any marriage, and thus it was worth it to her to be married to her husband, even if that would result in her being stuck at the mercy of his ugly brother.

בבא קמא קי ע”ב: אלא מעתה, יבמה שנפלה לפני מוכה שחין תיפוק בלא חליצה, דאדעתא דהכי לא קדשה עצמהִ התם אנן סהדי דמינח ניחא לה בכל דהו, כריש לקיש, דאמר ר״ל: טב למיתב טן דו מלמיתב ארמלו.

In 1981, a woman in her 60s entered the office of Tel Aviv’s beis din, chaired by Rabbi Yitzchak Yedidya Frankel. The woman had recently arrived from Bukhara, and when she told her story, tears welled in the eyes of all those present.

She had married in 1941 while living in Bukhara, but just before the wedding the Germans swept into the Soviet Union in a surprise attack. Her fiancé was drafted into the Soviet army, they married, and shortly afterward he was sent to the battlefield and killed. His death was verified beyond a doubt, but this left the young widow in need of chalitzah from her late husband’s brother in order to be free to remarry. The brother, however, was an official in the Communist Party and he absolutely refused to participant in anything that smacked of religion. He left her as an agunah for 40 years – though he knew of the suffering he was imposing on her, he would not soften his position.

Despite this woman’s lack of any formal Jewish education, she stood fast to her principles and withstood this incredible nisayon. Now in her later years, she approached the beis din and asked if there was any way to permit her to marry, so that she would not be forced to spend the rest of her life all alone.

The beis din, which consisted of Rabbi Frankel, Rabbi Shmuel Baruch Werner and Rabbi Shlomo Tenne, searchd high and low to find a glimmer of hope for this courageous woman. Finally, they found grounds for leniency, based on the fact that her brother-in-law had discarded his Jewish identity entirely.  The Mordechai brings the Maharam, who says that although the Gemara says it is worth it to a woman to get married even at the risk of falling to the mercy of an ugly brother, it is not worth it to her when the brother is a mumar, someone who has discarded his Jewish identity. The only reason she married him, says the Maharam, was because she did not know about the existence or lifestyle of the brother, or else she did not know about the laws of chalitzah. Since this was a highly unusual case with little precedent, they were hesitant to rely on their own findings, so they sent them to Rabbi Moshe Feinstein for his approval.

Several weeks passed and they heard no word from Reb Moshe. Finally Rabbi Frankel called Reb Moshe’s home one day at 4:00 in the afternoon (9:00 in the morning in New York). He related the story of the poor woman’s plight and emphasized that we must not prolong her suffering any longer than necessary. It was obviously by the tone of Rabbi Frankel’s voice that he was upset by the fact that he had not received a reply all this time.

Reb Moshe apologized profusely, explaining that he had never seen the letter from the beis din. Apparently, his family members had withheld it from him due to his frail health (he was almost 90 years old). He promised to demand that he be shown the letter immediately and that he would respond promptly. Just four hours later, the doorbell rang. It was a messenger from the Israeli Postal Service with a telegram in hand. The message, in Hebrew words and in Latin characters, was: “She may get married. My responsum will follow. Moshe Feinstein.”

Reb Moshe’s handwritten responsum arrived via airmail some two weeks later. His decision was based not on the fact that the brother was anti-religious – we don’t pasken like the Maharam – but rather on the fact that this case is different from the Gemara’s in that there must have been information the wife did not know at the time of marriage. In the Gemara’s case, where the husband was healthy and his life was not in danger in any way, she made an informed decision to marry him and accept the risk of falling to yibum. In the Bukharian case, where there was a war raging and her husband had been drafted, why would she marry him knowing that he was likely to die? It could only be that she was misinformed: either she did not know about chalitzah at all, or she knew but assumed that this brother did not count as a Jew. Therefore her marriage was in error and she is permitted to remarry without chalitzah. 

[There is a question here in pshat in the Gemara. The Gemara distinguishes between the case of a person who was makdish a korban and then died, and the woman who got married and then her husband died. In the case of the korban, we say that had he known he was going to die, he would not have been makdish it, so retroactively the korban was never a korban and it falls to his heirs. In the case of the husband dying, we say that the woman got married knowing the risks and the marriage is not invalidated retroactively. What is the difference?

We could answer this by positing a difference in the case, or a difference in the logic. The “difference in the case” approach would be to say that in the korban case, he died quickly, within the short time it takes to bring the korban to the Beis Hamikdash. Thus we can assume that he must have had some hidden sickness before, of which he was not aware, and therefore this is not נולד. The consecration of the korban was בטעות because he was not fully aware of the risk he was taking. In the husband dying case, the husband may have died several years after the marriage. Quite probably he was not sick at the time of the marriage, so the risk of him dying was not any greater than anyone else. The woman’s decision was fully informed, so the marriage is not invalidated.

The “difference in logic” approach would be to say that in both cases the man probably had some condition that raised his risk of dying, but a wife has a higher risk tolerance, since the benefit of being married now tips the scales of her mind. So although she was unaware of the husband’s condition, still she would have married him even had she known the true risk. But in the korban case, had the man known about his own medical condition, he would not have been makdish the korban.

In our story, the woman was aware of the risks, since the German invasion had already happened and her husband had already been drafted before the marriage. These risks are much higher than the usual risk of a person dying, even a person with a medical condition. Also, there is a smaller benefit to tip the scale, since she would only be with the husband for the short time prior to his deployment. Reb Moshe therefore reasoned that there is no way she would have married him, unless she were misinformed about something else: she did not know about chalitzah at all, or she knew but assumed that this brother did not count as a Jew.]

Source: Hamodia, Vayeitzei 5780

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