Siman 10

A woman who was divorced from her husband and married another, or even only became betrothed to him, even though he did not have relations with her—she is forbidden to the first. And if after the divorce of the second or his death, the first returned and took her as a wife and had relations with her—he is lashed and they compel him to divorce her. But for kiddushin without relations, or if the first had relations with her through zenut—he is not lashed, as it is written: "Her first husband, who sent her away, may not return to take her to be his wife, after she has been defiled" (Deuteronomy 24:4). The verse was precise to say "to take her," which is taking through kiddushin, and "to be his wife," in the manner of marriage, that he shall have relations with her. And likewise, when after the divorce she did not marry another but committed zenut with another—she is permitted to return to her husband, as it is said: "And she departs from his house, and goes and becomes another man's" (Deuteronomy 24:2). Her becoming another man's, which is the kiddushin, is what forbids her to her husband from returning to him. And from where do we say that when she was betrothed to another, even though he did not have relations with her, she is forbidden to return to the first, for behold, we do not read concerning her "after she has been defiled"? However, from this itself we learned this, for it is impossible to say that "after she has been defiled" refers specifically to when she had relations with the second, for Heaven forbid to call this the name "defilement," for behold, he married her permissibly; rather, the verse of "defiled" is for another matter, as will be explained in section 2. It follows that the essence of its prohibition is from "and goes and becomes another man's"—that she was betrothed to him.

The Rambam wrote in chapter 11 of Gerushin, law 14: Included in this negative commandment is that any woman who committed adultery while under her husband is forbidden to him and he is lashed on her account, as it is said, "after she has been defiled" – and behold, she has been defiled, unless she was the wife of an Israelite who was raped. Therefore, any woman who was forbidden to her husband by means of kinui and stirah, if he had relations with her – they strike him with makat mardut, and if he transgressed and took her back after he divorced her – he must release her with a get. Thus far his words. And this is what he wrote in chapter 1 of Issurei Biah, law 22: One who warns his wife and she secluded herself, and one witness came and testified that she was defiled, and her husband was a kohen and he had relations with her afterward, behold he is lashed on her account because of the status of zonah; even though the primary testimony is not established by one witness, she has already been established as a zonah. Thus far his words. It is clear from this that an Israelite is not lashed. However, the essence of the matter is this: the actual title of "defilement" only exists when two witnesses come and testify that she committed adultery [see Tosafot Yevamot 11a, s.v. "tzarat"], but through kinui and stirah, granted that she is forbidden to her husband, for so the Torah decreed regarding a sotah that a doubt is treated as a certainty, nevertheless she does not have the title of "defilement" upon her. And even if one witness came and said she was defiled, for one witness is nothing, only regarding a sotah the Torah decreed that he should be believed because in sotah the Torah made the doubt as a certainty, but she has the title of zonah upon her for having strayed from her husband. And we have already explained in siman 6, section 25, according to the system of the Rambam, that regarding defilement the kohen and the Israelite are equal, which is not the case regarding a zonah. Therefore he wrote here "when she committed adultery," meaning that there are two witnesses that she committed adultery – then even the Israelite is lashed, for this is the primary title of defilement. But when she was forbidden through kinui and stirah, granted that she is forbidden by the Torah, nevertheless there is no title of defilement upon a doubtful sotah [Tosafot ibid.]. And so too even when there is one witness, nevertheless there is no title of certain defilement but rather the title of zonah, and a kohen is lashed for her but not an Israelite. Therefore he wrote here that they strike him with makat mardut, and even when one witness comes the law is so. But regarding a kohen, he is lashed by one witness because the title of zonah is upon her, and without a witness – even the kohen is not lashed [as mentioned above, and see Maggid Mishneh, Kesef Mishneh, and Lechem Mishneh].

And so too, if she committed adultery with the first and married the second and he divorced her—she is permitted to return to the first, even if she had been designated for him, since it was without kiddushin. And greater than this the Sages, of blessed memory, said: that a minor orphan who married with rabbinic marriage to another and performed mian against him and married another and was divorced, that she is permitted to the first since she left him through mian and not with a get [Yevamot 108], for only a get forbids returning her when she married another and was divorced or widowed. And the opposite of this regarding a get that forbids: even if the get was not according to the law but only because of a mere rumor that emerged of kiddushin either from the first or from the second and they gave her a get—she is forbidden to return to the first, for the world does not know that the get was for nothing and they will say that this one is returning his divorcee after she married another, and to announce that the get was for nothing is of no use, for there are those who will hear of the get and will not hear of the announcement. And such is the law regarding the orphan [ibid.] that when she left with a get and not through mian, she is forbidden to return to him even though the get was not mandatory, for the Sages, of blessed memory, were very concerned with rumors of gittin and kiddushin so that a stigma should not emerge regarding the children. And even though those born from one who returns his divorcee are kosher, as we expound "she is an abomination" but her children are not abominations [ibid. 11b], nevertheless, there is at least a rumor of a flaw.

Regarding a cheresh, there are no marriage bonds from the Torah, but the sages ordained marriage for him as was written in siman 44, and he marries through gestures and divorces through gestures. Therefore, a cheresh who divorced through gestures and she went and was betrothed to another cheresh—she is forbidden to return to the first, for his power is no greater than the power of a person of sound senses, for when he divorced and she married one like him, she is forbidden to return to him, and all the more so if she married a person of sound senses and was divorced, that she is forbidden to return to the cheresh. However, the wife of a person of sound senses who was divorced and went and married a cheresh and was divorced—she is permitted to return to her husband of sound senses, for since the marriage of a cheresh is only rabbinic, the sages did not ordain it to the detriment of the power of a person of sound senses. And even though we were stringent regarding one who returns his divorcee that even with a get that is not according to the law she is forbidden to return as was written, this is all because we are concerned for the gossip of the people who will say it was a complete get, but regarding a cheresh everyone knows that he has no betrothal from the Torah at all. And there are those who wished to learn from the law of a cheresh also for the marriage of a minor orphan, for in her case too they are only rabbinic marriage, that if the first had marriage bonds from the Torah, such as if her father betrothed her and she was divorced and she married another on her own where the marriage is rabbinic and she was divorced, that she is permitted to return to the first [see Chelkat Mechokek and Beit Shmuel]—but it is not clear at all, for one cannot compare a minor to a cheresh, for by a cheresh there are no marriage bonds from the Torah at all, but by a minor there are indeed marriage bonds of the Torah through the father, and if so, who knows if the marriage is of the Torah or of their words, and it is no worse than a get based on a rumor, and so it is implied from what will be explained in siman 155 [and so wrote the Beit Meir]. And regarding the law of dwelling with his divorcee in one alleyway or in one courtyard—it will be explained with the help of Heaven in siman 119. And know that in any place where there is no marriage at all even rabbinically, such as with a shoteh, if she married him and was divorced and married a person of sound senses and was divorced—she is permitted to return to the shoteh [Beit Shmuel], for everyone knows that there is no status of betrothal or divorce in this and it is like mere zenut [and the Ra'avad in chapter 11 of Divorce disagrees regarding a cheresh, and it depends on the version in the Yerushalmi, see Maggid Mishneh and Mishneh LaMelech].

Our Sages, of blessed memory, said [Gittin 45b] that one who divorces his wife because of an evil name, or because she is profligate with vows—and for the sin of vows children die when they are young [Shabbat 32b]—or because she appears to be an aylonit who does not give birth, he may never take her back. And the reason: because our Sages, of blessed memory, feared that perhaps the matter would be revealed afterwards that the evil name was false, and the vow has an annulment, and she is not an aylonit, and in the meantime she will marry another, and he will cast aspersions on the get by saying, "Had I known that such was the case, I would not have divorced her even if they had given me a hundred maneh," and the get was in error, and he will cast aspersions on her children from the second husband that they are mamzerim. And even though according to the letter of the law this is nothing, for he did not say to her, "On condition that the evil name is true I divorce you," or "On condition that there is no annulment for your vows," or "On condition that you are an aylonit" [Tosafot ibid. 46a]. And even though he could say that it is revealed to all that I disclosed my intent that because of this I am divorcing her, nevertheless we establish that disclosure of intent regarding a get is of no consequence, as written in siman 141; nonetheless, in these matters our Sages, of blessed memory, feared for the aspersions on the children, as written in section 3. Therefore, they say to him: "Be aware that one who divorces his wife because of these things is forbidden to take her back forever," and consequently he will not be able to cast aspersions, for the whole world sees that he divorced her with a whole heart because he did not desire her.

According to the opinion of the Rosh and the Tur, this only applies if at the time he divorced her he said to her, "I am releasing you because of a bad reputation," and he doubled the matter, saying that if there were no bad reputation he would not have released her; and similarly regarding a vow or an aylonit, for then if they permit him to take her back there will be a slur as has been written. However, when he did not say to her, "I am releasing you because of a bad reputation," he will not be able to produce a slur at all; therefore there is no concern even if he were permitted to take her back. And even if he said it to her but only did not double the matter, there is also no slur, for we hold that regarding any condition we require a doubled condition, and where he did not double it, the condition is void and the act stands, as will be explained in siman 38; it follows that even regarding a complete condition, when he did not double it, there is no substance to it, and certainly regarding mere words, when he spoke and did not double it, it is nothing and there is no slur in this. But regarding a complete condition, it is impossible to say here that if he explicitly stipulated that if the reputation is false it shall not be a get, what would it avail if we say he may not take her back? Ultimately she is a married woman if the bad reputation is false. However, there are some of our teachers who hold that even if he did not double the matter he may not take her back, for even though we require his condition to be doubled, nevertheless regarding the production of a slur, since he mentioned that he is releasing her because of a bad reputation, he will produce a slur even if he does not double the words. Furthermore, regarding the fundamental law of a doubled condition, many of the Geonim hold that we only concern ourselves with it as a stringency [the Gra] and not as a leniency, as has been written in Choshen Mishpat siman 207 and will be explained in siman 38 [and the Rosh and the Tur do not hold so, as has been written there].

The Rambam, of blessed memory, in chapter 10 of Hilkhot Gerushin, was even more stringent in this, that even if he did not say to her at all "I am divorcing you because of a bad name"—he may not take her back, for there is a concern of a rumor, and the Sages, of blessed memory, required him in the case of a bad name and a vow to say that he is divorcing her because of this in order to penalize her so she will not be accustomed to this, and the beit din says to him: "Know that you may never take her back," and consequently he resolves in his heart to divorce her in any event. And why do they say this to him? In order that he should not produce a rumor, as I wrote according to the previous opinions. However, regarding an ailonit, the Rambam did not mention that he should say it to her, and his reason appears to be that this is revealed and known to all when a man divorces his wife because she is not fit to bear children, and it is as if he said it to her. Furthermore, in this case a penalty is not applicable, for she has not sinned; but to tell him that he may never take her back—even in the case of an ailonit they must inform him [the Maggid Mishneh and the Beit Yosef]. However, in truth, the Rambam is not more stringent than the previous opinion, for since ultimately he says to her "I am divorcing you because of a bad name" or "because of a vow" in order to penalize her, it follows that he could produce a rumor, and in the case of an ailonit, even though he did not say it to her—it is considered as if he said it to her as I wrote [as mentioned above; and he ruled according to both versions, for the first version is not necessarily restricted to an ailonit, and it is the method of the Geonim to rule thus throughout the Shas; and this is why he omitted what Rav Nachman said, "and that is if he said to her etc.," for since he says it to her in order to penalize her, it is one and the same; and the Gra in subsection 9 elaborated that his reason is because of a disclosure of intent, but this requires further study for in Gittin it is not a significant matter; and also the Beit Shmuel in subsection 7 challenged the Maggid Mishneh and wrote that the implication of the sugya is not so; and it appears to me like the Maggid Mishneh, and the sugya is necessarily according to the first version, for according to the latter version there is no contradiction, see there; and also the Yam Shel Shlomo, chapter 4 of Gittin, siman 69, ruled according to both versions, see there and examine carefully].

One who divorces his wife because she sees blood every time they engage in intercourse—he may not take her back, even if he did not say to her that he is divorcing her for this reason, for an unstated reason is like an explicit one since he cannot engage in intercourse with her, and they say to him: "Be aware that you may never take her back," so that he does not cast a slur upon the get when she is healed.

In all these cases where they said he may not take her back, if he transgressed and took her back before she was betrothed to another—he need not divorce her, for since this is nothing more than a mere concern, we do not remove a woman from her husband because of this, as was written in siman 12. Furthermore, even if he divorced her after he had married her, they permitted him to take her back ab initio, for if not so, there would still be a slur upon the children she bore him when he took her back. However, if she had no children from him—he may not take her back, and kiddushin are like marriage.

One who divorces his wife because of a vow he made to divorce her—he may take her back, and the sages were not concerned with forbidding him from taking her back. For specifically regarding her vows he can ruin her and say, "Had I known that there is an annulment for this vow, I would not have divorced her," because her annulment depends on the husband. There are vows that the husband can annul, such as vows of self-affliction or matters between him and her, and there are those he cannot annul. Therefore, it is in his power to say, "Had I known that these vows are of the kind that I have the power to annul, I would not have divorced her," and he will cast a slur. But regarding what he vowed, which depends on the release of a wise man, how can he ruin her? Everyone knows that a wise man can release a vow, and why did he not seek release? Especially since this release involves a matter of a mitzvah to make peace between a man and his wife, and he cannot cast a slur. Therefore, if he indeed released the vow—he is permitted to take her back. And one should not say that if so, regarding her vows as well, why can he ruin her, for can a wise man not release all vows? For it can be said that he cannot compel her to go to a wise man if she does not consent, but regarding annulment her consent is not required, and he can ruin her as I have written [it appears to me, and this is the intent of the Bach]. And some say the reason that ruining is not applicable to him is because he only vowed to divorce her, and behold he divorced her, and he could have taken her back immediately and requires no release at all, so with what could he ruin her? And according to this, if he indeed vowed to divorce her forever, ruining would also be applicable to him if a release for his vow is found afterward—and he would be forbidden from taking her back just as with her vows [Derisha]. And some say that the reason ruining is not applicable is that he did not say, "Because I believe there is no release for my vow, I am divorcing you," just as with her vows when he said nothing [Taz], and as I wrote in section 6. And even according to what the poskim held like the opinion of the Rambam, that no statement is required at all as I wrote in section 7, nevertheless there is a reason so that the daughters of Israel should not be loose with vows, and regarding his vow all this is not applicable. And according to this, if he indeed said, "Because of this I am divorcing you," he could ruin her and it would be forbidden to take her back. And it appears to me that the primary reason is like the first excuse, for from the plain wording of the poskim it implies that in every case there is no ruining regarding his vow, and so it implies from the sugya of the Shas [from the fact that it asks there "it is obvious," and furthermore, if so, there is a great distinction between the first version of ruining and the latter version of looseness, and why did the Gemara not mention this distinction, see there and examine carefully].