Siman 149

One who divorces his wife, whether from erusin or from nisuin, and afterward has relations with her in the presence of witnesses before she was married to another, she requires a second get from him, for he certainly had relations for the sake of kiddushin (Tur), as a person does not make his act of relations an act of zenut; since she had been his wife, he is under the presumption that he took her back and did not have relations for the sake of zenut. And even if they saw him give her money, we do not say that it is a harlot's hire, for this matter is a certain presumption that a person does not make his relations with his wife an act of zenut when it is in his power to make it a mitzvah act of relations. Therefore, she is betrothed under the presumption of certain kiddushin (the Rambam, chapter 10, halacha 17):

It is explicitly clear from the language of the Rambam and the Tur that we do not maintain her status as a doubtful kiddushin, but rather as certain kiddushin. The practical legal difference is that if she received kiddushin from another, the kiddushin do not take effect (Bach and Beit Shmuel, subsection 3). It is a simple matter that this applies specifically when the witnesses saw them and they saw the witnesses, as was written in the previous siman, section 10, in the name of the Tur. Our teacher, the Rema, wrote, and this is his wording: "Or if it is revealed to all that he had relations with her, such as if he married her." Thus far his words. Meaning, that this also has the status as if he had relations with her before witnesses. The Tosafot wrote a similar reasoning in Yevamot (45b, s.v. Mi) regarding immersion; see there. We have already mentioned this in siman 26, section 5; see there. There is further proof for this reasoning from what our sages, of blessed memory, said (ibid. 109b) regarding a minor who did not perform mi'un and grew up and stood and married, that she does not require a get from the second [husband] because the first had relations with her afterward certainly for the sake of kiddushin, as he knows that the kiddushin of an orphaned minor are nothing. And even the one who disagrees there, his reason is that he had relations based on the initial kiddushin; see there. But in the case of a divorcee, this does not apply. And there, there are no witnesses to the act of relations, but rather since she dwelt under him in the manner of a husband and wife, his having relations is like witnesses. So too here, since our sages, of blessed memory, said that if he had relations before witnesses he certainly had relations for the sake of kiddushin, if so, even when it is revealed to all that he married her—meaning they lived together in the manner of husband and wife—it is no less than witnesses. However, one could reject this, as there it deals with a case where it is known to us that he had relations with her, according to the plain meaning of the language of the Gemara there. However, the Rivash wrote at the end of siman 193, and this is his wording: "And the Ra'ah, of blessed memory, wrote that a minor who grew up does not even require witnesses of seclusion, for since she is his wife and remains with him, everyone knows that he secluded himself with her and had relations with her." Thus far his words. However, the Rivash himself at the end of siman 6 brought this in the name of the Ra'ah and wrote that this is a minority opinion, for all the Rishonim wrote that she requires witnesses of seclusion; thus far his words (and see Mishneh LaMelekh, chapter 11 of Hilkhot Gerushin, halakha 6). And it appears to me that in siman 6 he only wrote this regarding his question there, where she had never been his wife according to the religion of Israel; see there. Nevertheless, there are those who hesitate regarding this ruling (Beit Shmuel, subsection 1), and therefore one should follow the stringent view regarding the prohibition of a married woman.

It is a simple matter that this presumption, that a man does not engage in an act of zenut with his wife, applies only when there is no transgression in this cohabitation. Therefore, if she is a niddah, whereby he violates a prohibition of karet, or if he is a kohen and it is forbidden for him to take back his divorcee, or if he cohabited with her after she had married another and was widowed or divorced, and likewise if he currently has another wife in a place where it is forbidden to marry two wives, we do not say this presumption (Mishneh LaMelech chapter 10, halakha 18 and Ba'er Heitev in the name of several great authorities). Nevertheless, some say that if kiddushin can at least take effect with her, one must be concerned for kiddushin (ibid. in the name of Knesset HaGedolah). And even though it does not appear so, nevertheless, one must follow the stringent view in this to require her to receive a get from him. And it is obvious that if she received kiddushin from another, she requires a get from him. It is a great principle regarding the prohibition of a married woman that whenever it is impossible to clarify the law explicitly from the Shas, one must follow the stringent view in every respect (and there is some proof for the "some say" from the sugya at the end of the eighth chapter, where we establish the Mishnah in a case where they did not see that she cohabited, which implies that if they saw that she cohabited, even Beit Shammai agree; and they hold that he shall not divorce unless he found in her a matter of immorality, as is found in the Yerushalmi; and examine this carefully).

And all this is when we knew that he had relations with her, but if we did not know that he had relations with her, but rather she was secluded with him before witnesses, and the two witnesses were together, and he and she saw the witnesses, in this there is a distinction between erusin and nissuin. For if she was divorced from nissuin, we say the witnesses of seclusion are themselves the witnesses of relations, and presumably he had relations with her because they are accustomed to one another. But if she is divorced from erusin, where they are not accustomed to one another, we do not say the witnesses of seclusion are themselves the witnesses of relations. However, if we see that they are accustomed to one another, that they recognize each other with hints and winks and they have great closeness, her law is like a married woman and we are concerned for kiddushin.

And even from the marriage, we do not say that he certainly cohabited with her and consider them certain kiddushin; rather, they are doubtful kiddushin in the sense that she requires a get from him. However, if another man betrothed her, she also requires a get from the second. The Rambam wrote similarly: we are concerned for her lest she had intercourse, which implies a mere concern. The Tur and the Shulchan Aruch wrote similarly. And although from the wording of Rashi, of blessed memory, it does not appear so, as he wrote: since they saw that they were secluded, there is no need for greater testimony of intercourse than this, for certainly we are witnesses that since they are accustomed to one another, they did not separate from one another. Thus far his words. Nevertheless, the primary ruling is as we have written, especially since this is a stringency.

And know that there are some among the Rishonim who wrote that only ab initio does she require a second get from him when she secluded herself with him, but ex post facto, if he went to a province overseas, she may marry ab initio according to the law of an old get (the Gemara chapter 6). However, this is not the opinion of all the poskim, for it certainly constitutes a case of uncertain kiddushin (the Rema in Darkhei Moshe). And it is true that this is the approach of the Yerushalmi, which suspended this dispute upon the dispute regarding an old get, see there. But this is not the approach of our Shas (and the matter is simple, for the author of the Yerushalmi is Rabbi Yochanan, and he holds in our Shas as well that without witnesses seeing that they had intercourse she does not require a second get, yet the Shas disagrees with him; and perhaps this is the reason that some poskim rule like Rabbi Yochanan, as the Ran wrote, because the Yerushalmi holds like him; but in terms of the law it is not so, and behold, according to Rashi it is certain kiddushin, as I have written).

It appears to me that even according to the poskim who are concerned even regarding a prohibited intercourse that he cohabited for the sake of kiddushin, provided that the kiddushin are valid as written in section 3, nevertheless, where she was secluded with him they admit that when there is a prohibited intercourse we do not say "the witnesses of seclusion are the witnesses of intercourse." And so the Radvaz, of blessed memory, ruled, that regarding intercourse we are concerned, but regarding seclusion we are not concerned when there is a prohibition in their intercourse. And it appears to me that no one disagrees with this. And similarly, if both of them say that he did not cohabit with her, it appears that even when there is no prohibition in their intercourse we are not concerned for kiddushin (section 3). And there are those who hesitate regarding this (Beit Shmuel, subsection 4). And similarly, there are those who hesitate also regarding seclusion alone even when there is a prohibited intercourse (Avnei Miluim, siman 33), and it requires further study for the law. And see in section 10.

Our teacher, the Rema, wrote: But if he was secluded with his betrothed, even though he is familiar with her, we are not concerned, unless he had relations with her in the presence of witnesses. Thus far his words. And it is explicitly explained that if he had relations with her in the presence of witnesses, we are concerned for kiddushin. And even though regarding an ordinary single woman we do not say the presumption that "a person does not intend his act of relations to be an act of zenut," as will be explained, nevertheless, regarding his betrothed whom he must marry, we say that he had relations for the sake of kiddushin. Logic dictates this, for if regarding his betrothed whom he divorced we say this presumption, all the more so regarding this woman who is designated for him to marry. The source of this law is from a responsum of the Ramban (brought in the Beit Yosef). There is one who says that from this responsum it implies that even if he certainly had relations with her, we do not say this presumption, and she is like an ordinary single woman (Beit Shmuel, subsection 6). But it is not so; on the contrary, there it is explicitly explained as I have written, for this is his wording there: A betrothed man who would enter the house of his father-in-law, etc., if she stayed the night with him and they were secluded at night in the presence of witnesses, since they are familiar with one another, even so, as long as they did not see that she had relations, we are not concerned for kiddushin, etc. Thus far his words. But if they saw that she had relations, we are concerned. And that which he wrote at the end of the responsum, that even if they saw that she had relations we are not concerned, refers to an ordinary woman and not to his betrothed; see there. This is the primary ruling. However, it is possible that we do not consider them certain kiddushin, but rather a doubt of kiddushin.

It is a simple matter that we do not state this chazakah except when the husband knew that she had already been divorced; but if he believes that she has not yet been divorced—as in the case that occurred with one who sent a get to his wife and afterwards annulled the get, and afterwards was secluded with her, and afterwards it became clear that the get had already reached her hand prior to its annulment—she does not require a second get from him. For certainly in this case it is not relevant to say that he cohabited for the sake of kiddushin, since he believed that the get was annulled and it did not enter his mind to betroth her anew, but rather he cohabited based on the original kiddushin. Therefore, even if he certainly cohabited with her, we do not concern ourselves with kiddushin.

An incident occurred with one who divorced his wife and subsequently secluded himself with her in the presence of witnesses, and he had not yet divorced her a second time, and another man took her and betrothed her as a pilegesh, and she remained with him for some time as a pilegesh. The Rosh, of blessed memory, ruled that she is forbidden to both of them and requires a get from both of them; for the second certainly cohabited with her and she became forbidden to him since she is a doubtful married woman due to the seclusion with the first. She also requires a get from the second, for she is not considered by virtue of the seclusion as a certain married woman, but rather as a doubtful married woman, as I have written. And know that from this ruling there is proof for those who hesitate, which we wrote in section 7, that even if they say he did not cohabit with her, they are not believed; for presumably in the incident of the Rosh they investigated them and they said he did not cohabit with her, as this appears from the flow of the words, and nevertheless they did not heed their words.

The Rambam wrote in chapter 10, law 19: Some of the Geonim instructed that any woman who is had in intercourse in the presence of witnesses requires a get, based on the presumption that a person does not make his intercourse an act of zenut, etc. But it is not proper to rely upon them, for the sages only stated this presumption regarding his wife whom he divorced, or one who betroths upon a condition and has intercourse without specification, for she is already his wife, and it is regarding his wife that his presumption is that he does not make his intercourse an act of zenut unless he specifies that it is an act of zenut or specifies that he is having intercourse based on a condition. But with other women, behold, every zunah is under the presumption that he had intercourse for the sake of zenut until he specifies that it is for the sake of kiddushin, etc. Thus far his words. And the Rosh wrote similarly at the end of chapter HaZorek, and this is his wording: But if witnesses saw that he had intercourse with an unrelated woman, we do not concern ourselves with kiddushin, for Rava said: A single man who comes upon a single woman makes her a zunah, and we do not say that he had intercourse for the sake of kiddushin; and he does not distinguish between whether he had intercourse before witnesses or whether he had intercourse not before witnesses. And similarly, a man may marry the woman raped by his father or the woman seduced by his father, and we do not concern ourselves that perhaps he had intercourse for the sake of kiddushin and she would be his father's wife. And the Rambam, of blessed memory, wrote similarly. Thus far his words. And the Rashba and the Ran, of blessed memory, wrote similarly there. And the Tur and the Shulchan Aruch wrote similarly. And only in the Mordechai (chapter 3 of Kiddushin) was he concerned for this; see there.

Therefore, I am astonished at our teacher, the Rema, in siman 33, who wrote: There are those who say that if an unmarried man has relations with an unmarried woman before witnesses, we are concerned that perhaps he intended it for the sake of kiddushin, etc., and there are those who are lenient, etc. Thus far his words. For he was concerned for a solitary opinion against all these our teachers. And in the Tosefta at the beginning of Kiddushin we also learned: Any act of relations that is for the sake of kiddushin, she is betrothed, and that which is not for the sake of kiddushin, she is not betrothed. Thus far its words. And it is obvious that the Tosefta's intention was not where he explicitly stated it was for the sake of licentiousness, for what would that come to teach us? Rather, it certainly refers to an unspecified case, and according to the words of these our teachers. This is the wording of the Terumat HaDeshen at the end of siman 209: It appears that with any slight reasoning we reject this presumption, etc., for the Rambam wrote well that the matter is far from the mind regarding a man and woman who were enticed by their inclination that he would have relations for the sake of kiddushin, and now in our generations it is not found at all. Thus far his words. And there it is explained even if he promised to marry her, see there. And more than this, the Rivash wrote in siman 6 regarding a man and woman who during the times of the decrees were coerced and married one another according to the laws of the gentiles, and afterwards they emerged from the decrees, that even though they sequester together every day before the eyes of all according to the conduct of a husband and wife, nevertheless there is no concern for kiddushin. Our teacher, the Beit Yosef, brought it in section 6 and explained the reason: that since they married according to their laws, it is as if they explicitly stated that their intention was not for the sake of kiddushin; and he permitted her to another even though she had a child from him, see there.

And furthermore, I wonder why he did not provide a gloss here in section 5 on the words of the author to see siman 33, where there are those who disagree on this, as is his way in all places. And furthermore, why did he establish this law in the laws of kiddushin and not in this siman, which is the primary source for these laws? Therefore, it is possible to say that in a case of ordinary promiscuity, he also admits that no one is concerned for it, and there it deals with a case where there were words of shidduchin between them; even though they had not yet become betrothed, nevertheless, in such a case, it is possible that one must be concerned for the opinion of the stringent ones when he had relations with her in the presence of witnesses, even though from the arrangement of his words there it does not appear so. And know that the giants of the world agreed that even in a place where according to the law one must be concerned for kiddushin, as has been explained, if he is licentious with forbidden relations and promiscuity, we do not apply this presumption to him. But if he is not licentious in promiscuity, even if she stayed alone with him on the road, we are concerned for kiddushin. And it appears to me that for this reason the Tanna taught us: "and she stayed with him in an inn" (see Ketubot 65a and in Orach Chaim siman 240, section 13, and examine it closely).

The Rambam, of blessed memory, wrote in chapter 9, law 25: If he secluded himself with her after he commanded to write, sign, and give to her, behold, these should not write. And the matter is a kal vachomer: if the get that was given into her hand is disqualified when he secluded himself with her, lest he cohabited, how much more so for this one which has not yet been written. And if they wrote and gave it to her after he secluded himself with her, it is not a get. Thus far his words. And his intention is not to equate the reasons, for regarding a get that was given into her hand, the doubt is lest he cohabited for the sake of kiddushin, as has been explained, and here this is not applicable. Rather, this is what he is saying: if in a case where the get was already completed we concern ourselves with seclusion for kiddushin, and automatically through this the get is disqualified—meaning that the act of the get was not sustained because of the concern lest she was betrothed—how much more so when it has not yet been written, where he does not need to betroth her but only to nullify his instruction, it is obvious that he nullified the instruction and it is not a get.

The sages of the generations—the Ramban, the Rashba, the Ran (at the end of chapter 8), and the Maggid Mishneh—wondered about him: from where does he derive to say that the get is completely void? For even regarding seclusion, it is only a doubt, and here too there is a concern that perhaps he reconciled and voided the get, and it would be a case of doubtful divorce. But to say that he certainly voided it, there is no reason for this. Therefore, they ruled that if he was secluded with her and afterwards they wrote and gave it to her, she is doubtfully divorced. Our teacher, the Beit Yosef, ruled likewise in section 7 and did not bring his opinion at all, see there. Certainly, this is the primary rule in the law. However, for this, seclusion is not necessary, for it has already been explained in siman 144 that whenever he is seen with her between the writing and the giving, we concern ourselves that perhaps he reconciled and voided the get, unless he says, "She is trusted by me to say that I did not come [to her]." And one cannot say that in a case where she was secluded her statement does not avail, for it is explicitly proven in the Gemara (76b) that even where she was secluded her statement avails, rather there is a concern therein of an "old get," see there (for it says, "and regarding an old get we are not concerned, for he was not secluded with her," and it establishes it where he says "she is trusted," etc.; it is explicitly explained that where they were secluded there is a concern of an old get alone). But the truth is indeed so, and this is what they dispute with him: that even here there is no certain voiding of the get, but rather a doubtful voiding. And in such a case, seclusion is indeed not required (and from the Beit Shmuel, subsection 7, it implies that here trust does not avail, and it requires great study, for from the Gemara it implies explicitly that it does avail, as I have written). And the opinion of the Rambam appears to be that he holds since the Gemara was concerned even without seclusion for the voiding of the get when he did not give her trust, if so, when he was secluded with her there is no doubt that he certainly voided it. And all the more so in such a case when it was not yet written, it can be said that an action comes and voids speech. And so it appears from his words, that he holds that through seclusion alone his statement was voided. And the a fortiori argument he brought is only as a proof that every man seeks after his wife to take her even after she was divorced, and all the more so when she was not yet divorced and he had not yet performed any action but mere speech, that he seeks after her, and through his seclusion his statement was voided. And for the law, we hold like those who disagree with him.