Conditional Kiddushin and the Presumption of Parental Penitence

by Rabbi Aryeh Klapper

SBM 2018 is off to a terrific start.  I’m sitting in the beit midrash several hours after maariv listening to a group of fellows study a responsum of Rav Moshe Feinstein about what to do when a universal minhag plainly contradicts an authoritative halakhic text, while several other engage in private bekiut or Torah writing projects.  Here I’ll try to share with you some of the learning from the daily shiur.

Our theme is “Honoring Parents: The Hard Cases”, but we started from a seemingly unrelated passage on Kiddushin 49b.  We’ll explain its relevance at the very end of this essay.

{האומר לאשה: התקדשי לי}

על מנת שאני צדיק –

אפילו רשע גמור – מקודשת,

שמא הרהר תשובה בדעתו.

על מנת שאני רשע –

אפילו צדיק גמור – מקודשת,

שמא הרהר דבר עבודת כוכבים בדעתו.

{If a man says to a woman: “Marry me}

On condition that I am a tzaddik” –

even if he is an absolute rasha – she is married,

{because} perhaps he cogitated repentance in his mind.

“On condition that I am a rasha” –

even if he is an absolute tzaddik – she is married,

{perhaps} he cogitated a matter of idolatry in his mind.

Now kiddushin is a form of halakhic contract, and therefore we can always ask whether a rule about marriage applies equally well in commercial contexts.  So in this case:  If A sells B a horse on condition that he is a tzaddik, when in fact he is a complete rasha, would the sale go through because of the possibility that the seller had repented?

ROSH comments that the woman in our case is only doubtfully married, not certainly married, even thought the language of the passage is simply “married”.  Rabbeinu Yerucham comments that this is obvious.  Why is it obvious?  The simplest explanation is that it is utterly implausible to claim that the man in our case certainly did teshuvah.

Beit Yosef, however, explains that Rabbeinu Yerucham was making a literary rather than a substantive claim.  It’s obvious that she is only “doubtfully married” because the text saysperhaps”.  Seemingly, Beit Yosef thinks that it would not be unreasonable to claim that she is certainly married, although it is obvious that the Talmud does not take that position.

But is it reasonable to claim that she is even doubtfully married?  The legal category “doubtful”, or safek, generally reflects something with a 50% chance of occurring.  Do we really think that 50% of absolutely wicked men can be presumed to have repented?  Lechem Mishnah among others points out that such a claim would have absurd consequences.  We rule that a marriage that takes place before witnesses who are invalid-as-reshaim- as-the result-of-their-sins is a nullity, not a “doubtful marriage”.  How can this be?  Shouldn’t there be a 50% chance that the witnesses repented?

Responsa Doveiv Meisharim 1:22 notes that one can concretize this problem by framing it as a single case.  Three men each commit a sin which invalidates them as witnesses because it makes them into “reshaim”.  One of them then marries a woman “on condition that I am a tzadik” in the presence of the other two.  Would we say that his condition is fulfilled because he presumably repented, but that the marriage is nonetheless a nullity because there is no chance that the witnesses repented?!

The simplest approach to resolving this paradox is to claim that by “doubtful” Rosh did not mean that there was a genuine likelihood of repentance.  Rather, he meant that the Rabbis chose to consider her as doubtfully married when the groom made this condition even though they knew that the chances of his actually having repented were infinitesimal.   Therefore, with regard to all other laws, such as the validity of witnesses, the possibility of repentance can safely be ignored.

Doveiv Meisharim himself offers a much fancier resolution.  To cease being a rasha and become a tzaddik, he contends, one must both have repented and atoned.  Repentance by itself is therefore insufficient to fulfill a condition “that I am a tzaddik” – except for a groom, because marriage by itself, like Yom Kippur, is a comprehensive atonement for all prior sins.  This explanation allows him to maintain that repentance is 50% likely in all cases.

Rabbeinu Yerucham had also cited a dispute as to whether the Talmud’s law is true no matter what sins the groom had committed.  One position held that it is not true for interpersonal mitzvot, which require appeasing the friend as well as repentance in order for G-d to forgive them.  This is especially true of theft, where there is a formal obligation to return the object.  In all such cases, one cannot become a tzaddik through repentance alone.  But a second position believes that one become a tzaddik if one has repented and resolved to return the object (even if that resolve turns out to be fleeting.)

This second position generates another apparent conflict between our passage and the laws of witnesses.  No one contends that the mere resolution to return a stolen object revalidates a thief as a witness, especially if the resolution is not carried through.  Such a thief remains a rasha and therefore an invalid witness.  So how can he be considered not merely an ex-rasha, but even a tzaddik, for the purpose of marriage?

The simplest solution is that our passage is not using the terms “rasha” and “tzaddik” in their formal legal sense.  For that matter, it may not be using them in the sense they have in ordinary conversation.  Our passage is interested exclusively in what the terms mean when they are used by a man in the context of a conditional offer of marriage, and how they are understood by a woman who accepts that offer.

This raises the question: Why would a man make an offer on such a condition?  If he knows himself to be wicked, why make a condition of righteousness?  If he knows himself to be righteous, why make a condition of wickedness?  I suggested that he might do so precisely because his interest is not in being married to the woman, but rather in convincing the woman that she is married to him.  His motives might range from avarice – her rich father might be more likely to do business with him – to the hope of convincing his “fiancée” to permit him physical liberties.  On this theory, there might be no actual possibility of repentance.  Rather, Chazal reacted to his chicanery by decreeing that he is in fact matrimonially entangled with this woman, to the point that he needs to give her a get.

But, I contend, on this theory we would likely waive the marriage and get requirement if it victimized the woman rather than the man. Just such a case is discussed by Responsa Radbaz 4:91. He points out that some Geonim ruled that an apostate is simply not Jewish for the purpose of levirate marriage, so that a woman whose husband died childless can remarry freely even if her late husband has living apostate brothers who refuse to do chalitzah.  These geonim also ruled that if the same apostate brother married a different woman, the marriage would be valid – meaning that he is Jewish!  Radbaz suggests that the marriage would only be valid “doubtfully”, and that this “doubt” is a “mere stringency”, not a genuine likelihood.  Therefore, it can be ignored when the consequence would be trapping a woman as an agunah.

However, Responsa Shaagat Aryeh 1 (the “other” Shaagat Aryeh, a grandson of the Bach) discusses a case in which it is to the woman’s advantage for us to consider the possibility of repentance a genuine likelihood.  A man swore not to give a get, and then used judges-invalid-as-sinners to undo his oath so as to give the get; is the oath undone?  Shaagat Aryeh contend that it is, because we do not allow the possibility that the judges did not repent to prevent the get.  His argument assumes that there is in fact a 50% chance of repentance.

How does all this relate to our SBM theme?  We will learn next week that parents forfeit some or all rights to being honored when they behave badly.  Is a mere resolution of repentance enough to restore those rights, and obligate their children to honor them as if nothing has happened?  Does it matter which sins they have committed?  Must children consider that their parents have or might have repented, even if there is no evidence for that possibility, and the last horrific sin was only minutes ago?  Probably not, if our passage discussed “a mere stringency”.  On the other hand, perhaps we follow Shaagat Aryeh in regarding this as a genuine 50% chance.  Moreover, there may be excellent policy reasons for preventing children from writing their parents off the first time they sin and until they conclusively demonstrate that they have repented.

Stay tuned!  Recordings and sourcesheets will be posted soon, and questions are welcome.

Shabbat shalom!

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