Michael J. Broyde^*

A.1 Preface

The goal of this appendix is to demonstrate the nature of the halachic response to questions of kidushai ta'ut -- errors in the creation of a marriage based on information not being revealed. Essentially, this section notes that while the grounds upon which women could argue that kidushai ta'ut occurred were extremely narrow in talmudic times, broader in the era of the rishonim, and have grown yet further in America in the last 50 years, this halachic truth was predicated on a social reality regarding marriage. Rabbi Moshe Feinstein recognized this, and understood that kidushai ta'ut was a factually more plausible argument in America in the last fifty years than in other times and other places, and he advanced arguments for kidushai ta'ut, and for what is a significant defect (mum gadol), in a much larger number of cases than other halachic authorities in other places did. This sociological response is caused by the recognition that there are more and more cases in America where -- had the woman been aware of the full reality at the time of the marriage as it relates to her husband -- she would not have agreed to marry.

However, the recognition that the change in the status of women both economically and socially leads to an increased possibility of kidushai ta'ut does not -- and indeed cannot -- mean that all marriages generally are subject to any form of kiddushai ta'ut principles. Rather, in order for there to be any sort of a claim of error in the creation of the marriage, the following four conditions must be met:

(1) The woman must discover a serious defect present in her husband after they are married.

(2) That defect must have been present in the husband at the time of the marriage.

(3) The woman must have been unaware of the defect at the time of marriage.

and

(4) The woman must discontinue marital relations with her husband either immediately or very soon after the discovery of the defect.

Claims of kiddushai ta'ut outside of the framework of these four conditions have absolutely no foundation in halacha. No matter how serious the defect currently present in the husband or wife might be, absent proof that the defect was present at the time of the marriage, it is impossible to assert that this marriage is void based on error. There are no teshuvot found that permit claims of error in the creation of the marriage unless all four conditions are met. Newly developed conditions or defects can never be grounds for a claim of kiddushai ta'ut.

Consider the case of a couple married for twenty years and in year twenty of the marriage the husband commits adultery with his wife's sister. While the wife would undoubtedly say, "Had I known about this, I would not have married him twenty years ago," such does not state a claim of error in the creation of the marriage, as the condition was not present at the time of the marriage. The same is true if the husband becomes physically abusive of his wife after twenty years of marriage. While there is no doubt that the wife would say "Had I known that he would abuse me after twenty years of marriage, I would not have married him twenty years ago," that demonstrates no error in the creation of the marriage. This case is no different than a case where one spouse becomes blind or lame after many years of marriage. No claim of error in the creation of the marriage can be allowed in that case.

Both of these case are distinguishable from cases where the error was present at the time of the marriage. Consider the case of a man who is engaged to one woman, and during the engagement is secretly having an affair with the woman's sister. In that case one could argue that the error (fraud, actually) was present at the time of the marriage, and the marriage really was void. The same is true for a man who is blind or lame or impotent prior to his marriage, and hides that pattern from his fiancee. If the other conditions are present, both of these cases could be cases of error in the enactment, as the condition was clearly present at the time of the marriage.

The recent use of the term kiddushai ta'ut by the new "bet din lebayot ha-Agunot" is unprecedented in halacha in that they are prepared to void every marriage in which the husband or wife develops a defect in the course of the marriage, even though none of the conditions specified above, and explained throughout this appendix as needed for error in the creation of a marriage, are present.

A.2 Introduction

The institution of marriage in the halachic tradition involves a multiplicity of types of relationships between husband and wife, some sacramental, some sexual, and some financial. Significant failures in any one of these areas creates marriages that are far from ideal (and sometimes void) in the halachic tradition. Thus, for example, non-sexual marriages are frowned upon, spouses have financial obligations one to another that are immutable, and halacha prohibits people from marrying each other if they are of certain consanguinities or conditions, no matter how otherwise rewarding the relationship might be.

On the other hand, halacha does recognize the ability of a couple to deviate from the marriage norms of society if that is what both parties desire. Thus, for example, a husband and wife can decline to have a sexual relationship with each other, if that is what both of them wish; a wife can insist on her right to be self-supporting and self-enriching; and even some improper marriages, if entered into, are valid and create a marriage that requires a divorce when the couple separates.¹

However, to ever be proper, most deviations from the norm require the consent of both parties. Thus, error occurs in the creation of a marriage when one spouse does not inform the other of a highly relevant issue in any one of these three significant areas. The legal theory explaining kidushai ta'ut,² errors in the creation of a marriage, is fundamentally predicated on the view that the creation of a marriage has significant aspects of a commercial transaction in which there has to be a meeting of the minds, and a proper kinyan,³ in which each party is aware of what it is he and she are agreeing to. Absent the full meeting of the minds needed to create a valid kinyan, this marriage is apparently void (there is a failure in the creation of the marriage), and no divorce is actually required, as there is no marriage.⁴ In a number of cases the Sages decreed that a get is required according to rabbinic law, lest people be confused about when a marriage can end without a get. In other circumstances, no get is required.⁵

A.3 Marriage as Contract

All Jewish marriages are created through an established process made up of four "contract-based" requirements:

1. The intention of the parties must be to voluntarily marry through this ceremony or procedure;⁶

2. The parties must be of suitable age, capacity and (opposite) gender to marry;⁷

3. A proper method of marriage must be used (money, contract or sexual relationship) to create a valid marriage, with two witnesses present;⁸

4. The fundamental components of the relationship between the two parties must be agreed upon.⁹

Point four is the one that is most dependent on the social norms of the parties, as it goes to the heart of individuals' understanding of what is "created" when steps one, two and three are followed. For example, it is generally recognized that marriage establishes the ability to have a licit sexual relationship; while there is nothing intrinsically wrong with a marriage where a sexual relationship is actually not medically possible,¹⁰ according to halacha one must inform one's future spouse that this is what they are entering into. If one does not, that marriage is possibly void.¹¹ The same is perhaps true when a sexual relationship is possible, but children are not.¹²

Consider an example away from the field of family law to understand requirement (4). Two individuals meet on an airplane flying from Los Angeles, California, to Sydney, Australia. One looks at the other's wristwatch with great interest, and offers to buy it for "one thousand dollars". The other agrees. The one who is wearing the watch takes off the watch and hands it to the purchaser who places the watch on his wrist,¹³ opens up his wallet, takes out one thousand dollars Australian, and offers full payment. The seller responds by stating, "The purchase price was 'one thousand US dollars'". The purchaser, speaking in his Australian accent, denies that and states that he would not have purchased the item for US $1,000 and he only offered to purchase it for AU $1,000. The halacha is clear: the purchase is void, as there never really was an agreement. Even though they both agreed to what appears to be a deal, because there was a substantive misunderstanding of what the deal was actually about on a very significant facet -- price -- the deal is void. Seller returns AU 1,000 to purchaser and purchaser returns watch to seller. If they want to make a new deal, they certainly can; however, the agreement that they "made" on the plane is void, as it is predicated on ta'ut, error.¹⁴

The same result would be reached even if purchaser had agreed to pay seller "one thousand dollars in 90 days", and the confusion about the terms of the deal did not occur until 90 days from purchaser's apparently taking title through the act of wearing the watch (kinyan meshicha). This is because the buyer and seller did not, in fact, have a meeting of the minds on the terms of the deal. Indeed, the talmudic hypothetical "mocher para, nemtza terefa, mechko batel"¹⁵ clearly applies even though neither the buyer nor the seller are, nor even could be, aware of the defect.¹⁶ In the Talmud's case, if it turns out that there is a significant defect in the condition of the animal at the time of the sale, the sale is void. However, this sale can only be voided by showing the following: (1) that a defect was present at the time of the sale; (2) that the buyer was unaware of the defect; and (3) if the buyer had been aware of the defect, the buyer would not have completed the sale.¹⁷

It is important to grasp that the buyer's argument in the talmudic case is not predicated on fraud¹⁸ at all. It is grounded in the fact that a valid deal requires an agreement about the principal terms and there was none, as the buyer thought he was purchasing an edible animal, but the animal was not, in fact, edible.¹⁹ If both parties had been aware of the true facts, they certainly could have made a deal - perhaps at a different price. They were not, however, and no deal was made. This rule, obviously, is limited to significant components in the deal; error in less significant components does not lead to the deal being void, but merely a "reduction in purchase price."²⁰

This same basic principle applies to the marriage arrangement as well.²¹ Indeed, the Shulchan Aruch in Even Haezer 39 lists many cases that focus on the problems raised by incomplete revelation by the woman concerning the physical state of her body, the presence of constricting vows, and a host of other cases. The basic rule seems clear: if a man should have been aware of the defect²² or actually was aware of the defect,²³ then he cannot claim that the marriage is void based on its presence. So too, if the "defect" is one that is normally found in many people--even if this man claims he now objects--he is not to be believed,²⁴ as it is assumed that he was aware of this defect, or the possibility of this defect being present, and accepted this defect or risk of it.²⁵ However, when there is a hidden defect in the woman that the man was not aware of and could not have been aware of, and the defect is serious, the marriage is void or voidable.²⁶ (In the reality of practical halacha, this problem - of what defect is sufficiently serious that the marriage is void - is expressed in the technical literature as a discussion of what the minimally acceptable attributes of marriage are given the modern state of marriage, and the social and economic reality of the times. This varies from time to time, place to place, and as Rabbi Moshe Feinstein notes, from level of religious observance to level of religious observance.²⁷

It is important to grasp the difference between a condition (tenai) and an error (ta'ut) according to halacha as there is a very significant conceptual difference between a condition in a marriage and an error in enactment of the marriage. Error in enactment is not simply the application of implicit conditions. A condition in a marriage or divorce (and maybe all areas) follows a particular technical formulation and can cover contingencies that cannot ever be predicted by the parties and certainly need not be present.²⁸ Thus, a man may marry a woman and he or she can state under the chupa that they are marrying each other only on the condition that neither ever get cancer or drink wine (or both). When one makes such a condition in a marriage, and that condition is breached, the marriage is void, assuming that both of them never forgave the marital condition.²⁹

Thus, one can say that a formal tenai is a condition and limitation on the status of the marriage, and is thus subject to significant procedural restrictions (both in exact formula and in assumed waivability), perhaps for that exact reason. However, the tenai procedure -- if correctly followed -- works for almost every imaginable contingency, including those currently not present. However, normative halacha assumes that people forgive tenaim after the couple commence a sexual relationship, and thus the marriage is valid, even if the subsequent conditions are breached, as happily married couples waive otherwise permanent conditions shortly after marriage.³⁰ However, when a tenai is made at the time of marriage, and kept in effect during the sexual relationship and then the tenai is breached, the marriage ends without any divorce, as if there never was a marriage. Nevertheless, the marriage is fully valid until such time as the condition is breached.

While it is true that the custom and practice is not to use any conditions in a marriage, as there is a distinct halachic possibility that any such condition is void if the parties live together sexually without explicitly repeating the condition, such is not the categorical halacha, as Rama clearly rules that such conditions can and do work, and he proposes one to cover the case of a brother unwilling or unable to do yibum³¹. Certainly, all agree that a tenai can be kept in effect if, for example, the couple repeated the condition to a bet din each time before they engage in a sexual relationship.³²

In sum, in a tenai case, when a condition is used and the procedure for a tenai is followed, the marriage is valid but conditional. If the proper procedure is followed, the condition can survive and it can govern many un-foreseeable activities. However, in the real world of Jewish marriages, formal conditions are never used, as the procedural requirements to keep them valid once a sexual relationship commences are very onerous in all but the rarest of circumstances.

Such is not the case in ta'ut, which functions along a completely different conceptual axis. In an error case, since the marriage is only valid based on mutual agreement, and the mutual agreement was predicated on a mistake of fact so great that were it known, one party would not have consented to marry (or purchase the watch, in the case discussed above on page 121), the marriage (or sale) is void. It always was void and never was valid. The blessings recited under the chupa when the couple was married were in vain and no marriage ever took hold. While it is true that a subsequent marriage can take place between the parties,³³ that is only possible if the parties are actually aware of the true facts and still desire to be married in light of them, just as the parties in the watch case could agree -- once aware of the misunderstanding to sell the watch for $1,000 (Australian). So too, in a case of error the parties could agree not to continue the relationship, and seek to contract with others. Obviously, this type of error can only be present and apply to facts present at the time of marriage.³⁴

A.5 Defects in the Man

There is no discussion in the Shulchan Aruch itself concerning defects in the man, even though there is a lengthy and detailed discussion of defects in the woman found throughout Even Haezer 39³⁵. However, such a discussion does appear quite clearly in the Beit Shmuel³⁶, and can be implied from the talmudic discussion, found in Bava Kama 110b-111a, concerning the woman who marries a man whose brother is diseased³⁷. In that talmudic case, the gemara clearly stated that Jewish law does not assume that a woman would decline to marry a man who is right for her merely because she might fall to her future husband's brother as a yevamah, and he might not wish to do chalitza so she might have to marry him. Indeed, the rishonim split about what exactly is the proper limit to this presumption: Does it apply when the brother is an apostate? A heretic? A eunuch? All of these cases present troubling hypotheticals and the rishonim disagree over what exactly is the correct line to draw.³⁸ However, it is important to understand the nature of the disagreement -- at what point is the defect in the brother great enough that one can state with near certainty that with this defect in the brother, this woman would not have married this man under any circumstances.³⁹ Indeed, one cannot really find any systemic statement of halacha (in the sense of statement of legal principle) which precludes the application of the principle of "defect" to a case of defect in the man.⁴⁰ The exactly opposite argument can be found in the writings of both Rabbi Moshe Feinstein and Rabbi Chaim Ozer Grodzinski, who are inclined to rule that since a man can divorce a woman with less difficulty than the reverse, a man is more inclined to marry a woman who might be defective than the reverse, as he is prepared to gamble on a transaction that might not work, and from which he can exit of his own free will; she cannot, and thus is less inclined to take such a risk.⁴¹

The obvious question needs to be resolved. How does one understand the rule of "It is better for a woman to be with another [unhappily] than to be alone"⁴² and the related talmudic phrase "We can attest that she is better with anyone"⁴³ found in the Talmud.⁴⁴ The question is how can one even consider the issue of kidushai ta'ut when the talmudic principle clearly assumes that any given women is better off married than single? This issue requires a very direct response: This talmudic principle has not globally changed for all women (throughout the world), but rather creates a rebuttable presumption that women are better off married, even in a less than ideal relationships, than single.⁴⁵ This principle, by this approach can be deemed inapplicable in any given case when it can be shown to be untrue given the facts of any specific man and woman, or indeed any given category of specific men and women.⁴⁶

Indeed, this might be the approach halacha takes to many areas where the gemara creates presumptions which are not applicable in every single case, but which cannot be shown to be generally inapplicable. Consider, for example, child custody disputes between a man and woman who are divorced. Even though the Talmud provides rules of custody⁴⁷ which are quoted in the Shulchan Aruch,⁴⁸ the rishonim and ahronim, almost with one voice, insist that these rules are mere presumptions, which a bet din need not follow in any given case when it recognizes these presumptions are not applicable.⁴⁹

The same is true in the area of kidushai ta'ut. One can show many specific cases where poskim determined that the presumption that a woman is better off with any husband is rejected, sometimes with the attestation, taken from the Terumat Hadeshen⁵⁰ concerning a husband who is an apostate, that this husband is "less than anything!" Indeed, to adopt the posture that these two principles are absolute categorical presumptions is extremely difficult to do, as the Talmud itself recognizes that there are circumstances where it is better for a woman to be divorced than to be married. Thus for example, Yevamot 118b permits one to accept a get on behalf of a woman who is categorically better off being divorced from her husband under the principle of zachen leadam shelo befanav⁵¹ in a case of a fight between a husband and wife, when the husband wants to divorce her, but she is not present to receive the get. This can only be justified by stating the obvious: the principle of "it is better for a woman to be with another [unhappily] than to be alone"⁵² is a presumption that -- when clearly inapplicable -- is also halachically inapplicable.⁵³

To give the most recent example of this dual approach of insisting that the general reality has not changed, but is inapplicable in any specific case, Rabbi Moshe Feinstein,⁵⁴ when discussing the case of a woman who married a bisexual man who hid that fact from her during their courtship, states that:

even nowadays one should not accept as proper this argument [that women generally are more content not to be married now than in talmudic times] and that, generally, reality has changed.

However, he continues:

In this case, where the defect is so great, the marriage is a void transaction based on error even for a woman, as I explain in Iggrot Moshe EH 1:79 and 80,⁵⁵ as this husband is involved in homosexuality which is a particularly great abomination, and greatly repugnant, an embarrassment to the whole family, and even more so to this woman that her husband chooses this disgusting form of sexual relations more than sexual relations with her. In such a case, the marriage was certainly based on error. It is certain to us that no woman would desire to marry a man as disgusting, repugnant, and embarrassing as this.⁵⁶

Rabbi Feinstein applied similar analysis to cases where the husband was a sometime lunatic, or impotent, or suffered heart illness, or was an apostate and other cases or hid that fact from future spouses.⁵⁷

Indeed, one can find a considerable number of achronim who address particular cases of possible kidushai ta'ut in this methodology and conclude that the rules of "it is better for a woman to be with another [unhappily] than to be alone"⁵⁸ and the related talmudic phrase "we can attest that she is better with anyone"⁵⁹ can be determined to be inapplicable in specific cases based on the reality of any given time or place. This note cites no less than 15 such cases in note 60, throughout this article another nine teshuvot also adopt that view and twice that number could have been cited by this author.⁶⁰

To the extent that there is a significant dispute about how to apply the principle of kidushai ta'ut, derives from a fundamental disagreement about the sociological facts and reality: When does one reach the critical threshold of knowing beyond a doubt⁶¹ certain facts about the intent of the parties in a marriage? As Chazon Ish states, "In the case of defects by the man when there is an unconditional marriage it is clear that the marriage is valid, as there is no categorical presumption⁶² that she would not want [to marry him]."⁶³ When there is a categorical presumption that had she been aware of his defects she would not have married him, even Chazon Ish would admit that the marriage is void.⁶⁴ Reasonable people or rabbis living in different communities, or understanding people's mind-sets differently, might disagree on when that threshold is reached, and what is such a defect in the minds of most members of their community. That is a sociological and halachic problem, with different results in different times and places. The rules remain the same, even as the results might change. This is a common motif in many halachic areas and not unusual or uncommon.

A.6 Continuing Marriages Which Started with a Defect

One of the frequent issues in the area of kidushai ta'ut relates to what is the response of the woman or man upon discovery of the error in the creation of the marriage. Does he or she leave the marriage immediately? Rabbi Feinstein's final comments on the bisexual husband quoted above are worthy of further discussion. He states:

If as soon as she found out that he was bisexual she left him, it is logical that if one cannot convince him to give a get, one should permit her to remarry because of the rule of kidushai ta'ut.....

Rabbi Feinstein repeats this again:

But all this⁶⁵ is limited to when she leaves him immediately, but if she lives with him (sexually), it is difficult to rule the marriage void.

This factor is significant to understand. Shulchan Aruch EH 31:9 rules that a couple that has an improper wedding ceremony for a technical reason (such as the wedding ring was worth only half a prutah), when they discover the defect and continue to live together (sexually), that decision creates a valid marriage at that moment of their sexual relationship since both parties were aware of the defect and aware of the fact that they could leave the marriage because of it, and chose not to.⁶⁶ Indeed this rule is explicitly described in the context of defects in the woman by the Aruch Hashulchan, who states:

In the case of defects in the woman which he explicitly stated before the marriage that he does not desire such defects ... if he lives with her after their sexual relationship for an extended period of time, as a man and woman who are married do, they are certainly married ... The marriage was completed with certainty, when he lived with her, as that made it clear that he really does not care about these defects.⁶⁷

This approach is logical. Every pot really does have a lid, and halacha recognizes the ability of a person -- even with glaring defects -- to marry a person who understands the virtues and vices of such a marriage to such a person. Thus, there is little doubt that a woman who cannot have children (an ilonit) can validly marry, so long as she discloses that fact,⁶⁸ and that a man who is impotent can enter into a valid marriage, so long as he discloses that fact. The corollary of this is that when this woman or man becomes aware of a significant defect that was hidden, did she or he take steps to leave the relationship, or did he or she decide that they could live with the status quo. If he or she did the latter, even if the marriage was defective at its enactment, a very strong case can be made that this conduct (continuing the sexual⁶⁹ relationship with one's spouse with the intent to be married) creates a new -- and valid -- marriage.⁷⁰ In the case of a relatively non-significant defect, a case could be made that this is a ratification of the previous marriage, and in the case of a significant defect, in creates a new marriage.⁷¹

It is possible to create a construct in which the woman or man immediately decides to leave, but stays for a short period of time while planning to leave. In order to explain this halachically, one would have to maintain that the man and woman never intended to have that ongoing sexual relationship, after discovery of the defect, create a marriage. Even the words of the Aruch Hashulchan admit the possibility of that construct, as he states "if he lives with her after their sexual relationship for an extended period of time, as a man and woman who are married do, they are certainly married."⁷² The rationale, however, is halachically complicated, as halacha has a very strong presumption that people who have a sexual relationship and represent themselves as married actually are, as any known deficiencies in the marriage ceremony are cured by continuing the marital relationship.⁷³ However, if the woman is unaware that al pe din her marriage is void and it needs recreation through a sexual act, she can never have the proper requisite halachic intent to marry based on any given sexual act, as the halacha is now well established that a couple does not become married merely by living together when they are not aware that their original marriage ceremony was void.⁷⁴

A.7 Conclusion

The problems of kidushai ta'ut have been brought to the forefront by recent developments, and it is important to grasp how socially and contextually defined this issue really is. What are the fundamental aspects of a marriage that allow one to assert that deception about them voids the marriage ab initio? Halacha does not have absolute answers to that question. Halacha recognizes a principle: Defects or conditions that were present at the time of the marriage, but were not revealed, which if the other party to the marriage, as well as most people in that society, had known about would have caused that other party to the marriage to refuse to enter into the marriage, can make the marriage void ab initio. The application of this principle varies from place to place and time to time, and is affected by the differing social status given to women, including such issues as how easily can a woman earn a living without a husband, and (if she is not observant of Jewish law) how easily can she engage in illicit sexual relations outside of marriage⁷⁵ as well as other factors, which differ from society to society.⁷⁶

^*Associate Professor of Law, Emory University; Dayan, Beth Din of America. The work is an appendix to a longer book entitled "Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America." Michael Broyde cal be reached at 404 727-7546 or by email at mbroyde@law.emory.edu.

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