FOOTNOTES

¹Indeed, one of the first systemic discussions related to kidushai ta'ut focuses on whether or not one assumes kidushai ta'ut when a couple marries unaware of the fact that Jewish law actually prohibits them from marrying. This topic is discussed at great length in Otzar ha-Poskim 39:12-13 (pages 210-216). Indeed, as noted by Chelkat Ya'akov, infra note 60, the proper resolution of this matter might depend on the religiosity of the parties. See also Acheizer 1:27 who discusses the case of a divorced woman who married a cohen.

²For a detailed review of this issue, see Shulchan Aruch EH 39:1, and the commentaries on this. It is clear that the formulation in the Shulchan Aruch regarding pesulai cohanim is not fully accurate, as left handed individuals are ineligible for service as cohanim; see Otzar ha-Poskim 13 at page 91. More generally, as noted Otzar ha-Poskim 39:31:2, the vast consensus of halachic authorities notes that this determination is social, and not strictly halachic (in the sense of independent of the social reality, like -- for example -- the definition of chametz is objective.).

³The technical term used for transfer of title or status.

⁴See Tosafot, Ketubot 47b sv shelo, as well as Tosafot Ketubot 72b s.v. al, and 73a s.v. lo. For reasons beyond this appendix, in such cases normally a get would be given when it possibly can.

⁵When exactly one is in one category or the other remains a significant dispute among ahronim; see Achiezer 1:27, and compare it to Iggrot Moshe EH 1:79. A close read of the three Tosafot referred to in the previous note indicates that Tosafot, too, disagreed about this point. However, Shulchan Aruch EH 39 indicates quite clearly that the Shulchan Aruch thought that in the case of a serious hidden defect, "mum gadol," no get was needed, although that rule is only stated in reference to a defect found in the man and not to a defect found in the woman. The stakes, however, are the same, as the defect in the woman permits her to marry another man without a get from her first husband.

⁶Shulchan Aruch EH 26.

⁷Shulchan Aruch EH 37. The case of kidushai ketana is a special one, in that the Torah directed that the father is the one authorized to accept a marriage proposal.

⁸See Aruch Hashulchan EH 26:1-6. This appendix notes, without directly commenting on, the famous view of R. Eziekeil Abromsky that both in the area of family law and contract law, requirement one is significant, and requirements two and three are mere manifestations of one; he avers that, at least as a matter of theory, valid transactions can occur without requirement 3. See Y. Abromsky, Dinai Mamonut.

⁹See Shulchan Aruch EH 38 and 39. EH 38 addresses explicit conditions (tenaim) and 39 addresses implicit or explicit states of mind (al manat). This short review deals with al manat formulations; the expanded version of this appendix will explicitly address both; currently this issue is briefly commented on in note 76.

¹⁰See Shulchan Aruch 44:4 (first opinion). Indeed, many authorities aver that there is no dispute between the two opinions; one is aware of the fact, and one is not. Kidushin shelo nimsaru lebiah is a halachic concept and not a factual one.

¹¹For a discussion of this, see Iggrot Moshe 1:79.

¹²This is the talmudic discussion of an iylonit; for a lengthy review of this issue, see Seredai Aish 3:33, which concludes that it is possible that a get is not needed.

¹³A ma'ase kinyan.

¹⁴See Shulchan Aruch, CM 232:3-9. CM 232:6 reads:

Anything which is agreed by the members of the city (state) as a defect that one must return the item for, one must return the item when that defect is found. Anything which all agree is not a defect, one need not return the item for as it is not a defect, one need not return the item unless one made it explicit [that such was a condition]. Anyone who does business unconditionally, does so in reliance on common commercial custom.

¹⁵Chulin 50a. "If one sells a cow and it turns out not to be kosher, the sale is void." Kosher here refers to a physiological defect in the cow that prevents it from ever being kosher, rather than a defect in the slaughtering process.

¹⁶Many trefas cannot be detected until after slaughter.

¹⁷As noted by Tosafot (Bava Kama 110a) this does not apply to the case where a person purchased a cow, and then it became teref, even though it is true that when he purchased it he desired that it neither be teref nor become teref, the later is not subject to disclosure, and thus cannot be an implied condition in the deal. Of course, as noted at the end of this appendix (see note 76) this could be a formal tenai, but formal tenai'im require very specific formulas, and cannot be implicitly created. For more on this, see Bet Halevi 3:3 who explicitly discusses this issue.

¹⁸In the sense of intentional misrepresentation.

¹⁹Of course, it is easier to prove the lack of agreement when there was actual intent to defraud. However, that is merely evidentiary in nature and not directly relevant. Consider the discussion found in Avnei Chafetz 30 about one who contracts marriages with the intent to defraud the woman or Mari HaKohein Tenyana 13. The same approach can be found in the discussion of one who marries a woman and does not inform her that he is already married to another (See for example Talumot Lev, 3 Shelichut 1, and other sources).

²⁰Consider, for example, the discussion found in Yabia Omer EH 2:9 concerning the case of a woman who represents herself as a virgin but is not. He concludes that the marriage remains valid, and a get would be needed if they choose to separate over that issue.

²¹It might not apply to the yibum relationship, in that yibum, like divorce according to Torah law, does not require the consent of the woman in order to be valid. Thus, the position of those rishonim concerning the apostate brother not voiding the marriage is not inconsistent with this.

²²Rama EH 39:4.

²³Ibid.

²⁴Shulchan Aruch EH 39:3.

²⁵For examples of this, see Otzar Haposkim 39:17-27, which discusses a variety of different hypothetical cases.

²⁶Shulchan Aruch EH 39:1-8.

²⁷Iggrot Moshe EH 4:83(2) in the last sentence of that section.

²⁸Rambam, Ishut 6:1-5; for an excellent short essay on this topic, see "Mepi HaShmu'a" Mesorah 2:39-42 (5744).

²⁹Consider the case of a couple who go through a perfectly proper Jewish wedding ceremony for the sake of allowing one of the two parties to acquire a residency permit (green card, in America) based on the citizenship of their spouse. As Rabbi Moshe Feinstein notes in Iggrot Moshe EH 4:112 even in a case where the ceremony was completely proper in form (chupa kedin), if neither party had any intent to enter into a valid wedding, even if the putative couple takes up residence, commences a sexual relationship, and acts as husband and wife after the ceremony, they are not married, since they both agreed that they would not be married by this ceremony. (Of course, as a matter of proof to this proposition, they would have to demonstrate that they had told that to others before the ceremony took place that the ceremony was bogus.)

³⁰Even Haezer 38 and 39 (en passant); but see Rama, Even Haezer 157:4.

³¹EH 157:4.

³²See the extensive analysis of this topic in Pitchai Teshuva, Even Haezer 157:4.

³³Either through a formal ceremony or through living together sexually with the intent to marry; see Even Haezer 31:8-9.

³⁴When exactly does one assert that there is an implicit tenai, and when is there a mistake (ta'ut) is, at the margins, a matter in dispute. Rambam, cited above, limits tenai to cases of explicit invocation of the conditions, following the explicit doubling formulations (the doubling formulation requires that one mention both what happens if the condition is fulfilled, and if it is not); all other cases fall under the rules of ta'ut. Ra'avad (Ishut 6:1) disagrees, and allows for cases of implicit condition in all matters other than marriage and divorce. Ramban (Gitten 45b, and other places) categorizes all prospective stipulations as tenai and all retrospective conditions as ta'ut. Tosafot (Kiddushin 45b) avers that all implicit conditions are really cases of ta'ut when the conditions are the normative ones expected in any transaction, and the only time one can have a condition is if it is made explicit as a tenai. Rabbi Chaim Soloveitchik (Chidushim) argues that Rambam actually distinguishes between those conditions that are designed to prevent the marriage from taking effect immediately (me'achshav), and those stipulations that are immediately fulfillable at the time of the marriage are merely a form or ta'ut; Rabbi Moshe Feinstein (Iggrot Moshe EH 1:79-80 rejects this view, and accepts the formulation of the Rambam mentioned above. For more on this, see note 17, which discusses this in the context of commercial norms.)

³⁵Why that should be so can be readily explained on a social level, and should not be understood to mean that the absence of this discussion indicates anything halachically. Indeed, one can explicitly find such a discussion among the rishonim who discuss ach mumar. I will leave for another time an explanation of why the Shulchan Aruch does not address that problem in the context of husband, and only brothers of husbands.

³⁶Even Haezer 154:2.

³⁷Beit Meir on id. stands alone in arguing with this approach conceptually and is inclined to accept that there can be no concept of kidushai ta'ut for a woman for defects found in a man. He argues that the talmudic language seems to be limited to defects in the woman. One could respond to this objection by noting that the linguistic reference in the gemara is to the typical case.

³⁸See for example, Terumat Hadeshin 223. It is important to closely read Rashi's explanation of the Bava Kama 110b case, as Rashi indicates quite clearly that a social judgment is being rendered. Indeed, the language of "annan sadi" ("we attest") is very consistent with a statement of social reality and not rabbinic decree.

³⁹Consider the case of the man who is deathly ill, hides this fact from his fiancee, dies soon after the wedding and leaves only a brother who is 6 months old to do chalitza. As noted by Rabbi Chaim Berlin (Even Shoham, Kuntress Haagunot), this states a strong case in that in such a circumstance, one is fairly certain that this woman would not agree to marry this man.

⁴⁰The strongest such statement by a modern posek can be found in Rabbi Henken's Perush Ibra at page 41, which clearly is discussing the facts of marriage and not the halacha.

⁴¹Iggrot Moshe EH 1:80 and Acheizer 1:27.

⁴²"Tav lemativ tan du, melemativ armelo."

⁴³"Anan saadi deminach necha la bekol deho."

⁴⁴Bava Kama 110b-111a and Ketubot 75a.

⁴⁵See for example, Iggrot Moshe EH 4:113 or EH 4:83 or Acheizer 1:27, each of which reach this result, which is fully consistent with the discussion found in the various rishonim about the ach mumar problem.

⁴⁶For example, Iggrot Moshe is inclined to state that the principle is completely inapplicable to people who are not religious; Iggrot Moshe EH 4:83.

⁴⁷See Eruvin 82a, Ketubot 59b, 65b, 122b-123a.

⁴⁸Even Haezer 82:7.

⁴⁹As the facts of this particular case indicate that a child is better off being placed with the mother or father in any particular case, even if the talmudic presumptions might not place this child with this parent at this time. For more on this topic see Eliav Shochatman, "The Essence of the Principles Used in Child Custody in Jewish Law", 5 Shenaton LeMishpat HaIvri 285 (5738) (Hebrew) and my forthcoming article "Child Custody in Jewish Law: A Conceptual Analysis of the Issues."

⁵⁰Terumat Hadeshen 223.

⁵¹That one can take possession of something for a person when it is an unmitigated benefit for them.

⁵²"tav lemativ tan du, melemativ armelo."

⁵³Such can also be implied from the view of Rava in Ketubot 75a. This is also consistent with the practices of batai din throughout the world who permit the use of the get zekui procedure in cases where it clearly is of benefit for the woman to be divorced.

A number of readers have referred me to a recorded lecture Rabbi Soloveitchik gave in which he indicated that the principle of "tav lemativ tan du, melemativ armelo" is an immutable presumption that cannot change and is applicable to every person and every marriage under every circumstance. As has been noted throughout this appendix, that view cannot be correct, and there is a wealth of halachic literature to suggest that even if this presumption is immutable on a general level, it is not applicable to every marriage and under every circumstance. Indeed, I suspect that Rabbi Soloveitchik's formulation at that particular lecture is limited to opposing the wholesale abandonment of the principle, rather than the mere assertion that it did not apply in any given case or set of cases.

⁵⁴Iggrot Moshe EH 4:113.

⁵⁵1:79 concerns kidushai ta'ut in the case of impotence and 1:80 insanity. In both cases, Iggrot Moshe concludes that the marriages are void, as no one would marry one who is a sometimes lunatic or impotent.

⁵⁶Id. Emphasis added.

⁵⁷See Iggrot Moshe EH 4:73 and 4:13 for the cases of heart disease and sterility (or even, perhaps, compelled abortion). Rabbi Feinstein, surprisingly enough, does not consider it kidushai ta'ut in the case where a 20-year-old woman was seeking to marry, and did not wish to reveal that she had not yet begun to menstruate. See Iggrot Moshe EH 3:27 where he argues that such conduct can be explained as within the framework of normal. However, I believe that Rabbi Feinstein is less inclined to consider defects in the woman to be relevant for kidushai ta'ut than defects in the man, as defects in the woman can be grounds to compel her to receive a get, thus reducing the need for this rationale. This important and logical insight is first noted by R. Chaim Ozer Grodzinski in Achiezer 1:27.

⁵⁸"Tav lemativ tan du, melemativ armelo."

⁵⁹"Anan saadi deminach necha la bekol deho."

⁶⁰Besides the many halachic authorities cited throughout this appendix, one can see a discussion of the relationship between the state of mind of the parties, the intent to marry only a person of a particular character and the rules of "tav lemativ tan du, melemativ armelo" and "anan saadi deminach necha la bekol deho." The following list is not intended to be complete, and should not be taken to indicate that each teshuva permits each woman to leave each marriage without a get. Rather these poskim discuss whether one does or does not assume that given the social reality of the couple and the society, one can consider whether there was enough of a failure in understanding the agreement that the marriage was not validly entered into when any particular defect is present. They are as follows: Ain Yitzchok 24 who discusses impotence as grounds for hidden error; Avnai Chefetz 30 who discusses marriage to a criminal as grounds for hidden error; Berchat Retzai 107 who discusses epilepsy and what perhaps is polio as grounds for hidden error; Bet Halevi 3:3 who discusses serious defects generally as grounds for hidden error; Chaim shel Shalom 2:81 who discusses apostasy as grounds for hidden error; Chavat Yair 221 who discusses impotence as grounds for hidden error; Chelkat Ya'akov 3:114 who discusses apostasy by the husband when the wife is secular as grounds for hidden error; Divrai Malkeil 1:86 who discusses whether there is a difference between intentional fraud and accidental misleading information as grounds for hidden error; Even Yekara 53 who discusses epilepsy as grounds for hidden error; Hari Besamim Mahadura 2 EH 147 who discusses insanity as grounds for hidden error; Mahari Hacohen Tenyana 13 who discusses marriage to a criminal as grounds for hidden error; Meluai Even 29 who discusses insanity as grounds for hidden error (he is makil for a reason that is astonishing, and beyond the scope of this appendix); Nodah Beyehuda EH 1:88 who discusses apostasy as grounds for hidden error (this is at tension with his Tenyana 80); Seredai Ash 3:33 who discusses impotence and apostasy as grounds for hidden error; Sharit Yosef 44 who discusses apostasy as grounds for hidden error; Tashbetz 1:1 who discusses impotence as grounds for hidden error; Yad David (Piskai Halachot) 186:3 who advances a general rule that any illness that would be grounds for compelled divorce after marriage, if hidden would be grounds for kidushai ta'ut if hidden; Yeriyot Shlomo 1:8 who discusses what appears to be syphilis as grounds for hidden error.

⁶¹The reason that one would have to know beyond a doubt, rather than some lower standard, is that after what appears to be a valid and proper wedding ceremony the couple is presumed married and the woman bechezkat eshet ish. Halacha would not allow one in that presumptive status to remarry without a near certain insistence that the presumptive status is wrong. For more on this, see Perushai Abira (Rabbi Henkin) at page 41.

⁶³Chazon Ish EH, Ketubot 69:23. He immediately thereafter makes reference to the difference between a diseased person and an apostate, and how the presumption is that she would not desire the second, but perhaps would the first.

⁶⁴How exactly one demonstrates the presence of an categorical presumption is a significant halachic dispute among the poskim as to the relationship between presumption, categorical presumptions, and near certain knowledge that has no witnesses. It is generally accepted that an umdana demochach, in terms of percentages, is somewhat more than 90%, with some halachic authorities asserting the percent to be 95% and some to 98%. This note is to be expanded on -- MJB.

⁶⁵Her ability to leave without a get.

⁶⁶Such is our practice, for example, when individuals who are married in a civil ceremony become religious. When they realize that their civil marriage was void in the eyes of halacha and yet continue to stay married, they are married.

⁶⁷Aruch Hashulchan EH 39:13.

⁶⁸Seredai Ash 3:33.

⁶⁹A sexual relationship being one of the three ways the couple can create a valid kinyan. In the alternative, the couple could actually have another wedding ceremony. For more on this, see Yabia Omer 2:9.

⁷⁰Aruch Hashulchan EH 39:13 quoted above, and others. It is for this reason that there is a greater consensus that kidushai ta'ut in cases of impotence is easier than any other case, as there is no possibility of post-discovery ratification of the marriage through a sexual relationship, which given the nature of the ta'ut here cannot happen.

⁷¹In the case of a relatively non-significant defect, there is a dispute about whether the first marriage continues or a second marriage is created; compare the views of Beth Shmuel EH 68:6 and the Beit Meir (EH 68). However, a strong case can be made that Rama argues, based on how he rules in the case of a "marriage" to a lunatic who recovers, which is discussed in EH 67. For more on this issue, see Yabia Omer EH 2:9.

⁷²Aruch Hashulchan EH 39:13.

⁷³The word "known" is vitally important, as a consensus has developed that when the couple does not know that the marriage is deficient, they do not cure the defect by continuing to live together as husband and wife, as they lack any intent to ratify the marriage or create a new one. One cannot ratify that which one does not think is deficient. A similar concept is present in the conversion of minors.

⁷⁴This is the dispute between Rabbi Moshe Feinstein and Rabbi Yosef Henkin, and has been explained well by others. The near unanimous practice in America is to rule like Rabbi Feinstein, at least in the case where a get cannot be procured.

⁷⁵The first is important because it goes to the question of whether a woman would accept a marriage proposal from one who is sexually unfit for purely economic reasons; the second is relevant as it goes to the question of whether a woman would accept a marriage proposal from one who is unfit for other reasons so as to have a licit sexual outlet. The first of these factors is considered in Iggrot Moshe EH 1:79, and the second is EH 4:83. Rabbi Moshe Feinstein is prepared to consider the possibility that the principles used by halacha in these circumstances differs very very significantly when the couple is not generally religious, and even more so when they are promiscuous.

⁷⁶Consider five different cases which have been presented to batai din that this author has sat on.

1. A physically normal man represents, while dating a woman, that he is a partner in a large law firm and earning $400,000 per year. In fact, he works in the copy department earning $17,000. Indeed, he actively perpetuated this fraud by bringing his fiancee to see "his" large office in the law firm one early Sunday morning. The moment the woman found out these facts, but after the marriage, she left him. She claims kiddushai ta'ut.
2. A woman has a physical defect present from birth that prevents both of her breasts from lactating. The man and woman are both modern professionals and did intend to breast feed their children. The marriage ended unrelated to this problem, and he claims kiddushai ta'ut.
3. A man deceives a woman regarding three different issues; he tells her that he is a partner in a business in which he is really an employee; that he is a citizen when he really needs to marry her so that he can get a green card; and that he is 27 when he is really 30. She discovers each of these defects after the couple has separated due to incompatibility; he will not give her a get.
4. A man is impotent and hides that fact from his wife (he might not have been aware of it, in fact). After medically trying to fix this problem for a number of years, the woman wishes to leave the marriage without a get, as she does not wish to be considered a divorcee, and she has never had a sexual relationship with her husband.
5. A man states that he will not marry a woman who does not cover her hair. The man and woman agree, while courting, that his wife will cover her hair when she marries him. Immediately after the wedding, she announces that she will not, and never intended to.

The purpose of these five cases is not to provide normative answers to these questions, but rather to insist that categorical answers to each of these questions can only be found in a sociological review of the halacha. Each of these cases could be kidushai ta'ut, (although in each of these cases there is no doubt that a get should be given if possible). One is required to undertake a social determination of what is the categorical presumption in each of these cases, and whether each of these defects rises to the level of a significant defect, or not. Only when there is either a categorical presumption present in our society, or an explicit discussion of ground rule norms by the couple and a categorical rejection of the marriage once the deviation from the norm or agreement is made clear, in these circumstances the marriage might be void. Determining when that happens requires both a fluency with halacha and a familiarity with social norms.

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