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Temporary Marriage - A Possible Solution to the Problems of Mesorevet

Halizah and Agunah

Article  in  SSRN Electronic Journal · May 2010

DOI: 10.2139/ssrn.1600584

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Temporary Marriage – A Possible Solution to the

Problems of Mesorevet Halizah and Agunah
Yehezkel Margalit*
Contents
1. Introducing the discussion
2. "A conditional marriage”- annulling a marriage to avert a levirate marriage
3. Temporary Marriage
4. Halakhic opinions that Temporary Marriage may be dissolved without a Get (divorce
agreement)
5. What are the differences between a conditional marriage and a Temporary Marriage?
6. “Man Havia le-Yoma” (who wants to be my wife for day/s)
7. The Shi'ite Temporary Marriage (Muta) for the purpose of pleasure. ' (0123 ‫)زواج‬
a. General
b. The ancient historical roots of the Shi'ite Temporary Marriage
c. The contemporary Temporary Marriage
d. The Shi'ite Temporary Marriages in Rabbinic and Karaite Halakhic sources
8. A common Persian source? - Between the Babylonian Talmudic marriage and the Shi'ite
Temporary Marriage
9. Epilog - A Possible Solution to the Problems of Mesorevet Halizah and Agunah
Abstract
The problem of the Agunot (literally: chained women, women whose husbands refuse to divorce them) and the need to
find an Halakhic solution to resolve their suffering has occupied Halakhic authorities throughout the ages. Lately, the
problem of husbands who refuse to divorce and brothers-in-law who refuse to absolve widows from Levirate marriage
has become far more acute both in Israel and in the diaspora for a variety of reasons. Some even regard it as the most
severe Halakhic problem to occupy Halakhic authorities today and this is most certainly so in the field of marital
relations. Various Halakhic solutions have been considered at different times, but most of these have been rejected by
contemporary authorities.

* Rabbi and lawyer; a doctoral student in the Law Faculty, Bar-Ilan University; External lecturer, Ono Academic
College; Research fellow at the Agunah Research Unit, Manchester University, U.K (2007 – 2009). I would like to
take this opportunity to thank Professor Bernard S. Jackson who encouraged me. This article was written with the
academic co-operation of the Agunah Research Unit, which he directed. I would also like to express my gratitude to
Rabbi Dr. Judah Abel, to Dr. Aviad Hacohen, and to Professor Mordechai Akiva Friedman who agreed to read drafts
of this article. I am also grateful to my teacher, Professor Berachyahu Lifshitz for his sage comments and to Mr. Uri
Yamin who helped me identify and read different Islamic sources in the original. I am of course solely responsible
for everything written in this article.

Electronic copy available at: http://ssrn.com/abstract=1600584

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In this research, we would like to present a little-known possible Halakhic solution – Temporary Marriage - in its two
possible forms. We will consider its roots and the different applications of this solution in Talmudic sources, in both the
Palestinian Talmud and the Babylonian Talmud, where there is a more detailed discussion. The two variations are, a pre-
marital condition which will be used where the widow becomes liable for a levirate marriage and a Temporary Marriage
to be agreed by the two sides. An example of the Babylonian application of this solution is the cry by important
Babylonian Amoraim - “Who wants to marry me for day/s”. In these two cases, some of the Halakhic authorities rule
that there is no necessity for a Get in order to terminate the marriage. We will consider the early Halakhic rulings in
these cases and the modern version of this suggestion, which was also rejected by modern Halakhic authorities. We will
also undertake a comparative study of a possible parallel to the marriage for a pre-determined period - the Shi'ite
Temporary Marriage, which is intentionally restricted to an agreed period of time and does not require divorce to annul
it. We will conclude our discussion by revealing the possible common roots for the Temporary Marriage and the Shi'ite
Temporary Marriage in ancient Persian law.

1. Introducing the discussion

The Jewish marriage has always been a shining example of a strong and stable family cell. On the
one hand one can compare the Catholic Christian marriage, which is an institution surrounded by
the halo of an holy sacrament,1 and cannot be nullified even with the agreement of the two partners,
“those who G-d has united, man may not put asunder.”2 On the other hand, one can compare the
Islamic marriage, which is closer to a legal agreement than to a sacrament,3 where the husband

1 For a discussion of the sacramental qualities of the Christian institution of marriage see the sources cited by S.
Lifshitz, Hasdara Hozit shel Yahasim Zugi'im be-Mishpat ha-Ezrahi (The Regulation of Marital Relations by Contract
in Civil Law (Hebrew) (Ph.D. Bar Ilan University, Faculty of Law, 2002), 57.
2 Mark 10:9; see P. Roderick, Putting Asunder: A History of Divorce in Western Society, (Cambridge: 1988), 15 – 30,
34 - 39 ; J. Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (Louisville, Ky.:
1997); Z. Falk, Nisuin ve-Gerushin Tikunim be-Dine Ha-Mishpaha be-Yahadut Ashkenaz ve-Zarfat, (Marriage and
Divorce, amendments to the laws of marriage in French and German Jewry) (Hebrew) (Jerusalem: 1961), 11ff, 55ff.
3 Compare the conclusions of S.D. Goitein & A. ben Shemesh, ha-Mishpat ha-Muslami be-Medinat Yisrael (Islamic
Law in the the State of Israel) (Hebrew) (Jerusalem: 1957), 218 - “the marital bond is a civil contract between two
parties. The husband gives the bride-price and the wife agrees to conjugal relations with the husband. Therefore the
agreement is initiated in the same way as any civil agreement, by a proposal and its acceptance...”; Y. Meron, ha-Din
ha-Muslami be-Reiyah hashva'atit, (Islamic law, a comparative perspective) (Hebrew) (Jerusalem: 2001), 177 -
“Marriage in Islam is a contractual agreement.”; G. Behor, Ben ha-Ratzui le-Matzui: ha-Mishpat be-Olam ha-Ma'arav,
(Between the Ideal and the Existing Situation, law in the Western World) (Hebrew) (Herzliya: 2002), 270 - “Under
Islamic law, the marriage contract is a commercial contract, which is entered into by an offer and the acceptance of the
offer and any disputes are settled under contractual law (majles), i.e place and time, between the woman's guardian and
her future husband...”. This statement is quoted also by the president of the Shari'a appeals court in Israel, his honor the
Quadi the Sheikh Tavik al-Aslia in T.P. (B.S.) 140/83 The State of Israel v. Amar ben Mehusan id al-Tsaria, P.M (2)
336, 346 (1985). This approach is reflected in legislation, specifically in paragraph 35 of the Ottoman family law which
states - “Marriage is initiated by a proposal and the acceptance of the proposal either by the sides or by their
representatives.” and similarly in paragraph 2 of the Jordanian law governing personal status, which defines marriage as

Electronic copy available at: http://ssrn.com/abstract=1600584

 3
alone may annul his marriage either through his decision or by mutual consent.4 This is especially
true of the Shi'ite marriage – the Muta5, which may annul themselves without any divorce
proceedings at the pre-determined time. Between these two extremes is the Jewish marriage which
may be annulled, under specific circumstances, with the agreement of both of the partners.6
The pure Torah law marriage is similar to the Muslim approach. The husband alone has the right to
dissolve the marriage, and the woman had no right to initiate or demand divorce.7 However, after

- “a legal contract between a man and a woman with the aim of establishing a family and bearing children.” For a
comprehensive discussion of the Islamic conception of marriage see Abd al Ati below in n. 95, pp. 50-64; for a
discussion as to whether the Islamic marriage is a contract or a sacrament, together with a comparison of the Jewish and
Christian approaches to marriage see Abd al Ati, n. 95 below, 56-59. Professor Berachyahu Lifshitz pointed out to me
that the idea of marriage as a private contract can also be found in Roman law.
4 For a discussion of the different Christian approaches, where the Catholics emphasize the sacramental nature of the
marriage and that of the Protestants contrasted with the Islamic approach, see T. von Kipp & Martin, Das
Familienrecht, (Marburg: 1923), 114. For a more detailed account: D. Coester-Waltjen & M. Coester "Formation of
Marriage" in "Persons and Family" M. A. Glendon (ed.), International Encyclopedia of Comparative Law (Tübingen:
1997) vol. IV, 6.
5 For a discussion of the male's power to annul a marriage at any time without his wife's agreement, even if they have
been consummated, see: Z. Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law: Iran and Morocco
Compared, (London: 1993),165. If the marriage was canceled prior to consummation, there are differences of opinion
as to the compensation due to the woman – he is not liable to any payment, since he did not receive what he wanted,
there was no marriage; according to Humeini, he should pay half of the sum which he originally undertook to pay;
however if the woman is interested in the marriage and the man canceled it he should pay the full sum that he
undertook, see Haeri, n. 92 below, 53-54. For this unique form of marriage which is problematic since it is closer to
institutionalized prostitution than institutionalized marriage, see: W. Heffening, "Mut'a" in C.E. Bosworth et. al (eds.),
Encyclopaedia of Islam (Leiden: 1960), Volume VII, 757 – 759.
6 See B. Sharshevski, Dine Mishpaha (Family law) (Hebrew) (Jerusalem: 1993), 279ff ; Enziklopedia Talmudit,
(Talmudic Encyclopedia) (Hebrew), (Jerusalem: 1990) vol. 6, Gerushin, columns 354ff. For a legal discussion as to
whether Halakhic marriage is a normal contract, which is the opinion of the judge Haim Kohen, or a special contract in
accordance with Judge Zilberg's ruling, see 337/62 Rosenberg v. Jacobson, PD 17, 1009, 1026-1027 (1963) - “My
honorable friend, the judge Cohen, considers the lenient manner in which Jewish law sees divorce as a proof that
marriage is not regarded as a sacrament, but should seen as a contractual obligation like any other contract, which if
both sides agree, may be canceled easily. It seems to me, with all my reverence for Judge Cohen, that this is not the
whole picture and one may not ignore all the difficult aspects in Jewish law which militate against the annulment of the
marriage where one of the sides – usually the man – does not agree to divorce and this is a “contract” - and even the
British use this term innumerable times in the context of marriage - “as a special contract”. For an historical sketch of
the development from Jewish marital laws to the Christian sacramental marriage laws, see: Michael L. Satlow,
“Slipping Toward Sacrament: Jews, Christians and Marriage”, in R. Kalmin & S. Schwartz (eds.), Jewish Culture and
Society Under the Christian Roman Empire (Leuven: 2003), 65-89.
7 For the possibility, that at least in the Palestinian Talmud and the Erez Yisrael tradition one could generally find
sources that the woman could introduce a condition at the time of the marriage that if she should hate her husband, he
 4
the decrees of Rabenu Gershom Meor ha-Golah a woman's position was equated with that of her
husband and the male could no longer divorce his wife against her will, but both sides have to agree
to a divorce. In other words, after the decree, just as a marriage requires free will agreement of both
sides, so the dissolution of the marriage requires the agreement of the two sides.8
We would point out that we are not talking about substantial equality, but rather formal equality, for
as the experts in different aspects of family law point out, there is asymmetry between those
definitions of betrayal which are a sufficient basis for the dissolution of a marriage, justifications for
divorce, forms of divorce, and the husband is in a far stronger position than that of his wife.9
However, the status of the woman in Jewish marriage is even worse where her husband or brother
in law (in the case of levirate marriage) obstinately refuse to give a divorce or carry out the Halitza
instead of Levirate marriage in order to release the woman from the first marriage.

should be forced to divorce her in the same way that he could divorce her if he hated her, see the recently: Y. Margalit
“Hofesh Hozim be-Dine Mishpaha? - ben Talmud Bavli ve-Talmud Yerushalmi” (Freedom of Contract in Family law –
a comparison of the Babylonian and Palestinian Talmuds) (Hebrew), Mehkare Mishpat 25, 803 (2010). Professor
Berachyahu Lifshitz pointed out that it should be emphasized that the 'hate' clause is a possible way to force a divorce,
which differs from that where the woman claims that she find him repellent, where he can be forced to divorce his wife
even though she does not hate him.
8 With regard to this subject Rabbenu Asher's position is well known. In Responsa ha-Rosh # 42 s.v. dayo he states:
“when he saw that the generation was corrupt and held Jewish women in contempt, and divorced them by throwing
them a Ge, he empowered the women and made them equal to the men: just as a man cannot be divorced against his
will, so a woman cannot be divorced against her will.” For confirmation of the effectiveness of this decree and his wide
acceptance in different congregations, see, for example, Rabbi Nissim ben Reuven Girondi (the Ran) Responsa ha-Ran,
# 38 ff: “and what is more, we hold that there is a general injunction or decree by Rabbenu Gershom, of blessed
memory, and this thing is forbidden throughout the Jewish diaspora and we have not heard of or have not seen any case
where a woman was divorced against her will...”. For a summary of the different opinions regarding this decree see:
Enziklopedia Talmudit, (Jerusalem: 1990), vol. 17, the entry: Herem de-Rabbenu Gershomi, column 378; Sharshevski,
n. 6 above, 280-281.
9 For criticism about the religious marital structure in general and the Jewish structure in particular see, for example, P.
Shifman Mi Mefahed mi-Nisuin Ezrahi'im? (Who is afraid of Civil Marriage) (Hebrew), (Jerusalem: 2000), 7-19;
Lifshitz, n. 1 above, 505-512; S. Lifshitz “Rishum Zugiyut” (Hebrew), in Aharon Barak & Daniel Freedman (eds.),
Sefer Menashe Shava (Hebrew), (Tel-Aviv: 2006), 361, 368-372; S. Lifshitz Brit ha-Zugiyut (Civil Marriage)
(Hebrew), (Jerusalem : 2006), 15-23. For harsh criticism of religious law, including the apathy of the civil law to the
distress caused by its rulings, see Z. Trigger, "There is a State for Love" (Hebrew), Mishpatim al Ahava (Trials about
love) (Hebrew), in Orna ben-Naftali & Hanna Nave (eds.), (Tel-Aviv: 2005), 173-225. Similar criticism was expressed
in a ruling by the High court over 40 years ago see, for example, 164/67 The State Council v. Yehia and Ora
Avraham, PD 22 (1) 29, 41 (1968). For a discussion of the different Halakhic aspects of the refusal to grant a get under
the religious law as practiced in Israel including civil law, see, for example: R. Lavmor, “Heskeme Qdam-Nisuin
Lemeni'at Sarvanut Get be-Yisrael” (Pre-Nuptial Agreements with the aim of preventing the husband's refusal to give a
Get) (Hebrew), Shnaton ha-Mishpat ha-Ivri 23 (2005), 127-192, 144-145.
 5
There has been considerable discussion regarding the source of the problem and possible solutions
for this unique situation,10 which in the opinion of many authorities is the most problematic and
difficult subject to be dealt with in general and in family law in particular. Different Halakhic
solutions have been raised at different times in an effort to solve this painful human problem, but
the variety of solutions only goes to prove how intractable is the problem and how helpless is the
Halakha, at this stage to find a satisfactory solution, which would be generally accepted.
With regard to the problem of the refusal to free widows from the requirement of levirate marriage,
there were two main suggestions, which are possibly related, whose intention was to solve or
minimize the problem11 - using a legal contract and/or oath at the time of the marriage, where the
bridegroom's brother undertakes to carry out Yibum or Halizah if necessary without any monetary or

10 For a survey of the source of the problem and possible solutions written from an Halakhic point of view see, for
example: Rabbi D. Bas “Al Gerushin ve-Aginut le-fi Nekudat Mabat Orthodoxit” (Hebrew) (to be found:
http://www.snunit.k12.il/seder/agunot/view.html (last viewed: 21.7.08)); D. Mishlov “Heskemim Qedam-Nisuin”
(Hebrew), Tehumin 21 (2001), 288, 288-316. For a summary of the considerable research on the subject, see, for
example: M. Ziskind Goldberg & D. Vila, Za'akat Dalot: Pitronot Halakhti'im le-Ba'ayat Aginut bi-Zemanenu
(Hebrew) (D. Golinkin, S. Lewis and M. Benovitz (eds.), (Jerusalem: 2006); E. Rubinstein “Le-Taqanat Agunot”
(Hebrew), Tehumin 26 (2006), 190-204; Y. Shilo “Aginut” (Hebrew), in A. Barak & D. Freedman (eds.), Sefer Menashe
Shava (Hebrew), (Tel-Aviv: 2006), 301-319; M. Korilandi Dine Ishim Mishpaha u-Yerusha – Ben Dat le-Medina –
Magamot Hadashot (Hebrew), (Jerusalem: 2004), 209-232; M. Frishtik “Heqef Tofa'at ha-Aginut ve-Ikuv ha-Nisuim
be-Yisrael” (Hebrew), Hevra U-Revaha: Riv'on le-Avoda Sozia'lit 11, 3 (1991), 304-15; A. Rozen-Zvi Pitronot le-
Ba'ayot Ishut (Hebrew) (Tel-Aviv: 1986); Z. Falk Tevia't Gerushin Mizad ha-Isha be-Dine Yisrael (Hebrew),
(Jerusalem: 1973), 77-123.
11 The origin of the problem is a ruling by the Amora Rav, which is generally accepted that one cannot force anybody
to free his brother's widow from levirate marriage (Yevamot 39b, together with the discussions on his ruling by the
Rishonim), but he should be persuaded to do so of his own free will. The problem became more acute when in the 16th
century the Rama, one of the most important and influential ashkenazic rabbis, accepted this ruling as definitive. In his
note to Shulhan Arukh, Even ha-Ezer 160, 7 he was willing to consider the possibility of forcing the brother-in-law to
free his widowed sister-in-law, but in Shulhan Arukh, Even ha-Ezer, 165, 1 he already ruled that “the custom is
according to the former approach and the brother-in-law should not be forced to carry out the ceremony of Haliza, even
though it is known that he is interested in money, but one should mediate between them in accordance with prevailing
custom...” This ruling by the Rama, prevented the use of coercion to carry out Haliza, unless there was an earlier
agreement as we shall demonstrate in our discussion. See for example, Levush, Ezen ha-Ezer, 165; Arukh ha-Shulhan
Ezen ha-Ezer, 165; Responsa Mishpete Uziel, vol. 4, Hoshen Mishpat, #33. For a survey of the situation which
recognizes the right of the brother-in-law to demand monetary compensation from his sister-in-law in Israeli rabbinical
courts, see: Appeal 1970/26, PDR 8, 193. The suffering of women waiting for their release by the brother of the
deceased husband and their fear that if they do not give in to his monetary demands, they will be preventing from
entering into a new relationship appears frequently in rabbinical literature. See for example, Responsa Maharil he-
Hadash, #202; Samak, commandment no. 185; Responsa Maharil, #181. For a scientific discussion see: Louis
Finkelstein, Jewish Self-Government in the Middle Ages, (Westport: 1924), 252 – 253.
 6
other pre-conditions.12
The various Halakhic solutions to the problem of the Mesorevet Halizah belong to two major
categories – a priori solutions aiming to forestall the problem at the engagement or marriage stage
or even later, or a postiori solutions when the problem has already arisen. One of the a priori
suggestions was the use of the prenuptial agreements,13 preparing the divorce using a Shaliah
(representative of the husband), or even the woman herself, and/or depositing the Get with a
mutually accepted third party,14 a condition agreed upon at the time of the marriage,15 etc. Among

12 For a discussion of this sort of agreement see: Responsa Maharam Minz, #109; Responsa Shvut Ya'akov, vol. 2,
#128/130; Responsa Maharam of Lublin, #136 (1881). With regard to the oath as an alternative or supplementary
solution, see, among others, Bah, Tur Even ha-Ezer 165; The new Responsa of the Maharik, #29; Responsa Shvut
Ya'akov, vol. 1, #124; The Responsa of the Maharam of Padua, #23. For research dealing with the origins of the
problem, see: Y. Katz, “Yibum ve-Haliza be-Tequfa ha-Batar-Talmudit” (Hebrew) in Y. Katz Halakha ve-Qabala
(Jerusalem: 1982) (Hebrew), 127-174 [=Tarbiz 51 (1982), 59-106]. E. Westreich, “Mitzvat Yibum u-Moredet – ben
Zefon Afrika le-ven Sefarad” (Hebrew) in A. Barak & M. Sha'ava (eds.), Minha le-Yitzhak, Qovez Ma'amarim li-
Khvodo shel ha-Shofet Yizhak Shilo be-Gevurotav (Hebrew) Tel-Aviv: 1999), 145-166. For research dealing with the
use of a conditional contract and/or oath, see the following articles: Y. Rivlin, Halitzah Stipulations in Engagement
Contracts, JLAS 10 (2000), 229-252; Y. Rivlin, “Nushat ha-Shvua be-Shtarot – Mataratah, Hekafah, u-Tokfa”
(Hebrew) in A. Barak & A. Cohen (eds.), Sefer ha-Yovel li-Khvod Professor Menahem Elon (Hebrew) (in press). The
subject is treated in detail by A. Segal, Heskeme Qdam-Nisuin be-Mishpat ha-Ivri (Hebrew) (Ph.D., Department of
Talmud, Bar-Ilan University, not yet published). On the question of compulsory Halizah, as it appears in paragraph 7 of
the law governing the Rabbinical courts with regard to marriage and divorce (enacted in 1953), see Sharshevski, n. 8
above, 241-242 together with the sources which he cites in his footnotes.
13 For Rabbinical literature treating the subject see: Rabbi S. Dichovski, “Heskeme Mammon Qedam Nisuin”
(Hebrew), Tehumin 21 (2001), 279-287 ; Rabbi E. Kenoel, “Ha-Ketuba ve-Heskame Mamon be-Nisuin” (Hebrew),
Tehumin 21 (2001), 324-339 ; D. Mishlov, “Heskemim Qedam Nisuin” (Hebrew), Tehumin 21 (2001), 288-323; Rabbi
A. Z. Shoenfeld “Heskem Mamon Qedam Nisuin” (Hebrew), Tehumin 22 (2002), 148-156; a number of articles in the
periodical Tzohar 20 (December 2005). For research on the topic see mainly: A. Rozen Zvi, Dine Mishpaha be-Yisrael:
ben Qodesh le-|Hol (Hebrew) (Tel-Aviv: 1990), 406-414; R. Lavmore, “Heskeme Qedam Nisuin le-Meni'at Sarvanut
Get be-Yisrael” (Hebrew), Shnaton ha-Mishpat ha-Ivri 23 (2005), 127-192; D. Y. Mishlov, Ba'ayat Ge Me'use ve-
Heskemim Qedam Nisuin ke-Pitaron le-Ba'ayot Agunot (Hebrew) (Ph.D., Department of Talmud, Bar-Ilan University,
2004); M. Greenberg-Kobrin, "Civil Enforceability of Religious Prenuptial Agreements", Columbia Journal of Law and
Social Problems 32 (1991), 359-399.
14 This idea was raised by a number of different rabbis including Rabbi Y. E. Henkin, Perushe Ibra (New York: 1930),
111-117; Rabbi Y. I. Herzog in his Responsa Hekhal Yizhak, vol. 2, # 41; Rabbi Y. Y. Kazanelbogen Zera Yizhak
(Warsaw: 1898); Rabbi M. Feinstein in his Responsa Igerot Moshe, vol. 2, # 147; Rabbi Y. Y. Weinberg, “Al Nashim
she-Ba'alehen Histamdu (Hebrew), No'am 1 (1958), 1-51. For a full survey of the various suggestions by different
rabbis including Rabbi B. Alkalai together with statements of the problems leading to their rejection, see Z. Gertner &
B. Karlinski (Hebrew), Yeshurun 9, cited in the next note. See also Y. L. Epstein, Haza'a lema'an Tikun Agunot
(Hebrew) (New York: 1930); idem le-She'elat ha-Aguna (Hebrew) (New York: 1940); Falk, n. 10 above, 98-108;
Za'akat Dalot, n. 10 above, 151-203. For strong objections to this suggestion see, for example: Agudat ha-Rabanim de-
 7
the Halakhic solutions of the second type, one may list - forcing the husband to give a Get,16 the
claim that “he disgusts me” and the rebellious wife17 or alternatively the measures envisaged by
Rabbenu Tam18, Qidushe Ta'ut (a marriage invalidated because it was based upon deception),19

Arzot ha-Brit ve-Kanada, Le-Dor Aharon (Hebrew) (New York: 1937).

15 For a survey of the sources supporting and opposing this solution from an academic point of view see n. 68. & n. 69
below, include the rabbinical sources.
16 For Rabbinical sources see, for example, Rabbi Z. Gertner, Kefi'ya be-Get (Hebrew) (Jerusalem: 1998); Rabbi S.
Yisraeli, “Al Kefi'ya ve-Razon be-Get” (Hebrew), Torah she-Ba'al Peh 12 (1970), 32-38; S. Ha-Cohen, “Kefi'yat ha-
Get bi-Zman ha-Ze” (Hebrew), Tehumin 11 (1990), 195-202; H. S. Sha'anan, “Ofanim le-Kefi'yat ha-Get” (Hebrew),
Tehumin 11 (1990), 203-13. For research see principally: Z. Warhaftig “Kefi'yat Get le-Halakha ule-Ma'ase” (Hebrew),
Shnaton ha-Mishpat ha-Ivri 3-4 (1976-1977), 153-216; Y. Brodie, “Klum Hayu ha-Geonim Mehokekim?” (Hebrew),
Shnaton ha-Mishpat ha-Ivri 11-12 (1984-1986), 279-315; M. Ziblerg, Ha-Ma'amad ha-Ishi be-Yisrael (Hebrew) (1958),
106 ff.; Rabbi S. Dichovsky, “Akhifat Gerushin” (Hebrew), Tehumin 25 (2005), 132-148; also his recent article:
“Midati'ut be-Kefi'ya le-Get” (Hebrew), Tehumin 27 (2007), 300-03; I. Breitowitz, Between Civil and Religious Law:
The Plight of the Agunah in America Society (Westport: 1993), 57.
17 For Rabbinical sources see, among others, A. Hurwitz, Quntres ha-Birurim (Bnei Brak: 1975); H. Tikochinski,
Taqanot ha-Geonim (Hebrew) (translated by M. Havazelet) (Jerusalem: 1960), chapter one; S. Yashuv Ha-Cohen.
“Kefi'yat ha-Get bi-Zman ha-Ze” (Hebrew), Tehumin 11(1990), 195-202; R. A. ben Shimon Bat Na'avat ha-Mardut
(New York: 2000). For research on the topic see for example: Sharshevski, n. 8 above, 185-203; M. Elon, ha-Mishpat
ha-Ivri – Toldotav, Meqorotav, Eqronotav (Hebrew) (Jerusalem: 1988), vol. 2, 541-546; Rabbi R. Arusi, ha-Gorem ha-
Adati be-Pesiqat ha-Halakha (a forced Get in the case of a rebellious wife, “he disgusts me” - in the case of Yemenite
Jews) (Hebrew), Dine Yisrael 10-11 (1981-1983), 125-176; Z. Falk “Ha-Moredet al Ba'aleha” (Hebrew), Sinai 49
(1961), 183; M. Shapira, “Gerushin begin Mei'sa” (Hebrew), Dine Yisrael 2 (1971), 117-153; Zilberg, n. 16 above,
116ff.; S. Riskin, Yad le-Isha: ha-Isha veha-Gerushin al Pi ha-Halakha Pitaron Hilkhat le-Ba'ayat ha-Aguna (Hebrew)
(Efrat: 2004); Warhaftig, n. 16 above, 183, 193.
18 Y. Weinroth, Din ha-Moredet (Hebrew) 431-440 (Ph.D. Tel-Aviv University – Faculty of Law 1981); A. Be'eri,
Hiyyuv ha-Ba'al be-Mezonot Ishto be-Dine Yisrael, Ha-Moredet u-Mezonoteha (Hebrew) (Ph.D. Bar-Ilan University –
Faculty of Law 1982); Idem, “Harhakat Rabenu Tam” (Hebrew), Shenaton ha-Mishpat ha-Ivri 18-19 (1992-1994), 65-
106; Rozen-Zvi, n. 13 abobe, 278-279; U. Lavi, “Harhakot de-Rabenu Tam ve-Shelilat Rishayon Nehiga be-Mikrim ba-
hem en Hiyyuv le-Garesh” (Hebrew), Shurat ha-Din 5 (1999), 237-72; idem, “Biur Halakha shel Harhakot shel
Rabbenu Tam (Hebrew), Shurat ha-Din 8 (2003), 437-455; Y. Goldberg, “Be-Inyan Harhakot de-Rabbenu Tam
(comments on the above) (Hebrew), Shurat ha-Din 8 (2003), 456.
19 For a survey of the source of the problem and possible solutions written from an Halakhic point of view see, for
example: Otzar ha-Poskim, chapter 39, paragraph 5; Rabbi D. Bass, “Hatarat Nisuin be-Ta'anat Mekah Ta'ut” (Hebrew),
Tehumin 24 (2004), 194-218; Rabbi M. J. Broyde, “Kidushe Ta'ut bi-Zmanenu” (Hebrew), Tehumin 22 (2002), 210-17;
Rabbi S. Riskin, “Hafqa'at Kidushin – Liqrat Pitaron Ba'ayat ha-Agunot bi-Zemanenu (Hebrew), De'ot 14 (2002), 17.
For research dealing with the the problem, see for example: A. Hacohen, The Tears of the Oppressed : An Examination
of the Agunah Problem : Background and Halakhic Sources (New Jersey: 2004); M. J. Broyde, Review Essay: "An
Unsuccessful Defense of the Bet Din of Rabbi Emanuel Rackman: The Tears of the Oppressed by Aviad Hacohen" The
Edah Journal 4:2 (2004) (http://www.jofa.org/pdf/uploaded/909-ZMOG6340.pdf (last viewed: 9.2.09); M. J. Broyde,
Marriage, Divorce, and the Abandoned Wife in Jewish Law (New Jersey: 2001), Appendix B; = M. J. Broyde, "Error in
 8
invalidating the marriage,20 etc.
Recently, since it has become apparent that there is no complete Halakhic solution to the problem,
civil attempts to speed up the Halakhic process of divorce by granting civil damages to those
waiting for a divorce21 and there were also different attempts to change the Rabbinical Judges'

the Creation of Marriages in Modern Times under Jewish Law", Dine Israel 22 (English Section) (2003), 39-65; J. D.
Bleich, “Survey of Recent Halakhic Periodical Literature: Kiddushei Taut: Annulment as a Solution to the Agunah
Problem” Tradition 33,1 (1998), 90; S. Aranoff, “Two Views of Marriage – Two Views of Women: Reconsidering Tav
Lemeitav Tan Du mi-Lemeitav Armelu,” Nashim 3 (2000), 199-227.
20 Rabbi Z. N. Goldberg, “Hafqa'at Nisuin eneno Pitaron le-Aginut (rejoinder)” (Hebrew), Tehumin 23 (2003), 158-60;
Rabbi S. Riskin, “Koah Hafaqa'a Monea Igun (rejoinder to rejoinder)” (Hebrew), Tehumin 23 (2003), 161-164; Rabbi Z.
N. Goldberg, “Ein Hafqa'at Kidushin le-lo Get (rejoinder)” (Hebrew), Tehumin 23 (2003), 165-8; Rabbi S. Riskin,
“Hafaqa'at Kidushin - Pitaron le-Aginut” (Hebrew), Tehumin 22 (2002), 191-209; Rabbi D. Lau, “Hafaqa'at Kidushin
le-Mafre'a be-Yamenu” (Hebrew), Tehumin 17 (1997), 251-68; Rabbi Y. I. ha-Levi Herzog, Ha-Huka le-Yisrael al Pi
ha-Torah (Hebrew) (Jerusalem: 1989), vol. 1, 57-94; Rabbi O. Yosef, “Kol ha-Mekadesh al Da'ata de-Rabbanan
Mekadesh ve-Afqe'inan Rabbanan le-Kidushin Mine” (Hebrew), Torah she-Ba'al Pe 3 (1961), 96. For research on the
topic see for example: Rabbi S. Riskin, Yad le-Isha; ha-Isha veha-Gerushin al pi ha-Halakha Pitaron Hilkhati le-
Ba'ayat ha-Aguna (Hebrew) (Efrat: 2004); Alon, n. 17 above, 518-527, 686-712; Berkovitz, n. 15 above, 119-164; A. H.
Freiman Seder Kidushin ve-Nisuin ahare Hatimat ha-Talmud (1965), 385-386; B. Lifshitz, “Afqe'inan Rabbanan le-
Kidushin Minahu” Mi-Perot ha-Kerem (Hebrew) (Yavne: 2004), 317-24 and see U. Lavi's rejoinder, “Ha-im Nitan le-
Hafqiya Kidushin shel Sarvan Get?” (Hebrew), Tehumin 27 (2007), 304-10 and Rabbi D. Malka, “En Hafqa'at Kidushin
le-Mesuravot Get” (Hebrew) (see Http:/www.psakdin.co.il (last viewed: 21.7.08) and the recent rejoinder by Prof.
Lifshitz, “Al Masoret, al Samkhut ve-al Derekh ha-Hanmaka” (Hebrew), Tehumin 28 (2008), 82-91; A. Adrai, “Koah
Bet-Din ve-dine Nisuin u-Gerushin” (Hebrew), Shnaton ha-Mishpat ha-Ivri 21 (1998-2000), 1-35, 30-35; E.
Shohetman, “Hafqa'at Kidushin – Derekh Efsharit le-Pitaron Ba'ayat Me'ukavot ha-Get?” (Hebrew), Shnaton ha-
Mishpat ha-Ivri 20 (1995-1997), 349-97; idem, “Kidushin Mahmat Ones” (Hebrew), Sinai 105 (1990), 109-24, 118; S.
Atlas, Netivim be-Mishpat ha-Ivri (Hebrew) (New York: 1978), 206-264; D. Novak, Halakha in a Teleological
Dimension (Chico: 1985), 29-44.
21 For a survey of legal precedents see TMS (Jerusalem) 3950/00 Anon v. Anon, etc., Tk-Ms 2001 (1) 12
(unpublished, 23.1.01); TMS 19270/03 KS v. KP, Pador 674 (15) 04 (not published, 21.4.04); TMS (Kefar Sava)
19480/05 Anon v. estate of Anon (not published, 30.4.06); similarly the judge Ben-Zion Greenberg recently awarded
damages in the sum of over 500,000 new shekalim against a husband who refused to divorce, see TMS 6743/02 K v. K
(not published, 21.7.08); TMS 24782/98 Anon v. Anon (not published, 12.12.08); TMS 30560/07 H.S. v. H.A. (not
published, 2.12.08). For the Halakhic position regarding this civil procedure see a recent article by Rabbi U. Lavi,
“Sidur Get le-Ahar Hiyuv ha-Ba'al be-Pizui Kaspi le-Ishto” (Hebrew), Tehumin 26, (2006), 160-72; Rabbi S. Dichovski,
“Za'ade Akifa Mamoni'im ke-Neged Sarvane Get” (Hebrew), Tehumin 26 (2006), 173-9; Rabbi D. Bass, Ha-Zofe, Hok
u-Mishpat (Hebrew), 14.1.05. For the reactions of the Rabbinical courts to the use of civil suits see parts of vol. 19 of
Ha-Din ve-ha-Dayyan (Hebrew) (2009). For an assessment of the civil and Halakhic aspects of this civil suit see Y. S.
Kaplan & Ronen Pery, “Al Ahrayutam be-Nezikin shel Sarvane Get” (Hebrew), Iyyune Mishpat 28 (2005), 869-773; B.
Shmueli, “Pitsui Nezikin le-Mesuravot Get” (Hebrew), Ha-Mishpat 12 (2007), 285-342; R. Halperin-Kedari, “Shikule
Musar be-Dine Mishpaha ve-Keria Feministit shel Pesikat ha-Mishpaha be-Yisrael” (Hebrew), in D. Barak-Erez et al.
 9
(Dayanim) approach and to appoint Dayanim who would be more open to the use of the suggested
halakhic solutions.22
However, in our opinion, there is an Halakhic solution to the two problems dealt with in this article,
solution that unfortunately have been neglected both by Rabbinical authorities and scholars. We are
talking about the possibility of making a mutually agreed condition and/or inserting in the marriage
document itself a limit to the period of the marriage with the possibility of annulling the marriage in
the event of a specific defined event such as the death of the husband, which would eliminate the
danger of a levirate marriage when the marriage reached its agreed time limit there would be no
need for a divorce. This solution has been rejected for practical use but in this article we would like
to illustrate its Talmudic sources and to trace its influence on Halakhic rulings, on the responsa
literature, on the rulings of the rabbinical courts and we would call for a reassessment of the
possibilities of this approach.
In order to be truly aware of the novelty of this approach to conditional marriage and to setting an
agreed term to the marriage, we will devote chapter 2 to an examination of the halakhic problems to
be overcome together with the possible solutions. In chapters 3 and 4, we will examine the relevant
Talmudic sources and their applications in Halakhic literature. The major difference is of course
that there is no necessity for a Get in order to bring the marriage to an end. The position of the
authorities who rule that there is no necessity for a Get in the cases of the conditional marriage or of
the temporary marriage will be discussed in chapter 5. Chapter 6 contains a discussion of the nature
of the two solutions, the common features and the differences between them including the relative
advantages and disadvantages. In chapter 7 we will look at the Talmudic sources devoted to
“marriage for day/s,” which is, in the eyes of many commentators and scholars, a classic Talmudical
application of a temporary marriage. After we will elaborate our discussion of the Shi'ite temporary
marriage for pleasure in chapter 8 together with its historical sources, its modern applications and
its influence on Jewish Halakhic and Karaite responsa, chapter 9 will search for common roots of
the Talmudic temporary marriage and the Shi'ite marriage for pleasure in ancient Persian law. In
our conclusion we will look for practical applications of these two solutions to solve the problems
of Mesorevet Halizah and Agunah.

(eds.), (Hebrew), Iyyunim be-Mishpat Migdar u-Feminism (Hebrew) (Kiryat Ono: 2007), 651, 688-690.
22 In this context,we would point out a suggest of Ze'ev Falk to use Yemenite Rabbinical judges, who would rule
according to Maimonides, who in the case where the wife claims that her husband disgusts her, would force him to
divorce her. This would facilitate treatment of the husband's refusal in many cases. See Falk, n. 10 above, 77-83. For a
discussion of the advantages of the Yemenite rulings in general and in these circumstances especially see Rabbi Arusi,
n. 17 above. For another discussion of the attempts to change the Dayanim in the rabbinical courts and their approach
see Lifshitz, Mirsham Zugiut, n. 9 above; and recently P. Shifman, “Ha-Halakha ha-Yehudit be-Meziut Mishtanan – Ma
Me'akev Me-Ukavot Get? (Hebrew), Ale Mishpat 6 (2007), 27-46.
 10

2. "A conditional marriage”- annulling a marriage to avert a levirate marriage

We have already discussed this subject in detail on another occasion23 and concluded that the
careful phrasing of the Tosefta in Tractate Kidushin (Lieberman edition, 3:7-8) together with the
parallel source in the Palestinian Talmud and quotations of the Palestinian Talmud by the Rishonim
reveal that the husband is free to make an agreement at the time of the marriage which would cancel
obligations laid down by Jewish law. However, it is evident that he cannot cancel his marriage so
that his wife would not be liable for a levirate marriage. The Tosefta reads:
I hereby marry you ... on condition that if I die, you will not be liable for levirate marriage,
the marriage is valid but the condition is abrogated since it negates Torah law and any
condition negating Torah law is invalid. On condition that I am not liable for food, clothing
and sexual intercourse, both the marriage and the condition are valid.24 This is the general
rule, whoever makes a condition which negates a Torah commandment, in the case of a
financial matter, the condition is valid, however, where the commandment deals with
anything other than financial matters, the condition is invalid.
This Tosefta contrasts this special condition, which limits the act of marriage and ensures that the
wife will not be liable to a levirate marriage if her husband will die without giving her children, but
is an invalid condition since it is in conflict with what is written in the Torah, with a condition
which seeks to annul the husband's duties to feed, clothe and perform his marital duties which is a
valid condition since it does not negate Torah commandments.
The Palestinian Talmud's approach is consistent with the Tannaitic approach and does not allow a
condition of this sort whereas the Babylonian Talmud, apparently does suggest that there is a
normative possibility to make a condition of this sort. This certainly refers to a situation where the

23 See Y. Margalit, ”Onata lo Yigra” - al Hasdara Ziburit u-Pratit shel Yahase Ishut ben Bne Zug be-Mishpat Ivri
(Hebrew) (M.A. Bar-Ilan University, School of Law, 2006), 66 ff.
24 This is the reading in the Erfort manuscript and the printed edition of the Tosefta. In the parallel source in the
Palestinian Talmud jBava Mezia, chapter 7, Halakha 7; 11, 3, the words, “the condition is valid” were apparently
omitted. This is also the case for the Leiden manuscript (together with the Constantinople edition which is based
upon it, either directly or indirectly). However, in the Escorial manuscript to the order of Damages (Nezikin) in E. S.
Rosenthal and S. Lieberman's (eds.) (Jerusalem, 1984), 71 our version is confirmed and it reads “his conditions are
valid,” and similarly in Sefer ha-Ma'asim li-Vne Yisrael, we find, “his words are upheld”, see Y. N. Epstein, “Ha-
Ma'asim li-Vne Eretz Yisrael” (Hebrew), Tarbiz 1, (1930), 33-42, 40. The Rishonim who support this reading
include: Ohr Zaru'a Piske Bava Mezi'a, 301. For additional citations which confirm this reading see S. Lieberman,
Tosefta ki-Peshuta Kidushin (1973), 947 n. 27. Minhat Bikkurim in his commentary on this Halakha believes that
even though the marital duties are not financial, the husband can still suspend them, since a woman can free a
husband of his obligations to her, and it can therefore be considered a financial matter which is not the case for the
levirate marriage.
 11
condition is explicit at the time of the wedding, and in the opinion of some of the Rishonim, this sort
of condition may serve as an implied condition where there is no other explicit condition. It is
irrelevant whether it is an explicit condition or an implied condition made at the time of the
marriage, or whether the marriage is then considered a marriage entered into by mistake. Anyway if
the wife does become liable for levirate marriage and she finds her brother-in-law repulsive, the
marriage is annulled and she does not need Halizah.
We are referring to a discussion in the Babylonian Talmud (bBava Kama 110b) where the Talmud
concludes that a woman is more interested in marrying than a man and she will always be willing to
take a risk and marry and live with her husband rather than live alone.25 Here is the discussion:
Therefore, a woman liable for levirate marriage with somebody with a serious skin disease
will be released from the levirate marriage without Halizah since she did not marry with the
intention of marrying her brother-in-law! We are witnesses to the fact that a woman is
willing to accept the situation, for as Resh Lakesh says: better to be part of a couple than to
be alone.
In this discussion, Rabbenu Asher (Rosh) has made an important contribution,26 emphasizing the
Talmud's question. We have a general principle with regard to a condition that if a woman wants to
make a condition that she does not want to enter into a Levirate marriage with her husband's brother
who has a disfiguring skin disease, and since the condition is valid in general, it will also be valid
even when the woman has not made this condition in advance:
For if she had wanted to make the condition at the time of the engagement that if he should
die before the marriage, the Kidushin would be annulled retroactively so that she should not
be liable for a levirate marriage, the husband would have agreed, therefore we act as if she
had indeed made the condition...27

25 As Rashi comments, althought initially a woman is not interested in marrying the brother of somebody suffering
from a skin disease, she is still willing to marry a healthy husband, even though there is a risk that he will die without
children and she will be liable for levirate marriage.
26 Quoted in the Shita Mequbezet, Bava Qama, 110b. Later authorities also have similar approaches where the marriage
is considered to be conditional until the agreed event will happen. In our case the decease of the husband without issue,
see, for example, Rabbi S. Y. Shkop Sha'are Yosher (New York: 1959), 5, 18. On the other hand, there are other
authorities who would consider the marriage as based on mistaken assumptions rather than conditional marriages, see,
for example: Responsa Me'il Zdaka, (Jerusalem: 1983), #2. For an attempt to combine the two approaches see:
Responsa Igerot Moshe, Even ha-Ezer, vol. 4, #121. This has been developed by A. Westreich, 'Umdena: Between
Mistaken Transaction (Kidushey Ta'ut) and Terminative Condition (forthcoming) see Internet version:
http://www.mucjs.org/Umdena.pdf, (last viewed: 12.8.08).
27 Rabbi Hazan, author of Responsa Hikre Lev #58, which will be discussed in n. 40 below, wrote that although the
Rosh was referring to a condition entered into during the engagement, the principle applies to the marriage as well,
since today the two ceremonies are conducted together and therefore any condition entered into during the engagement
 12
It would seem that we have a dispute between the two Talmuds as to whether it is possible to make
a condition whose practical result would be to erase levirate marriage and may possibly be an
illegitimate condition since it is opposed to Torah law.28 The Babylonian Talmud recognizes the
condition and does not reject the freedom of contract explicitly, the Palestinian Talmud rejects the
possibility of making such a contract.29 The normative Halakhic front which denies the possibility
of making a condition regarding the annulling of a marriage in the event of a need for a levirate
marriage since it is a classical example of making a condition which negates Torah law had already
been undermined by Rabbi Moshe Isserlees' gloss to the Shulhan Arukh30
Whoever marries a woman and he has an apostate brother, he may marry her and make a
double condition31 that if the woman becomes liable for Levirate marriage with the apostate,
the marriage is annulled retroactively.
This surprising condition is quoted by Rabbi H. Brin to prove that one can indeed make a condition
of this kind in order to prevent the levirate marriage obligation where the deceased husband's
brother is an apostate and no longer Jewish. This is not the sort of condition which would be
rejected since it conflicts with Torah law. In the light of this novel approach, regarding the status of
the marriage, one can make a condition that if the woman becomes liable for levirate marriage and

will apply to the marriage, see a summary of the question in Minhage ha-Hida Even ha-Ezer (Jerusalem: 2002), 17. The
author of Responsa Terumat ha-Deshen reached a similar conclusion, see after n. 32 below. For the application of a
general condition see The Admor Rabbi Menahem Mendel of Lubavich in his Responsa Zemah Zedek, vol. 12, Even
ha-Ezer (1945), #322. See also Rabbi Yosef Shmuel Modiano of Salonika (Responsa Rosh Mashbir, vol. 1, Even ha-
Ezer, p. 128b) who was of the opinion that if the Sages of Salonike, who were against using this type of condition, had
seen the responsa of those who permitted it, they would have been convinced: “If the Beth Yosef had seen words of the
Rosh he would not have opposed the work of Rabbi Brin”. Incidentally, it is interesting to point out that a similar
approach to that of the Rosh was used in 1933, when Rabbi M. Shochet (Responsa Ohel Moshe, #2 (Jerusalem: 1933)
suggested a meeting of all the sages to re-examine Marriage practices and to add a condition that in the case of a
Agunah, the marriage should be annulled and there would be no need for a Get. Sine we have a general condition that
no woman intended marrying a man who would refuse her a Get, and there was no need to state the condition for there
is no situation worse than that of a Agunah. As we have already mentioned his suggestion was widely criticised.
28 See Y. Glicksberg, “Kidushin al Tnai” (Hebrew), Torah she-Ba'al Pe, 12 (1970), 134-42.
29 Rabbi Benzion Meir Uziel used this approach in his Responsa Mishpete Uziel, Even ha-Ezer, vol. 2, #49, 165: “and
is my approach not confirmed: if she is liable for a levirate marriage with a brother-in-law with shingles, she need not
carry out the levirate marriage, because she did not marry her husband with this intention? This proves that it is evident
that where it is evident that a woman did not marry with this intention, the marriage may be annulled, and this is also
the case when we know that the woman did not intend marriage but was only joking.”
30 Hagahot ha-Rama, Shulhan Arukh, Even ha-Ezer, chapter 157, paragraph 4. This condition also appears in an earlier
source, Darkhe Moshe, Tur, Even ha-Zer, 157, paragraph 5.
31 Professor Berachyahu Lifshitz pointed out to me that it is customary in Halakha to do without the double condition
construction where the Hebrew uses 'Al mnat'. For the different meanings of the phrase, see reference in n. 42 below.
 13
one can assume that he will not want to obey the Jewish commandments and she will not be able to
remarry then the marriage will be annulled retroactively. The original condition drafted by Rabbi
Bruna is no longer extant, but I found documentation about it in the commentary Bayit Hadash on
the relevant paragraph (his paragraph begins “shuv matzati”). He cites a responsum from a
manuscript of Trumat ha-Deshen dealing with a case in the city of Neustadt. The non-Jews
massacred many Jews leaving a number of Agunot:
They were accustomed to make a condition during the wedding to prevent the need for a
levirate marriage in this way, and although there are doubts... in order to ensure that the
woman will not be prevented from remarriage, I would suggest that you should ignore the
doubts. You may show this letter to others.32
This novel condition was cited by his teacher, the author of Terumat ha-Deshen, who awarded the
rabbi from Bruna his rabbinical diploma. Rabbi Yisrael Iserlin (see Terumat ha-Deshen, chapter
223) points out that there are those who make such conditions during the engagement ceremony,
and since in our time, unlike Talmudic times, both the engagement and the marriage take place at
the same time, conditions made during the engagement also apply to the wedding. As he writes:
There are those who make a condition during the engagement that the levirate marriage
obligation will not apply.
Records of the use of this condition by the Rabbi of Brona have been retained in contemporary
Halakhic literature - 33 in the 14-15th century in Algeria in a responsum by Rabbi Simon ben Zemah
Duran, the Rashbaz,34 and also in the words of the enquirer, Rabbi Samuel Hala'u of Barshek, who
mentions “that you have heard that there are authorities in the West who used this condition”; in a
responsum by David ha-Cohen of Corfu, in Greece35, also cited by the Bayit Hadash,36 who is of
the opinion that the condition is valid and he supports its use, for if we do not use such a condition

32 The editor pointed out in his notes to the Tur at the relevant place that this responsum may be found in the Responsa
of Rabbi Y. Mi-Brona, #184 and it can indeed be found according to this reference in the Moshe Hersler edition of 1960.
33 For a survey of the Rishonim who used the condition initiated by the Rabbi from Brona, see Freiman, n. 20 above,
386-394; Berkovitz, n. 15 above, 29-51; Golan, n. 15 above, 251 ff.; Za'akat Dalut, n. 10 above, 129-134.
34 Responsa Tashbez, vol. 2, #17. The Tashbez himself rejects the use of this condition. For a survey of responsa for and
against the use of this condition see the sources cited by the editor in his commentary 'Tiferet le-Shiv'a' on the book
Nahalat Shiv'a, n. 39 below, 524, n. 38.
35 Responsa Maharadakh, section 9, paragraph 9.
36 See Rabbi Joel Sirkis, Bayit Hadash, Tur, Even ha-Ezer, 157, s.v. ve-kol ze: ”if so we are obliged to make sure that
we do not mix with non-Jews, for who would want to marry and to risk being an Agunah and her potential husband
would then go and marry a non-Jewish woman, therefor this is not called a priori but rather a postiori, even though his
brother is an apostate, we must make arrangements so that he can marry a Jewess... similarly in the case of a person,
who has a brother whose whereabouts are unknown or if he is alive or dead, he may also marry using the double
condition... in order to annul the marriage even a priori”
 14
then everybody will be afraid that his wife will be liable for levirate marriage after his death and he
will prefer to marry a non-Jewish woman.
The seriousness of the situation, in his opinion, dictates a postiori use of this condition and it should
be common practice and even expanded from the case of an apostate to the cases where the
whereabouts of the husband's brother is unknown.
Rabbi Yosef Caro,37 however, attacks the Terumat ha-Deshen how can he make new conditions on
his own authority, using this Talmudic basis from the Babylonian Talmud where the ruling is not
clear cut and the Palestinian Talmud which is based on a Tosefta from Tractate Kidushin is of the
opinion that the condition is invalid. On this basis how can one be so lenient in such a crucial matter
and annul a marriage without a Get? He writes:
I was surprised since the Talmudic ruling is not clear in our Talmud and the Palestinian
Talmud prohibits, how can one be so lenient and we have neither heard nor seen that
anybody used such a condition.
Commentators have already pointed out that there is no dispute in principle between the two
Talmuds and that they are discussing two completely different conditions. See, for example, how
the Bayit Hadash distinguishes between two different possible Halakhic conditions – one must be
rejected since it contradicts Torah law and this is the condition considered in the Palestinian
Talmud, whereas if this condition was rewritten in a way which did not contradict Torah law could
be valid and this is the approach adopted in the Babylonian Talmud.38 The Nahalat Shiva'a39 says
this specifically that is there no real dispute about this matter. Moreover, Rabbi Yosef Hazan
concludes that not only is there no dispute between the two Talmuds, but also if the Bet Yosef had
seen what the Rosh had written, he would have concluded that even the Palestinian Talmud would
have permitted this condition.40

37 Bet Yosef, Even ha-Ezer, chapter 157, letters dalet-he, s.v. katav rav.
38 Bayit Hadash, ibid. s.v. ha de-Katav - “one must distinguish if he says if I should die, you will be freed of the
obligation of levirate marriage that if he made a double condition, it would contradict Torah law since he is interested in
the marriage without levirate marriage. However to make a condition that if she should be liable for levirate marriage,
her marriage would be annulled retroactively is not in contradiction of Torah law, since if he dies without children, she
was never married in the first place.”
39 Rabbi S. ha-Levi Segal, Nahalat Shiva, (Bnei Brak: 2006), vol. 1, #22, letter Het, p. 526 who writes: “...it seems to
me that there is no conflict between the Babylonian Talmud and the Palestinian Talmud, but they are talking about
different cases. When the Palestinian Talmud ruled that it was prohibited, it was talking about the case discussed by the
Terumat ha-Deshen, to free a wife from an apostate, which did indeed contradict Torah law, as it is similar to saying
that if I die you will be free of levirate marriage. Whereas our Talmud, which permits it relates to the condition of our
Rabbi Brin, which annuls the marriage retroactively and the woman is therefore not obliged to carry out the levirate
marriage. This is the case discussed in our Talmud.
40 Responsa Hikre Lev, vol. 7, Even ha-Ezer, #58 (Jerusalem: 1998), 438, who writes: “there is no doubt that if our
 15
Other scholars, including such a prominent scholar as Rabbi Professor Eliezer Berkovits,41
understood from close reading of the Mishnaic Hebrew which was quoted by Rabbi Moshe
Isserlees who attributed the words to Terumat ha-Deshen and his pupil the Rabbi of Brin, that in
everyboy's opinion this is not a case of a condition which contradicts Torah law and therefore the
condition is valid. Therefore the condition is not restricted to the case of an apostate brother but the
condition may be applied in the rest of the cases, such as, for example, an insane brother or a
brother who has disappeared.
There is indeed no doubt that we have two different types of condition – a condition which limits an
action and a condition which sustains/cancels an action.42 The condition in the Babylonian Talmud
is of the latter sort, the condition being that if the woman becomes liable for levirate marriage, the
marriage will be annulled is valid even from the point of view of the Palestinian Talmud, since it
does not contradict Torah law. However, in the case of the Palestinian Talmud, we are dealing with a
condition which limits an action and the uprooting of the levirate marriage commandment
undermines the validity of the marriage itself since it contradicts Torah law and this would also
conform to the approach of the Babylonian Talmud.
We may also mention another group of Halakhic authorities who accept the Rama's approach,
permitting the use of conditions in marriage agreements where there was a danger of levirate
marriage. They include: a responsum of the Me'il Zdaka chapter 1; a responsum from Shav Ya'akov,
Even ha-Ezer, part 2, chapter 39; a responsum from Noda bi-Yehuda, early edition, chapter 56; a
responsum by Rabbi Akiva Eiger, early edition, chapter 63; Bet Meir, Tzal'ot ha-Bayit chapter 6; a
responsum by the Hatam Sofer, Even ha-Ezer, chapter 111; Arukh ha-Shulhan, chapter 157,
paragraph 15, etc.43

3. Temporary Marriage
There is a related discussion in the Babylonian Talmud, where, in two different places, a person is
warned not to continue living with his wife after he has already decided to divorce her. This would

master, the Bet Yosef would have seen what the Rosh had written he would have had no doubt that the Palestinian
Talmud which prohibits the condition is talking about a condition where the condition is that there should be no levirate
marriage but that the marriage was valid, a condition similar to that where the husband removes the liability for food,
clothing and marital rights, but in a case that annuls the marriage retroactively then there is no doubt that the condition
is valid”. For further discussion of the Responsa Hikre lev see n. 27 above.
41 Berkovits, n. 33 above, 31-32.
42 See text from n. 67 below onwards.
43 Pithe Tshuva also tends to accept the Rama's ruling, see, ibid (157), chapter 108 and possibly Bet Shmuel paragraph
6, which would seem to follow this approach. For a further list of the later authorities who permit the use of conditions
in marriages, but with differing approaches see the Responsa Imre Esh, Even ha-Ezer, #95; Golan, n. 33 above, 257.
 16
certainly be the case where at the time of the marriage the husband set specific limits to the length
of the marriage. This is the conclusion of the “who wants to marry me for day/s” discussion in
bYevamot (37b), which will be discussed in some detail below.
Similarly, the Babylonian Talmud, bGittin (90a) rules:
We have learnt, Rabbi Eliezer ben Ya'akov says: a person should not marry with the
intention of divorcing since it is written: “Don't plot against your friend when he trusts
you”;
Rabbi Misharshiya said to Rava: if he intends to divorce her and she stays with him and
serves him, how do we see the situation? It is said: “Don't plot against your friend who
trusts you”.
Different commentators44 have already wondered why Rabbi Misharshiya the Amora needed to
establish what had already been established by the Tanna, Rabbi Eliezer ben Ya'akov, a long time
before? What new contribution did he make? On the other hand, why did the compiler of the
Talmud refrain from using Rabbi Eliezer ben Ya'akov's Beraitha to support Rabbi Misharshiya's
position?
Various explanations have been offered – Rabbi Zerah Warhaftig45 offered a straightforward answer
that the only thing to be learnt from the Beraitha in Tractate Yevamot is that it is forbidden to cheat
one's wife by entering into a marriage with the intention of divorcing her. The contribution of Rabbi
Misharshiya deals with a situation where a person has married in the normal manner, but afterwards
has changed his attitude towards her. In this case, it is also forbidden to plan to divorce her and to
continue living with her as her husband, he should stop living with her in marital intimacy and start
divorce proceedings immediately. Maimonides (Divorce laws, 10:21) rules that to continue living
with her is forbidden after he is determined to divorce her:
A person should not marry with intention of divorcing and she should not remain with him if
his intention is to divorce her.
Various authorities suggested, that this is an Halakhic prohibition and not just Maimonides' advice
about the right way to behave.46 Other commentators on Maimonides wrotes, that the prohibition
also applies in the case of a standard marriage which was conducted according to all the Halakhic
requirements, where the decision to divorce his wife was taken after the wedding and even in the

44 See Rabbi I. Pick Berlin's query in his book Hidushe ha-Shas le-Mesekhet Gittin, 9 in his commentary to this
Talmudic discussion.
45 Rabbi Z. Warhaftig Zerihat ha-Shani, Tractate Nashim (Jerusalem: 2000), 88. See also the different authorities
quoted in n. 47 below.
46 Rabbi M. ben Haviv Get Pashut, (Jerusalem: 1980), chapter 119, paragraph 6, s.v. Ve-Ra'iti.
 17
case where the marriage was not consummated.47 Similarly, the Prisha (Tur, Even ha-Ezer, chapter
25, letter 31) rules that the husband is not permitted to wait until after the marriage to tell his wife,
even if he tells her before the marriage is consummated. However, other authorities pointed out that
if he did marry her for a stated period, he need not divorce her immediately.48
Similarly, Maimonides again ruled that it was prohibited to continue marital relations with “a
woman whom he intends to divorce”, after he has reached his decision (Forbidden relations,
21:12):
And he should not have marital relations with her after he has decided to divorce her, and if
he does so, some of his sons will not be righteous but rather insolent and some will be
rebellious and criminal.49
However, in the same chapter (Halakha 28) Maimonides distinguishes between two situations. In
the first case, where the husband has decided to divorce his wife and she does not know, he must
divorce her. In the second case, both parties have agreed to a temporary marriage, and he therefore
rules:
It is forbidden for a person to marry with the intention of divorcing his wife, as it is written,
you should not plan evil against a person who trusts you, and if he announced that it is a
temporary marriage, it is permitted.50, 51

47 See Perah, letter aleph, that even if he does not consummate the marriage, but leaves her in his house this is
prohibited, and similarly Rabbi Shmuel Fiorda (Bet Shmuel) on Even ha-Ezer, chapter 119, paragraph 1. Whereas
Helkat Mehoqeq disagrees and thinks that if the woman is already married to him any notice on his part has no value,
since the wife has no possible course of action; Helkat Mehoqeq, Even ha-Ezer, ibid, ibid; the author of the
commentary, “Ma'ase Rokeah” on Maimonides and many other commentators. For a similar Halakhic conclusion based
on the Talmudic sources, see Rabbi Warhaftig, n. 45 above.
48 Rabbi Y. S. Nathanson, Responsa Sho'el u-Meshiv, Early edition, vol. 2, chapter 6, s.v., ve-Hine.
49 Rabbi Caro in the Shulhan Arukh, Even ha-Ezer, 25:8 ruled: “he should not have marital relations with his wife if he
hates her. Similarly, if he has decided to divorce her, even if he does not hate her, he should not have relations with
her.” A careful reading of these rulings would suggest that this ruling only applies where the husband continues with
the marital relations, whereas if they lived together without relations there would be no Halakhic problem. This is also
the opinion of the Helkat Mehokek, Even ha-Ezer, 119:1. However, he does not accept this distinction for halakhic
purposes and he mentions that the Knesset Ha-Gedola quoted the Ra'avad in his Responsa Tamim Deim, #239, that the
prohibition is not restricted to marital relations but also includes other services provided by the wife and therefore a
person should notify his wife of his intention to divorce her. On the other hand, the Bet Shmuel, Even ha-Ezer, ibid,
wrote in the name of the Helkat Mehokek that the problem is restricted to sexual intercourse. The Perisha, chapter 25,
letter 31 did not distinguish between the Halakhic prohibition to notify the woman of his intention to divorce because
of the prohibition on the basis of the nine qualities, and if he has not had intercourse with her he is not allowed to
continue to live with a woman whom he intends to divorce.
50 A similar distinction may be found in the commentaries and rulings of different early authorities who emphasized
the need to distinguish between the prohibition of the retention of a wife to be divorced when the wife is unaware of the
 18
Many authorities disagree with Maimonides and rule that even with prior agreement, temporary
marriage is not permitted,52 whereas others think that with prior notice it is permissible, but the
husband is not permitted to wait until after the marriage to tell his wife. However,53 a number of
authorities accepted Maimonides' distinction, including Rabbi Moshe ben Ya'akov of Couchy, who
ruled so in his book on the 613 commandments;54 the Meiri expressed a similar opinion in the Bet
ha-Behirah in the section relating to this Talmudic passage.55 In his Halakhic codex, the Shulhan

husband's intention and between a woman who has agreed and there is no secret. See, for example, Rabbi Yishaya
Aharon, Riz who accept this distintion and the Zafnat Pa'aneah on Maimonides who accepts his ruling that if the
woman is aware and agrees to the divorce there is no problem. The Prisha on the Tur Even ha-Ezer, 25: 31 accepted this
approach as did many other authorities, idem, paragraph 9.
51 In this context it is relevant to consider the question raised by the Mishne le-Melekh in the name of the Bet Yosef,
Even ha-Ezer, chapter 2 as to why the Tur ascribes this ruling to Maimonides and ignores the Talmudic source. Other
commentators explained that in the case discussed in the Talmud, the marriages were not full marriages limited in time
but rather betrothals, therefore we do need Maimonides' novel approach, in which he rules that temporary marriage are
permissible and are recognized as valid marriages, see, for example, Bet Ya'akov Mahazit ha-Sheqel on Even ha-Ezer,
laws of reproduction, chapter 2, p. 66; Rabbi Kook in Responsa Mitzvat Ra'aya, Even ha-Ezer, #119, paragraph 1
(1985) wrote that it was necessary to follow Maimonides, since Maimonides accepts this condition even if the woman is
pregnant, whereas the Talmudic source does not rule indubitably that the condition would be valid in the case of a
pregnant woman; In Kovetz al Yad, a commentary to Maimonides, the author quotes the Gur Arye that one can conclude
that the Tur follows Maimonides, who requires that the husband should specify the number of days, a new requirement
which does not appear in the Talmud, since if the woman does not know the planned period of the marriage, she will sit
and wait for her divorce every day. Maimonides also required that the husband should tell his betrothed prior to the
wedding ceremony, whereas the Talmudic source validates the marriage even if the husband defines the length of the
marriage after the wedding ceremony. The Talmud says that they would ask who want to marry me for a short period
and the marriage would be valid, if the husband announced the planned length of the marriage after the wedding. For an
additional explanation for the question see Atze Arazim, Even ha-Ezer, laws of reproduction, chapter 2 (end of paragraph
17).
52 For this opinion, see Arukh ha-Shulhan, Even ha-Ezer, 119:10 and Otzar ha-Poskim, (Jerusalem: 1966), vol. 1,
paragraphs 2, 11 letter 47.
53 Authorities who reached this conclusion, see for example: Rabbi R. ha-Kohen Bade Aharon (Or Etzion: 1993), 211
n. 27, who noted Maimonides' use of “Mithilah” (in advance) and this principle is not found in the laws of divorce,
since if he did not notify his wife in advance the marriage itself was invalid. On the other hand, Rabbi Moshe Shick
(Maharam Shick) in his notes to the Shulhan Aruk Even ha-Ezer, 119: 1 wrote with regard to the principle that if prior
to the marriage the husband notifies his spouse about his intention to enter into a temporary marriage, the marriage is
still valid, it can also be applied to an early phase of the relationship when the couple have just met.
54 He wrote: “A man is not allowed to marry a woman while intending to divorce her, since it is written (Proverbs
3:29) Devise not evil against thy neighbour, seeing he dwelleth securely by thee. If he gave prior notice when he
married her that the marriage is temporary, then the act is permissible (Maimonides ibid, 28) as we find in Talmudic
chapter Ha-Holetz (bYevamot 37b)”
55 He wrote - “A man should never marry a woman while intending to divorce her, since it is written Devise not evil
 19
Arukh (Even ha-Ezer, 119:1; ibid, 2:10), Rabbi Yosef Caro follows Maimonides in two separate
instances:
A person should not marry a woman with the intention of divorcing her. If he gave prior
notice that the marriage if for a limited period, this is permissible;
A person should not marry a woman with the intention of divorcing her. If he gave prior
notice that the marriage if for a limited period, this is permissible.56

4. Halakhic opinions that Temporary Marriage may be dissolved without a Get (divorce
agreement)
A number of early Halakhic authorities were of the opinion, regarding the Talmudic discussion in
bNedarim 29b, that there was a tentative conclusion that in Abbaye's opinionm a temporary
marriage would be dissolved without a divorce.57 However, the unprecedented statement regarding
the validity of the temporary marriage and the dissolution without a Get is discussed by Rabbi
Hayyim Benvenishti, the Knesset ha-Gedolah:
The compiler said whoever marries a woman and tells us that we are married for thirty days
and after thirty days you are free to remarry, it is not clear if the marriage is valid and if after
the thirty days the woman is released without a divorce and in my opinion, the marriage is
valid and if somebody else will marry her within the period of thirty days, the second
marriage will be invalid and that after thirty days she is released without a divorce.58
The author of the book Knesset ha-Gedolah goes further and claims that the condition is regarded
as valid by those authorities who do not accept Mahari Bruna's condition regarding the levirate
marriage. The basis of his claim is that the latter condition contradicts Torah law, whereas the
former condition does not. Furthermore, in both case the retroactive annulment of the marriage does

against thy neighbour, seeing he dwelleth securely by thee unless he makes a prior condition and that is permissible as
they said, who is ready to marry me for one day and this is possibly the source which they used together with the verse
which emphasizes and he 'dwelleth'.”
56 For a summary of the discussion, see Rabbi Uziel's Responsa Uziel be-She'elot ha-Zman, #54. An incomplete
summary may be found in the Enziklopedia Talmudit, n. 6 above, columns 412-413.
57 See the following sources: Hidushe ha-Rashba veha-Ran le-Nedarim, 29b - “In Abbaye's opinion she will be
released without a Get since the sanctity of the marriage has disappeared. His opinion cannot be declared invalid but a
woman cannot be released without a Get even though there is no longer any sanctity in the marriage...”; “Abbaye asks
and has not the sanctity of the marriage disappeared – how can Abbaye ask such a question and rule that a person can
say to a woman today you are my wife and release her without a Get tomorrow and can Abbaye rule that the sanctity of
the marriage has disappeared and to free her tomorrow without a Get because we have learn that any act of possession
which is only temporary is restricted to produce and not to the possession itself, see the chapter ha-Sholeah.” For a
discussion of Rashba's approach see the text above.
58 His commentary to Tur Even ha-Ezer, vol. 1, laws of marriage, 38 (1961)
 20
not turn the marital relations into prostitution, since the woman was set aside for one particular man
and at the worst she should be regarded as a Pilegesh (a connection with a lesser status than that of
a wife). He writes:
Even the Bet Yosef who disagrees with the Terumat ha-Deshen ibid, chapter 157 regarding
the case of levirate marriage59 will accept that in our case there is no necessity for a Get. In
the former case the condition was invalid because it contradicted Torah law, and a condition
which contradicts Torah law is automatically invalid, whereas, in the latter case, there is no
contradiction of Torah law and the condition is therefore valid...
Rabbi Benbenishti raises one question. If the husband dies before the end of the period alloted to
the marriage without issue, is the wife liable for levirate marriage? On the one hand, the husband is
allowed to set a term to the marriage, but he cannot override the levirate marriage obligation. But,
on the other hand, it is possible that with the completion of the marriage term, the levirate marriage
obligation will disappear, since it is based upon a valid marriage. His ruling is that the wife is not
liable for levirate marriage in such circumstances.
Among the authorities who rejected the position of the Kenesset ha-Gedola60 is the author of Sha'ar
ha-Melekh, who distinguished between two situations in the case of a temporary marriage. If the
husband died intestate and the wife was liable for a levirate marriage, the condition was valid, since
the marriage and the financial arrangements were based on the assumption that the marriage would
be annulled in such a situation. However, the marriage itself, although intended to be for a limited
period, is a valid marriage and cannot be annulled without a Get and certainly not on the basis of an
oral contract. Petah ha-Sha'ar in his commentary to the Sha'ar ha-Melekh wrote that the Kenesset
ha-Gedola saw the two cases as similar. Just as in the case of the levirate marriage, the financial
arrangements were valid until the fulfillment of a specific condition (i.e. the levirate marriage) and
then were converted into a present, the same thing happens at the end of the term of the marriage,
the money which was originally part of the marriage contract is converted into a present. 61

59 For further treatment of this ruling, see in the text preceding n. 37 above.
60 For a partial list see, among others, Be'er Hetev, 38:1; Rabbi Akiva Eiger's Responsa Teshuvot Hadashot, Even ha
Ezer#15 (Jerusalem: 2002); Responsa Mishpate Uziel, vol. 2, Even ha Ezer, #44-45; Responsa Yismah Levav, Even ha
Ezer, #11; She'ar ha-Melekh le-Gerushin, 8:9, Responsa Yaskil Avdi, vol. 3, Even ha Ezer, #6.
61 See Hidushe Sha'ar ha-Melekh on Tractate Kidushin 58b and n. 1 (2000). The problem with this explanation is that if
when the event occurs one determines retroactively that the money in the marriage agreement was given as a present
and not as part of the marriage agreement, then we are no longer discussing a temporary marriage but rather a
conditional marriage. This Halakhic construction applies from this moment on. Indeed, when the condition is invoked,
we know that the money was intended to be a present, but the condition only applies now and not retroactively. This
explanation relates to a marriage on condition but is closer to a marriage for a defined period. This Halakhic
construction was considered in the legal committee of the Israeli parliament in connection with the powers of a
 21
It is possible that there are additional contemporary Halakhic authorities, who accept the novel
approach of the Knesset ha-Gedola that temporary marriage is valid and is dissolved without the
divorce procedure. See, for example, the responsa by Rabbi Yosef Shaul Natansohn,62 and that of
Rabbi Eliahu Hazan63 and Rabbi Ovadiah Hadaye,64 although the last of the authorities requires a
Get to resolve all the doubts.
Among the academic discussions, we would mention that of Professor Ze'ev Falk, who suggested
some thirty years ago, among other suggestions, that the husband's refusal to divorce could be
solved by a pre-condition at the time of the wedding that the bond between the couple will be
sundered by the husband's death or his unjustified refusal to agree to a divorce. This idea was raised
as a solution to the problems of Mesorevet Halizah and Agunah. After a discussion of sources which
support his approach, he writes:
If this assumption is correct, it would be possible to make a marriage which would be valid
until one of two conditions would be fulfilled, either the death of the husband or a divorce

religious court to dissolve a marriage where the couple agree to accept the court's authority, even though one of the
partners is of a different religion under a special section of the divorce law promulgated in 2005, see
http://www.knesset.gov.il/protocols/data/html/huka/2005-03-22-02.html. (last viewed: 9.2.09)
62 The Responsa Shoel u-Mashiv, 2nd edition, #35 (1964), 21b - “The Talmud's approach is not difficult that if a man
says to a woman today you are my wife, but tomorrow you are no longer my wife that the sanctity of the marriage
remains, but the Kenesset ha-Gedola wrote that if he marries her for thirty days and that after thirty days you are
divorced, he has defined the length of the marriage and in this way the sanctity of the marriage is annulled.” Professor
Falk, n. 10 above, 95 adds a reference to an additional work by Rabbi Natansohn, Yad Sha'ul on the laws of vows,
chapter 221, paragraph 19 (Brooklyn: 1991), where he discusses the possibility of donating an object to the temple
where he only owns the object temporarily. Rabbi Moshe ben Habib in his commentary to Tractate Sukkah suggests that
this action may be possible, see 41b, s.v. Kitvu (Jerusalem: 1998).
63 Responsa Taalumot Lev, vol. 3, #41 (Jerusalem: 1903): “I say that I don't understand all the fuss, where the Kenesset
ha-Gedola follows Ula and Abbaye in Tractate Nedarim in ruling that the sanctity has been annulled. This is also the
Palestinian Talmud's approach... that the sanctity has been annulled. It would seem that in the case of tomorrow you are
not my wife, Ula would dispute the case... but it seems to me that the Palestinian Talmud aids us in that we have a case
where an object is removed from the temple's possession without being redeemed officially, but we have no case of a
woman's release from marriage without a divorce. This distinction is not accepted by all the authorities... certainly
where the Kenesset ha-Gedola follows Ula and Abbaye and the only problem being that of the Palestinian Talmud
problem that a woman is not released from a marriage without a divorce. However, if such a form of marriage is
possible, then the wife is indeed released without a divorce.
64 His Responsa Yaskil Avdi, vol. 3, Even ha-Ezer #6 - “it would seem that there is some similarity to the condition to
avoid levirate marriage, that if the husband should travel far and the wife does not know what has happened to him then
the marriage will be annulled retroactively and the money turn into a present, where everybody accepts the Kenesset
ha-Gedola's opinion that this is a valid condition for any woman and there is no danger of immorality, since she was
only connected with one man, her status would be that of a Pilegesh and even the Bet Yosef, who disagreed with the
Terumat ha-Deshen would admit that in this case the condition is permissible since it does not contradict Torah law.
 22
decision handed down by a recognized rabbinical court. In the first case, the marriage will
be annulled by death and the widow will not be liable for levirate marriage. In the second
case, the court's decision would be sufficient to annul the marriage. We would hope that
rather than using this means, the husband would understand his position and give the divorce
under his own volition.65
Incidentally, we would point out that the authorities quoted above and Professor Falk's approach do
not encounter Halakhic problems with regard to the necessity for a Get and do not contradict Torah
law.66 The need for a Get and the problem of conditions which contradict Torah law apply to
marriages regulated by Jewish law. However, this does not apply to a condition which negates an
act, such as condition with regard to marriage, which annuls the marriage completely retroactively
or a condition which fixes a time for an act such as a marriage entered into for a fixed time. In these
two special cases, the marriage is entered into for a specific time by mutual agreement and the
marriage is valid during the agreed period. We will explain the two types of conditions and the
relationship between the two solutions with their advantages and disadvantages in the next section.

5. What are the differences between a conditional marriage and a Temporary Marriage?
In a previous article we have discussed the existence of two types of conditions – a narrative which
defines an act and a narrative which supports or annuls an action.67 The first condition defines the
extent of the action to which the condition is applied, in other words, the condition does not apply
to the act but only to its legal consequences. The second type of condition is capable of annulling or
supporting to act to which it applies.
In our case, the condition of Mahari Bruna is a narrative which confirms or annuls the marriage act
itself. It is capable of uprooting the marriage retroactively, where the woman becomes liable for
levirate marriage. This revolutionary condition gave rise to complex Halakhic discussions which
were the source of controversy among the Jewish people as to the possibility of the use of
conditional marriage. The subject of the discussion was the possibility of setting forth conditions at
the time of the marriage, which could lead to a retroactive annulment of the marriage especially
with regard to a husband who appears before the rabbinical court but adamantly refuses to divorce
his wife.68

65 See Falk, n. 10 above, 97. For a critical discussion of his suggestion, see E. Sheinbaum [on] "Z. Falk Tevia't
Gerushin Mizad ha-Isha be-Dine Yisrael" (Hebrew), Dine Yisrael 6 (1975), 303.
66 See Margalit, n. 68 below and sources quoted in n. 62 above.
67 For a thorough discussion of these terms see Margalit, n. 23 above, 93-95; Y. Margalit, “”Hofesh Hozim” be-
Hasdarat Yahase Ishut ben Bne Zug be-Halakha ha-Yehudit” (Hebrew), appendix 1, p. 34 ff. (not yet published).
68 For a discussion of the different types of conditional marriage suggested to solve the problem of the Agunah, see the
 23
The use of pre-conditions in the marriage ceremony may solve not only the problem of levirate
marriage as we have pointed out above, but also the problem of a husband who refuses to grant his
wife a divorce. This solution annuls the marriage retroactively and renders the Get superfluous as a
means to end the marriage.
However, various Halakhic authorities claim that this condition is only valid after the husband's
death and in the case of a refusal to carry out Haliza in order to circumvent the levirate marriage,
since we are dealing with a negative commandment. But when we are dealing with a husband who
adamantly refuses to divorce his wife, then the condition is not strong enough to annul the marriage
and to release the wife without a Get written in accordance with all the Halakhic requirements. This
approach is partially based upon the Talmudic ruling - 'En Tnai be-Nisuin' (there are no valid
conditions in the case of marriage),69 in other words there are no valid conditions, even those that
annul the marriage retroactively, which do not require a Get. Even if such a condition was effective
in annulling the marriage, it would be too general a solution that might undermine the foundations
of Jewish marriage including both the problematic marriages and those that are not problematic.
This sort of criticism is to be found in the works of both Halakhic authorities70 and of academics71

following main sources: for additional rabbinical sources see, among others, Kidushin al Tnai ( ‫קושטאנדינה‬: 1924), Y.
Lubetsky (editor) En Tnai be-Nisuin (‫ווילנא‬: 1930); a series of articles by Gertner & Karlinski, n. 14 above; Glicksberg,
n. 28 above; Rabbi M. M. Casher “Be-Inyan Tnai be-Nisuin” (Hebrew), No'am 12 (1969), 338-53; Rabbi S. Y. Zevin
“En Tnai be-Nisuin” (Hebrew), Ha-Maor (1935), 87-92; Rabbi B. M. H. Uziel, Responsa Mishpate Uziel, Even ha-
Ezer, #45-46 (1935). Rabbi Professor Michael J. Broyde also recently suggested a pre-nuptial marriage agreement
based on three Halakhic solutions, one of them being a conditional marriage, see Hatz'a le-Heskem Shelosha Halakim
drafted by Rabbi Broyde (http://www.kipa.co.il/kolech/show.asp?id=14724 (last viewed: 9.2.09). For Academic
material see, for example, Y. Golan, Tna'im be-Kidushin uve-Nisuin be-Sifrut ha-Tana'it, ha-Amorait veha-Batar
Talmudit (Hebrew) (doctoral dissertation, Bar-Ilan University, 2003); E. Berkovits Tnai be-Nisuin uve-Get (Hebrew)
(Jerusalem: 1967); Freiman, n. 20 above, 386-394; I. Warhaftig “Tnai be-Kidushin uve-Nisuin” (Hebrew), Mishpatim 1
(1968), 203-10. For a comprehensive survey of the various suggestions and the legal and Halakhic basis of the pre-
conditions in the marriage ceremony together with a rejection of the claim that the conditions contradict Torah law, see
my article “Are there no Conditional Marriage?" (not yet published).
69 This general rule appears in one discussion in the Babylonian Talmud, bYevamot 107a and beame a general rule in
the period of the Early rabbinical authorities, see, for example, Sefer Ohr Zarua, part one – Laws of Levirate marriage
and marriage, chapter 617. In the later authorities, see, for example, Lehem Mishne, Laws of Divorce, 10:6; Avne
Milu'im, chapter 39; Responsa ha-Radakh, #9; Responsa Hut ha-Meshulash, vol. 3, #3; Responsa Shivat Ziyyon, #71;
Responsa Ahiezer, vol/ 1, Even ha-Ezer, # 9; Responsa Yaskil Avdi, vol. 3 Even ha-Ezer, #6 together with many other
discussions. For a discussion of the different suggestions offered to solve this problem and of the rabbinical objections
which are mostly based on this Talmudic rule see the different sources mentioned in n. 67 above.
70 See, for example, Responsa Mishpate Uziel, Even ha-Ezer vol. 2, #44-45, (Tel-Aviv:1938) - “Marital relations are
seen as eternal and immutable from a Jewish religious point of view... from this point of view it is clear that temporary
marriages are forbidden since they are not in accordance with the spirit of the Torah... if somebody marries a woman for
 24
who rejected this attempt to undermine Jewish marriage, which, in their opinion, should reflect
solidity and eternity.
On the other hand, marriage for a pre-determined period is considered a limiting condition and is
thus a less radical solution, since it does not annul the marriage retroactively but only from that
moment on and thus may be more acceptable from an Halakhic point of view, since there is less
fear of undermining the stability of the marriage acts. However, one may claim that annulment of
the marriage might be easier from an Halakhic point of view than canceling the marriage from a
given point of time as may be seen in the Halakhic discussions regarding marriage annulment.72
Furthermore, since this condition is not general and is agreed mutually by both partners, it may not
be applicable generally to all cases of husbands' refusing divorces. Another problem is what is the
recommended length of marriage – for if the period is too long, what are the advantages of the
fixed-length marriage? If the period is too short, it might discourage many couples from marrying,
since they would consider it too short a period, since extension by mutual agreement gives rise to
other Halakhic problems.

6. “Man Havia le-Yoma” (who wants to be my wife for day/s)

The Babylonian Talmud introduces a puzzling discussion. The text occurs in two parallel sources
and may possibly be used as evidence for temporary marriage which was agreed at the time of the

a pre-determined time with the intention of divorcing her and leaving her, he is not allowed to be intimate with her and
any intercourse is promiscuous and their children are of base ancestry and the product of promiscuity.” For further
discussion see the many different authorities mentioned in n. 58 above, who rejected the Knesset ha-Gedola's suggestion
to annul a marriage which was entered into for a pre-determined period without requiring a Get.
71 See Freiman, n. 15 above, 296-397 - “”Temporary marital relations” undermine the basic principles of public order
and social morality. Therefore, pre-conditions to the marital act are forbidden in the legal codes of all enlightened
peoples. How can we get up and introduce conditions into the act of marriage as standard procedure applicable to all
Jewish marriages? How careful we are when severing the marital bond, how many millions of Catholics are imprisoned
in marriages which can never be sundered – and we want to introduce the potential Get into the marriage ceremony, that
the bride should take her divorce documents home with her after the wedding!”. Professor Berachyah Lifshitz
commented that from an Halakhic point of view this is a possible solution, but there is a real risk that the groom will
forgive and relinquish the condition.
72 In the discussions on the annulment of marriage many of the early authorities were uncertain as to whether it work
retroactively or from the moment of the annulment, see for example Rashi's commentary bKetubot, 3a, s.v. Tinah and
Kidesh be-Biah Mae and compare this with the novellae by the Ritba, quoted in the Shita Mekubetset, Tractate Ketubot,
ibid., s.v. ve-Katav ha-Ritba. To summarise the early authorities such as Rashi, Tosafot, Meiri, etc. - marriage annulment
by the sage is retroactive to the moment of the amrriage, whereas sages from Spain such as Nachmanides, Rashba,
Ritba, etc. distinguished between those cases where the marriage act itself was problematic where the annulment would
take effect retroactively and situations where the marriage was valid and the problems arose at a later stage. In the latter
case, we are not discussing annulling a marriage but rather handling a problematic divorce.
 25
marriage ceremony itself. These marriages will be dissolved by a Get and according to some of the
authorities discussed above the Get itself may be unnecessary in order to dissolve the marriage. We
are referring to the discussion, “Kidushin lezman” (Temporary marriage) stimulated by the call of
Rav and Rav Nahman, two of the most important Amoraim in Babylon - “who wants to be my wife
for day/s.”73 Here is the text (bYuma 18b with the parallels from bYevamot 37b):
When Rav reached Darshish, he called out: Who will marry me for a day? Rav Nahman74
when he reached Shachanziv, called out: who will marry me for a day.75 We have learnt in an
external Mishnah, Rabbi Eliezer the son of Ya'akov says: a man should not marry a woman
in one town and then go and marry another woman in a different town, in case their children
might marry and then a brother would marry his sister or a father his daughter and the world
will be full of bastards, as it says “and the earth was full of immorality!”- we may say: that
in the case of prominent rabbis, the act is publicized, or we may say, that they were simply
in their company since there is a difference between a person who has a wife with him and a
person who does not have a wife with him.
The Talmud is amazed that the sages allowed themselves to do such a thing, since their conduct
violates a ruling in an external Mishnah, which forbids marrying a woman in one place and then
leaving her to go to another place. There is a danger, which Rabbi Eliezer ben Ya'akov points out,
that a brother will not know about his half-sister from the same father and they will marry and
produce bastards.
This text is extremely difficult. The rabbis have reasons to fear their sexual appetites, but they must
also fear their creator. If we are talking about a marriage which is not fully halakhically valid as an
additional wife to a wife who is legally married to the sage, then they should fear their sexual
appetites.76 Perhaps we are discussing Amoraic records of the halakhic approach to temporary

73 bYuma 18b; bYevamot 37b. For a clarification of the exact wording of the text, which is relevant to the question of a
marriage for day/s, see, for example, E. E. Auerbach, Hazal Pirke Emunot ve-De'ot (Hebrew) (Jerusalem: 1986), 422 n.
28 and the readings quoted by Avraham Lees (compiler) Dikduke Sofrim ha-Shalem Masekhet Yevamot (Jerusalem:
1983), vol. 2, 33-34. See the wealth of authorities quoted in the latter work.
74 In the Munich manuscript we find his full name “Rav Nahman bar Yizhak” even though this addition is not found in
the manuscript editions of Yevamot. For an attempt to identify the sage, see: Elman, n. 131 above, 12 n. 29.
75 In the version in Tractate Yevamot, Rivan and other early authorities together with manuscripts prefer '‫ 'יומי‬as do
Rashash and Rashi.
76 See, for example A. Schremer, Zahar u-Nekeva Bar'am (Hebrew) (Jerusalem: 2004), 206, who assumed that we are
not discussing full legal marriages, because there is no normal family life, but he thinks and I quote - “he is renting an
escort service for the night.” For similar criticism about the sages' behavior see A. S. Herschberg “Yofya ve-Hityafuta
shel ha-Isha bi-Zman ha-Talmud” (Hebrew), He-Atid 4 (1923), 1-52, who wrote - “Even our sages in the Talmud had
different notions of modesty and immorality according to the time and the place.” For a comparison of modesty in the
society of Erez Israel and that of the lack of modesty in Babylon see, idem, 10-14.
 26
marriages of a pre-determined length and of their annulment at the end of the period (apparently
with a Get, athough opinions are not unanimous). We have reason to fear the sages' creator, since
we are talking of sages who were already legally married, but still took an extra wife for a pre-
determined period,77 and made that specific condition before the marriage.78
Rashi in his commentary to the text in bYuma, idem. (s.v. Man Havya) and in bYevamot explains the
language used as a search for a woman who would agree to be married for one or several days,
while the sage would remain in the town and afterwards they would separate. It would seem, that
we are talking about a full marriage requiring a divorce procedure to end it. On the other hand, the
Talmud suggests, where such suggestions sometimes have the status of an halakhic ruling, that the
woman is not fully married but has simply been allocated to him. Indeed, many of the early
authorities followed Ri in the Tosafot and ruled that we are not talking of a proper marriage,
allowing marital relations, but a woman is allocated de jure but not de facto. The purpose was to
ensure that the sages would be able to satisfy their sexual urges,79 but this is not a full marriage
which would require a Get.80 Similarly Rabbi Yizhak bar Sheshet Parperet (Ribash, chapter 398)
writes:
But it would seem that this only an allocation; in other words a woman is selected and
prepared to marry them if they wanted to do so. They would not marry them; but would
make the condition that they could marry them if they wanted. This would calm their sexual

77 M. D. Har, “Ha-Nisuin mi-Behina Sozio-Ekonomit Lefi ha-Halakha” (Hebrew), Mishpehot Bet Yisrael (1976), 37-
46, 40 together with the sources he cites in n. 16.
78 To what extent did the early authorities treat the text literally that we are talking of a full marriage including marital
relations that could end in pregnacy, see the relevant Tosafot in Tractate Yevamot, s.v. Yihudi. They wrote – "If he
wanted, he could have intercourse with her... if he had intercourse and she became pregnant, he would take her with him
to his home.”. Hagahot Maharam rejects this possibility - “This never happened and he would never take her home with
him... it was evident to the inhabitants that he would never take her with him. This is confirmed by the explanation of a
number of the later authorities such as Rabbi Yissachar Behr son of Yisrael Lazer, of Eilenberg, who wrote in his
responsa Responsa Be'er Sheva, #26 - “It is indeed hard to understand how it was permissible for him to have
intercourse and is not a guest prohibited from having intercourse as we learn in chapter “Af al pi” therefore one must
say that since the rabbi had a special house and would sleep in his own garment he was regarded as a house holder and
intercourse was permissible”. For further discussion see Responsa Mishpate Uziel vol. 2 Even ha-Ezer, #44, (Tel- Aviv:
1935),132-134.
79 See, for example, the clear statement by Rabbi Ashtori ha-Pirhi in his book Kaftor ve-Ferah, chapter 44 - “and what
they claim in Tractate Yuma, chapter 1 (18b) that Rav's request for a wife for a day is only because a person with the
opportunity for intercourse is less likely to sin that the person without the opportunity, just as the people in the booths
would invite the leader of the scapegoat to eat (idem 67a) and he would refuse”.
80 For additional discussion on the difference between Rashi's explanation and that of the Tosafot see Maharsha, s.v.
Yihudi be-Alma. To summarise the first six different opinions presented, see Rabbi Shlomo Ganzfried in his
commentary 'Lehem ve-Simla' on the Shulhan Arukh, Yore De'ah, 192:10 (Bnei Brak: 1997).
 27
urge since a woman was available in the town prepared to marry them if they would so wish.
One may possibly claim that the Rid had a similar approach. He wrote in his rulings that this is not a
full marriage granting the right to have intercourse, but only a permit to be with the wife, as he says:
One may claim that they were not alone with them in one bed but were together in the same
house, he remained with the men and his wife remained with the women.
Among these early authorities, one can see a whole group who are of the opinion that the marriage
is a full legal marriage, but without sexual intercourse. Therefore, the sage would set down a
condition at the time of the marriage that the marriage is only valid while the sage is staying in the
town and when he leaves the town, the woman will agree to a divorce.
Rabenu Hananel wrote that this is a full legal marriage which requires a Get to dissolve it prior to
the sage's leaving the town. As he writes:
So which woman shall I marry today and when I leave the place I will divorce her...how
can you say that they had intercourse with her, but no they just enjoyed her company...81
The Meiri in his work Bet ha-Behirah, explained the text:
This describes how one of our sages would marry a woman temporarily in every town in
which he stayed, even where his stay was as short as one day, in order to control his sexual
urges and he would make a condition that he was marrying her for a short period in order
that she should agree to a divorce afterwards, and there were no sexual relations, they
would merely occupy the same house, so that he should not feel the lack of a wife and could
more easily resist his urges (emphasis supplied – Y.M.)
With regard to the text, firstly, some authorities tried to uproot the problem by claiming that this is
pure slander and the text does not belong in the Babylonian Talmud but was inserted by mistake by
a student who erred or mocked.82 Hayyim Bloch held a similar opinion, that it was a job by the sons
of Shekanziv who were know for their sense of humor and it was not a real declaration on the part
of these sages, but simply a joke by Shekanziv, who used a prominent person in his joke.83

81 Rabbenu Hananel's commentary to Tractate Yuma 18 (D. Mazger edition, Jerusalem: 1993).
82 Rabbi Yosef Zvi Diner made this claim, ha-Rizad, vol. 4 of his novellae to Tractate Zevahim (Jerusalem: 1999), 88 -
“My heart tells me that an erring student inserted this text intentionally and his successors did not detect it... and by
chance this also happened with regard to Rav and Rav Nahman in bYevamot 37b and this story also never occurred as
anybody who is aware of the deep morality of these two leaders of Israel would admit and the story was inserted into
the Talmud by a mocker of the sages and pupils came and discussed it without feeling the forgery.”
83 See H. Bloch, Ve-Da ma-she-Tashiv (Hebrew) (New York: 1962), 26-30 - “Gd did not refuse his mercies from an
insignificant person such as myself and revealed to me how to clarify the uncertainty of this source. Without a shadow
of doubt, I claim that neither Rav nor Rav Nahman ever made such a statement, “who wants to marry me for a day”
only a mocker wanted to make a joke and attributed it to important personages, for it is said in bPesahim 112b that
Rabbenu ha-Kadosh commanded his sons that they should never live in Sh'khanzib, since the people there are mockers,
 28
Secondly, other commentators tried to connect the difficulty of taking a wife without the proper
procedure of Hupa and Kidushin, on the one hand, and, on the other hand, the temporary marriage
for a pre-determined period carried out using the proper procedures. That was defining them as
Pilagshut, whose only purpose was to save these sages from their evil inclinations. Rabbi Shmuel
Shtrason (Rashash) in his commentary to this text in bYuma explains:
We would explain that he did not marry using Kidushin and Hupa but reserved them for
intercourse as a Pilegesh (unmarried wife) according to the rulings by the Ra'avad and
Nahmanides that a Pilegesh is permitted to commoners... a regular marriage requires
counting seven days of purity but this form does not.
Rabbi Ya'akov ben Zvi Hirsch Ashkenazi Emden used this precedent for his famous ruling
permitting taking a Pilegesh, since these two sages took women without Hupa and Kidushin. He
writes:
It is said in the first chapter of Yuma that when Rav reached Darshish, he announced who
wants to marry me for a day. People were amazed and asked if he had intercourse with her. I
wrote that this proves that a commoner is allowed to take a Pilegesh, because it is obvious
that he would not write a Ketubah for one day, but he took her as a Pilegesh and he was not
liable to write a ketubah, since he is not allowed to remain with a wife without a Ketubah.
The intention is that he should not hold his wife in contempt and be able to divorce her
easily and this only refers to taking a wife which requires a Ketubah and since this was
explicitly agreed between them, he cannot change the conditions without her agreement.
However, in case of a Pilegesh, she has agreed to his conditions. This is obviously the case
for those rabbis who were interested in a temporary arrangement for one day and would be
leaving the next day.84

and we know that Rav Nahman lived there for a short period and the inhabitants of Sh'khanzib wanted to make a joke at
his expense and claimed that when he arrived in Sh'khanzib, he looked for a wife for one day and the account reached
other places in Babylon, similarly Rav Nahman was changed to Rav, and one “hero” was converted into two “heroes”,
and there is no doubt that the compilers of the Talmud, turned up their noses and scratched their heads as they accepted
this text and while they discussed it, but they endeavoured to collect anything which might mislead – that a brother
should marry his sister or a father his daughter – but in their naivety and their big-heartedness they could not even
suspect that the whole thing is a joke – it is preferable that one text should be erased from the Talmud than that heaven's
name should be defiled in the presence of the whole world”. In his introduction he reject Moshe Leiter's two
suggestions in his Zuto shel Yam: Bi'urim ve-Divre Mehkar be-Talmud u-Madrikh be-Divre Hakhamim ve-Hegyonam
(Vienna: 1932), that these announcements by the sages aimed to uproot the practice of marrying a woman without
following proper procedure and to save a man from sinning by these preventive measures. He bases himself on a
responsum by Rabbi Y. A. ha-Levi Ettinger in his Responsa Mahariya ha-Levi, #16, who also found the announcement
unclear and puzzling.
84 His Responsa She'elat Ya'abez, vol. 2, #15. For a similar academic treatement, which reaches the conclusion that this
 29
Other authorities were of the opinion that this was not a legal marriage where sexual intercourse
would be permissible but rather marriage for a fixed time did not include sexual relations but
simply serving the husband, etc. As a geonic commentary puts it -
There was no sexual intercourse but the woman would serve in the house during the day.85
Some early authorities were of the opinion that the marriage was legal, yet there was no
need for divorce when the sage left the town and the women were available every time the
sage returned to the town, these opinions were summarized by Rav Uziel in his responsa.86
Other authorities ruled that the marriage was valid and a Get was required in order to
abrogate them Rav Avraham min ha-Har wrote in his commentary to bYevamot, s.v. le-Yome,
and we can understand from his comment that we are discussing a valid marriage which must
be dissolved by using a Get-
Who want to be my wife temporarily while I am staying her and I will divorce her. They
would do so in every place that they visited although they already had wives and children.
This is the first explanation.87 (emphasis supplied – Y.M.)
Other scholars had different suggestions, some of which were strange, as they tried to understand

is a case of Pilagshut, see Elman, n. 131 below, 14. For a discussion the Pilegesh in the Bible, see Rabbi Y. Ariel, “Ha-
Pilegesh u-Ma'amada ha-Hilkhati be-Miqra” (Hebrew), Megadim 8 (1989), 57-67. This phenomenon was common at
the time of Maimonides and he refers to it in various responsa, see S. Stuber, “Al Shte She'elot she-Hufnu el Rabenu
Avraham ben ha-Rambam (referring to a slave-Pilegesh)” (Hebrew), Shnaton ha-Mishpat ha-Ivri 6-7 (1979-1980), 399-
403. For a modern attempt to revive the institution using these precedents, see, for example, Z. Zohar “Zugiyut al-Pi ha-
Halakha lelo Hupa ve-Kidushin” (Hebrew), Aqdamot 17 (2006), 11-31. It is unecessary to point out that this suggestion
was stongly criticised by, among others, Rabbi Y. H. Henkin “Aharita mi Yeshurnea?” (Hebrew), Aqdamot 17 (2006),
33-40; S. Ariel “Pilagshut ena “Haverut”” (Hebrew), Aqdamot 17 (2006), 41-66; M. Tikachinski and R. Sperber-Frankel
“Tazhiram min ha-Pilegesh” (Hebrew), Aqdamot 17 (2006), 67-75 and his reaction to the objections by Z. Zohar
“Teshuva le-Magivim” (Hebrew), Aqdamot 17 (2006), 77-82.
85 Quoted in Otzar ha-Geonim on Tractate Yuma.
86 “It would seem that the Rif and the Rosh follow the Bakh and the Derisha, that the term marriage for a day means
who wants to marry me even if they are only staying for a short time and intend to return to their homes, but they will
return for time to time and the women should be ready whenever they return to the place and this is Talmudic text: when
Rav came to Darshish. This implies that he did not do it in every place that he visited, but this was a place which he
visited frequently and stayed a few days every time (Bakh, Even ha-Ezer, chapter 2) and there was no intention to take
advantage, since he did not intend to divorce the woman, therefore the Rif and the Rosh ommited these facts since it is
not permissible to marry with the intention of divorcing”, see the Responsa Piske Uziel on Contemporary Themes, #54.
For a similar approach, see, for example, the following sources: Divrot Moshe, his comments on bYevamot 82, n. 68
(1979), who reached the conclusion that there was no divorce involved, since the woman would be invited every time
the sage returned to the city and that this was a frequent occurrence.
87 Rabbi Uziel understood the term 'wife for a day' in this way as a valid marriage requiring a Get to dissolve it, see
rabbi Uziel, below n. 89.
 30
this puzzling matter, but what was common to these attempts was the apologetic attempt to avoid
the obvious meaning.88 In their opinion, this case does not enable us to draw conclusions regarding
the possibility of temporary marriage. Among the explanations are:
Rav wanted to uproot the negative custom of a wedding without prior match making and he
therefore asks his fellow citizens to arrange a marriage for him; the act was to counter the evil
inclination and to prevent a possible trial of a sexual nature, and therefore the sage wanted to marry
in order to neutralize his evil inclination;89 because of the Halakhic prohibitions of being alone with
the wife of the innkeeeper and questions of Kashrut regarding the food together with problematic
relationships with their wives the sages preferred to take an extra wife, if “she agreed”;90 the
Persians used to give a woman to their important guests who arrived without their wives, and
therefore the sages announced, fictitiously, that they were looking for wives in order that the
Persians would not need to send them a Persian woman; the announcement, “who wants to marry
me for day/s” is not a search for a woman for marital relation, but refers to the search for a place to
stay while they are in the town; this is neither a public declaration nor a search for a wife, but a
Halakhic statement or a popular proverb referring to sexual intercourse on the Day of atonement;
these statements are a result of problems with the sages' wives, hinting that they could take
additional wives, or again, the wives' conduct might have been the result of these declarations.91
Prior to a discussion of a novel explanation and what we consider an interesting approach which we
intend to discuss in some detail, we would like to discuss an ancient and very special Muslim form
of marriage, which does not seem to be relevant to our discussion and which is most certainly

88 See Simeon Lowy, “The Extent of Jewish Polygamy in Talmudic Times,” Journal of Jewish Studies 9 (1958), 115-
38, 123ff and Yishaya Gafne, Yehude Bavel be-Tequfat ha-Talmud (Hebrew) (Jerusalem: 1991), 272.
89 See respectively Rabbi B. M. H. Uziel “Man Havya le-Yom” (Hebrew), Ha-Posek 99-100 (1948), 1979; Bloch, n. 83
above, 26. For a rejection of this explanation, see Rabbi Margoliouth and Rabbi Uziel, n. 91 below. It is interesting to
note that Rabbi Hayyim Berlin in his Responsa Nishmat Hayyim, #142 raised this possibility but rejected it in his
conclusion. This is his approach at the beginning of the discussion - “I was surprized that they did not notice, that this
would eliminate the Talmud's question about Rav and Rav Nahman who announced that they wanted to marry for one
day in the Baraytha attributed to Rabbi Eliezer ben Yosef. Rav and Rav Nahman did so in order to escape the evil
inclination as was pointed out that they would have “bread in their basket” and it is Rav who authored the saying that
nobody escapes evil thoughts every day and Rav believed that in order to escape his evil thoughts it was permissible to
ignore the prohibition of Ra'abi”.
90 Editor's comment by Rabbi Posek to Rabbi Uziel's article, ibid., 1542.
91 For the last four sources see, respectively, Reuven Margoliouth, “Man Havya le-Yoma” (Hebrew), Sinai 21 (1947),
176. For a rejection of this theory see Rabbi Uziel, n. 89 above; S. Kraus “Man Havya le-Yoma” (Hebrew), Sinai 22
(1948), 299. For a rejection of this theory see Rabbi B. M. H. Uziel “Man Havya le-Yoma” (Hebrew), Ha-Posek 101-
102, (1949), 1554; N. Aminah “Man Havya le-Yoma” (Hebrew), Sinai 81 (1977), 169-73. For further discussion see: J.
Neusner, A History of the Jews in Babylonia (Leiden: 1966), vol. 2, 130.
 31
antithetic to the spirit of Judaism. It may, however, illuminate the question of temporary marriage
and relate to the ancient Persian-Babylonian roots, which very probably appear in the Babylonian
Talmud.

7. Chapter seven: The Shi'ite temporary marriage for the purpose of pleasure (0123 ‫)زواج‬
7.1. General
This Islamic form of marriage, which has been defined as “fantastic”, is a temporary marriage
whose purpose is pleasure. When the contract is completed the woman is available again, and this
without any formal divorce procedure. This form of marriage has been discussed in some detail in
academic sources,92 and there is even a film which looks at this unique form of marriage.93
Traditionally, this form of marriage is one of the points of controversy between the Sunni and
Shi'ite forms of Islam, the latter permits it but the former categorically forbids it.94 It is very
possible that the contemporary situation has been reversed, where those who previously forbid the
marriage tend to permit it, where those who permitted the marriage now raise many objections in
order to limit the extent of the phenomenon.95 Some claim that Shi'ite Islam tended to permit it
because the Shi'ites were a persecuted minority and had to escape from place to place and it was
necessary to develop a form of marriage appropriate to this way of life.96 Other scholars claim, that
this was the reason why Shi'ite ideologists clothed the institution in holiness,97 until some of the
Imāmīs ruled that a person who has not tried this form of marriage had never fulfilled the Islamic
marriage commandments completely.98
One of the interesting religious justifications for this approach is specifically the Sunni opposition.
Any Shi'ite, who enters into such a marriage gains spiritually, especially if he was married to one of
the descendants of Muhamad. It would seem that ignoring the prohibition laid down by Caliph

92 See, among other, S. Haeri, Law of Desire: Temporary Marriage in Shi'i Islam (Syracuse, N.Y.: 1989); A.Q. Gourji,
Temporary Marriage (Mut'a) in Islamic Law (1987); A. Gribetz, Strange Bedfellows: Mutat Al-Nisa And Mutat Al-Hajj
: A Study Based on Sunni and Shii Sources of Tafsir, Hadith and Fiqh (Berlin: 1994)
93 The film is called “Zu'aj al-Mat'a” (the mistaken marriage), which according to Bechor contributed to cessation of
such marriages which were much too common in Egypt in the 70s of the last century, see Bechol, n. 3 above, 275 n. 41.
94 This conclusion is based on: I. Goldziher, Introduction to Islamic Theology and Law (Princeton, N.J, A. & R. Hamor
trns., 1981), 209. For an exhaustive discussion of the differences between the Sunni and Shi'ites see: S. H. M. Jafri, The
Origins and Early Development of Shi'a Islam (London:1979)
95 See: H. Abd al Ati, The Family Structure in Islam (Indianapolis, Ind.: 1977), 108-109.
96 For this claim, see Abd al Ati, ibid., 106.
97 See Goitein & Ben Shemesh, n. 3 above, 129.
98 “The believer is only perfect when he has experienced a mut'a”. The source for this claim is: al-Ḥurr al-'Āmilī,
Wasā'il al-S h ī'a 69,2 (1288) ; Abd al Ati, n. 96 above, 103.
 32
Omer on this form of marriage would probably give G-d pleasure.99
This form of marriage is built on mutual agreement (lāzim), which is created from the receipt and
the offer ( abūl&īd j āb), and includes the duty to define the time span for the marriage
(ad j al). This may vary between one day or several years, but not more than 99 years; it is not
clear what happens to an agreement where there is no clear definition of the time span – does it then
become a standard marriage or perhaps the contract is null and void;100 the contract must also
include the exact payment to be made to the woman who agrees to these conditions (ad j r/mahr)
otherwise the contract will be null and void.101
This form of marriage was customary where a man had to travel, but not exclusively and permitted
him to take extra wives over and above his four legal wives. These marriages expired at the agreed
time and could not be extended even by mutual agreement, but a new marriage ceremony and bridal
contract was required prior to the expiry of the original contract. This marriage does not obligate the
husband with regard to the wife at all, not even food and lodging and there are no rights of
inheritance on either side. But, according to some opinions, if there is a specific clause in the
marriage contract, it has to be validated within a legal framework.102

7.2. The ancient historical roots of the Shi'ite temporary marriage

The Muta form of marriage was customary among Arabs as early as the 4th century.103 Furthermore,
on the basis of a number of Islamic traditions, we may assume that Muta marriages were know in

99 See: Haeri, n. 92 above, 167; Cherry, n. 101 below, 339.

100 See: J. Khatib-Chahidi, “Sexual Prohibitions, Shared Space and Fictive Marriages in Shi'ite Iran”, in S. Ardener
(ed.), Women and Space: Ground Rules and Social Maps (London: 1981), 112-35, 126; J. J. Nasir, The Islamic Law of
Personal Status (London: 1990), 59; Ghodsi, n. 141 below, 667-668.
101 See: Haeri, n. 92 above, 51-53. For a survey of laws of contract involved, both practical and procedural as they
affect marital law and where this form of differs from the standard marriage see: Il’Ia P. Petrushevsky, Islam in Iran,
trans. H. Evans (London: 1985), 144, 231; K. Cherry, "Marriage and Divorce Law in Pakistan and Iran: The Problem of
Recognition", Tulsa J. Comp. & Int'l L. 9 (2001), 319-354, 336 - 340. For a survey of the relevant Muslim requirements
both practical and procedural with regard to the validity of a contract of this time and to the try to merge between the
two types of marriage, see: Al Ati, n. 95 above, 108-109.
102 For a more exhaustive discussion see: W. Heffening, "Mut'a" in P. Bearman et. al (eds.), Encyclopaedia of Islam
(2008) http://www.encislam.brill.nl/subscriber/entry?entry=islam_COM-0819 (last viewed: 11.6.08).
103 See for example: Ammianus Marcellinus, xiv. 4, 4. Although, we should point out that it is difficult to connect the
phenomenon that he discusses with the Islamic Mut'a, because in those day the woman would bring a tent and spear to
the man who interested her. After a certain time she was allowed to get up and go. For a survey of the roots of the
institution of marriage in early Islam see: G.M. Stern, Marriage in Early Islam (London: 1939), 155; J. Schacht, The
Origins of Muhammadan Jurisprudence (Oxford: 1950), 266; J. Schacht, An Introduction to Islamic Law (Oxford:
1964), 163.
 33
the jḤāhiliyya period and were also known in Erythaea.104 Thus, the institution has a long history
prior to its adoption by Islam.105 Incidentally, one should point out that in addition to the sources
already mentioned, there are references to Mut'a marriages at that time, not only in the Arabian
peninsula, but also in Egypt106 and with reference to some of the peoples living in Canada and
Mexico.107 It is, however, most common in Persia (Ancient Iran), the area where Islamic law ruled
after the Arab conquest and the death of Muhamad in 632. The acceptance of Islam as the ruling
religion was relatively easy, since it offered equality and tolerance of the existing situation prior to
the conquest.108
The term “Mut'a” does not appear in the Quran. Commentators are of the opinion that in verse from
the Sura about women ( -‫ء‬jklm‫رة ا‬gh4:24) there is a reference to this conception: ( ِsِt uُ2ْ1َ2ْyَ2ْh‫ ا‬jَyَz'' (‫ع‬.‫ت‬.‫م‬
ً0َ|}ِ~َz €
 ُ‫ َره‬gُ‚‫€ ُأ‬
 ُ‫ه‬gُ‫َ…ﺕ‬z €
 ُ†ْlِ3" - “Pay women who give you pleasure whatever you have promised”. It is
generally accepted that Muhammad's warriors were allowed Mut'a marriages while they were
involved in holy wars of Djihad outside their homes.109 There are also a number of recorded cases
of the Muta marriage at the beginning of the Muta period. In the ‫ הח'דית' צחיח אלבח'ארי‬collection for
example, there are four references to the marriage. In one case there is a permit issued by Muhamad
himself ''‫ا‬g1ِ2y2hjz ،‫ا‬g12y2k‫ أن ﺕ‬u”m ‫ ‘– ُأذِن‬s‫ل إﻥ‬jšz u1›œ ‫ل ا‬gh~mgh‫ ر‬j‫ﻥ‬j‫žﺕ‬z Ÿ ‚ ¡z jl‫ آ‬:j‘'' -110 “We were in
the army and a messenger arrived from Muhammad and said: Muhammad agreed that you should
enjoy yourselves, so enjoy (Muta marriages, Y.M.)”. Another case which seems to exemplify the
Mut'a marriage in this early period, see Altaramdi “ Al-Jama al-Zhahah” which reads: '' £‫ﻥ‬j‫ آ‬jy‫إﻥ‬
‫م‬¤h¥‫¡ أول ا‬z 012ym‫ا‬.”111 Indeed, for the price of a coat or a handful of dates a man take an unmarried
woman (uyyām) for a given period, this is especially the case when a person reached a foreign city
where he could marry a woman while he was in the city so that she could provide for all his needs.
Later, one could see that the Muta marriage was forbidden among Muslims. It is not clear when
Muhammad forbade the marriage, but all the Suni authors of the Hadith are unanimous that the
Muta marriage was forbidden. But, on the other hand, Shi'ite sages claim that everybody knows that

104 See: C. Rossini, Principi di diritto consuetudinario dell'Eritrea (Roma: 1916), 189, 249.
105 For this claim, see: W. Robertson Smith, Kinship & Marriage in Early Arabia (London: 1903), 82.
106 See: E. A. Westermarck, The History of Human Marriage (New York: 1922), 267-268; G. A. Wilken, Das
Matriarchat (das Mutterrecht) bei den alten Arabern (Leipzig: 1884), 21 - 22; L. Mitteis & G. A. Wilken, Grundzüge
der Papyruskunde (Leipzig: 1912), 203; E. Griffini, Corpus Iuris di Zayd Ibn 'Alf (Milan: 1919), 327.
107 Alzueg, vol. 1, 165.
108 See: Iran: A Country Study , H. Chapin Metz (ed) (Washington: 1989), 11.
109 See: A. R. I. Doi, Shari'ah: The Islamic Law (London: 1984), 155 - 156.
110 See: M. be Ismail Al-Bahiri, Zahih Al-Bahiri: Mishkol (1950), vol. 4, 16; L. Caetani, Annali Del’islam (Leiden:
1972), 478.
111 A. I. M. Tarmadi, Al-Jama al-Zahiah Snan Al-Taramadi (1995), vol. 3, 430.
 34
these marriages were permitted, and so as long as there is no contrary evidence that the marriages
were forbidden, then the practice is still permitted. An example of the dispute as to when the
marriages were forbidden may be found in the book “ Sanan Al-Darmi” which includes different
suggested times for Muhammad's prohibition. The first source is: '' ،0l  ¦ €t‫ ا‬jl§–¨ ،©hg} €t –yª3 j‫أ¬«~ﻥ‬
²2³m‫م ا‬j¦ 012ym‫ح ا‬j”‫ ¦€ ﻥ‬u›h‫ و‬s ›¦ ‫ل ا œ›­ ا‬gh‫ل ﻥ†­ ر‬j‘ ،s t‫ ¦€ ا‬،¡l†®m‫«~ة ا‬h €t ¯ t~m‫ ¦€ ا‬،‫ه~ي‬±m‫ )''¦€ ا‬- “he
said: Muhammad forbade the Muta marriage in 629” 112. The second source: '' €t‫¡ ا‬l§–¨ ،–yª3 jl§–¨
­†‫ ﻥ‬u›h‫ و‬s ›¦ ‫ل ا œ›­ ا‬gh‫س إن ر‬j«¦ €t ‫ل‬gš} ،j ›¦ £1yh ‫ل‬j‘ ،jy† t‫ ¦€ ا‬،‫ و¦«– ا‬،€kªm‫ ¦€ ا‬،‫ه~ي‬±m‫ ¦€ ا‬،0l  ¦
113
~« ¬ ‫م‬j¦ 0 ›‫~ ا¶ه‬yªm‫م ا‬gªm €¦‫ء و‬jklm‫ ا‬0123 012ym‫''¦€ ا‬ - “Muhammad forbade the practice of Mut'a
marriages and marriages between blood relation in thr year ‫חיבר‬.114 However, other scholars claim
that the Mut'a marriage was still practiced in the years 11-13 in the time of the Caliph Abu Bakr.

7.3. The Contemporary temporary marriage 115

In modern times we have comprehensive documentation from the beginning of the eighteenth
century regarding the marriages for a limited period when they were discussed before the Qadi in
Southern Arabia in Sounan ( an'ā');116 In Mecca, both in modern times and and ancient times,
marriages for limited periods were accepted by the Sunnis, where the marriage was complete, but at
the same time, they said the divorce formula ( alā ) according to the time for which the marriage
was scheduled. This yields the same result as that of their Shi'ite brothers who use the Mut'a
wedding.117 There is also documentation about the survival of these marriages at the beginning of
the twentieth century in Eastern Syria at Deir ez-Zor,118 and similarly there is documentation for the
retention of this type of marriage among the Falashas in Ethiopa today as a “soldier's marriage”.
This type of marriage is one of three sorts of marriages among the Falashas and they are marriages

112 "the opening year” - the year when Mecca was opined for Muslims (629) in this year Muslims were allowed to
enter the Haram in Mecca for the first time.
113 A. ben Abdalrahman al-Darami, Sanan Al-Daram (1966), vol. 2, 64.
114 For a survey of sources, see: Heffening, n. 102 above.
115 For a survey of the situation regarding the Mut'a marriage in modern Islamic law, see for example, Meron, n. 3
above, 23 n. 15.; B. D. Rodgers-Miller, Out of Jahiliyya: Historic and Modern Incarnations of Polygamy in the Islamic
World, Wm. & Mary J. of Women & L. 11 (2005), 541-62; S. Murata, Temporary Marriage in Islamic Law (MA thesis,
Divinity School, University of Tehran, 1974) http://www.al-islam.org/al-serat/muta (last viewed: 11.8.08).
116 See, for example: A. D. Hamilton, A New Account of the East-Indies (New York: 1732), 51, first mentioned by
Wilken, n. 100 above, 19.
117 See documentation in C. Snouck Hurgronje, Mekka (Haag: 1888), 156; C. Snouck Hurgronje, Verspreide
Geschriften (Bonn: 1923), vol. 6, 150.
118 See documentation in: V. Muller, En Syrie avec les Bedouins: les tribus du (Paris: 1931), 231 - 232.
 35
for a limited period which was agreed mutually by the couple.119
In recent years there were a small number of civil-secular court rulings regarding the Mut'a
marriage. It is perfectly clear even from this small number of examples that these marriages are not
recognized, not even as putative marriages, as it was made clear in a ruling in the United States in re
Marriage of Vryonis.120 The case referred to an Iranian woman, who having been married in an
unsuccessful Mut'a marriage, sued for alimony, her so-called husband denied the existence of any
such marriage. In spite of the woman's honest and naive belief that she was married, the court ruled
that the marriage was invalid. The reasons for the ruling were basically procedural, since the
marriage was not compatible with the civil law in California. With regard to the marriage itself,
there were no witnesses, no written proof and no co-habitation and there was therefore absolutely
no basis to claim that there had been a marriage.
The Mut'a marriage was also treated in Canadian law in the case of Y.J. v. N.J. the court discussed
the question of custody of a five year old Muslim girl born of a Mut'a marriage, which were in fact
her father's second marriage. Again the Canadian secular courts ruled that the marriage was invalid
and the court did not discuss the religious aspects of such marriages, including the legitimacy of the
girl.121

7.4. The Shi'ite temporary marriages in Rabbinic and Karaite Halakhic sources
We would first point out that the negative opinion of the sages with regard to the Muta marriage is
already apparent in geonic literature. The first to express an opinion was Rabbi Sadya Gaon - in his
commentary on the Pentateuch, he points out several times that the reference to the prohibition of
the Qedesha refers to the Mut'a marriage, and that therefore, in his opinion, the Torah prohibited

119 For further discussion, see M. Bar Yuda “Ha-Falashim” (Hebrew), Mahanayim 66 (1962), 124, 126; for a modern
discussion of these marriages, see a recent publication: H. Basol-Taha, Nisuin Zmani'im be-Islam mi-Nequdat Mabatam
shel ha-Halakha ha-Muslamit, ha-Hok, ve-ha-Normot ha-Hevratiyot (Hebrew) (M.A. Thesis, Bar-Ilan University, the
Department of Arabaci, 2008). For a website with a step by step explanation how to carry out the marriage see:
http://www.mutah.com/how_do_i_do_mutah.htm (last viewed: 11.8.08).
120 In re Marriage of Vryonis, 202 Cal.App.3d 712, 248 Cal.Rptr. 807 (Cal.App.2.Dist.) For a discussion of the ruling
see, for example: Cherry, n. 101 above, 350-351.
121 Y.J. v. N.J., (1994) O.J. No. 2359. For a detailed discussion of the rulings in the American and Canadian courts,
see: S. Khan, "Race, Gender, and Orientalism: Muta and the Canadian Legal System", Can. J. Women & L. 8 (1995),
249-61, 254; P. Fournier, "The Erasure of Islamic Difference in Canadian and American Family Law Adjudication", J.L.
& Pol'y 10 (2001), 51-59. For a discussion of Western courts rulings on Muta marriage see, A. L. Estin, "Embracing
Tradition: Pluralism in American Family Law", Md. L. Rev 63 (2004), 540-605, 565 n. 153; S. Ghori, "The Application
of Religious Law in North American Courts: A Case Study of Muta Marriages", Journal of Islamic Law and Culture
10(1) (2008), 29-40, 37 – 40
 36
such marriages;122 in his commentary to Exodus 20, 13 as it appears in the manuscript from the
Cairo Genizah;123 in his discussion of prostitution, he placed it in the first most lenient category
(quotation translated from the Arabic) -
The first category is that of the marriage for a limited period, for a woman who agrees to the
marriage is called Qedesha, as in the case of Tamar, the daughter in law of Yehuda. And it is
written “There shall be no Qedesha of the daughters of Israel”, a warning to both the
husband and the wife. And why is this a first degree forbidden marriage, since it is a
marriage with Ketuba and witnesses together with Kidushin. The prohibition only applies
because of the woman's situation after the termination of the marriage.
Similarly, in an extract from the Kaufmann manuscript copy of his Sefer ha-Mitzvot, which was
found in the Genizah, he wrote (our translation from the Arabic) -
It is prohibited for a man to marry a woman in the Muta marriage, or for a woman to be
married (in the Muta marriage – Y.M.) for both of them are bound by “There shall be no
Qedesha of the daughters of Israel”.124
Rabbi Sadya Gaon's consistent approach raises two questions, one related to the content and the
second technical. In both his commentary to the Torah and in his Halakhic writings, Rabbi Sadya
Gaon wants to prove that the prohibition of the Mut'a marriage has the status of a Torah prohibition.
As Rabbi Moshe Zucker points out, this approach is not indubitable. According to our sources,
marriage for an agreed period is a legal and valid marriage, and according to most authorities can
only be dissolved using a get, as we have already proved in our detailed discussions of the sources
in the Babylonian and Palestinian Talmuds. Thus, if we are discussing an unmarried woman, then as
we have seen in the "marriage for day/s”, the marriage is permitted, but if we are discussing a
woman who has completed a marriage for a fixed term, who remarries without a get from her first

122 See, for example, his comment on Genesis, 38, 15, 21-22, where the term Qedesha appears in the story of Yehuda
and Tamar and he translates it using the root “muta”, similarly in his comment to Deuteronomy 23, 18 “There shall be
no whore of the daughters of Israel, nor a sodomite of the sons of Israel, “his translation was similar and Zucker pointed
out that the translation would thus read: “There shall be no temporary marriages among the daughters of Israel...”
123 See M. Zucker, Al Tirgum Rasag le-Torah: Parshanut, Halakha u-Politika be-Tirgum ha-Torah shel Rabbi Sadya
Gaon: Te'udot u-Mehkarim (New York: 1959), 477-478. See also Rabbi Yosef Kapah's comments to Perushe Rabbenu
Sadya gaon al ha-Torah, (Jerusalem: 1994), n. 3 on the relevant verse's commentary who also wrote: “it would seem
that our rabbi thought that after the agreed time the woman was released without a Get which explains the prohibibition,
where the retroactive cancelling of the marriage makes the relationship into prostitution”. Even though the marriage was
conducted according to Jewish rite with a Ketuba and witnesses, since the marriage was for a fixed term and the woman
would be released without any divorce procedure, then the relationship is immoral.
124 Published by A. Sheiber & Y. Han, “Dapim mi-Sefer ha-Mitvot le-Rav Sadya Gaon” (Hebrew), Tarbiz 28 (1959),
48. For a detailed discussion of these sources, see M. A. Friedman, “ha-Halakha ke-Edut le-Haye ha-Min etzel ha-
Yehudim shebe-Arzot ha-Islam bi-Me ha-Benayim: Kisui Panim ve-Nisue Muta (Hebrew), Peamim 45 (1991), 89-107.
 37
husband, then is not the woman an adulteress and not a Qedesha (prostitute)?
In his summary Zucker writes:
To summarize, our rabbis opinions regarding Qadesh and Qedesha should be carefully
considered prior to any Halakhic ruling.125
In addition, Professor Eliezer Schlossberg pointed out to us, that this explanation by Rabbi Sadyah
Gaon is extremely difficult to understand, since he limits a general prohibition to a very specific
sort of marriage which is limited to the Shi'ites. Possibly, one may find an explanation for these two
points in H.Z. Hirschberg's clarifications:126
Zukker concludes that Rav Sadya Gaon's ruling “needs careful analysis” from an Halakhic
point of view. It would seem that one should look for an historical explanation in the
customs of Muslim society, which influenced certain phenomena in Jewish society.
Marriages for an agreed period which are called Mutah marriages – that is a permitted
pleasure for the Shi'a cult of Islam, which was and is the ruling cult in Persia, and among
half the population of Iraq and many Muslims in Syria and Lebanon. In Rabbi Sadya Gaon's
time the Ismai'lit (extreme Shi'ites) propaganda increased in North Africa, reaching Egypt.
Under these circumstances, it could well happen that Jews in Persia, Iraq and Syria would be
influenced by Shi'ite Islam and would act more leniently towards marriages for agreed
periods and would leave the woman without giving her a Get... Rav Sadya Gaon's intention
in translating Deuteronomy 23, 18 in this way was to warn those who wished to permit

125 See Zucker, n. 123 above, 478.

126 H. Z. Hirschberg, on “Le-Heker Rav Sadya Gaon ve-Tequfato” (Hebrew), Tarbiz 31 (1962), 412-22, 421. The
Islamic influence on the Halakha in the Geonic period has been thoroughly discussed. See, for example, Y. Blumberg,
“Munahim Mishpati'im Aravi'im mi-Dine ha-Kinyan be-Geonim uve-Rambam” (Hebrew), Shnaton ha-Mishpat ha-Ivri
14-15 (1988-1989), 61-87; and in the many works of G. Libson, “Shnayim she-Arvu: Mehkar Hashva'ati ben Rav
Shlomo ben Hofni Gaon, Ha-Rambam, ve-Sifrut Muslamit Maqbila” (Hebrew), Shnaton ha-Mishpat ha-Ivri 11-12
(1985-1986), 337-92; "Arevut le-Guf be-Sefer ha-Arevut le-Rashbah, be-Teshuva ha-Geonim, be-Rambam, uve-Sifrut
Muslamit Maqbila” (Hebrew), Shnaton ha-Mishpat ha-Ivri 13 (1987), 121-84; “Arevut le-Ahrayut Etzel ha-Geonim be-
Rambam, uve-Mishput ha-Muslami” (Hebrew), Mehqare Talmud 1 (1990), 305-22; “Od al Rashbah be-Inyane
Mezranut ve-Ziqato le-Halakha ha-Muslamit” (Hebrew), Ateret le-Hayyim (2000), 371-412. See also a comment by
Mitcham regarding the religious need to distinguish between these two related legal systems: “from these subjects, it is
clear that the two religions have many common factors. It looks as if Rav Shmuel bar Hofni composed his book (Sefer
ha-Bagrut – Y.M.) to explain the Halakha to the Jews who, in many respects are more likely to be influenced by the
laws of the religion of the rulers than by Jewish law”, see M. T. Mitcham, Sefer ha-Bagrut le-Rav Shmuel ben Hofni
Gaon ve-Sefer ha-Shanim le-Rav Yehuda ha-Kohen (Jerusalem: 1999), 68; for a general discussion on the influence of
the surrounding culture on Jewish marriage, see Gafni, n. 88 above, 266-273; B. S. Jackson, “How Jewish is Jewish
Law?”, JJS LV2 (2004), 201-29; I. M. Gafni, "The Institution of Marriage in Rabbinic Times", in D. Kraemer (ed.), The
Jewish Family: Metaphor and Memory (New York: 1989), 13.
 38
Mut'a marriages.
Professor Mordechai Akiva Friedmann adds an additional dimension by claiming the Rabbi Sadya
Gaon went further and prohibited marriages for agreed periods even when the woman was given a
Get at the end of the period. As he writes:
It seems more likely, that Rabbi Sadya Gaon was referring to temporary marriages
completed with a Get, even though under Shi'ite Islamic law the woman is released from a
Muta marriage without a divorce. The fact that Jewish sages, writing in Judeo-Arabic use
a term belonging to Islamic law does not necessarily mean that the Jewish institution is
identical to the corresponding Islamic institution. They were referring to the closest
equivalent to the Halakhic institution... it would seem that the influence of the Islamic Muta
marriage led to the definition of Qadesh and Qedesha in this way. The Muta marriage was
certainly considered disgusting by Rabbi Sadya Gaon and other contemporary sages
including the Karaite sages. To them, this was not marriage, but rather legalized
prostitution... what is indubitable is that the Jewish leadership saw temporary marriages as
contrary to Jewish sexual ethics... their disgust led them to take extreme steps: by using
creative hermeneutics they create a new Torah prohibition.
Indeed a similar approach to that of Rabbi Sadya Gaon was adopted by the Karaites such as Daniel
Alkumsi127 and David ben Avraham Alfasi,gb128 who ruled that the Muta marriage is forbidden and
is nothing more than prostitution.

8. A common Persian source? - Between the Babylonian Talmudic marriage and the Shi'ite
temporary marriage.129

127 S. Alkerkasani wrote (translated from Judeo-Arabic): “and Daniel claimed that there are two types of Kedesha -
One type is that he will pay a woman for a day or two or even a longer period and have sexual relations with her. In his
opinion, she is his wife and they have made this condition and not that she will be his wife permanently. And he says,
they are Kadesh and Kedesha...and he said they are both liable for the death penalty... and this arrangement may have
been permitted at some time, a temporary marriage for an agreed period. This is what the Muslims do sometimes and
they call it a marriage for pleasure”. See Abu Yusuf Ya'kub al-Kirkisani, Ya'qub al-Qirqisani on Jewish Sects and
Christianity : A Translation of "Kitab al-anwar," Book 1 (1984). For a similar translation see Alanuar, 728, quoted by
Zukker, n. 124 above, 478 n. 63.
128 D. ben Avraham Alfasi, Kitab Jama al-Alfalath (Philadelphia: 1936-1945), vol. 2, 541, who wrote (translated from
the Judeo-Arabic: “the woman, who is available for men, is called Kedesha and this is a form of prostitution, which was
permissible in medieval times, even though it was condemned. Therefore Judah agreed to a temporary marriage and
non-Jews still use the form. It is prohibited for Jews, as it is written: “There should be no Kedesha”. Whoever has
intercourse with her transgresses: “There should be no Kadesh”. These two translations are to be found in Friedmann,
Ha-Halakhah, n. 124 above, 101-102.
129 Research on the effects of Persian law on the Jews living under its suzerainty has been emphasized in recent years.
 39
In contrast to the variety of problematic explanations considered above with regard to the “marriage
for day/s", there are scholars who would wish to attribute the announcement by the sages to the
influence of the Persian environment as it was felt in Babylonia in the early centuries of the
Common Era, the time of the Babylonian Talmud. This practice of marrying a woman for an agreed
period, which is apparently problematic with regard to the modern Halakhic conception of
marriage, was well-known in the Persian era in which the Babylonian Talmud was written. This
practice, which relates to personal status, derives from a more general practice with regard to
objects taken for a given period as “a present to be returned.”
This fascinating approach appears in an article by Professor Ya'akov Elman in which he claims that
the close relationship between the rabbinic amoraic elite and Persian culture had considerable
influence on the formation of religious Jewish law, including laws of marriage. He reaches this
conclusion on the basis of the fact that two of the most important Amoraim in the Talmud openly
admit that they entered into what were apparently temporary marriages. He claims:
This is so even though two very prominent rabbis, the aforementioned R. Nahman and the
first-generation amora Rav, entered into such marriages (temporary marriage – Y.M.)… This
is but one of many indications that the relationship of the Babylonian rabbinic elite to
Sasanian culture was much closer than has been supposed… The entire discussion
presupposes that such marriages were contracted by prominent rabbis…130

In his article, Professor Elman paints a fascinating picture of the practice of giving articles for an
agreed period as was customary in ancient Persian society and this practice included women. It is
therefore not surprizing, in his opinion, that this practice was adopted by the Jews of Babylon

There is a periodical devoted to the subject and several volumes have already been published. The periodical is edited
by Professor Shaul Shaked and its name describes it content: Irano Judaica for Research about Persia and Judaism: a
Collection of Research on the Contacts between Jews and Persian Culture Throughout the Ages. Professor Yaakov
Elman has devoted a series of article to the subject: Y. Elman, "Up to the Ears” in Horses’ Necks (b.m. 108a): On
Sasanian Agricultural Policy and Private “Eminent Domain”, JSIJ 3 (2004), 95-159; “Marriage and Marital Property in
Rabbinic and Sasanian Law”, in Catherine Hezser (ed.), Rabbinic Law in Its Roman and Near Eastern Context
(Tubingen: 2003), 227-76; "Middle Persian Culture and Babylonian Sages: Accommodation and Resistance in the
Shaping of Rabbinic Legal Tradition", The Cambridge Companion to the Talmud and Rabbinic Literature (2007), 165-
97; "Acculturation to Elite Persian Norms and Modes of Thought in the Babylonian Jewish Community of Late
Antiquity", Neti’ot Ledavid (Jerusalem: 2004), 31-56 ; “Yeshivot Bavel u-Vate Din Parsi'im be-Tequfa ha-Amorait
veha-Batar Amorait”, Yeshivot u-Bate Midrashot (Jerusalem: 2007), 31. In addition to the research by Professor Adiel
Schremer, we would mention a number of works which emphasize the influence of the alien Persian environment on
Jewish marriage in Persia – E. Ahdut, Ma'amad ha-Isha ha-Yehudia be-Bavel be-Tequfat ha-Talmud (Ph.D. Thesis
Hebrew University of Jerusalem, 1999), 57; M. L. Satlow, Jewish Marriage in Antiquity (Princeton: 2001).
130 See: Y. Elman, Returnable Gifts in Rabbinic and Sasanian Law, Irano-Judaica VI (forthcoming), 3, 14.
 40
including the sages. The need to fight the practice seemed to prove how wide-spread and accepted it
was from both the social and Halakhic points of view. On pp. 11-12, he writes:

The fact that these traditions continued to circulate with only technical objections raised,
rather the objections that go to the heart of the institution, indicates that such temporary
marriages had taken deep root within the Babylonian jewish community… Though the
second explanation by the redactors suggests that the marriage was not consummated then,
this was only for technical reasons: no moral opprobrium was attached to such temporary
arrangements… The nexus of the discussions is the potential violation of incest or impurity
rules, not the impropriety of polygyny or temporary marriage.

There are scholars who claim that this Persian practice lies at the basis of the Shi'ite Muta which
was slowly accepted in the Persian-Shi'ite period prior to the religion of Zarathustra and became an
accepted social practice. 131 Indeed, in a later period, the Persian book of rulings, Madayan i Hazar
Dadestan, includes a number of records of temporary marriages in which a woman is handed over
by her legal husband or by her father even though she may be married to another man for a pre-
defined period or what to do with a woman's admission that she gave herself to a man to serve as
his wife for ten years, etc.132
It seems very likely that this is the source for the Shi'ite Muta marriage and it is probable that this is
the reality which surrounded the Jews and that it influenced the structure of Jewish marriage within
their community. Scholars, such as Salo Baron, pointed out that this situation was almost certainly
influenced by the frequency of polygamy which existed only in Babylonia133 and was foreign to
Erez Israel, where the Roman authorities had made it illegal.134

131 See for example: B. Hjerrild, “Islamic Law and Sasanian Law”, in C. Toll & J. Skovgaard-Petersen (eds.), Law and
the Islamic World Past and Present (Copenhagen: 1995), 49, 53; M. Macuch, Die Zeitehe im Sasanidischen Recht - ein
Vorlaufer der shi'itischen mut'a-Ehe in Iran?, Archaeologische Mitteilungen aus Iran 18 (1985), 187; Elman, n. 131
above, 13; A. Schremer, Nisuin ve-Hakamat Mishpaha be-Yahadut Bavel be-Tequfat ha-Talmud (Ph.D. Hebrew
University, 1996), 281, n. 84.
132 For early records, see: A. Perikhanian, Iranian Society and Law, in E. Y. Sharter, (ed.), Cambridge History of Iran
3(2) (Cambridge: 1983), 627-80, 649-50. Other sources are supplied by Elman, n. 131 above, 13 and the sources he
cites in n. 35.
133 For information on the frequency of polygamy in Babylonia see: A.A. Maharezi, La Famille Iranienne (Paris:
1938), 133–134 together with the different sources cited by Gafni, n. 88 above, 266-273; Elman n. 131 above, 2, 9.
134 For this question, see S. A. Baron, A Social and Religious History of the Jews, vol. 2, 226 (Philadelphia:1952). With
regard to the monagomous life of Jews under Roman suzerainty, see the following Sources: A. M. Friedman, Ribui
Nashim be-Yisrael (Jerusalem: 1982), 28-32; E. Westreich, Temurot be-Ma'amad ha-Isha be-Mishpat ha-Ivri
(Jerusalem: 2002), index under “Tanai Monogamia”; A. Schremer, How Much Jewish Polygyny in Roman Palestine?,
 41
From the material which we have collected, we may assume that the only source which was not
deterred by the thought that our case involved a temporary marriage for an agreed period, is the
Talmud which states categorically, that our case denies the Halakhic principle that it is forbidden to
take more than one wife, especially when the wives are located in different towns. It does seem
pretty obvious that these sages did indeed seek wives for short periods of time, when they visited
towns far from home. The compilers of the two sources only raised technical questions and no
condemnation is implied of this practice. The second explanation that these are not real valid
marriages is only examined from the technical point of view and there is no discussion of the
principles involved. The only question of principle discussed is the fear that these marriages may
lead to a marriage of brother and sister from the same father thus leading to incest. There is no
condemnation of polygamy or of temporary marriages for a limited period.135
Thus, scholars such as Professor Yishaya Gafni concluded that they felt the influence of the Persian
environment, where the temporary marriages were common, and this was the source of the sages'
attempt to enter into temporary marriages for an agreed period;136 Professor Ze'ev Falk tried to
assume that the Rashba reversed his previous opinion that it was possible to make a marriage for a
predetermined period and after the marriage was completed, it would dissolve itself automatically
without any divorce procedure. His reversal was because of the negative effects that this would
have on the structure of the Jewish family, where marriage would resemble the Muta marriage:
The Rashba was possibly influenced by the disgust felt by the Muslim judges for the
temporary marriage, Muta, also known as renting, ljara137 and which was considered to be
closely related to prostitution.
It is of interest that modern scholars who study Islamic family law in Israel point out the Persian

PAAJR 63(2001), 181.

135 This conclusion is common to several scholars, such as Heer, n. 88 above; Elman n. 131 above, 12 and see also the
sharp criticism of Rabbi Nissim Hayyim Moshe Mizrahi in his Responsa Admat Kodesh, vol. 1, Even ha-Ezer, #50.
136 "Even more important was the fact that in the East they followed the custom which is mentioned in the Babylonian
Talmud. The marriage for an hour is reminiscent of the Shi'ite practice (Muta marriage – i.e. marriage for pleasure)
which is possibly mentioned in the Koran (Sura 4, 28) and which resembles the case in the Talmud. However the Muta
marriage was intended for men who travelled to a different town for a longer period", see Gafni, n. 88 above, 272-273.
137 For an explanation of this term, see: N. J. Coulson, A History of Islamic Law (Edinburgh: 1964), 111. Lately,
modern use of this Islamic term has been discussed extensively, but rather from the financial point of view and not from
the point of view of personal status. See, for example: C. F. Richardson, Islamic Finance Opportunities in the Oil and
Gas Sector: An Introduction to an Emerging Field, Tex. Int'l L.J. 42 (2006), 119-53; K. J. Tacy, Islamic Finance: A
Growing Industry in the United States, N.C. Banking Inst. 10 (2006), 355-77; M. J.T. Mcmillen, Islamic Shari'ah-
Compliant Project Finance: Collateral Security and Financing Structure Case Studies, Fordham Int'l L.J. 24 (2001),
1184232; M. J.T. Mcmillen, Islamic Business and Commercial Law: Contractual Enforceability Issues: Sukuk and
Capital Markets Development, Chi. J. Int'l L. 7 (2007), 427-67.
 42
influence on the Muta marriage,138 and both Goitein and Ben Shemesh pointed out both the possible
connection between the Muta marriage and the "one day" rabbinical marriage and the influence of
the Persian surroundings.139
Incidentally, even today, the Muta weddings are common in Persian culture, and there are even
proposals to incorporate it into Iranian law.140 Although the contemporary approach is to make
contracts for long periods such as 99 years, brokers do offer the service to travelling Persians,
promising them service in every town even for the shortest period. There is a Persian term for the
service, which can be translated as a sort of contract.141

9. Epilog - A Possible Solution to the Problems of Mesorevet Halizah and Agunah

As we have already pointed out in our different works on the Talmudic sources, there are more
142
possibilities for flexibility in the contractual side of marriages than were adapted in practice. In
specific cases, such as conditions regarding the husband's sexual obligations to his wife, the content

138 "For this or for other reasons, the Persian environment left its mark on the Shi'ites. One of the institutions inherited
from the Persians is the temporary marriage, Muta. Using Muta, a Shiíte may marry a woman for a pre-arranged period,
such as a year, a month or a week, or a day or even a night." See Meron, n. 3 above, 23.
139 “Muhammad apparently permitted the marriages for a limited period, the Muta, the pleasure marriage... there was
a similar institution in Talmudic times: Rav (Rav Nahman) announce who is willing to marry me for one day.” Both the
conduct of the sages in Babylonia and the practice of the Islamic Muta apparently reflect the Iranian-Central Asian
influence, and therefore it is not surprising that the Shia who mainly live in Eastern Iran recognize the legality of the
Muta, whereas the Sunnis are disgusted by it.” See Goitein & Ben Shemesh, n. 3 above, 129.
140 The Muta marriage is still customary in Iran, see: R. Khomeini, A Clarification of Questions: An Unabridged
Translation of Resaleh Towzih Al-Masael in J. Borujerdi (trns.), (Boulder: 1984), 311. There are a number of academic
works on Muta marriage in Iran, for example, works published in the 1930s: D.M. Donaldson, Temporary Marriage in
Iran, Moslem World XXVI (1936), 358-364; U.M. Daudpota & A.A.A. Fyzee, Notes on Mut'a or Temporary Marriage
in Islam, JBBRAS VIII (1932), 79-92. Examples of works on the modern period: S. Haeri, The Institution of Mut`a
Marriage in Iran: a Formal and Historical Perspective Islam: Critical Concepts in Sociology, in B. S. Turner (ed.),
Gender and the Family (2003), vol. 3 Islam, 154-172; S. Haeri, An Islamic Discourse on Female Sexuality: Temporary
Marriage in Postrevolutionary Iran, in M. Afkhami & E. Friedl (eds.), The Eye of the Storm: Women in
Postrevolutionary Iran (Great Britain: 1994), 98-114. For the legal aspect see: T. F. Ghodsi, Tying a Slipknot:
Temporary Marriages in Iran, Mich. J. Int'l L. 15 (1994), 645-86; K. J. Miller, Human Rights of Women in Iran: The
Universalist Approach and the Relativist Response, Emory Int'l L. Rev. 10 (1996), 779-832; A. E. Graves, Women in
Iran: Obstacles to Human Rights and Possible Solutions, Am. U. J. Gender & Law 5 (1996), 57-92.
141 See the following sources: H. Norden, Persien wie ist und war (Leipzig: 1929), 148-167; E. G. Browne, A Year
Amongst the Persians (Cambridge: 1927), 505–506; J. E. Polak, Persien: Das Land und Seine Bewohner,
Ethnographische Schilderungen (Leipzig: 1865), vol. 1, 207-208; J. J. Morier, The adventures of Hajji Baba of Ispahan
(London: 1970), vol. III, chs. 6-8; G. N. Curzon, Persia and the Persian Question (1996), vol. 1, 164-165.
142 See for example: Y. Margalit, “On the Dispositive Foundations of the Obligation of Spousal Conjugal Relations in
Jewish Law”, JLAS 18 (2008), 161-185; Margalit, n. 7 above; Margalit, n. 42 above.
 43
of the Ketubah, the husband's right of inheritance, and the wife's right to a divorce, the Palestinian
Talmud is more flexible. In this article, we discussed the two examples of a temporary marriage for
an agreed term with the intention of proving that the Babylonian Talmud offered more possible
variations than the Palestinian Talmud. The case originally discussed was the annulling of a
marriage where a wife might become liable for a levirate marriage with a brother-in-law suffering
from a disfiguring disease. This practice was applied for many hundreds of years up until the last
hundred or so years certainly in Sephardic communities. This could therefore be a possible solution
where there is a problem of husbands who refuse to divorce their wives or brothers-in-law unwilling
to absolve a widow from a Levirate Marriage.
In this article, we examined the Talmudic sources of the temporary marriage for an agreed period
together with rabbinical authorities who ruled that the marriage could be dissolved without a Get,
where there had been such an agreement prior to the marriage. However, from a practical Halakhic
point of view, unlike the various conditions attached to the marriage, the temporary marriages for an
agreed period, which were customary in the Persian-Babylonian period, cannot be adapted to
contemporary conditions in the opinion of most rabbinical authorities and certainly not without a
Get from the husband. The fact that there is very little discussion of the matter in Halakhic sources
or in the discussions of Rabbinic courts shows the lack of relevance of this approach. The only
relevant discussions in the rulings of the Rabbinical courts relates to the question of the wife's
promise to agree to divorce at a given time and whether it is binding or not.143 There is no
discussion of situations where the husband refuses to grant a divorce. Therefore, it would be
possible to set a term to the marriage prior to the wedding in Maimonides' opinion, but dissolution
of the marriage would still require the husband's agreement and a Get. Other authorities disagreed
with Maimonides and regarded it as improper to set a term to a marriage, but if such a marriage was
carried out, they would still require a Get prior to its dissolution even though there was a condition
setting limits to the length of the marriage.

143 See, among others: file no. 1064/1954, no. 1501/1954, PDR, HA 257, 259; file no. 181/1967 PDR 7, 82, 101-102;
file no. 980/1967 PDR 7, 353, 367; appeal 1969-120 PDR 8, 3, 9; Rabbi D. Malka, “Hithayyavut shel ha-Isha lifne ha-
Nisuin le-Kabel Get” (Hebrew), Shurat ha-Din 8 (2003), 360; see also a recent case, file no. 056234263-21-1, which
was discussed in Ha-Din veha-Dayyan 18 (2008), 12-13 and is certainly worthy of an independent analysis.

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