1) THE KOHEN GADOL'S CONDITIONAL DIVORCE OF HIS WIFE BEFORE YOM KIPPUR, ACCORDING TO BEIS SHAMAI
QUESTION: The Mishnah quotes Beis Shamai who states that if a man wrote a Get for his wife and then decided not to give it to her, she no longer may marry a Kohen. RASHI in the Gemara (DH Beis Shamai) explains that this prohibition is a stringency which Beis Shamai enacted in order to protect the Kedushah of the Kehunah (see also TOSFOS YOM TOV to the Mishnah).
Beis Hillel, in contrast, maintains that even if her husband actually gave her a Get but stipulated that the Get would be valid only under certain conditions which were not fulfilled, she is permitted to marry a Kohen (if her husband later dies).
In the Mishnah in the beginning of Yoma (2a), Rebbi Yehudah rules that a substitute wife was prepared for the Kohen Gadol before Yom Kippur in case his first wife dies on Yom Kippur, since the Kohen Gadol must be married in order to perform the Avodah of Yom Kippur, as the Torah says, "And he shall gain atonement for himself and for his household (i.e. his wife)" (Vayikra 16:17).
The Gemara in Yoma (13a) explains that, according to Rebbi Yehudah, the Kohen Gadol must marry the second woman before Yom Kippur. However, if this is so, he does not fulfill the requirement of the verse, "And he shall gain atonement... for his household," because he now has two wives (two "households"). The Gemara answers that the Kohen Gadol not only marries both women before Yom Kippur, but he divorces his wife conditionally by saying to her, "This is your Get (from now, i.e. before Yom Kippur) on condition that you will die on Yom Kippur." If she dies on Yom Kippur, the Get was valid before Yom Kippur and she was not his wife on Yom Kippur, but rather only the second woman was his wife, and thus he had only one wife on Yom Kippur. (The Gemara there challenges this answer and concludes that the Kohen Gadol gives both women conditional divorces, albeit with different conditions.)
The Mordechai (Gitin #432) writes that it is apparent from the Gemara in Yoma that if a Kohen divorced his wife conditionally and the condition was not fulfilled, he is allowed to remain married to her. However, if there exists a concern of "Rei'ach ha'Get," as Beis Shamai maintains, then even if the condition was not fulfilled the Kohen Gadol should not be allowed to remain married to his wife, and the verse, "And he shall gain atonement... for his household," would not be fulfilled. (See BI'UR HA'GRA #5.)
The Gemara in Yoma is consistent with Beis Hillel's opinion in the Mishnah here that even a Kohen who divorces his wife with a condition does not prohibit her from marrying another Kohen if the condition is not fulfilled. However, the Gemara does not seem to be consistent with the view of Beis Shamai, who maintains that the mere writing of a Get alone renders the woman prohibited from marrying another Kohen (and she certainly is prohibited from marrying another Kohen if he gives the conditional Get to her, even though the condition is not fulfilled). Is there any way to reconcile the opinion of Rebbi Yehudah in Yoma with the opinion of Beis Shamai in the Mishnah here?
(a) The TORAS ABIRIM suggests an answer based on the words of CHOCHMEI CHASAM SOFER. The Chochmei Chasam Sofer write that Beis Shamai's reasoning is not that the woman for whom a Get was written but not given is similar to a divorcee, but rather she is similar to a Zonah (a woman who had forbidden relations and therefore is prohibited to a Kohen; see Vayikra 21:7). Beis Shamai is consistent with his opinion later (90a) that a man should not divorce his wife unless he found her to be unfaithful. Accordingly, a man who writes a Get for his wife must have done so because of some doubt about her fidelity. Since this is the implication of the writing (and certainly the giving) of a Get, Beis Shamai decreed that the woman should be forbidden from marry a Kohen because of the Isur of Zonah (even though no actual allegations of promiscuity have been advanced or proven).
Accordingly, Beis Shamai will agree that the Kohen Gadol before Yom Kippur may divorce his wife conditionally even if he has no suspicions of promiscuous behavior. He clearly divorces her only to fulfill the requirement that the Kohen Gadol have one wife. The Kohen Gadol before Yom Kippur, therefore, is an exception to Beis Shamai's rule that a man may not divorce his wife unless she was unfaithful. It follows that the Kohen Gadol before Yom Kippur is also an exception to Beis Shamai's rule that if he divorces her conditionally and the condition is not fulfilled, she is forbidden to marry another Kohen.
(b) The PORAS YOSEF answers that Beis Shamai's rule -- that when a man writes a Get for his wife but does not give it to her, or gives it to her with a condition which goes unfulfilled, she is forbidden to marry a Kohen -- is merely a stringency of the Rabanan (as mentioned above). Beis Shamai agrees that the Rabanan did not enforce this stringency in the case of the Kohen Gadol before Yom Kippur, in order to ensure that the Kohen Gadol has a wife on Yom Kippur. (D. BLOOM)
2) A MAN WHO STAYS WITH HIS EX-WIFE OVERNIGHT
QUESTIONS: The Mishnah (81a) discusses a case in which a man divorced his wife and afterwards stayed with her overnight in a hotel. Beis Shamai rules that she does not need a second Get from him, while Beis Hillel rules that she does. In the Gemara, Rabah bar bar Chanah says in the name of Rebbi Yochanan that the dispute between Beis Shamai and Beis Hillel involves a case in which there were witnesses that the man and woman had relations. Beis Shamai maintains that a man does not refrain from having "Be'ilas Z'nus," promiscuous relations, and thus he did not intend to remarry her when he had relations with her (unless he explicitly stated otherwise before the act). (See RASHI to 81a, DH b'she'Ra'uha). Beis Hillel argues that a man does not willingly have "Be'ilas Z'nus," and therefore it is assumed that he intended to remarry his divorcee when he had relations with her. Consequently, Beis Hillel rules that she must obtain a second Get from her first husband if she wants to marry someone else.
Beis Hillel's reasoning seems to contradict the Gemara in Nidah (66a). The Gemara states that after a woman agrees to marry, she must wait seven days without bleeding, because of the concern that her excited anticipation of the forthcoming marriage will cause her to experience bleeding and she will be forbidden to the groom. The Mishnah here does not specify that the man and woman waited seven days after the divorce. Rather, it implies that these events could have taken place a mere day or two after the divorce. Therefore, how can Beis Hillel rely on the assumption that such a person is careful about not being promiscuous? He has already transgressed the Halachah that one must wait seven days after proposing marriage before consummating the marriage!
(It does not seem logical to differentiate between an ordinary marriage and a remarriage, because the SHULCHAN ARUCH (YD 192:5) explicitly rules that a woman must wait seven days even when she remarries her former husband.)
There are two other cases in which the Rishonim apply this logic (that once a man is found to be a sinner, he is not assumed to avoid promiscuity).
(a) The SHILTEI GIBORIM (in the seventh Perek) discusses a case in which a man divorced his wife, who subsequently married another man who then died. Witnesses then observe her staying overnight with her first husband. The Shiltei Giborim writes that we do not suspect that her first husband was Mekadesh her, because if the first husband had intended to marry her by having relations, he would have transgressed the prohibition against remarrying one's divorcee after she was married to someone else (Devarim 24:4; this is known as the prohibition of "Machzir Gerushaso").
(b) The MISHNEH L'MELECH (Hilchos Gerushin 10:18) cites the RADVAZ who rules that if there are witnesses that a man had relations with his divorcee after their divorce when she was known to be a Nidah, there is no concern that their act of relations represents Kidushin. Since he transgressed the prohibition of Nidah, it is assumed that he also does not care about the violation of Z'nus, and thus he is not suspected of having any intention to marry her with this act of relations.
Why does Beis Hillel not apply similar reasoning in the case of the Mishnah here?
(a) REBBI AKIVA EIGER answers that there is a difference between the case of the Shiltei Giborim and the case of the Mishnah. In the case of the Shiltei Giborim, the man is sinning regardless of whether or not he has intention to perform Kidushin (he is either committing Z'nus or transgressing the prohibition of "Machzir Gerushaso"). In opposition to the normal assumption that a man does not engage in promiscuity is the contradictory assumption that he would not transgress the prohibition of "Machzir Gerushaso." Consequently, we must assume that he did not mind engaging in promiscuity. In contrast, a person who did not wait seven days before he consummated a marriage transgresses this prohibition regardless of whether he was engaged in an act of promiscuity or in an act of Kidushin. Since there are two equal possibilities, we assume he intended to perform an act of Kidushin.
(b) Rebbi Akiva Eiger also explains why the case of the Radvaz differs from the case of the Mishnah. The Isur of Nidah is a serious Torah prohibition (punishable with Kares), while the requirement to wait seven days after proposing marriage before one has relations is only mid'Rabanan. Therefore, if a man is known to have transgressed the serious prohibition of Nidah, it no longer can be assumed that he will avoid having promiscuous relations. In contrast, a man who transgresses the Rabbinic requirement to wait seven days is not yet suspected of transgressing the more serious prohibition of promiscuity. Therefore, his act of relations is still assumed to have been an act of Kidushin. This is why Beis Hillel requires a second Get. (See also CHIDUSHEI CHASAM SOFER to 81a). (D.Bloom)