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Hi, In Kesuvos 9 we learn that soldiers in King David's army would give their wives a conditional get. If the soldier didn't return by a certain time, the woman was divorced retroactively to when the get was written. If a soldier leaves on a one year term and writes a conditional get, and then someone comes and has relations with his wife, can he be brought to the beis din or punished before the year is up? What is his/her status during the time the conditional get is outstanding and the husband is still alive? Are there applications to any other conditional vows?
Thank you for all your work on the site.
-Josh
Josh Danziger, NY, USA
(1)He could not be brought to Beis Din or punished before the year is up. This we learn from the way that Tosfos 9b DH Kol understands Rashi's Shitah. Tosfos explains that according to Rashi if he did not return from the war for any reason, she is divorced from the time the Get was written. This means that if he did not return by the set date it emerges that the person who had relations with the wife in the meantime did not in fact commit a crime. In reference to the story of King David and Batsheva since Uriyah indeed died at war, Batsheva was divorced retroactively from the time of the writing of the Get. Therefore, King David, who had relations with her after the writing of the Get, did not commit adultery.
(2)Her status during the time that the conditional get is outstanding and the husband is still alive is that of a "Safek Eshes Ish". It is stated in the Gemara Bava Metzia at the top of 59a (cited by the aforementioned Tosfos) that King David's having relations with Batsheva was considered as having Bi'ah with a woman who might be married. It is possible that it will later emerge that she was married all along. This would be the law if the husband did come home during the specified time. In such a case , it would emerge that the very serious transgression of adultery would have been committed. However, the death penalty could not be administered because one can not give the potential adulterer a proper Hasra'ah. One can not warn him of the impending penalty because this is "Hasra'as Safek". It is in doubt at the time when one warns him if the act is actually liable to capital punishment.
(3)This law could have the following application in reference to a vow. If a "Shechiv Mera" ( a critically sick person who Chazal gave the power to make a transaction just by speaking without it being necessary to make a Kinyan ) said that he is Makdish an animal, this is equivalent to saying "Hayom Im Mati me'Choli Zeh" ( meaning this will take effect now if I die from this illness ). One could never be Matir such a vow because the Gemara Nedarim 90a states that the Chacham can not give a Heter for a vow until the vow has taken effect. Since the vow only takes effect if he dies, it follows that there is no space of time when the Chacham has the power to undo this Neder. (This is stated by Nesivos Ha'Mishpat 255:2).
be'Chavod,
Dovid Bloom