Umdena as a Ground for Marriage Annulment: Between Mistaken Transaction (Kiddushei Ta‘ut) and Terminative Condition

Jewish Law Association Studies, Vol. 20, pp. 330-352, 2010

Posted: 5 Apr 2011

See all articles by Avishalom Westreich

Avishalom Westreich

College of Law and Business - Ramat Gan Law School

Date Written: June 10, 2010

Abstract

Three concepts of marriage annulment in Jewish Law are discussed in the paper:

(a) “terminative conditions,” i.e. cases where an event which occurs during married life renders a marriage retroactively void, based on an explicit stipulation of the spouses at the time of marriage;

(b) “mistaken transaction,” i.e. cases which a fact obtained at the time of marriage, but one spouse was unaware of it, and if he or she had been aware of it, they would not have married. In this case, the marriage was based on a mistake, and therefore was never valid;

(c) an assessment of one’s intentions (the Talmudic umdena) that “on this assumption she did not get married.” This possibility occupies a middle ground between the previous two: it is based on a fact which we assume could lead one of the spouses to cancel the marriage. But this fact did not exist at the time of the marriage, so no mistake actually occurred at that time.

Consequently, the commentators do not agree about how to define this case: as an implicit condition, as a kind of mistaken transaction, or as a combination of both: (a) a mistake regarding the “facts” that obtained at the time of the marriage, i.e., a mistake regarding the possibility of a particular future occurrence; and (b) an implicit condition in regard to the later actual occurrence of that fact.

Beyond the conceptual discussion, these concepts share one common function: nullifying the marriage. In some cases – and a case of a chained wife (agunah) is a typical one – Jewish legal authorities seek a solution which will void the marriage without a writ of divorce (a get). The discussed conceptions are possible routes for this object: marriage annulment in Jewish Law.

Keywords: Jewish Law, Marriage, Divorce, Annulment, Condition, Agunah, Get, Mistake, Mistaken Marriage

Suggested Citation

Westreich, Avishalom, Umdena as a Ground for Marriage Annulment: Between Mistaken Transaction (Kiddushei Ta‘ut) and Terminative Condition (June 10, 2010). Jewish Law Association Studies, Vol. 20, pp. 330-352, 2010, Available at SSRN: https://ssrn.com/abstract=1800368

Avishalom Westreich (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel
+972546550333 (Phone)

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