In carrying Qut this law, the Rabbis de parted widely from the precedents. The strict rules of law required that to constitute a valid divorce there must be actual delivery of the Bill of Divorcement to the wife or her legally constituted agent or attorney during the lifetime of the husband. Yet in a case where the husband had given the Bill of Divorcement to a messenger with instruc tions to deliver it to his wife, stating at the same time that its purpose was to protect her from the marriage with the brother-in-law, the Rabbis held it to be a valid divorce, al though the husband had died before the Bill had been delivered. Once established, this form of the Bill of Divorcement was used to meet another case, which under the old law had often resulted in great hardship to the wife. The Jewish law knew of no presumption of death from long absence, so that if a man went abroad and died there, his wife was ever regarded as a married woman, and prevented from remarry ing until actual proof was had of her hus band's death. In those days an unprotected woman was in a really unfortunate condition; they called her the Aguna (the forlorn one ). Here again the convenient Divorce on Con dition was invoked as a preventative measure. Before setting out on his journey to distant lands, the husband gave his wife a Bill of Divorcement, with the condition annexed that it should go into effect if he did not re turn within a certain number of days, but to be null and void if he did return within the specified time. If then, as often happened in those days, he was murdered, or carried away to a distant land as a slave, his wife was free to contract a second marriage after hav ing waited the prescribed length of time, after which the divorce became of full effect. When first introduced, this form of divorce was in the nature of a free-will offering by the generous husband to his wife to pro tect her from trouble in the event of his death; but as it sometimes happened that a husband would without cause depart for dis tant lands, leaving his wife uncared for and
helpless, this custom became law and obliga tory. Every husband, journeying to distant lands, was obliged to leave with his wife a Bill of Divorcement "on condition." When the Divorce on Condition had be come a fixed institution, it became the theme for much discussion and fine hair-splitting in the colleges. The Rabbis distinguished be tween conditions precedent, where the divorce became operative at some definite future time or on the happening of some particular event, and conditions subsequent, where the Bill of Divorcement by the terms of the condi tion annexed went into effect on the day of delivery, but was dependent on some future event to make it absolute, failing which it became null. So in the course of one of the discussions in the college of Pumbaditha in Babylonia under the cross-fire of question and. answer the following distinction was made by Abaye, the president of the col lege (a. c. 335) : " If a husband on his sick-bed says to his wife, ' Here is your Bill of Divorcement, which shall become opera tive when the sun rises,' and then dies during the same night, there is no divorce, for the condition being precedent, and not having been fulfilled during the lifetime of the hus band, the divorce is annulled; for there can be no divorce after death. But if the hus band had said, ' Here is your Bill of Divorce ment, which shall become operative as soon as the sun rises,' it' would have been a valid divorce, for the condition in this case is sub sequent, and the divorce went into effect immediately on the delivery of the bill, and merely required the rising of the sun to render it absolutely indefeasible; and as the divorce was valid when the bill was delivered, it matters not that the husband died before the condition was fulfilled." That the Divorce on Condition should have given rise to a vast number of hypothetical questions in the schools is but natural. Of all these I will cite one which is interesting on account of the light it throws on Roman criminal law as administered in conquered provinces. As the status of the widow differed materially
