Would Hillel change his position today? TB Gittin 81

When we study massekhet Kidushin in just 10 days we shall learn that a man can betroth a woman in three different ways, with money, with a document, and with sexual intercourse. Knowing a man can betroth a woman with sexual intercourse, we can understand the basic disagreement between Beit Shammai and Beit Hillel when a man has sex with his former wife on Shabbat’s daf TB Gittin 81.

 “MISHNA: With regard to one who divorces his wife, and afterward she spent the night with him at an inn [befundaki], Beit Shammai say: She does not require a second bill of divorce from him, and Beit Hillel say: She requires a second bill of divorce from him, since they may have engaged in sexual intercourse at the inn and thereby betrothed her once again.”

“Beit Shammai hold: A person does engage in licentious sexual intercourse. Although they were seen engaging in sexual intercourse, one cannot assume that he intended to betroth her, since they were recently divorced. The assumption is that they were simply engaging in licentious sexual intercourse. Consequently, he is not required to give her a second bill of divorce.

“And Beit Hillel hold: A person does not engage in licentious sexual intercourse. Therefore, he had the intention to betroth her, and he must give her another bill of divorce. But if they did not see that she engaged in sexual intercourse, even though they spent the night together at an inn, everyone agrees that she does not require a second bill of divorce from him, as there is no concern that perhaps they engaged in sexual intercourse.” (Sefaria.org translation)

The storyline of the 2008 Israeli TV show Srugim revolves around five single modern Orthodox men and women looking for love living in Jerusalem. The disagreement between Beit Shammai and Beit Hillel impacts one episode in season one. Amir must deal with the stigma of being divorced, which hampers his chances to enter a new relationship; when he encounters his divorcee, Na'ama, their mutual loneliness leads them to have sex. The rabbi convinces them they must divorce again for do they really want to consider their intercourse to be one of licentiousness. Being Orthodox the answer has to be no for them.

I’m not so sure Beit Hillel was still hold his position that “A person does not engage in licentious sexual intercourse” in today’s modern liberal world.   Sex between unmarried men and women no longer carries the same pejorative connotation of licentiousness. Ever since the liberating 60s more men and women have had more than one sexual encounter before marriage. This is not always a good thing, because these encounters can devolve into and I-It relationship (when one treats the other only as an object to be used) instead of and I-Thou relationship. When it comes to sexual relationships Judaism values an I-Thou relationship where each couple loves, sympathizes, and empathizes with his/her partner.