Tuesday, November 13, 2007

Daf Yomi - Kesuvos 73 - Highlights

Betrothal on Condition

It was taught: If a person betrothed a woman on a condition (that she had no current vows), and he later married her without mentioning that condition (and she was later found to be in violation of that condition), there is an argument between Rav and Shmuel. Rav says that she requires a divorce, while Shmuel argues that she does not require a divorce.

Abaye states: Do not say that the reasoning of Rav is that because he married her without mentioning the condition he must have forgone the stipulation. Rather, Rav’s reasoning is that a person does not make his marital relations into promiscuity.

The Gemora asks: Didn’t Rav and Shmuel already have such an argument? It was taught: A minor was married off by her brother or mother in a Rabbinical marriage in her youth, and stayed married to her first husband, and had marital relations with him even once she became older. She then did mi’un (refused the Rabbinical marriage) and married someone else. Rav says: She does not require a divorce from the second person (as she is still married to the first person). Shmuel states: She does require a divorce from her second husband.

[The Gemora presumes that their argument is regarding the status of their marital relations when she became older. Did the first husband have relations when she became older in order to do a Torah betrothal (not just Rabbinical as it was previously), or was this just a continuation of the first marriage? This could fit into the argument of whether or not a person will allow his marital relations to retroactively be deemed promiscuity.]

The Gemora answers: Both arguments are necessary. If Rav would have only discussed the argument regarding the minor, one might think that this is because she did not violate any condition. However, where there was a clear violation of a condition Rav might agree to Shmuel that she does not even require a divorce. Similarly, if the case regarding conditions was the only one stated, perhaps only there Shmuel said a divorce is unnecessary. However, in the case regarding the marriage of the minor, perhaps he would agree to Rav that she does not need a divorce. This is why both arguments are necessary. (72b – 73a)

Challenging Shmuel

The Mishna states: If a person married a woman without conditions, and he found that she had existing vows, he can divorce her without giving her a kesuvah. The Gemora asks: This implies that while she does not receive a kesuvah, she does require a divorce. It must be that this is a case of where he betrothed her on condition and married her without mentioning the condition, and this is inconsistent with the ruling of Shmuel that she does not require a divorce!

The Gemora answers: No, the case is where the entire betrothal and marriage was done without conditions. If the betrothal was on such a condition and the marriage was not, she indeed would not require a divorce.

The Gemora asks: Instead of the Mishna giving a case of a betrothal done on the condition a woman has no existing vows, and saying that if the condition was violated the betrothal was invalid, the Mishna should merely say that if a person marries a woman and she is found to have vows the marriage is invalid. We would certainly know that in a case where the condition was mentioned upon betrothal that the marriage is invalid!

The Gemora answers: The Mishna indeed means to say this in the following manner. If a person betrothed a woman on the condition that she had no vows and he later married her without mentioning that condition, the betrothal is invalid. If the betrothal and marriage is done without condition and it is found that she has vows, she can be divorced without a kesuvah. This implies correctly that although she does not need a kesuvah, she does require a divorce. (73a – 73b)

Distinction between Kesuvah
and a Get

The Gemora asks: What is the difference? Why should she require a divorce but nor receive a kesuvah? The Gemora answers: It is because he says, “I cannot live with a woman who makes vows.”

The Gemora asks: If so, let her not require a divorce as well! Rabbah answers: She only requires a Rabbinical divorce. This is also the opinion of Rav Chisda. Rava says: The Rabbis were unsure if she requires a divorce, and therefore were lenient about the husband’s monetary kesuvah obligation, but were strict that she should receive a divorce (which has halachic ramifications). (73b)

A Betrothal in Error

Rabbah states: The argument (of Rav and Shmuel) is only regarding one who betroths two women in a possibly mistaken fashion. [The case is where he makes a condition with the first that she has no vows, but he married the second lady without mentioning anything. Rav would say that he perhaps liked the second one so much he didn’t care if she had vows, while Shmuel would say his mindset is clearly that he does not want wives with vows.] However, in a case where he made their betrothal conditional but did not mention the condition by the marriage, everyone (even Rav) agrees that he relented on his condition.

Abaye asked: Our Mishna is clearly talking about one woman, and we asked a question on Shmuel above from this Mishna!

The Gemora answers: It must be that this is what Rabbah meant to say. Their argument is regarding a case of one woman but similar to a mistake by two women. [The case is where the betrothal was on condition; he then divorced her before marrying her, and then betrothed her and married her without condition.] However, in a regular case where the betrothal is with a condition and the marriage is unconditional, everyone agrees he relented on his condition.

Abaye asked: The Beraisa states that if a betrothal was a mistake, or done with less than a perutah (small coin), the betrothal was done by a minor, even if he later sent presents to his “fiancĂ©” (when he became older or in any of the cases above), the betrothal is invalid. This is because the presents are an extension of the original invalid betrothal. However, if the couple engage in marital relations, the betrothal is valid. Rabbi Shimon the son of Rabbi Yehuda said in the name of Rabbi Yishmael: Even if they have marital relations the betrothal is invalid. In this case, Abaye asks, the question is regarding one woman, and we see they still argue! [Rav and Shmuel should also argue in such a case!]

The Gemora continues: The case above (mistaken betrothal) must be where he thought that she did not have vows! The Gemora answers: No, it is talking about the case where the betrothal was done with less than a perutah.

The Gemora asks: This cannot be the case of mistaken betrothal mentioned in the Beraisa, as that case is mentioned separately in the Beraisa! The Gemora answers: It is as if the Beraisa stated, “What is a case of mistaken betrothal? Someone who does betrothal with less than a perutah.”

The Gemora asks: What is the reasoning behind the argument in the Beraisa? The Gemora answers: One opinion (Tana Kama) holds that a person knows that betrothal with less than a perutah is invalid. Therefore, when he had marital relations, he had in mind to have a real betrothal. The other (Rabbi Shimon) says that a person doesn’t realize that betrothal cannot be done with less than a perutah. Therefore, when he has marital relations, he does so based upon what he thinks was already a valid betrothal (and he has no intent that this should be a valid betrothal).

The Gemora asks from a Beraisa: If a man says “I will have marital relations (betrothal) with you on condition that my father approves,” the betrothal is valid even if his father does not approve. Rabbi Shimon the son of Rabbi Yehuda states in the name of Rabbi Shimon: If the father approves, the betrothal is valid. If not, it is invalid. Isn’t this a case where only one woman is involved and yet they argue?

The Gemora answers: They are arguing about the following. One opinion says that the condition meant that as long as his father is quiet about it, the betrothal is valid. The father was indeed quiet, therefore the betrothal is valid. The other opinion says that the condition meant that verbal approval was needed from the father, and the father remained quiet. Therefore the betrothal is invalid. (73b)