QUESTION: The Mishnah says that when a man gets married and designates a guarantor for the payment of his wife's Kesuvah, when they get divorced the husband must make a Neder prohibiting any benefit from his ex-wife. The Chachamim instituted this requirement in order to prevent the husband and wife from conspiring to defraud the guarantor by getting divorced, collecting her Kesuvah from the guarantor, and then remarrying (enriched with money embezzled from the guarantor). By requiring the husband to vow that he will never derive pleasure from the wife is now divorcing, the husband effectively prohibits himself from remarrying his wife after the divorce.

The Gemara relates that Rav Huna's father was the guarantor for his Kesuvah. Rav Huna, who was a young Talmid Chacham, was very poor. Abaye suggested that he divorce his wife, who will then collect the Kesuvah from his father, and then remarry her and support his family from the money that she collected. Rava asked Abaye how he could make such a suggestion when the Mishnah clearly states that the husband must make a Neder prohibiting himself from receiving any pleasure from the wife that he divorces. Abaye answered that Rav Huna could divorce his wife outside of Beis Din, in which case he would not need to make a Neder.

How does divorcing one's wife outside of Beis Din circumvent the requirement for the husband to make a Neder? Beis Din simply should force the husband make a Neder later, when the woman comes to Beis Din to claim her Kesuvah from the guarantor!

(a) The SHITAH MEKUBETZES (#6) cites an opinion that proves from this Gemara that when a man divorces his wife outside of Beis Din, or when Beis Din for some reason did not make him vow not to benefit from her, Beis Din no longer has the power to make him make a Neder later.

(b) The Shitah Mekubetzes, however, rejects this proof from the Gemara. If it is true that Beis Din cannot make the man make a Neder at a later time, then the enactment that a man must make a Neder when he divorces his wife is useless; any man who wants to circumvent the oath will divorce his wife outside of Beis Din. It must be that Beis Din may make the man swear at any time. What, then, did Abaye mean when he said that the man can avoid making a Neder by divorcing his wife outside of Beis Din?

The Shitah Mekubetzes explains that Abaye's suggestion was made specifically to Rav Huna the son of Moshe bar Atzri. Rav Huna's father, Moshe bar Atzri, was the guarantor for the Kesuvah of his son's wife. Abaye knew that if Rav Huna would divorce his wife outside of Beis Din, then when his wife would come to collect her Kesuvah, the guarantor -- Rav Huna's father -- would not insist on an oath from the husband. He would reason that since they were already divorced, an oath would be unnecessary. Moreover, he would prefer that his former daughter-in-law take his money in conspiracy to remarry his son instead of requiring that his son vow not to benefit from his ex-wife, because at least his son would benefit from his money and not some other man whom the ex-wife might marry if she would not be allowed to remarry Rav Huna.

(Whether or not the procedure of a divorce must be executed in the presence of a Beis Din is the subject of debate among the Acharonim. For a discussion of this topic, see Insights to Yevamos 25:1.)

OPINIONS: The Gemara quotes a Beraisa in which Raban Shimon ben Gamliel disagrees with the Rabanan of the Mishnah.

According to the Rabanan of our Mishnah, if the debtor was Makdish his property, that property is "redeemed" (by paying a token amount to Hekdesh) in order to cover the debt. This applies even to a debt that is greater than the value of the property, unless the debt was twice the value of the property of Hekdesh.

Raban Shimon ben Gamliel argues and states that the property is redeemed from Hekdesh only if the debt corresponds to the value of property. If the debt does not correspond to the value of the sanctified property (i.e. the debt is greater than the value of the property), then "he does not redeem it."

From the words of Raban Shimon ben Gamliel, it would seem that we do not allow the creditor to collect a partial payment for a debt from property that became Hekdesh. Only if unless the property was worth as much as the entire debt may it be collected from Hekdesh to pay for the loan.

Why should we not allow the creditor to collect from the property that became Hekdesh in order to pay part of the debt? And according to the Rabanan, if the property that became Hekdesh is worth less than half of the value of the debt why should we not allow the creditor to collect what he can from the property in order to pay some amount of the debt?

(a) RASHI (DH Im Chovo), in his first and preferred explanation, explains that when the property that became Hekdesh is worth less than the debt, the creditor may not collect at all from property of Hekdesh. He may not 'redeem' the property by giving a Dinar to Hekdesh. His logic is that since the debt was more than the value of the borrower's land, the creditor did not have in mind, at the time of the loan, that the property should serve as security for the loan. Thus there is no lien on the property.

The SHITAH MEKUBETZES (#10) cites the ROSH who asks that it is clear from numerous sources that even when the land is worth less than the value of a debt, it still is Meshu'abad to the creditor and the creditor may collect his debt from it, should it be sold. Why should this case be different?

Perhaps Rashi understands that even though the creditor has in mind to collect from property worth less than the loan should it be sold, he does not have in mind to collect from property worth less than the loan should it become Hekdesh.

(b) TOSFOS (DH v'Im Lav) and the Shitah Mekubetzes (#10) in the name of the Rosh offer a different explanation of Raban Shimon ben Gamliel's intention. They explain that when Raban Shimon ben Gamliel says that "he does not redeem it," he means that the debtor does not have to add a Dinar in order to redeem the land from Hekdesh. Rather, the land is released from Hekdesh without any additional payment.

The reason for this is as follows. When the debt and the property are of equal value, a Dinar must be added to redeem Hekdesh just in case we underestimated the property's value and the property of Hekdesh is actually worth slightly more than the loan. However when the debt is greater than the value of the Hekdesh, one does not need to add anything more, since even if we slightly underestimated the value of the property, the loan will be greater than the property's value.

According to the Rabanan, as long as the debt is not greater than twice the value of the land that became Hekdesh, the land and debt are considered to be "equal" in value, and a Dinar must be added in order to redeem it. This is because the "Ona'ah" value for land is twice its normal value (that is, if one buys land for more than it is worth up to twice its value, the sale remains valid, because the value of land is variable up to twice its appraised worth).

(c) The RAMBAM (Hilchos Erchin 7:14-16) offers an entirely new approach to our Mishnah.

The Rambam explains that when the Mishnah says that we redeem the land from Hekdesh by "paying a Dinar, with intent to give the land to the creditor," it means that as long as it is Hekdesh, the creditor has no way to collect his loan from the property. Any person who would like to help the creditor, may redeem the property from Hekdesh by paying a nominal value - even a single Dinar. At that point, the property leaves the hands of Hekdesh and can be collected by the creditor to pay the loan. (The redeemer will be refunded by the debtor, when he attains funds.)

If the property is worth less than the loan, then besides giving a Dinar to redeem the property, the redeemer must also accept upon himself to return the remainder of the debt to the creditor (which will be refunded to the redeemer when the debtor attains funds). This remains true unless the property is worth less than half the loan, after which we no longer require the redeemer to pay the remainder of the loan. Had he required the redeemer to pay the entire debt even in such a case, no one would agree to redeem the field for the creditor.

It is this law that Raban Shimon ben Gamliel disagrees with. According to Raban Shimon ben Gamliel, we never require that the redeemer pay the remainder of the loan when he redeems the property from Hekdesh. The redeemer gives the property to Hekdesh, but anything more than the value of the property is not his responsibility.