1)

DOES ONE OBLIGATE HIMSELF TO PAY A KESUVAH TO AVOID BI'AS ZENUS? [Bi'as Zenus:Kesuvah]

(a)

Gemara

1.

72b (Mishnah): If a man was Mekadesh a woman on condition that she has no vows and she was found to have, she is not Mekudeshes. If he did Nisu'in Stam (without specifying) and she had vows, she leaves without a Kesuvah.

2.

(Rav): If a man was Mekadesh a girl on Tanai and did Nisu'in with her Stam (and the condition was not fulfilled), she needs a Get from him;

3.

(Shmuel): She does not need a Get.

4.

(Abaye): Rav does not assume that he pardoned the condition since he did not mention it at the time of Nisu'in. Rather, a man does not have Bi'as Zenus.

5.

(Seifa): If he did Nisu'in Stam and she had vows, she leaves without a Kesuvah.

6.

Inference: She leaves without a Kesuvah, but she needs a Get.

i.

Suggestion: The case is, he was Mekadesh her on Tanai, and did not mention it at the Nisu'in. This refutes Shmuel!

7.

Rejection: No, in the Seifa he did not stipulate at all. In the Reisha he was Mekadesh her on Tanai and did Nisu'in Stam (and she had vows). She is not Mekudeshes;

i.

If he was Mekadesh her Stam and did Nisu'in Stam, and she had vows, she leaves without a Kesuvah.

8.

Inference: She gets no Kesuvah, but she needs a Get.

9.

Question: She does not get a Kesuvah, because he did not want a vowing wife. If so, she should not need a Get either!

10.

Answer #1 (Rabah): She needs a Get only mid'Rabanan.

11.

Answer #2 (Rava): The Tana is unsure whether or not she is Mekudeshes. We are lenient about money (paying a Kesuvah), but we are stringent about Isurim.

12.

(Rabah): Rav and Shmuel argue about a mistake involving one woman like the case of two women (this will be explained). All agree that no Get is needed for a simple mistake involving one woman.

13.

(Rav Acha bar Yakov): If one makes Kidushin on condition and has Bi'ah, all agree that a Get is not required.

14.

(Ula): If one had Bi'ah after Kidushin with a loan, or Kidushin on Tanai, or Kidushin less than a Prutah, all agree that she needs a Get.

15.

(Rav Yosef bar Aba): When the Kidushin was less than a Prutah, all agree that she needs a Get. A person does not err about this. In Ula's other cases a person errs, so a Get is not needed.

16.

(Rav Kahana): If a man was Mekadesh on Tanai and had Bi'ah, she needs a Get;

17.

A case occurred, and Chachamim could not permit her without a Get.

18.

This is unlike the following Tana:

i.

(Rav Yehudah citing R. Yishmael): If "she was not grabbed" she is forbidden. Had she been grabbed, she would be permitted;

ii.

In another case she is permitted even if she was not grabbed, i.e. mistaken Kidushin. Even if she has a child, she may do Mi'un and leave him.

19.

101a (Beraisa): When Chachamim said 'she has no Kesuvah', such as a Mema'enes and Chevroseha (similar cases), she does not receive 100 or 200, but she receives Tosefes;

20.

When they said 'she leaves without a Kesuvah', such as Overes Al Das (Moshe or Yehudis, i.e. indecent behavior or making her husband transgress) and Chevroseha, she does not receive Tosefes, all the more so not 100 or 200.

(b)

Rishonim

1.

Rif and Rosh (Kesuvos 34a and 7:11): We conclude like Rav Kahana, that if a man was Mekadesh on Tanai and had Bi'ah, she needs a Get. A case occurred, and a Get was required.

i.

Shiltei ha'Giborim (Kesuvos 34a:1): If there was Nisu'in, he must pay a Kesuvah. We assume that the Tanai was pardoned at the time of Chupah.

ii.

Question (Beis Shmuel EH 38:59): Perhaps the Tanai was pardoned only regarding Kidushin, but not regarding the Kesuvah!

iii.

Note: It is not clear why Shiltei ha'Giborim assumes that she can pardon the Tanai herself. The Sugya and all Meforshim connote that we discuss a Tanai for his benefit! And even if it is for her benefit, the Ran (33b) says that once the one who stipulated was Makpid, he cannot Mevatel the Tanai.

iv.

Question (Ran 33b): Bi'ah makes only Kidushin. Since she is not Nesu'ah, we need not teach that he does not pay a Kesuvah! If the case is that he wrote a Kesuvah, the Gemara should have mentioned this!

v.

Answer (Ran): Perhaps Bi'ah makes only Kidushin in her father's house, but Bi'ah in her husband's house makes Kidushin and Nisu'in at the same time.

vi.

Questions (Gra EH 38:44 DH Likut): The Gemara never settled whether Bi'ah makes Nisu'in, or only Kidushin. However, Abaye (Kidushin 10a) holds that it makes only Kidushin. Meforshim (Bava Metzi'a 17b) argue about whether or not an Arusah gets a Kesuvah according to Abaye. Rashi does not hold that a man pardons the Tanai to make the Kidushin valid. Rashi explicitly says that he has Bi'ah l'Shem Kidushin. The Ran's question is difficult. The second Bi'ah, after Kidushin, makes Nisu'in!

vii.

Question: Since she does not have a Kesuvah, in any case it is Bi'as Zenus (Kesuvos 54b)!

viii.

Answer (Ran): Rav means that a man does not knowingly have Bi'as Zenus. Alternatively, Bi'ah after Nisu'in without a Kesuvah is Zenus. Here, Bi'ah makes Kidushin, so it is not Zenus.

2.

Rambam (Hilchos Ishus 25:1): If one had Nisu'in with a woman Stam and she was found to have vows, she leaves without Ikar or Tosefes Kesuvah.

i.

Magid Mishneh: The Mishnah says that if a man did Nisu'in Stam and she had vows, she leaves without a Kesuvah. Shmuel explains that he was Mekadesh her Stam and did Nisu'in Stam.

ii.

Ran (59b DH Gemara): The Gemara said that Overes Al Das and Chevroseha do not receive even Tosefes. 'Chevroseha' refers to women found to have vows or blemishes, i.e. Mekach Ta'os. An Ailonis receives Tosefes because she did not know that she is an Ailonis. A woman with vows or blemishes should have told her husband, for she knows that men do not accept these.

iii.

Question (Chelkas Mechokek EH 117:10): We hold that an Ailonis must have all four Simanim of Ailonis. Surely she knew that her body is not shaped like that of normal females! Perhaps the Ran holds that one Siman suffices, i.e. Bi'ah is painful for her. Unlike the Ran, we could say that an Ailonis becomes known, and he is not believed to say that he did not know about it.

iv.

Note: Korban Nesan'el (11:5) cites the Ran, connoting that the Rosh agrees that 'Chevroseha' are women found to have vows or blemishes. This is not clear, for the Rosh says that 'Chevroseha' are women who were fitting at the beginning of the marriage and disqualified themselves through their actions.

3.

Rosh (ibid.): Rashi explains that we asked 'why is a Get needed' according to Shmuel. Surely Rav obligates a Get, for he holds that a person does not have Bi'as Zenus. However, he does not pardon his Tanai regarding Kesuvah, just like he would not pay a Kesuvah if she vowed after Nisu'in.

i.

Gra (EH 38:44 DH Likut): Rashi (73a DH Lo) explains that we thought that Rav holds that a man pardons his Tanai, i.e. even regarding Kesuvah. Abaye teaches that he pardons only regarding Kidushin to avoid Bi'as Zenus. Tosfos (73a DH Lo) says that we thought that he pardons his Tanai at the time of Chupah, even without Bi'ah. Abaye teaches that he pardons only when he does Bi'ah. We never thought that he must pay a Kesuvah.

ii.

Hagahos Ashri (on Rosh 12): Even if he stipulated at the time of Bi'ah, she needs a Get. The Tanai was only about the Kesuvah. However, if he explicitly stipulated with a proper Tanai Kaful that it will be Kidushin only if the Tanai is fulfilled, if the Tanai was not fulfilled no Get is needed.

(c)

Poskim

1.

Shulchan Aruch (117:3): If one had Nisu'in with a woman Stam and she was found to have vows, she leaves without Ikar or Tosefes Kesuvah.

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