1) WHO RECEIVES THE MONEY OF THE KESUVAH OF A KETANAH OR NA'ARAH
OPINIONS: The Rabanan and Rebbi Yehudah argue in the Mishnah with regard to who receives the money of the Kesuvah of a Na'arah or a Ketanah who was married and whose husband died or divorced her. The Rabanan maintain that the girl receives the money because once she gets married she is no longer in the Reshus of her father. Rebbi Yehudah maintains that her father receives it.
The Gemara explains that according to Rebbi Yehudah, the father is entitled to the Kesuvah since it is written before the Nisu'in. Although the girl later was married with Nisu'in, the father retains the Kesuvah. For the same reason, when the girl became a Bogeres before the Nisu'in and before the time the Kesuvah was written, even Rebbi Yehudah agrees that she receives the Kesuvah since, at the time of its writing, she had already left her father's Reshus.
The Gemara then starts an entirely new discussion about the Kesuvah of an Arusah. The Gemara asks from what point in time may the woman collect her Kesuvah from Nechasim Meshubadim (property her husband had sold to buyers) -- from the time of the Erusin or only from after the Nisu'in?
What does this question have to do with the Sugya? It is unrelated to the topic of the Mishnah which discusses the father's entitlement to the Kesuvah of a Ketanah or Na'arah. This question -- from what time does the woman collect the Kesuvah -- seems to apply to any woman and is unrelated to the rights of the father to his daughter's Kesuvah.
Moreover, what is the reason for why a woman should, or should not, be able to collect her Kesuvah from the time of the Erusin? If the Kesuvah was written at the time of the Erusin, or if the Rabanan instituted that there be a Kesuvah at the time of Erusin (see Rashi later on the Mishnah, and see Kesuvos 54b), then it is obvious that she should be able to collect from the time of Erusin. If, on the other hand, the Rabanan did not institute that there be a Kesuvah at the time of Erusin, then it is obvious that she should not be able to collect from the Erusin. What is the logical basis for each side of the doubt?
The Rishonim offer a number of different approaches to the Sugya.
(a) RASHI explains that the Gemara is discussing whether a woman may collect her Kesuvah from the husband's fields that were sold after the time of the Erusin but before the Nisu'in. (The Gemara follows the opinion that the Rabanan instituted that an Arusah collects a Kesuvah even in a case where no actual Kesuvah was written at the Erusin.) Perhaps she may collect her Kesuvah even from Nechasim Meshubadim, from fields that were sold during the time of Erusin, because the Rabanan instituted (through a "Tenai Beis Din") that she is entitled to a Kesuvah even when it is not put into writing. On the other hand, perhaps she is not permitted to collect from such fields during Erusin, because the Kesuvah was not yet written down and it retains the status of an oral obligation, a "Milveh Al Peh," which may not be collected from Nechasim Meshubadim. Is the "Tenai Beis Din" that every Arusah is entitled to collect a Kesuvah considered a contract to that effect (a "Milveh b'Shtar") or not? That is the Gemara's question.
In summary, according to Rashi the question applies to the Kesuvah of any woman, whether she is an Arusah or a Nesu'ah. The question involves only Nechasim Meshubadim; from the time of her Erusin she certainly may collect from fields that were not sold ("Nechasim Bnei Chorin").
The relevance of this question to the rest of the Sugya is that the Gemara previously discussed when a father is entitled to the Kesuvah of his daughter according to Rebbi Yehudah (whether he is entitled to it from when the Kesuvah was written or from the time of her Erusin). The Gemara now digresses to discuss a similar topic -- when does a normal woman's rights to collect Nechasim Meshubadim begin, from the Erusin or from the Nisu'in? (The two questions are not really parallel, because the father certainly has the rights to the Kesuvah of his daughter while she is an Arusah if she does not get married with Nisu'in. Only if she gets married does Rebbi Yehudah say that he loses the right to the Kesuvah from before the Nisu'in, from before it was written. With regard to collecting the Kesuvah from Nechasim Meshubadim, however, the question is relevant even if she was still an Arusah at the time of her husband's death or her divorce.)
(b) TOSFOS and the other Rishonim reject Rashi's approach, because according to his approach the question of when may a woman collect from Nechasim Meshubadim (when does the Shi'abud of the Kesuvah begin) is only marginally related to the discussion of the Gemara and does not really belong here.
The RI cited by Tosfos (DH u'Migba) explains that the question of the Gemara is directly related to Rebbi Yehudah's opinion in the Mishnah. The Gemara is asking why does Rebbi Yehudah maintain that the father loses his rights to the unwritten Kesuvah when his daughter becomes a Bogeres before she gets married (with Nisu'in) and before the Kesuvah is written? Is it because by writing the Kesuvah the daughter forgoes her Shi'abud (the lien on the husband's property) of the pre-written Kesuvah (which took effect from the time of the Erusin), or is it because the Rabanan simply did not give the father the right to the Kesuvah if it is written after the daughter becomes a Bogeres?
One might ask, how can the daughter forgo a Kesuvah -- which her father was entitled to collect -- by writing a new Kesuvah of her own? She has no right to forgo the entitlement of her father! TOSFOS and the TOSFOS HA'ROSH explain that although she cannot forgo her father's right to collect the Kesuvah, nevertheless the Rabanan instituted that when the daughter writes a Kesuvah and thereby forgoes the previous Kesuvah, her father may not collect it. That is, the Rabanan gave the Kesuvah to the father only on condition that the daughter does not forgo the Kesuvah by writing a new one to take the place of the earlier one.
The Gemara's question concerning when the Kesuvah is collected involves a girl who became a Bogeres before the Nisu'in, and the Gemara follows the view of Rebbi Yehudah that the father loses the right to collect the Kesuvah when it is written after his daughter becomes a Bogeres. The Gemara is asking which of the abovementioned two arguments is correct: if the father loses the Kesuvah because the daughter forgoes the first Kesuvah by writing a new one, then the daughter herself cannot collect from the Nechasim Meshubadim that were sold during the Erusin since she relinquished that lien (when she wrote the new Kesuvah which would be paid to herself). If she does not forgo the Kesuvah, but the Rabanan simply do not give the Kesuvah to the father since it was written after she became a Bogeres, then she could collect from Nechasim Meshubadim from the time of the Erusin (since the original Kesuvah is still in effect; it is just being paid to a different person than originally intended).
In summary, according to the Ri the Gemara's question applies only to a girl who became a Bogeres before the Nisu'in, and the question arises only after she became married (with Nisu'in), and it is only according to the opinion of Rebbi Yehudah who may hold that she is writing a new Kesuvah to replace the old one so that she should receive the Kesuvah instead of her father. The question is whether her Shi'abud (to collect from Nechasim Meshubadim) starts from the Erusin or from the Nisu'in.
Tosfos himself questions this approach and asserts that it is somewhat forced to explain the entire Sugya only according to the view of Rebbi Yehudah.
(c) The TOSFOS HA'ROSH and other Rishonim explain, like Tosfos, that the question is whether Rebbi Yehudah gives the Kesuvah of a Bogeres to the daughter because she forgoes the previous Kesuvah or because the Rabanan instituted that the father does not collect if the Kesuvah was written when his daughter was a Bogeres. However, they explain that the Gemara's question of whether the woman may collect Nechasim Meshubadim from the time of the Erusin applies to the opinion of the Rabanan just as it applies to the opinion of Rebbi Yehudah. Even though the Rabanan argue with Rebbi Yehudah and say that the father never gets the Kesuvah of his daughter when she is a Nesu'ah, nevertheless they might agree with Rebbi Yehudah that when the Kesuvah of the Nesu'ah is written the woman forgoes the Shi'abud of her previous Kesuvah. If Rebbi Yehudah says that by writing a Kesuvah at the time of Nisu'in she forgoes the previous Kesuvah, then the Rabanan will agree that by writing a Kesuvah at the Nisu'in she forgoes the previous Kesuvah.
In summary, according to these Rishonim as well the question of the Gemara is whether a woman, after Nisu'in, may collect from the husband's property that was Meshubad from the time of Erusin. However, the question applies to every woman and not just to a woman who became a Bogeres before the Nisu'in, and it applies to the opinion of the Rabanan as well as to the opinion of Rebbi Yehudah.
The Rosh's explanation, however, is problematic. According to Rebbi Yehudah, it is easy to understand why the daughter might forgo the original Kesuvah at the time of the Nisu'in -- because she does not want her father to collect the Kesuvah (with his rights to the original Kesuvah); she wants to have a new Kesuvah that only she will collect. According to the Rabanan, however, who maintain that she always receives the original Kesuvah, why should every woman forgo the Shi'abud of the Kesuvah from the time of Erusin? What interest could she possibly have in losing the Shi'abud for that period of time?
1. Perhaps the Rosh learns that the woman wants to show her love for her husband and therefore she does him a favor and forgives the Shi'abud from the Erusin. This is a forced answer, however, and it is apparently because of this question that Tosfos rejects this approach.
2. Rashi also seems to reject this approach because of this question. In fact, this explains an apparent contradiction in Rashi.
When Rashi explains the Gemara's question, he writes that she should not collect from Nechasim Meshubadim from the time of Erusin because the Kesuvah is not yet written down and is a "Milveh Al Peh." However, when the Gemara rules like Rav Asi that she collects only from the time of Nisu'in, Rashi does not explain that it is because the earlier Kesuvah was not written, but rather that it is because she was Mochel the Shi'abuda from the Kesuvah of the Erusin at the time of the writing of the new Kesuvah at the Nisu'in (similar to the reasoning of the Tosfos ha'Rosh)! Why does Rashi not give this explanation in his comments to the original question of the Gemara? (RITVA)
The answer might be that Rashi cannot explain the Gemara's original question by saying that perhaps the woman forgoes the earlier Kesuvah when she puts the Kesuvah into writing at the time of Nisu'in, because that question would not be related to the Halachah of the Mishnah according to the Rabanan. There is no justification for inferring that according to the Rabanan she forgoes the Kesuvah of the Erusin when she writes a Kesuvah at the time of the Nisu'in. That is why Rashi explains that the Gemara does not consider the possibility that perhaps the woman forgoes the first Kesuvah.
In the Gemara's conclusion, however, when Rav Asi says that she does not have a Shi'abud from the time of the Erusin, Rashi does not want to explain that the reason is that it is not written down, because Rav Asi is the Halachic opinion (44a), and we find elsewhere that the Gemara does consider a "Tenai Beis Din" (such as the unwritten Kesuvah at time of Erusin) as though it were written in a Shtar and it therefore may be collected from Nechasim Meshubadim. It must be that Rav Asi maintains that she cannot collect from the time of Erusin for a different reason: that by writing the Kesuvah at the time of Nisu'in she forgoes the Shi'abud of the first Kesuvah. (M. KORNFELD)
3. The RITVA explains similarly to the Tosfos ha'Rosh, but he avoids the question of why she forgoes the original Kesuvah according to the Rabanan. He also adds that the question may apply not only to collecting from Nechasim Meshubadim but even to collecting from Nechasim Bnei Chorin. He explains that the Halachah of Rebbi Yehudah applies even if a Kesuvah was written at the time of Erusin: even when the Kesuvah was written at the time of Erusin, if she becomes a Bogeres before the Nisu'in the father loses the right to collect the Kesuvah. This is either because the woman forgoes the Kesuvah of Erusin at the time she writes a new Kesuvah for the Nisu'in, or because the Rabanan instituted that the father receives the Kesuvah only when his daughter was a Na'arah at the time of the Nisu'in. Depending on which of the two explanations for Rebbi Yehudah's ruling is correct, the woman either may or may not collect her Kesuvah with the original Kesuvah document that she wrote at the time of the Erusin.
According to the Ritva's explanation, the Gemara's question now applies to a situation in which a Kesuvah was written at the time of Erusin but another Kesuvah was written at the time of Nisu'in. The question applies according to both Rebbi Yehudah and the Rabanan: does the Kesuvah of Nisu'in indicate a Mechilah of the first Kesuvah or not? If she was Mochel the first Kesuvah, then she cannot collect even from Nechasim Bnei Chorin with the first Kesuvah unless she brings the second Kesuvah as proof to her entitlement, because the first Kesuvah was written only to last until the Nisu'in, after which point it is no longer valid. According to the Ritva, she does not actually forgo the Kesuvah from the Erusin, but rather l'Chatchilah the Kesuvah was written only to be valid temporarily, until the Nisu'in. The main purpose of a Kesuvah is to prevent the husband from divorcing his wife impulsively after the Nisu'in. The Kesuvah of Erusin, however, serves only a secondary purpose (that she should have a source of support if he dies or divorces her) and is not meant to be a permanent Kesuvah.
In summary, according to the Ritva the Gemara's question applies to any woman after she gets married, even if she had a written Kesuvah from the time of her Erusin. The Gemara is asking whether she may collect with the old Kesuvah even Nechasim Bnei Chorin, or whether she may only use the new Kesuvah which was written at the time of Nisu'in.
(d) TOSFOS cites RABEINU SHIMSHON MI'SHANTZ who explains that the Gemara's question follows the view of the Rabanan who say that when a girl gets married (with Nisu'in), the father loses the right to collect her Kesuvah. The question of the Gemara applies specifically to a Na'arah or Ketanah who gets married, and the question is whether she may collect her Kesuvah from the time of the Erusin after she gets married (with Nisu'in), because the Shi'abud of the Kesuvah started at that time (Erusin), or whether -- since there is a change in the Kesuvah when she becomes married (with Nisu'in) in that the Kesuvah goes from being her father's entitlement to being her own -- it is as if a new Kesuvah was written at the time of Nisu'in, and she may collect only from the property that was Meshubad from that time onwards.
In summary, according to this opinion the question of the Gemara applies only to a Na'arah or Ketanah whose father made her an Arusah and she later became married with Nisu'in, and the question is only according to the view of the Rabanan of the Mishnah.