KESUVOS 47 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
1) DOES THE TORAH PERMIT WORK ON SHABBOS?
QUESTION: The Gemara searches for a source that a man keeps the income ("Ma'aseh Yadayim") of his daughter when she is a Na'arah. The Gemara attempts to bring proof from the fact that a father may make a Chupah for her (to marry her off after she is already betrothed). If the father is not entitled to her earnings, he should not be able to marry her off because she could say that she is busy working to make money and he has no right to cause her to lose her income. By making her enter the Chupah he is preventing her from working that day (Rashi). It must be that her earnings belong to her father and thus he is entitled to cause her to stop earning money for a day.
The Gemara responds that this is no proof because perhaps her father is permitted to marry her off only if he pays her for a day's work. Alternatively, perhaps he may marry her off only during the night, when she would otherwise not be working and thus he is not causing her to lose any earnings. Finally, the Gemara says that perhaps he may only make the Chupah for her on Shabbos or Yom Tov, when she does not work and thus he is not causing her to lose any earnings.
REBBI AKIVA EIGER (in Gilyon ha'Shas) questions the last answer of the Gemara. If the father marries off his daughter on Shabbos or Yom Tov, why will his daughter not lose earnings? The Torah prohibits only 39 Melachos and their Toldos on Shabbos, while many Melachos are permitted, through which one may earn money (for example, guarding a field for a set salary). Hence, if the Torah says that he may marry off his daughter on Shabbos, it is still saying that he may stop her from earning money since the Torah does not prohibit earning an income on Shabbos (through a permissible act)! The reason why one is prohibited in practice from taking wages for performing tasks that are not prohibited on Shabbos is the Isur of "Sechar Shabbos" (taking wages on Shabbos). That prohibition, however, is only mid'Rabanan, as it is part of the decree against conducting business on Shabbos ("Mekach u'Memkar" -- see Beitzah 37a), as RASHI writes later in Kesuvos (64a, DH ki'Sechar Shabbos).
(According to Rashi's first explanation in Beitzah 37a, Mekach u'Memkar is Asur based on a verse in Yeshayah. It could be that Yeshayah merely put into writing an Isur that was already prohibited mid'Oraisa by a Halachah l'Moshe mi'Sinai, as we find in many places (e.g. Ta'anis 17b). Accordingly, the Gemara here is easily understood. However, according to Rashi's second explanation in Beitzah 37a, and according to Rashi in Beitzah 27b, DH Ein Poskin, the Isur of Mekach u'Memkar is entirely mid'Rabanan. On the basis of that view Rebbi Akiva Eiger asks his question.)
(a) The RASHASH points out that when the Gemara says that the father may make the Chupah for his daughter at night, it does not mean that it is prohibited for a woman to work at night, but rather it means that it is unusual and uncommon for a woman to work at night. Similarly, since on Shabbos there are 39 Melachos and it is a "day of rest," it is not common for people to work then, even if some forms of work are technically permitted. Therefore, the Gemara suggests that the father may marry off his daughter on Shabbos since she is probably not working then.
However, this answer is not satisfactory for a number of reasons. Why should it have been uncommon for people to do permitted Melachah on Shabbos, before the Isur d'Rabanan was instituted? Moreover, why does the Torah assume that it will be so uncommon such that the father will marry off his daughter then?
Also, the Gemara gives three different answers for how the father could marry her off without causing her to lose money. The fact that the Gemara gives three separate answers (separated by the words "Iy Nami" and not simply by "O'" ("or")) indicates that each answer has a weak point and thus alternate answers are necessary. The weak point of the first answer (that he pays her for the lost work) is that it is not so obvious that there exists such a right to cause her to lose work and pay her for it. Perhaps she is entitled to say that she wants to work and to earn her own money, and she does not have to agree to take his money and be married off against her will.
The weak point of the second answer is that although people do not usually work at night, when the father comes to marry her off perhaps the daughter will say that she has decided to work at night, at the time of the Chupah, and thus her father has no right to cause her to lose money. (The next morning, she will again say that she changed her mind and wants to work by day from now on.) Hence, this answer is also not conclusive.
Since the first two answers have weak points, the Gemara offers a third answer -- that the father may marry her off on Shabbos or Yom Tov, when she cannot work even if she wants to work. If she is permitted to earn money on Shabbos but the accepted custom is not to, this answer adds nothing to the earlier answers. The purpose of giving a third answer is to solve the problem with the second answer (namely, that she could claim that she wants to work now, at the time of the Chupah, even though it is not the normal manner to work at this time). Thus, Rebbi Akiva Eiger's question remains.
(b) Perhaps a simple answer may be suggested based on the words of the RAMBAN (Vayikra 23:24). The Ramban explains (based on the Mechilta, Parshas Bo #9) that when the Torah uses the word "Shabason" to refer to Shabbos and Yom Tov, it teaches that a person should not spend the entire day working even if the work is of the type which is normally permitted on Shabbos (i.e. activities that do not transgress the 39 Melachos). The Ramban says that this prohibition is not just an Asmachta, but it is an Isur d'Oraisa intended to prevent people from wasting their whole day on Shabbos by doing Melachah that the Torah permits and not resting on Shabbos. The Ramban's explanation is cited and praised by the RITVA (Rosh Hashanah 32b, end of DH Shofar) and MAGID MISHNEH (Hilchos Shabbos 21:1). (See also TESHUVOS CHASAM SOFER, CM #195.)
According to this approach, working on Shabbos and Yom Tov -- even with Melachos that are permitted -- is certainly Asur mid'Oraisa. That is why the Gemara says that a father may marry off his daughter on Shabbos and Yom Tov and thereby avoid causing her any loss of earnings. (The SHO'EL U'MESHIV 5:91 suggests a similar answer.)
When Rashi (Kesuvos 64a, Beitzah 27b and 37a) says that the Isur of Mekach u'Memkar is only mid'Rabanan, he is referring to a person who performs an isolated act of buying or selling, or one who earns money on Shabbos without transgressing one of the 39 Melachos and without any physical exertion. Such an act is prohibited even if one does not involve himself in it all day, because of the Isur d'Rabanan of Mekach u'Memkar (as the Teshuvos Chasam Sofer explains). Occupying oneself in work all day on Shabbos is Asur mid'Oraisa, as the RAMBAN explains.
2) HALACHAH: REFUNDING A NEDUNYA
OPINIONS: The Beraisa states that if a man writes a large dowry (Nedunya) to give to his daughter's groom, and then his daughter dies, the Nedunya is not given to the Chasan but is returned to the father (according to the Tana Kama). The reason for this is that a man grants a Nedunya to his son-in-law only on the condition that he will marry his daughter and his daughter will be able to use it, but not if his daughter dies right away.
Obviously, if the Kalah dies after a number of years, this Halachah does not apply. Until what point in the marriage does this Halachah apply?
(a) RASHI explains that the Beraisa refers to a situation in which the Kalah died during the Erusin, before the Nisu'in. When the Gemara says later that the Kalah died after "Chitun," it means that she died after Erusin.
(b) TOSFOS (DH Kasav) cites RABEINU TAM who explains that this Halachah applies even when the Kalah dies after the Nisu'in but before the Nedunya was actually delivered to the Chasan. Since the Nedunya was not delivered, the Kalah was never able to enjoy it before she died, and therefore the father does not want the Chasan to have it. According to Rabeinu Tam, the word "Chitun" means simply that she died after the Chasunah, the wedding.
Tosfos questions Rabeinu Tam's explanation from a statement in the Toras Kohanim (Bechukosai, Parshah 2:3). The Toras Kohanim quotes the curse, "v'Tam la'Rik Kochachem" -- "Your strength will be used up in vain" (Vayikra 26:20), and explains that this curse means that a man will marry off his daughter with a very large Nedunya, and his daughter will die even before the end of the Sheva Berachos. The man ends up losing both his daughter and his money. According to Rabeinu Tam, if she dies during Sheva Berachos, the father should not lose his money because the Nedunya has presumably not yet been delivered!
Tosfos answers that the Toras Kohanim refers to when the father already gave over the money to the Chasan, and then his daughter died. The father indeed loses both his daughter and his money.
(c) According to the above approach, if the wedding already took place and the Nedunya was already delivered to the Chasan, the Chasan certainly may keep it after the death of the Kalah. TOSFOS adds, however, that Rabeinu Tam instituted a new enactment that even if the Nedunya was delivered but the daughter dies within the first year, the Nedunya is to be returned to the father. (Tosfos writes that Rabeinu Tam rescinded that enactment towards the end of his life.)
(RAV YAKOV DOVID BIDERMAN of Weisgrod, in his commentary to the Toras Kohanim, [printed by Sifra Publishing at the end of the Toras Kohanim, Yerushalayim 1959] , writes that it was revealed to him in a dream that this is why Rabeinu Yakov ben Meir, the grandson of Rashi, was destined to be known as "Rabeinu Tam." After he instituted the enactment that the Nedunya returns to the father if the daughter dies within the first year, the curse of "v'Tam la'Rik Kochachem" no longer applied, according to the Toras Kohanim's interpretation of that curse. If the Kalah died during Sheva Berachos, the money would go back to the father and he would not lose his money! Since Rabeinu Yakov's enactment voided the curse of "v'*Tam* la'Rik Kochachem," he was called "Rabeinu Tam.")
HALACHAH: The REMA (EH 53:4) cites both Rashi's and Rabeinu Tam's explanations of the Gemara ((a) and (b) above). He writes that in practice it is a Safek whether the Halachah follows Rashi or Rabeinu Tam. Therefore, if the daughter dies after the Chasunah and the father did not yet deliver the money, the father keeps the money out of doubt (based on the principle, "ha'Motzi me'Chaveiro Alav ha'Re'ayah").
The Rema also mentions that certain communities still enforce the enactment of Rabeinu Tam, that if the Kalah dies within the first year of marriage the money should be returned to the father. The Rema adds that the accepted practice in such communities is that if the Kalah dies during the second year, half of the money should be returned (if it is still in its original form, "b'Ein").