KESUVOS 52 - 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) THE HUSBAND'S OBLIGATION TO REDEEM HIS CAPTURED WIFE
QUESTION: The Kesuvah of a woman married to a Yisrael obligates the husband to redeem her if she is captured and to take her back as his wife. The Kesuvah of a woman married to a Kohen obligates her husband (the Kohen) to redeem her and send her to her former home, since her captivity makes her Asur to him.
If a Yisrael marries a woman who is prohibited to him, he does not have to redeem her since he cannot fulfill the condition of the Kesuvah to take her back to be his wife. If a Kohen marries a woman who is Asur to him (such as a Kohen Gadol who marries an Almanah), Abaye and Rava argue: Abaye says that he must redeem her because he can still fulfill the condition of the Kesuvah to send her to her former home. Rava says that he does not have to redeem her. He is only obligated to redeem her if her captivity caused her to become Asur to him and send her home, but not if she was Asur to him before she was captured.
The Gemara suggests that this Machlokes between Abaye and Rava is a Machlokes Tana'im. The Gemara quotes a Beraisa which discusses a case in which a man prohibits his wife with a Neder from benefiting from him, and then she is captured. Rebbi Eliezer says that he must redeem her. Rebbi Yehoshua says that he does not have to redeem her. The Gemara explains that the Beraisa is discussing the wife of a Kohen, and Rebbi Eliezer who obligates him to redeem her holds like Abaye, and Rebbi Yehoshua holds like Rava who says that he does not have to redeem her because she is Asur to him in any case, because of the Neder.
The Gemara eventually rejects this explanation and says that the Machlokes between Rebbi Eliezer and Rebbi Yehoshua revolves around another point entirely. The Beraisa is discussing a case where the woman prohibited herself with a Neder to her husband, and he upheld the Neder and did not annul it. Rebbi Eliezer, who says that he must redeem her, holds that it is his fault that she became Asur through the Neder. Since he caused the Isur, he has no right to refrain from redeeming her. Rebbi Yehoshua argues and holds that she is the one at fault for making the Neder, and therefore the husband does not have to redeem her. According to this explanation of the Gemara for the Machlokes in the Beraisa, which woman is the Beraisa discussing -- the wife of a Kohen, or the wife of a Yisrael?
RASHI (DH Hacha b'Mai Askinan) explains that the Beraisa is not discussing an Eshes Kohen (the wife of a Kohen) who made herself Asur with a Neder, because that Halachah is not the subject of dispute between Rebbi Eliezer and Rebbi Yehoshua, but rather it is the point about which Abaye and Rava argue. Rather, says Rashi, the Beraisa is discussing the wife of a Yisrael who made the Neder. Had she been Asur to him for reasons other than the Neder, it would be clear that he would not have had to redeem her. Since the Isur came about through the husband's upholding of the Neder, Rebbi Eliezer says that he is the cause of the Isur and therefore he has no right to exempt himself from redeeming her.
Rashi's words are very difficult to understand. Rashi seems to be saying that the case of the Beraisa is one in which there would be no obligation to redeem her if not for the fact that he caused the Isur. Why, then, does he say that it is only discussing an Eshes Yisrael (the wife of a Yisrael)? According to Rava, it could also be discussing an Eshes Kohen, since there, too, the husband would not have to redeem her had she been prohibited to him with a different type of Isur (like the Gemara eventually concludes when it says that the Machlokes between Rebbi Eliezer and Rebbi Yehoshua is whether we follow her status at the beginning of the marriage ("Me'ikara") or at the end ("ba'Sof"), after the Neder was made), and now that the husband caused the Isur, he is obligated to redeem her according to Rebbi Eliezer. But Rashi says that in the case of an Eshes Kohen, even according to Rava, Rebbi Eliezer and Rebbi Yehoshua agree (that the husband does not have to redeem her, despite the fact that he caused the Isur), and they only argue in the case of an Eshes Yisrael according to both Abaye and Rava! (RAMBAN, MAHARSHA)
(a) The MAHARSHA suggests that there is a printer's error in Rashi. When Rashi says that "they do not argue about an Eshes Kohen who is Asur because of a Neder," it should instead read that "they do not argue about an Eshes Kohen who is Asur because of reasons other than a Neder." Also, when Rashi repeats himself and says that the argument is about an Eshes Yisrael, he does not mean to limit their argument to an Eshes Yisrael, but he is merely mentioning Eshes Yisrael as an example of what the Tana'im argue about, since both Abaye and Rava agree that the Tana'im argue in that case. In truth, though, according to Rava the Tana'im will argue also in a case of Eshes Kohen.
The Maharsha's explanation is rather forced. Moreover, all the Rishonim cite Rashi's text as it appears in our Gemara and do not emend his words.
(b) The RAMBAN answers that when Rashi says that the Tana'im do not argue in the case of an Eshes Kohen, he means that they do not argue exclusively in the case of an Eshes Kohen, but rather they argue both in the case of Eshes Kohen according to Rava, and in the case of Eshes Yisrael according to both Abaye and Rava. Rashi mentions this to contrast the Gemara's original assumption that they argue exclusively in the case of Eshes Kohen. When Rashi says that they argue in the case of Eshes Yisrael, he means that they argue even in the case of Eshes Yisrael.
This approach is also very forced in the words of Rashi. Rashi says that in the case of Eshes Kohen, Rebbi Eliezer and Rebbi Yehoshua agree (either to the view of Abaye or to the view of Rava). Rashi is not just saying that they argue in the case of Eshes Yisrael in addition to the case of Eshes Kohen!
(c) Rashi might be trying to answer a question posed by all of the Rishonim on the Sugya. The Rishonim ask that in the Gemara's original assumption, when it thought that Rebbi Eliezer and Rebbi Yehoshua were discussing a man who prohibited his wife with a Neder from deriving benefit from him, the Gemara was satisfied to equate the Isur of Neder with every other type of Isur with which the woman could be Asur to her husband. The Gemara did not accept the possibility that in this case, since he created the Isur, we should be more stringent with him and force him to redeem his wife.
However, when the Gemara answers that the case of the Beraisa is where the woman made the Neder and the husband upheld it, the Gemara suddenly assumes that if he is at fault, then all Tana'im agree that he is obligated to redeem her, even in the case of an Eshes Yisrael. Why does the Gemara switch, in its assumptions, from one extreme to the other? It should have suggested that the case in the Beraisa is a case where the husband made a Neder to prohibit his wife, in which case Rebbi Eliezer obligates the husband to redeem her because of the newly suggested reasoning that "he caused the Isur," whereas Rebbi Yehoshua exempts him because he reasons like the Gemara held all along, that the Isur of Neder is the same as every other Isur (and the fact that it is his fault is irrelevant)! (Various answers to this question are offered by the Rishonim: See Ramban, and the Ba'al ha'Me'or cited by the Re'ah -- see also Pnei Yehoshua.)
Rashi is answering that even in its initial assumption, the Gemara originally knew that if the husband causes the Isur, the obligation to redeem her remains, since it is he who is causing the stipulation in the Kesuvah to be unfulfillable by making her unable to marry him after the redemption. The Gemara holds, though, as the RITVA suggests, that this logic can only be applied in the case of an Eshes Yisrael, where the Kesuvah links the obligation to redeem her to taking her back as a wife. In the case of an Eshes Kohen, though, the Kesuvah does not link the two; on the contrary, it says that he redeems her and then sends her to her former home. It is true that according to Rava, if she is Asur to the Kohen for an external reason (other than her captivity), then the Rabanan did not institute the obligation to redeem her. However, that is not part of the stipulation of redeeming that is described in the Kesuvah.
Therefore, if a Kohen husband prohibits his wife to him with a Neder before she is captured, he has not abused the condition in the Kesuvah (by actively causing the stipulation in the Kesuvah to be unfulfillable). He will not be obligated to redeem her, not because he made the condition unfulfillable, but because she is simply Asur to be married to him; the Rabanan did not institute the obligation to redeem the wife under such circumstances. If she has already been captured and then he makes the Neder, then he is clearly trying to free himself from the obligation. But if she has not yet been captured, we do not view his act of prohibiting her as an attempt to take advantage of a loophole in the Kesuvah so that he should not have to redeem her if she is captured. Hence, since the Gemara originally thought that the Beraisa was discussing an Eshes Kohen, it thought that it makes no difference if he caused the Isur -- he is not being Mevatel the Tenai in the Kesuvah!
When the Gemara switches tracks and says that the Machlokes between Rebbi Eliezer and Rebbi Yehoshua involves whose fault is the Isur, it must be discussing an Eshes Yisrael, whereby if the man is at fault, it makes a difference since he is actively making the condition in the Kesuvah unfulfillable and thus will have to redeem his wife. This explains why Rashi says that according to this conclusion of the Gemara -- that the Machlokes is whether he or she has caused the Isur and made the condition of the Kesuvah unfulfillable -- the case in the Beraisa cannot be that of an Eshes Kohen but will have to be an Eshes Yisrael, according to both Abaye and Rava. (M. KORNFELD -- see also HAFLA'AH.)
2) HALACHAH: "KESUVAS BENIN DICHRIN" TODAY
OPINIONS: We see from the Mishnah that the text of the Kesuvah once included the "Kesuvas Benin Dichrin," a clause promising to the wife's children her entire Kesuvah and Nedunya that she brought into the marriage, in addition to a portion of the rest of the possessions of the father (shared with the father's children from other wives). This applies even when a man may not marry two wives at the same time, in a case where a man marries a second wife after the first one dies (or is divorced). Nowadays, this clause is not written in our Kesuvos. Why not?
The ROSH (4:24) discusses at length whether the Kesuvas Benin Dichrin applies today. He cites a number of different opinions.
(a) The GE'ONIM cited by the ITUR rule that the Kesuvas Benin Dichrin is not practiced today. The reason it was instituted was in order to encourage a person to give a proper Nedunya to his daughter like he gives to his son. Today, though, people give such large Nedunyos to their daughters when they get married (to the extent that they give too much) that there is no longer any need for an enactment to ensure that they give to their daughters.
In addition, the Kesuvas Benin Dichrin is only practiced when there remains at least a Dinar in the estate of the father aside from the money of the Kesuvas Benin Dichrin. This is because the Torah law of inheritance must be fulfilled (by splitting the Dinar and giving it to the man's heirs) before the enactment of the Rabanan is executed. In order to assess whether or not there is a Dinar in his estate aside from the money of the Kesuvas Benin Dichrin, it is necessary to appraise in court the possessions of the deceased according to their true value without unfairly inflating their value to make it look like there is a Dinar so that the children may take their mothers' Kesuvos. Today, though, we cannot rely on getting an accurate estimate of the value of the possessions.
(b) The Rosh cites RAV HAI GA'ON and the MAHARAM who do not accept this argument, because it is not legitimate grounds for annulling an established enactment of the Rabanan like Kesuvas Benin Dichrin.
Nevertheless, some Rishonim accept the arguments of the Ge'onim at least partially. The Gemara (51a) states that the Kesuvah, along with Kesuvas Benin Dichrin and the other stipulations in the Kesuvah, may be collected only from land (Karka) and not from chattel (Metaltelin). However, at a later period, the Ge'onim instituted that a Kesuvah may be collected from Metaltelin (see RIF, p. 18b, #243, and end of 30b, #305). If so, the Kesuvas Benin Dichrin should also be collectible from Metaltelin and not just from Karka.
However, many Rishonim write that because of the arguments of the Ge'onim we should limit the Kesuvas Benin Dichrin as much as possible. Even though we allow it to be collected, it should be collected only from Karka and not from Metaltelin today (like the original Takanah). (ITUR, RAV MEIR HA'LEVI, RAMBAM (Hilchos Ishus 16:7), and RABEINU YONAH cited by the Rosh)
(c) However, TOSFOS (52b, DH v'Tigbah) writes that Kesuvas Benin Dichrin is a Tenai Kesuvah and therefore it may be collected from Metaltelin nowadays, just like the Kesuvah may be collected from Metaltelin after the enactment of the Ge'onim. This is also the ruling of the RITZBA cited by the Rosh and the ME'IRI.
HALACHAH: The SHULCHAN ARUCH (EH 111:14) quotes the latter two opinions, that the Kesuvas Benin Dichrin may be collected either from Karka only, or even from Metaltelin.