1) EXEMPTING ONE'S WIFE FROM A SHEVU'AH
QUESTION: The Mishnah (end of 86b) describes how a husband may exempt his wife from having to make a Shevu'ah to him or to his heirs when she wants to collect her Kesuvah. The Gemara here cites Aba Shaul who says that if a husband exempts his wife from a Shevu'ah, whether he says, "There should be no Shevu'ah," or "You should be clean from a Shevu'ah," and whether he exempts her from a Shevu'ah or a Neder in such a manner, she really should be exempt from making a Shevu'ah when she collects her Kesuvah either from him or from his heirs. However, says Aba Shaul, "What can I do? The Chachamim said that when she collects the Kesuvah from orphans, she must make a Shevu'ah."
What does Aba Shaul mean? If the husband exempted her from a Shevu'ah, she should not need to make a Shevu'ah even when she collects from the orphans, as the Mishnah states!
(a) The RIF and RAMBAM (Hilchos Ishus 16:20) explain that to exempt one's wife from making a Shevu'ah when she collects from his heirs, the husband must say a clear and explicit wording of exemption to her, such as the wording recorded in the Mishnah. When he says a slightly ambiguous wording (such as, "There should be no Shevu'ah," or "You should be clean from a Shevu'ah"), his statement is not able to exempt her from a Shevu'ah to collect from the heirs, even though it does exempt her from a Shevu'ah to collect from him. The reason for this, the RAMBAN explains, is that the Rabanan instituted that a woman must make an oath in order to collect her Kesuvah from the orphans, and it is not assumed that the husband intended to uproot this enactment of the Rabanan unless he stated so unequivocally.
(b) However, the other Rishonim (RI, RASHI according to the RITVA, the ROSH, and others) point out that the Gemara later (88b) implies that the Chachamim disagree with Aba Shaul and maintain that the man may exempt his wife from a Shevu'ah even when she collects from the orphans. Accordingly, the Mishnah follows the opinion of the Chachamim, and Aba Shaul indeed argues with the opinion expressed in the Mishnah. Aba Shaul maintains that although the husband may exempt his wife from the Shevu'ah of an Apotropos or the Shevu'ah of a Pogemes, he may not exempt her from the Shevu'ah of collecting from orphans.
The SHITAH MEKUBETZES (in the name of TALMIDEI RABEINU YONAH and RIVASH) points out that this explains Aba Shaul's strange phraseology, "She should be exempt, but what can I do? The Chachamim said that when she collects the Kesuvah from orphans, she must make a Shevu'ah." He means that she indeed will be exempt from the Shevu'ah of an Apotropos or Pogemes, but that exemption will not help her practically; as soon as she attempts to collect her Kesuvah she will have to make the Shevu'ah of a woman who collects her Kesuvah from orphans, which includes the Shevu'ah of that an Apotropos or Pogemes must make.
The Rishonim point out that even according to Aba Shaul there is a way to exempt a wife from a Shevu'ah when she collects from the orphans:
1. Aba Shaul discusses only a case in which the husband verbally exempts her from a Shevu'ah, but when he writes in a contract that she is exempt from a Shevu'ah she indeed is exempt (according to the RASHBA).
2. The RASHBA and TALMIDEI RABEINU YONAH add that the wife is also exempt from a Shevu'ah to the orphans when her husband makes a Kinyan on his declaration of her exemption.
3. Talmidei Rabeinu Yonah add that if the husband points to specific items of his property and says that she may collect from those items without making a Shevu'ah, the exemption takes effect since the heirs inherit only the property with the pre-existing condition that the wife will not have to swear upon its collection.
HALACHAH: The SHULCHAN ARUCH (EH 98) rules like the Rambam that a clear, unambiguous wording does exempt the woman from the obligation to make a Shevu'ah to collect her Kesuvah from the heirs. The REMA, on the other hand, rules like the Rosh that even an explicitly-worded exemption cannot exempt her, since the Halachah follows Aba Shaul and the Tana of the Mishnah.
However, if the wife dies before she collects the Kesuvah, her children may collect the Kesuvah from the husband's heirs without a Shevu'ah. If they would be required to make a Shevu'ah, they would not be able to collect at all since the Shevu'ah was the mother's requirement and she cannot bequeath to her children the requirement to make a Shevu'ah ("Ein Adam Morish Shevu'ah l'Vanav"). The Chachamim are not so stringent on the woman's family as to enforce the requirement for her to make a Shevu'ah if it prevents her children from collecting the Kesuvah altogether.
In the other cases which the Rishonim mention in which even Aba Shaul agrees that the husband may exempt his wife from a Shevu'ah to collect from the heirs, the CHELKAS MECHOKEK writes that since the Rema does not mention them he apparently does not accept those opinions, and he makes no exceptions to Aba Shaul's ruling.