1) A KESUVAH OF AN INVALID MARRIAGE THAT BECAME VALID
QUESTION: The Mishnah states that when a father marries off his son as a Katan, and the son remains married until he reaches adulthood, the original Kesuvah remains binding. The Mishnah states that the same Halachah applies to a man and woman who were married as Nochrim and converted. They remain married with intention that the original Kesuvah (written while they were Nochrim) should remain binding.
The Gemara says that in each case, only the principal amount of the Kesuvah (100 Zuz for an Almanah, 200 Zuz for a Besulah) remains. The husband is not required to pay the Tosefes (the extra money that he wrote in the original Kesuvah) because, as Rashi explains, the original Kesuvah document itself was not valid (since the original marriage was not a legal Jewish marriage). The husband's only obligation to his wife is based on the "Tenai Beis Din" that requires every husband to give his wife the basic Kesuvah, whether or not a Kesuvah document was written.
If the original Kesuvah indeed is null and void, why does the Mishnah state that "the original Kesuvah is intact... because he kept her as his wife on that condition"? Even without the original Kesuvah the husband is automatically required to pay his wife the basic amounts of the Kesuvah (because of the Tenai Beis Din), so in what way is the original Kesuvah intact? (TOSFOS DH Lo)
(a) The Rishonim cite RABEINU TAM (see Tosfos ha'Rosh, Ritva) who answers that the Mishnah means that even though the document has no validity with regard to the time before the marriage took effect legally, it is considered a valid document from the time that the marriage took effect legally (i.e. after the Katan reached adulthood or after the Nochrim converted). Hence, any land of the husband's that was sold before the legal marriage cannot be collected for the Kesuvah; it is not considered Nechasim Meshubadim. Any land of the husband's that was sold after the legal marriage may be collected for the Kesuvah.
Normally, a pre-dated contract of debt is invalid because it implies that the lien on the property started from the earlier date written in the document and thus it will cause a loss to the buyers who purchased the property from the borrower (or husband) before the actual date of the loan (or marriage). The Mishnah, however, teaches that in the case of the Kesuvah of a Katan who reached adulthood there is no such concern, and the original document, albeit pre-dated, may be used because no one could have purchased land from the Katan before the marriage became valid (when he reached adulthood), since a Katan does not have the authority to sell land! Therefore, the document is valid even though it is pre-dated.
(b) The TOSFOS HA'ROSH does not accept this explanation because it does not answer why the Kesuvah of the Ger is acceptable, as a Ger was able to sell land when he was a Nochri. The Tosfos ha'Rosh also asserts that the manager (Apotropos) of the estate of a Katan may sell property on behalf of the Katan, and thus there should be a concern that the buyers will lose their property!
The Tosfos ha'Rosh, as well as TOSFOS (DH Lo), therefore assert that the Mishnah means that although the original Kesuvah is not valid, the woman nevertheless receives a Kesuvah of a Besulah (200 Zuz) as she would have received had the original marriage been valid, even though at the time the marriage took effect she was no longer a Besulah. In that sense, the original Kesuvah obligation still remains.
This apparently is because the Kesuvah of a Besulah is greater due to the more intimate relationship a man has with his wife whom he married as a Besulah (see Tosfos to 4a, DH Be'ilas; RASHBA to 11a, the second Mishnah). Since the present marriage of the Katan is a continuation of the marriage-like relationship he had with his "wife" before he reached maturity, their relationship is considered to be that of a man and his Besulah wife, rather than that of a man and his Be'ulah wife. (TOSFOS in Sanhedrin (76b) proves from the Mishnah here that although the act of Nisu'in performed by a Katan is not valid, nevertheless his Bi'ah is not considered Be'ilas Z'nus. This shows that the logic that a man gives the woman the Kesuvah based on her status at the beginning of their relationship applies only when the beginning of the relationship was not deemed Z'nus. If the relationship started with Z'nus, she would receive a Kesuvah of only 100 Zuz. See also DAGUL MEREVAVAH EH 67:6.)
An important question may be asked on Tosfos' explanation. Why should a Ger be required to give the wife with whom he converted the Kesuvah of a Besulah (200 Zuz)? The Gemara earlier (11a) teaches that a Nochris older than three years of age is always considered to be a Be'ulah. Thus, even when the Nochri originally married her she had the status of a Be'ulah. Consequently, she should not be entitled to receive 200 Zuz for her Kesuvah but only 100 Zuz.
The Rishonim suggest a number of answers to this question:
1. The TOSFID RID says that the case of the Mishnah is where a Nochri (before he converted) married a Jewess, and thus she was indeed a Besulah at the time of the marriage.
The Rishonim strongly reject this explanation because the wording of the Mishnah implies that both the husband and wife became Gerim. Moreover, the Mishnah would not teaching a Halachah for someone who performed an Isur (a woman who married a Nochri).
2. The RIVASH and others say that the case of the Mishnah is where a Nochri married a Nochris when she was under three years old. In such a case, she was certainly a Besulah when she was married (see Mishnah 11a), and thus she receives 200 Zuz for her Kesuvah.
3. The CHELKAS MECHOKEK (EH 67:13) explains that Tosfos is of the opinion that the woman receives 200 Zuz only when her husband actually wrote a Kesuvah for her when they were Nochrim. Although he is not obligated to give her 200 Zuz based on what he originally wrote in the Kesuvah, he presumably remains married to her with the intention that the original obligation should remain in force, since he considered her a Besulah at the time (see also IGROS MOSHE EH 1:101).
The RAMBAM, however, rules that in the case of the converts the woman indeed receives only 100 Zuz for her Kesuvah, even though her original Kesuvah was for 200 Zuz (Hilchos Ishus 11:7; see also Shitah Mekubetzes in the name of "Rabeinu Moshe"). According to the Rambam, what does the Mishnah mean when it says that "the original Kesuvah remains intact"?
(c) The RITVA answers that the Mishnah does not teach anything about the amount of the Kesuvah that she receives. Rather, it teaches that she is eligible to receive the Kesuvah.
He explains that although the couple did not have a formal marriage after the Katan reached adulthood, or after the Nochri converted, they are considered legally married because of "Ein Adam Oseh Be'ilaso Be'ilas Z'nus"; a man does not want his relations to be done in a spirit of promiscuity. This type of marriage happens without explicit intent for marriage on the part of the husband but through the assumption ("Umdena") that he certainly would prefer marriage to extra-marital relations. One might have thought that for an "unplanned" marriage such as this, the Rabanan did not institute a Kesuvah. Therefore, the Mishnah teaches that this is not so; his wife has the rights to a Kesuvah since "he kept her as his wife on that condition." This may be the way the Rambam (see end of (b) above) understands the Mishnah as well.