1) WHO COLLECTS THE KESUVAH -- THE "HUSBAND" OR THE "CHASAN"?
QUESTION: Rebbi Yosi in the Beraisa teaches that in a place where a dowry is written in the Kesuvah as a loan (i.e. at its proper value), it is considered a loan and the woman's father must give the full amount to the Chasan. If she later collects the Kesuvah, she collects the full amount. In a place where they write double the amount of the dowry (to honor the Kalah), her father gives to the Chasan half of the amount written, and if she later collects the Kesuvah, she collects half of the amount written.
RASHI (DH Goveh Milveh) first describes the collection of the Kesuvah as "Ba'al Goveh me'Avi ha'Bas" -- "the husband collects from the father of the woman." However, just a few lines later Rashi (DH Goveh) refers to the collection of the Kesuvah as "he'Chasan me'Chamav" -- "the groom from his father-in-law. In his next comment (DH Magbei Shivcha), Rashi returns to his earlier description and says that the collection is made "me'Avi ha'Bas," "from the father of the woman." What is the reason behind these changes in the words of Rashi?
(a) In a place where the Kesuvah is treated like a loan (Milveh), the parties involved are like any other lender and borrower (Malveh and Loveh), with no particular relationship between them. Therefore, Rashi says that the "father of the woman" pays the husband.
In a place where twice the actual amount is written in the Kesuvah in order to give honor to the parties involved, the whole point is to give honor to the marriage taking place. Therefore, Rashi emphasizes that the "groom collects from his father-in-law." (M. KORNFELD)
(b) RAV YAAKOV D. HOMNICK explains that the reason why Rashi alters his wording when he refers to one who collects the Nadan, the dowry, is as follows. The primary element of the Kesuvah contract is the money that will be paid in the end (to the woman or to her father) upon the husband's death or divorce. This amount is known as the "Kesuvah" itself. In contrast, the dowry (Nadan) that is paid at the time of the marriage is secondary.
The relationship of the payment of the Kesuvah to the payment of the Nadan is a converse relationship: whatever happens at the time of the payment of the Kesuvah happens at the time of the payment of the Nadan in the other direction. That is, the woman (or her father) receives the Kesuvah payment later, while the husband receives the dowry payment now.
When a change in the manner or form of payment of the actual Kesuvah money (i.e. in the primary element of the Kesuvah, as mentioned above) is stipulated, the same change happens for the dowry. This is because the person who benefits from the change later, in the primary element of the Kesuvah, must concede now in order to keep his benefit later. The one who benefits at the time of the giving of the Kesuvah is considered the one who receives the primary benefit. When the Gemara discusses writing the Kesuvah as a Milveh, Rashi explains that the "father of the woman" ("Avi ha'Bas") must pay the dowry as a Milveh. Why does Rashi call him specifically "Avi ha'Bas"? Rashi calls him "Avi ha'Bas" because having the Kesuvah written as a Milveh is an advantage for the woman's side (i.e. the woman or her father) in that it entitles her to collect the Kesuvah later from Beinonis and not just from Ziboris, like a Milveh. This means that she (or her father) has won, so to speak, this point in the Kesuvah negotiations by having the payment of the Kesuvah upgraded to the level of a Milveh. However, in return for this benefit, the woman's side must pay the dowry (the secondary element of the Kesuvah contract) like a Milveh now at the time of the wedding. That is what she concedes in order to keep the benefit that comes later. Rashi focuses on the "winner" of the negotiations (that is, the one who gains on the main part of the Kesuvah), and therefore he says that the "Avi ha'Bas" (who is the winner on the Kesuvah side) must pay like a Milveh on the dowry side.
When the Gemara says that in a place where double the actual amount is written in the Kesuvah (because of Kavod), only half of what is written is actually paid, Rashi explains that the "Chasan collects from his father-in-law." Rashi here emphasizes that it is the Chasan who collects the dowry because with regard to the main part of the Kesuvah (i.e. what the husband will have to pay later), it is the Chasan who is the winner, for he benefits by having to pay only half of what is written. Since he benefits in the main part of the Kesuvah, he must concede with regard to what he receives for the dowry. To emphasize that he is the one who is benefiting from the Kesuvah, Rashi explains that the "Chasan collects from his father-in-law" half of the amount written.
In his next comment (DH Magbei Shivcha), Rashi says that the husband collects from the "Avi ha'Bas," again focusing on the father of the woman, because again it is he who wins at the end with regard to the main part of the Kesuvah.
OPINIONS: The Gemara relates an incident in which a person made a sharecropping agreement with a fieldowner. In the agreement, he promised to pay an exaggerated fine of 1000 Zuz if he neglected to work the land. He ended up leaving a third of the land fallow. Neharda'i ruled that he was obligated to pay one third of the 1000 Zuz, corresponding to the third of the land that he left fallow. Rava ruled that his promise was an "Asmachta" and therefore not binding.
The Gemara asks that Rava's ruling is contradicted by the Mishnah. The Mishnah states that when the sharecropper promises that he will pay for what the field would have produced in the event that he leaves it fallow and does not work it, his commitment is binding. Rava answers that when his commitment is not exaggerated, it is not an Asmachta and is binding, but when it is exaggerated (such as a commitment to pay 1000 Zuz), it is an Asmachta and is not binding.
The concept of "Asmachta" is mentioned a number of times throughout the Gemara. What is the definition of "Asmachta"? Three different, but not necessarily mutually exclusive, descriptions of "Asmachta" are offered by the Rishonim.
(a) The Gemara here defines an Asmachta as an agreement with exaggerated terms ("Guzma," "Milsa Yeseira").
(b) The SEFER HA'CHINUCH (#343) defines an Asmachta as any stipulation that is phrased as a penalty, even if it is not stated in exaggerated terms. The Sefer ha'Chinuch agrees that an exaggerated commitment is also considered an Asmachta, even when it is not described as a penalty, as is evident from the Gemara here.
This description of Asmachta is derived from a statement of Rabah earlier (66b). Rabah states that "any [statement of] 'if' is not binding" ("Kol 'd'Iy' Lo Kani"). This means that a statement such as, "If I do not [do a particular action, then I will have to do such and such]," is a form of penalty and is considered an Asmachta. Therefore, such a statement is not binding.
(c) A third possible type of Asmachta is defined by the Gemara earlier (73b-74a) as a case in which a person agrees to a condition that is not in his control. The Gemara there discusses a person who is appointed as a Shali'ach to buy wine and who agrees that if he fails to purchase the wine, he will pay his employer the profits that he would have earned if he had bought it. In that case, it is not fully in the Shali'ach's control ("b'Yado") to buy the wine, because the sale is subject to the consent of the seller who might not agree to sell. The Gemara there states that this is an Asmachta because it is "not in his control."
TOSFOS there explains that there are three levels of something that is beyond a person's control. The first level is a condition which is completely out of a person's control (for example, when a person gambles with dice). Tosfos says that such a case is not considered an Asmachta. Anyone who agrees to such a risk knows from the outset that he has no control over the matter. Therefore, it is understood that he consented all along to lose his money. (This level is called "Ein b'Yado Klal, Gamar u'Makni.")
At the other extreme is the fulfillment of a condition which is completely within a person's control. Such a condition, too, is not considered an Asmachta.
The only case that is considered an Asmachta, according to Tosfos, is a case in which the condition is not completely beyond the person's control, but it is also not completely within his control. An example of such a case is the Gemara's case earlier, concerning a Shali'ach who says that he will buy wine. The act of buying wine is partially, but not entirely, within his control ("b'Yado"), since it also depends on the consent of the seller. (Y. MARCUS)
3) HOW MUCH MUST A SHARECROPPER PAY FOR BEING NEGLIGENT
OPINIONS: The Gemara relates an incident in which a person made a sharecropping agreement with a fieldowner. In the agreement, he promised to pay an exaggerated fine of 1000 Zuz if he neglected to work the land. He ended up leaving a third of the land fallow. Rava ruled that his promise was an "Asmachta," and therefore it was not binding.
Although in such a situation, a sharecropper does not have to pay the exaggerated penalty, does he have to pay the owner for the amount of produce that the field would have produced had he worked it?
(a) The RIF maintains that although a sharecropper is not obligated to pay the exaggerated penalty, he is not exempt from paying the value of the fruit that the field would have produced had he worked the field. The Rif reasons that when a sharecropper promises to pay 1000 Zuz as a penalty, that promise includes an agreement to pay the amount of potential profit that would be lost. (That amount certainly is less than 1000 Zuz, and "Bichlal Ma'asayim Manah" -- the promise to pay the larger amount includes within it a promise to pay the smaller amount.) The Mishnah teaches that a promise to pay the amount of potential profit lost is binding, since it is not an exaggerated promise.
The Rif cites further proof to his opinion from the Gemara later (109a) which discusses the Halachah when a sharecropper (who normally receives half of the profits) agrees that if he is negligent and causes a loss, he will not be entitled to receive anything, even a share of the profit which was produced. Rava rules that this is an Asmachta and is not binding, and the sharecropper therefore receives a share in the profit which was produced. However, Rava adds that although the sharecropper does not forfeit all of his wages, the exact amount lost as a result of his negligence is deducted from his wages. The Rif concludes from this statement of Rava that although a sharecropper is not penalized with an exaggerated amount, he nevertheless is penalized with a reasonable amount when he enters into such an agreement. Similarly, in the case of the Gemara here, although the sharecropper is exempt from the exaggerated fine of 1000 Zuz, he would be obligated to pay the reasonable amount of potential profit that was lost.
(b) The ROSH (9:7) disagrees with the Rif. He maintains that since the exaggerated condition of 1000 Zuz is not valid, the sharecropper is not obligated to pay anything. The Rosh makes a distinction between this case and the case of the Mishnah. Although the Mishnah rules that a sharecropper who committed to pay a reasonable amount (i.e. the amount of potential profit that was lost) is obligated to do so, in the Gemara's case -- in which he mentioned only an exaggerated sum -- his words cannot be "divided" and his commitment therefore is not binding at all. Regarding the Rif's proof from the Gemara later (109a), the Rosh asserts that the sharecropper's commitment to forfeit his wages is completely ineffective, and the value of the loss is deducted from his pay for an entirely different reason. Whenever a sharecropper is in the midst of working a field and is gaining the profits, a loss caused by his negligence is deducted from his wages even if he made no specific commitment. The case of the Gemara here, in contrast, is a case in which the sharecropper did not do any work at all on the field, and he therefore cannot be penalized unless he makes a commitment to that effect.
HALACHAH: The SHULCHAN ARUCH (CM 228:2) prefers the Rif's opinion. The VILNA GA'ON there (#3) mentions that the Rosh disagrees. (Y. MARCUS)