KESUVOS 56 - 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) WRITING A RECEIPT FOR A PARTIAL PAYMENT OR PARTIAL WAIVER OF A KESUVAH
QUESTIONS: Rebbi Yehudah in the Mishnah (54b) states that a person may give his wife a Kesuvah in which he obligates himself to pay 200 Zuz, and in return she gives him a written affidavit that she has received 100 Zuz, so that she is entitled to collect only 100 Zuz of the Kesuvah, forgoing the other 100 Zuz. The Gemara proves from here that Rebbi Yehudah maintains that in a situation where a partial payment of a loan was made, a receipt is written for the partial payment and given to the borrower instead of the lender having to replace the original Shtar with an entirely new Shtar with the remaining amount of the loan.
The Gemara asks that Rebbi Yehudah contradicts his opinion expressed elsewhere, where he states that when one makes a partial repayment of a loan, the lender must rewrite the Shtar for the remaining amount, and the lender may not force the borrower to accept a receipt for the partial amount that he repaid.
(a) The Gemara's question is very difficult to understand. When Rebbi Yehudah rules that, in general, a receipt for partial payment is not written, he means that the lender cannot force the borrower to accept a receipt instead of having a new Shtar written. The Mishnah here, however, discusses a man who willingly writes a Kesuvah for 200 Zuz and accepts a receipt from his wife that he only owes her half. He chooses to accept the receipt from her and he is not forced to do so. It is obvious that Rebbi Yehudah agrees that in such a case he may accept a receipt. (RASHBA)
(b) Moreover, there are certain situations in which writing a receipt cannot be avoided, as we learned earlier (16b). One such situation is where a person makes a partial payment for a Kesuvah. Since a Kesuvah is a Tenai Beis Din and thus it may be collected even without a Shtar, rewriting the Kesuvah with the new amount will not protect the husband. The wife still can hide the Kesuvah and state that she is coming to claim the full amount on the basis of the Tenai Beis Din. Alternatively, even if she comes with the new Kesuvah (in which it is written that he owes her only 100 Zuz), she can claim that her husband refused to write her a Kesuvah for 200 Zuz and she is really entitled to collect the full amount of 200 Zuz based on the Tenai Beis Din. The only way to protect the husband is by giving him a receipt for the partial payment of the Kesuvah. Why, then, does the Gemara consider this receipt a contradiction to Rebbi Yehudah's opinion that normally a receipt is not written? In this case, there is no other option; a receipt must be written. (RE'AH; REBBI AKIVA EIGER)
(a) The Rishonim explain that although the situation in the Mishnah does not prove that one may force a borrower to accept a receipt, the wording of the Mishnah implies, in a number of ways, that this is the case according to Rebbi Yehudah.
1. The RASHBA (in Kidushin, and in Teshuvos ha'Meyuchasos #100) writes that the wording in the Mishnah implies that Rebbi Yehudah is suggesting that the proper way for a woman to forgo part of her Kesuvah is not by writing a 100 Zuz Kesuvah, but by giving the husband a receipt for 100 Zuz and writing in the Kesuvah the full amount of 200 Zuz. The Rabanan instituted this as the way for a woman to forgo half of the Kesuvah. If there would have been a Halachah that normally the borrower is not forced to accept a receipt, then the Rabanan should not have suggested that the Mechilah of the Kesuvah be done in such a fashion. They should have considered that an inexperienced Beis Din might erringly assume that if the Rabanan instituted that a receipt be given for a partial payment (or Mechilah) of a Kesuvah, then it must be that a person may always be forced to accept a receipt. Alternatively, they should have considered that people who borrow money might think that they must receive a receipt for a partial repayment and are not entitled to write a new Shtar.
2. The TOSFOS HA'ROSH suggests that since the Mishnah does not mention the option of writing a 100 Zuz Kesuvah in the first place, it implies that the husband does not have the right to do such a thing. He must accept a receipt.
(b) In response to the second question, the RE'AH answers that although it is not possible to avoid giving a receipt to the husband for the half of the Kesuvah that she was Mochel, nevertheless -- according to the opinion that says that a receipt is not written -- Beis Din is obliged to do whatever it can for the benefit of the borrower (or the one who owes the money, such as the husband in the case of the Kesuvah), even when a receipt is written.
In the case of the Mishnah, it will be more advantageous for the husband not to have a receipt written, and to have the Kesuvah written again with only 100 Zuz, than to have a Kesuvah of 200 Zuz with a receipt, because a Kesuvah with 200 Zuz will make it easier for her to lie (she will be less embarrassed to be so brazen) in the event that he loses the receipt. Since the Mishnah says that the Kesuvah was written for 200 Zuz (and not for 100 Zuz), obviously the husband does not have the upper hand, and the Mishnah therefore must maintain that a receipt is written for the husband.
2) MAKING A CONDITION AGAINST SOMETHING WRITTEN IN THE TORAH
QUESTION: The Gemara cites a Machlokes between Rebbi Meir and Rebbi Yehudah about whether a person may make a condition to modify the obligations stipulated by the Torah in the case of monetary law ("Masneh Al Mah she'Kasuv ba'Torah"). Rebbi Meir says that if a man betroths a woman on condition that he not be obligated to provide her with She'er, Kesus, and Onah, the condition is invalid and the Kidushin takes effect fully (and he is obligated to provide her with She'er, Kesus, and Onah). Rebbi Yehudah says that the condition is valid, and the Kidushin takes effect and he is not obligated to provide her with She'er, Kesus, and Onah.
Rebbi Meir's view is difficult to understand. If the Tenai is null and void, why should the Kidushin take effect at all? The man betrothed the woman on condition that if he is not obligated to give her She'er, Kesus, and Onah, then he wants the Kidushin to take effect, and conversely, if he will be obligated to give her She'er, Kesus, and Onah, then he does not want the Kidushin to take effect! (Rebbi Meir requires a "Tenai Kaful" -- both sides of the condition must be stated explicitly -- whenever a Tenai is used, as the Mishnah says in Kidushin 61a.) Since the man specified clearly that he does not want the Kidushin to be valid if he will be obligated to give She'er, Kesus, and Onah, how can the Kidushin take effect and obligate him in She'er, Kesus, and Onah? He did not have in mind for the Kidushin to take effect under such circumstances! (TOSFOS DH Harei Zu)
(a) The RI explains that all of the laws of Tenai, including the very fact that one may make a Tenai, are derived from a verse (cited in Kidushin 61a). If not for the fact that the Torah teaches that there is such a thing as making a Tenai, one would not have known that there is a concept of Tenai at all. Had the Torah not taught the concept of Tenai -- that one may make a stipulation when he makes a Kinyan -- one would have thought that when a person makes a Tenai as a precondition to a certain Kinyan, his words are ignored and the Kinyan takes effect. By teaching that a Tenai works, the Torah teaches that if the condition is not fulfilled the Kinyan is annulled retroactively. In the situations in which the Torah does not teach that a Tenai works (such as a situation in which the Tenai counters that which is written in the Torah), the Halachah reverts to the original way one would have ruled had the Torah not taught the concept of Tenai, and thus the Kinyan works regardless of the fulfillment of the Tenai.
This answer of Tosfos is very difficult to understand. Even if the Torah would not have taught the laws of Tenai, it should be logical that if a person sells an item to his friend and stipulates that the sale should not be valid unless his friend gives him something or does something, if the friend fails to fulfill the condition the sale should not be valid since the owner did not fully commit himself to the sale.
To answer this question, it is necessary first to analyze a related Halachah -- the Halachah of Bereirah. The Gemara mentions in many places the view that "Ein Bereirah," which means that a Kinyan cannot be effected if, at the moment that it takes effect, it is not clear upon what it takes effect. For example, a person cannot pick up an item in order to acquire it and say, "If it rains tomorrow, I want this act of Kinyan to be for Reuven, and if it does not rain tomorrow, I want this act of Kinyan to be for Shimon." If a person does make such a stipulation, even if it rains the next day the object will not belong to Reuven. Similarly, a person cannot eat fruit today and say, "The portion that I will choose to separate tomorrow will be Terumah on these fruits starting from now." If he does so, even if he separates a portion tomorrow it will not serve as Terumah.
The logic for this, as the RAN explains in Nedarim (45b), is that "it is not appropriate for a Kinyan to take effect in a way that leaves a doubt as to how it took effect." This means that the Kinyan must take effect at the same moment at which the action which accomplishes the Kinyan is performed (such as the act of Hagbahah (lifting up an item) in the case of a purchase, or Dibur (speech) in the case of making something Terumah). The Kinyan cannot take effect after the act because the act which makes the Kinyan is no longer present. Thus, if at the moment that the act is performed the Kinyan "does not know" where to take effect, the Kinyan does not take effect (or it takes effect on one of the two, regardless of what happens the next day; see Insights to Eruvin 37b). A Kinyan now cannot take effect based on a future event.
What is the difference between Bereirah and a Tenai? Why should any Tenai ever work if the Halachah is "Ein Bereirah"? The Kinyan cannot take effect based on a future event (the fulfillment of the Tenai)!
RASHI and TOSFOS (Gitin 25b, DH ul'Chi Mayis) explain that when a person makes a Tenai it is in his ability (and it is his intention) to fulfill the condition (for otherwise he would not have made the Kinyan in the first place). Hence, the Kinyan is not taking effect in a manner which leaves doubt. Rather, it takes effect for certain at the time the act of Kinyan is made since he intends to fulfill the Tenai. What, then, revokes the Kinyan retroactively when the condition is not fulfilled? The Kinyan has already been made and completed; it took effect, so how can it be revoked retroactively? The answer is that this is the reason why the Torah must teach the novel concept of Tenai: even though the Kinyan was made, it can be revoked through a lack of fulfillment of the condition. This is the intention the Ri: since the Torah does not teach the concept of Tenai in a case in which the Tenai contradicts the obligations of the Torah, the Halachah reverts to the law that the Kinyan is completed and nothing can uproot it retroactively since it has already been done and has already taken effect. The person who made the Kinyan did intend for the Kinyan to take effect, since he was expecting the Tenai to be fulfilled.
For this reason, when a man betroths a woman on condition that he not be obligated to give her She'er, Kesus, and Onah, he obviously thinks that he is able to create such a Kidushin and he has in mind that the Kidushin should be completed, except that it should be uprooted if it turns out that he is obligated to give her She'er, Kesus, and Onah. By that time, however, it is too late to revoke the Kidushin since it already took effect.
(b) RABEINU TAM (cited by the Tosfos Yeshanim and the Tosfos ha'Rosh), the RITVA, and the RASHBA (cited by the Shitah Mekubetzes) explain that when a person makes a Tenai that contradicts the Torah, he does not really intend for the stipulation to be binding. Rather, he merely is "Mafligah b'Devarim" -- he is just frightening her with words. The Beraisa in Gitin (84a) teaches such a concept with regard to a man who says to his wife that he is giving her a Get on condition that she does something that is physically impossible to do (see Rashi there, DH Mafligah). Since he knows that the Halachah of the Torah requires that Kidushin be done in a definite way with definite obligations, it must be that he is not serious about his condition to alter those obligations, and therefore he probably has in mind for the Kidushin to take effect and he is just saying the condition in order to frighten her.
Perhaps the reason why Rabeinu Tam rejects the explanation of the Ri is that the Ri's explanation is logically sound only when the condition is something that will be fulfilled or not fulfilled at a point after the Kinyan is completed. In the case of Kidushin, the Kidushin takes effect at the same time that the obligations of She'er, Kesus, and Onah take effect (or do not take effect). Thus, since the Kidushin does not depend on a future event but on a present event, the Kidushin should not take effect (since he did not have in mind to make such a Kidushin that obligates him in She'er, Kesus, and Onah). (See also Rebbi Akiva Eiger.)
The Ri perhaps understands, as the Rashba explains, that the condition that the husband stipulated was not that Kidushin should take effect without the obligations of She'er, Kesus, and Onah. Rather, the husband stipulated that Kidushin should take effect only if the woman forgoes her entitlement to She'er, Kesus, and Onah. This can take place after the Kidushin is effected. (This is not like the opinion of Rabeinu Elchanan as quoted later in Tosfos.)
The Ri, on the other hand, does not accept Rabeinu Tam's explanation because "Mafligah b'Devarim" applies only to a Tenai made against something written in the Torah, but not to a Tenai which neglects any of the other laws of Tenai. When a person makes a Tenai in the wrong order ("Ma'aseh Kodem le'Tenai"), the Kinyan takes effect and the Tenai is ignored even though the logic of "Mafligah b'Devarim" does not apply (as the RE'AH points out).