73b----------------------------------------73b

1) DOES A MAN PERFORM "BI'AH L'SHEM KIDUSHIN"?
QUESTION: Rav and Shmuel disagree about whether a man who marries a woman has specific intention for Bi'ah l'Shem Kidushin (72b). In the case of a man who marries a woman on condition that she has no Nedarim in force, Rav says that his Bi'ah with her is done l'Shem Kidushin so that it not be a Be'ilas Z'nus. Shmuel says that the man's Bi'ah is not done l'Shem Kidushin; rather, he has his stipulation in mind at the time of Bi'ah (so that if the woman does have a Neder in force, his Bi'ah is not for the sake of Kidushin but for Z'nus).
Rabah maintains that this dispute applies only in a case of "one wife like two wives": A man becomes betrothed (with Erusin) to a woman on condition that she has no Nedarim. He divorces her from the Erusin, and then he becomes betrothed to her again and marries her. Rav and Shmuel disagree about whether the Bi'ah after the second marriage is done l'Shem Kidushin or not. They agree that if he marries her right away after the first Erusin without divorcing her he does not have intention for Bi'ah l'Shem Kidushin in order to prevent a Be'ilas Z'nus.
RASHI (DH Machlokes b'Ta'us Ishah Achas) explains why Rav agrees that the husband does not intend to do Bi'ah l'Shem Kidushin in a case of one wife whom he married on condition that she not have Nedarim and she was found to have Nedarim. Since the man stipulated with the woman that he is marrying her on condition that she has no Nedarim and she agrees to marry him, he assumes that she does not have any Nedarim and that is why she agrees to marry him. He does not suspect that she has Nedarim and he thinks that his initial Kidushin took effect, and he does not have specific intent for Bi'ah l'Shem Kidushin since he thinks it is not necessary.
The Gemara challenges the view of Rabah from the Beraisa which states that if a man is Mekadesh a woman with Bi'ah on condition that his father agrees, the Tana Kama says that it is a valid Kidushin even if the father does not agree to it, while Rebbi Shimon ben Yehudah says that the Kidushin is valid only if the father agrees. This Beraisa disproves the view of Rabah, because even when a man marries one woman with a condition, he still intends to override and annul the condition at the time he performs Bi'ah with her in order that his Bi'ah not be a Be'ilas Z'nus.
What is the Gemara's question? In the case of the Mishnah, the man's stipulation involves something that already happened: he stipulated that she has made no Nedarim in the past that presently apply to her. In such a case, Rabah says that the man does not do Bi'ah l'Shem Kidushin because he assumes that she has no Nedarim (since she agreed to marry him).
In contrast, when a man marries a woman on condition that his father will agree, that condition depends on a future event, the father's consent. At the time of Bi'ah, since the decision of his father is not yet known the husband cannot assume that the condition has been fulfilled, and thus he certainly does Bi'ah l'Shem Kidushin. That case is more similar to a case in which he marries two women, and not to the case under discussion in which he marries one woman. (MAHARAM SHIF)
Similarly, why does the Gemara question Rabah from the case of a man who is Mekadesh a Ketanah? The Beraisa says that according to the Chachamim, if the Ketanah becomes an adult while married to him the Kidushin is a Kidushin d'Oraisa because the husband does not want his Bi'ah to be a Be'ilas Z'nus (that is, he does not want the Kidushin to remain with the status of a Kidushin d'Rabanan). How is that case comparable to the case in which a man marries one woman with a stipulation that is not fulfilled ("Ta'us Ishah Achas")? The cases are not comparable! In the case of "Ta'us Ishah Achas," the man has reason to assume that she has no Nedarim and that is why he does not do Bi'ah l'Shem Kidushin. In contrast, in the case of the Ketanah who grows up while married to him, the man knows that the original Kidushin was not a fully valid Kidushin until now, and therefore he knows that in order for the Bi'ah not to be a Be'ilas Z'nus he knows that he must do Bi'ah l'Shem Kidushin! (BEIS YAKOV)
ANSWER: The Gemara apparently assumes that when a person is Mekadesh a woman with Bi'ah on condition that his father approves, he does not do so unless he is confident that his father will agree to the marriage. Therefore, it is possible that the man does assume that his condition will be fulfilled and the Kidushin will take effect, just as when he marries a woman on condition that she has no Nedarim and he relies on her consent as an indication that she has no Nedarim.
In the case in which a man is Mekadesh a Ketanah, the Gemara assumes that since the Rabanan instituted that Kidushin take effect (Kidushin d'Rabanan) with a Ketanah who has no father, most people do not realize that the Kidushin does not take effect mid'Oraisa. Therefore, he will rely on the Kidushin d'Rabanan and he will not consider the possibility that he must do Bi'ah with her l'Shem Kidushin when she becomes an adult. (M. KORNFELD)

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