KESUVOS 109 (4 Sivan) - Dedicated by Rabbi Kornfeld's father, Mr. David Kornfeld, in memory of the members of his family who perished at the hands of the Nazi murderers in the Holocaust, Hashem Yikom Damam: His mother (Mirel bas Yakov Mordechai), brothers (Shraga Feivel, Aryeh Leib and Yisachar Dov sons of Mordechai), grandfather (Reb Yakov Mordechai ben Reb David Shpira) and aunt (Charne bas Yakov Mordechai, the wife of Reb Moshe Aryeh Cohen zt'l). Their Yahrzeit is observed on 4 Sivan.
12th CYCLE DEDICATION
KESUVOS 106-110 - Dedicated in memory of Max (Meir Menachem ben Shlomo ha'Levi) Turkel, by his children Eddie and Lawrence and his wife Jean Turkel/Rafalowicz. Max was a warm and loving husband and father and is missed dearly by his family and friends. His Yahrzeit is 5 Teves.
1) "SHE MUST WAIT UNTIL HER HAIR TURNS WHITE"
QUESTION: In the Mishnah (end of 108b), Admon and the Chachamim disagree about the law in a case in which a man promised to give his daughter's Chasan a certain sum of money and he does not fulfill his promise ("Pashat Lo Es ha'Regel"). According to the Chachamim, his daughter "must wait until her hair turns white," and her Chasan is obligated neither to marry her nor to give her a Get (to divorce her from the Erusin). Admon agrees that this would have been the law had she been the one to make the promise (and renege). However, since it was her father who promised to give the money, she is not required to suffer as a result of his dishonesty, and thus the Chasan must either marry her or give her a Get. (The REMA (EH 52:1) points out that this dispute applies only after Kidushin and before Nisu'in. After Nisu'in, however, the husband must fulfill all of his obligations to his wife even if he did not get what he was promised.)
What is the logic behind the ruling of the Chachamim? Why does the Chasan have the right to make the woman an Agunah until he receives the money that he was promised? If the Mishnah would refer only to a case in which the woman or her daughter acted maliciously, there would be grounds to cause the woman to suffer. However, the Mishnah refers even to a case in which the father is unable to pay the money (see second explanation of Rashi to "Pashat Lo Es ha'Regel") or died. Although Beis Din cannot force the Chasan to marry her (since the condition of a monetary payment was not fulfilled by the bride's side), Beis Din should force him to divorce her if she can prove that she does not have the means with which to pay him.
ANSWER: The TIFERES YAKOV (to EH 52:1) explains that the ruling of the Mishnah applies only in a case in which there was negligence or deception on the part of the father (for example, he did not have any money at the time that he promised to give the money to the Chasan, or now he has the money and he refuses to give it). If the father had the money at the time that he made his promise and then he lost it, Beis Din forces the Chasan to give the woman a Get.
This is also the approach of the ME'IRI on the Mishnah. He adds that although it was the father, and not the bride, who promised to give the money, the Chachamim nevertheless rule that since she is an adult (as the Gemara says) she bears some responsibility for the deception, which she certainly saw and did not prevent.
The Tiferes Yakov uses this approach to answer the question of TOSFOS (DH v'Afilu) on the Sugya that follows. The Gemara asks whether the Halachah follows Admon "even in the case of the Beraisa." Tosfos understands that this refers to the Beraisa cited earlier in which Admon rules that the Chasan must give his wife a Get even when she promised to give him money. Tosfos asks that in the Mishnah, Admon forces the Chasan to give his wife a Get only when the father promised to give money, but not when the bride herself promised, in which case Admon agrees that she must wait "until her hair turns white." It is clear that the Beraisa disagrees with the Mishnah. Why, then, does the Gemara ask whether the Halachah follows Admon "even" in the case of the Beraisa? If the Halachah follows Admon in the case of the Beraisa, then the Halachah is not like Admon as quoted in the Mishnah.
The Tiferes Yakov answers that the Beraisa clearly says that the woman prevails because she may claim that she thought that her father would give the money on her behalf. Admon maintains that this is a valid claim, and there is no negligence on her part. However, this claim is valid only when she obligated herself in the presence of her father. The Mishnah refers to when she obligated herself not in the presence of her father, in which case she cannot blame her father for not paying, and thus Admon agrees with the Chachamim that the Chasan is not forced to marry her or divorce her.
The Beraisa, therefore, does not contradict the Mishnah, but rather it adds an additional detail to the case -- if she promised in the presence of her father to give her Chasan money, she may claim that she relied on her father, and her Chasan must either marry her or give her a Get. The Gemara asks whether the Halachah follows Admon even in this case. (Mordechai Zvi Dicker)
2) ONE WHO CLAIMS THAT HE BOUGHT BACK HIS FIELD
QUESTION: The Gemara relates an incident in which a person said that the field in the possession of another person (the "Machzik") actually belongs to him, and that it was stolen from him and sold to the Machzik. However, the claimant's signature appeared in the bill of sale of the field to the Machzik. His signature in the Shtar is proof that the Machzik's purchase of the field was legitimate.
The Gemara continues and says that after the claimant died, the manager of his estate (Apotropos) attempted to reclaim the field for the orphans with various claims. One claim was that if the father of the orphans would have been alive, he would have said that it is true that he sold the field to the Machzik, but that he bought it back from him. Based on this claim, the Apotropos wins the case.
The Rishonim ask that after the claimant has admitted (through his signature on the bill of sale) that the field belonged to the Machzik, why is he believed to say that he bought it back? RASHI (DH Ne'eman) writes that since the claimant did not need to sign the Shtar, his subsequent claim that he bought back the field should be believed because of "Peh she'Asar Hu ha'Peh she'Hitir." The Rishonim do not accept Rashi's approach, because the claimant did not make this claim at the time that he signed the Shtar. Tosfos (DH Im) asserts that "Peh she'Asar" applies only when the "Heter" is articulated immediately ("Toch Kedei Dibur") after the "Isur." Why, then, should the claimant be believed to say that he bought back the field?
(a) TOSFOS answers that the Shtar on which the claimant's signature is found was never authenticated (with "Kiyum") in Beis Din. Accordingly, the claimant could have said that he bought back the field and he would have been believed with a Migu that he could have said that the Shtar is forged. With this Migu he would have been believed because at that moment he has the opportunity to claim that the Shtar is forged. This is why the Apotropos wins the case with this claim.
(b) The RA'AVAD (cited by the ROSH) answers that the Gemara refers to a case in which the claimant had already repossessed the field from the Machzik before his death. It stayed in the possession of his heirs for three years. Now, the Machzik wants to get it back based on the argument that the claimant lied when he said that the field belonged to him, an argument which is supported by the claimant's signature in the bill of sale to the Machzik. However, since the orphans have a Chazakah of three years, they (or their Apotropos) are believed to say that their father bought back the field.
The HAFLA'AH questions the Ra'avad's explanation. The Chazakah of three years of possession cannot be utilized in this case. Since the Machzik claims that the claimant stole the field from him, a Chazakah of three years cannot prove that the claimant bought it ("Gazlan Ein Lo Chazakah").
The Hafla'ah cites the RIF who, like the Ra'avad, writes that the case involves a field which is now in the possession of the claimant. However, the Rif makes no mention of a Chazakah of three years. The Hafla'ah infers that the Rif maintains that even without a Chazakah of three years, the field remains in the hands of the present possessor. This is because both the claimant and the Machzik were found to have made false claims. The Machzik claimed that the field was always his, a claim which was refuted by the claimant's witnesses who testified that the field once belonged to the claimant. The claimant, on the other hand, claimed that he never sold the field, a claim which was refuted by his signature on a bill of sale naming the Machzik as the owner of the field. Since both parties have made false claims, Beis Din leaves the field wherever it is. (Mordechai Zvi Dicker)