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Bava Basra, 146

BAVA BASRA 146 - dedicated anonymously by a Dafyomi learner in Alon Shvut, Israel


OPINIONS: The Mishnah states that when a Chasan sends presents, Savlonos, to the home of his future father-in-law and he eats a Dinar's worth of food in his father-in-law's home in honor of his marriage, he (or his heirs) may not reclaim those presents in the event that the Kalah dies, he dies, or if he changes his mind and decides not to marry her (if she changes her mind, though, then the Savlonos are returned, see 146b). If the Chasan does not eat a Dinar's worth of food there, he may reclaim the presents.

The RASHBAM, RABEINU GERSHOM, and others explain that the reason the Chasan forfeits the right to reclaim the presents is because he received great joy by eating a Dinar's worth of food in a feast in his honor in his Kalah's home.

Is there a difference between gifts that the Chasan sends before the Kidushin and those that he sends after the Kidushin?

(a) The RASHBAM and RITVA clearly state that this law applies only to gifts given after the Kidushin. The RITVA explains that one certainly does not forfeit the right to reclaim gifts given before the Kidushin merely because he partook of a joyous meal in his Kalah's home.

The MAHARIK (#171) proves this from the Gemara itself, which discusses the case of a Chasan who sent one hundred wagonloads of wine, oil, silver, gold and clothing to his future father-in-law's home. Certainly this man would not have sent such a large gift unless he had already performed Kidushin.

(b) The REMA (EH 50:3) understands that the RASHBA argues with the Ritva and does not differentiate between gifts given before the Kidushin and gifts given after the Kidushin. He infers this from the Rashba's statement that "a Chasan must return things sent to him before Kidushin, just gifts that he sent must be returned to him." This implies that the Mishnah applies both before and after the Kidushin.

(c) The TAZ disagrees with the Rema's understanding of the Rashba. The Taz asserts that the Rashba states only that everything returns to its original owner. However, he does not equate the law of eating at the home of one's future father-in-law after Kidushin with that of eating there before the Kidushin. The Taz understands that this is a special law that applies only after Kidushin and that no one argues.


OPINIONS: The Gemara (146a-146b) relates an incident in which a man was informed that his wife had a medical condition characterized by the lack of a sense of smell. When a man was not informed of this condition before the marriage, such a condition is considered an unexposed blemish which is grounds for divorcing one's wife without giving her a Kesuvah. To ascertain whether or not she indeed could not smell, the man led his wife into a ruin while hiding a pungent radish in his clothes. He then declared, "I smell the odor of radish in the Galil," in order to see how she would respond. She answered jokingly, "Who will give us from the figs of Yericho, so that we can eat them together!" (since radishes were sharp and figs were sweet, it was the custom to eat them together). Immediately afterwards, the ruin collapsed on her and killed her. The Chachamim ruled, "Because he only went into the ruin with her in order to check her [sense of smell], if she died he does not inherit her."

The Gemara does not state whether she passed or failed the man's test of her olfactory ability. Also, it is not clear from the Gemara whether the woman was his full-fledged wife, or whether she was only betrothed (Arusah) to him.

(a) The RASHBAM prefers to explain that the woman was fully married to him. Even though a husband usually inherits his wife, because this man decided to divorce her if he found her to have this blemish, and they did not reconcile before her death, he does not inherit her. It is also the opinion of the PISKEI RID that any woman who dies while her husband has intention to divorce her is not inherited by her husband.

The Rashbam, therefore, learns that the woman failed her test, and that is why her husband had intention to divorce her and thus was not permitted to inherit her. The MAHARSHA explains that this is evident from the fact that they do not appease each other before her death. According to the MAHARSHAL, the Rashbam understands that the husband himself was unsure if his wife's response indicated that she was able to smell, or that she was just guessing that he was telling the truth about having radishes with him, and thus they were not yet reconciled.

The Rashbam rejects an explanation that says that the man and woman were only betrothed, and not fully married, and that the Chachamim ruled that since he did not go into the ruin to consummate the marriage but rather to check her, he does inherit her. The Rashbam rejects this explanation because even if he did go into the ruin in order to consummate the marriage through marital relations, that would not make them fully married and enable him to inherit her.

(b) The RI MIGASH and the MORDECHAI agree that it is possible that a husband will not inherit his wife under certain circumstances. They maintain, however, that he does not inherit her only in a situation where the blemish that she has would constitute a "Mekach Ta'us," a transaction (in this case, the marriage) made in error, thereby negating the transaction (the marriage) altogether. Consequently, in the case of our Gemara, since the man found his wife to have such a blemish (i.e. she failed the test), he does not inherit her because it turns out that he was never married to her -- their marriage was invalid from the start!

According to their explanation, the case of our Gemara has nothing to do with the law of a husband and a wife who have plans to divorce (and perhaps in a case where a husband intends to divorce his wife but has not yet divorced her, he *would* inherit her if she dies).

(c) TOSFOS and the ROSH (9:16) argue that the Gemara is discussing a *betrothed* woman (Arusah), whom the man was checking in order to see if he should go through with the marriage (Nesu'in). The Chachamim ruled that since he did not go into the ruin to consummate the marriage but rather to check her, he does inherit her.

How, though, do they answer the Rashbam's question on this explanation? Even if the man did have relations with her, it would not enable him to inherit her!

They explain that the man and woman went into a ruined building *that he owned*. Therefore, if he would have brought her into his own domain in order to consummate the marriage through *Chupah*, she would have become his wife. However, since he brought her into his domain only in order to check if she had this blemish, he did *not* consummate the marriage and he does not inherit her.

Tosfos and the Rosh reject the opinion that the husband's right to inherit his wife is revoked by his intention to divorce her or by the possibility of a "Mekach Ta'us." (See Rosh for additional questions on the explanation of the Rashbam, and see PILPULA CHARIFTA there.)

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