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Kesuvos, 56

KESUVOS 55 & 56 - have been dedicated by Rabbi Avi Feldman and his sisters in memory of their mother (yahrzeit: 11 Iyar), ha'Rabbanit Sara Dvasya bas Rav Mordechai.


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, foregoing 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 forcing the lender to replace the original Shtar with an entirely new Shtar containing the remaining amount of the loan.

The Gemara asks that Rebbi Yehudah is contradicting his opinion elsewhere, where he states that when someone 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 we cannot force the borrower to accept a receipt instead of having a new Shtar written. Our Mishnah, however, is discussing a man who willingly writes a Kesuvah for 200 Zuz and accepts a receipt from his wife that he only owes her half. He is choosing to accept the receipt from her and he is not being forced to do so! It is obvious that Rebbi Yehudah agrees that in such a case he may accept a receipt! (RASHBA)

(b) Second, 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 can still 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 as a contradiction to Rebbi Yehudah's opinion that normally a receipt is not written? In this case, there is no other choice; 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 we 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 forego part of her Kesuvah is not by writing a 100 Zuz Kesuvah, but rather 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 forego half of the Kesuvah. If there would be 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 we may always force someone to take 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) As for our 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 we do not write a receipt -- we are obliged to do whatever we can for the benefit of the borrower (i.e. for 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 out 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 hold that a receipt is written for the husband.

QUESTION: The Gemara cites a Machlokes between Rebbi Meir and Rebbi Yehudah regarding whether a person may make a Tenai modifying the obligations stipulated by the Torah regarding monetary law ("Masneh Al Mah she'Kasuv ba'Torah"). Rebbi Meir says that if a man is Mekadesh a woman on condition that he not be obligated to give her She'er, Kesus, and Onah, the Tenai is invalid and the Kidushin takes effect fully (and he is obligated to provide her with She'er, Kesus, and Onah). Rebbi Yehudah says the Tenai 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, then why should the Kidushin take effect at all? The man was Mekadesh 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 in 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 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, then 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 we learns all the laws of Tenai, including the very fact that one may make a Tenai, from a verse (in Kidushin, ibid.) If not for the fact that the Torah teaches that there is such a thing as making a Tenai, we would not have known that there is a concept of Tenai at all. Had the Torah not taught us the concept of Tenai, that one may make a stipulation when making a Kinyan, we would have thought that when a person makes a Tenai as a precondition to a certain Kinyan, we just ignore the Tenai and the Kinyan takes effect. By teaching that a Tenai does work, the Torah is teaching 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), we revert back to the original way we would have ruled had the Torah not taught us the concept of Tenai, and the Kinyan works regardless of the fulfillment of the Tenai.

This answer of Tosfos is very difficult to understand. Even without the Torah teaching us the laws of Tenai, we should know, logically, 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, then if the friend fails to fulfill the Tenai the sale should not be valid, since the person did not fully commit himself to the sale!

To answer this question, we must first analyze a related Halachah -- the Halachah of Bereirah. In many places in the Gemara we find the view that holds "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 be Koneh 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, then even if it rains the next day, the object will not belong to Reuven. Similarly, a person cannot eat fruits today, "The portion that I will choose to separate tomorrow will be Terumah on these fruits starting from now." If he does so, then 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 Hagba'ah (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). The Kinyan cannot see into the future, so to speak.

What is the difference between Bereirah and a Tenai? No Tenai should ever work if we say "Ein Bereirah," because the Kinyan cannot know what will happen in the future (whether the Tenai will be fulfilled or not) in order to be able to take effect now!

RASHI and TOSFOS (Gitin 25b, DH u'l'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 matter that 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, is it that 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 has to teach us the novel concept of Tenai -- even though the Kinyan was made, it can be revoked through not fulfilling the condition. This is what the Ri means to say -- since the Torah did not teach the concept of Tenai in a case where the Tenai contradicts the obligations of the Torah, then we revert to saying 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 for certain, since he was expecting the Tenai to be fulfilled.

For this reason, when a man makes a Kidushin on condition that he not be obligated to give 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 She'er, Kesus, and Onah. But by that time, 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 mean it, but he is just being "Mafligah b'Devarim" -- he is just frightening her with words. The Beraisa in Gitin (84a) teaches such a concept with regard to a person 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 certain way with certain obligations, it must be that he is not serious about his condition to alter those obligations, and therefore he probably has in mind to make a Kidushin, and he is just saying this condition in order to frighten her.

Rabeinu Tam might have rejected the explanation of the Ri because his 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, though, 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 might have explained like the Rashba, who says that the condition that the husband was stipulating was not that Kidushin should take effect without the obligations of She'er, Kesus, and Onah. Rather, the husband was stipulating that Kidushin should take effect only if the woman *foregoes 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, did not accept Rabeinu Tam's explanation, because "Mafligah b'Devarim" can only be applied to a Tenai made against something written in the Torah, but not when any of the other details of Tenai were omitted. However, we find that if a person makes a Tenai in the wrong order ("Ma'aseh Kodem le'Tenai"), then the Kinyan takes effect and we ignore the Tenai even though the logic of "Mafligah b'Devarim" does not apply (as the RE'AH points out)!


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