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Kesuvos, 73


QUESTION: Rav and Shmuel argue with regard to whether a man who marries a woman has specific intention for Bi'ah l'Shem Kidushin. If a man marries a woman on condition that she has no Nedarim, Rav says that when he has Bi'ah with her, he has intention that his Bi'ah should be l'Shem Kidushin so that it not be a Be'ilas Z'nus.

Rabah holds that this Machlokes 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, and then he divorces her from the Erusin, and then he becomes betrothed to her again and marries her. Rav and Shmuel argue whether the Bi'ah after that second marriage is done l'Shem Kidushin or not, but they both 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 Machkoles b'Ta'us Ishah Achas, and elsewhere) 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. Thus, he does not suspect that she has Nedarim and he thinks that his initial Kidushin took effect, and thus he does not do Bi'ah l'Shem Kidushin since he thinks it is not necessary.

The Gemara challenges the view of Rabah from the Beraisa which says that if a man does Bi'ah with a woman in order to be Mekadesh her 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. The Gemara says that we see from here proof against Rabah, because even when one marries one woman with a condition, he still intends to override and annul the condition at the time that he does 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 our Mishnah, the man's stipulation involved something that already happened: he stipulated that she has no Nedarim that she made 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).

However, in the case where he marries her on condition that his father agrees, that condition depends on a *future* event -- the father's consent! At the time of Be'ilah, though, the decision of his father is not yet known, so the husband cannot assume that the condition has been fulfilled, and thus he certainly does Bi'ah l'Shem Kidushin! If anything, that case is similar to a case where he marries two women, and it is not similar to the case under discussion where he marries one woman! (MAHARAM SHIF)

Similarly, how can 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 Bi'as Z'nus (i.e. he does not want the Kidushin to remain mid'Rabanan). How is that case comparable to the case of marrying one woman with a stipulation that is not fulfilled ("Ta'us Ishah Achas")? They are not comparable! In the case of "Ta'us Ishah Achas," the man has reason to assume that she does not have any 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 Be'ilah 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 Be'ilah on condition that his father approves, he would not do so unless he is confident that his father agrees 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 like when he marries a woman on condition that she has no Nedarim and he relies on the fact that she agrees as an indication that she has no Nedarim.

In the case where one is Mekadesh a Ketanah, the Gemara assumes that since the Rabanan instituted that Kidushin take effect (Kidushin mid'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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