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Kesuvos, 87

KESUVOS 87 - Sponsored anonymously in honor of Yakir and Mira Wachstock, in honor of their upcoming marriage.


QUESTION: The Mishnah (end of 86b) describes how a husband can exempt his wife from having to make a Shevu'ah to him or to his heirs when she wants to collect her Kesuvah. The Gemara here cites Aba Shaul who says that if a husband exempts his wife from a Shevu'ah, whether he says, "There should be no Shevu'ah," or "You should be clean from a Shevu'ah," whether he exempts her from a Shevu'ah or a Neder in such manners, she really *should* be exempt from making a Shevu'ah when she collects her Kesuvah either from him or from his heirs, but, says Aba Shaul, "What can I do? The Chachamim said that when collecting the Kesuvah from orphans, she must make a Shevu'ah!"

What does Aba Shaul mean by this? If the husband exempted her from a Shevu'ah, then she should not have to make a Shevu'ah even when she collects from the orphans, like our Mishnah states!


(a) The RIF and RAMBAM (Hilchos Ishus 16:20) explain that to exempt one's wife from making a Shevu'ah when collecting from his heirs, the husband must say a clear and explicit wording of exemption to her, such as the wording used in our Mishnah. When he says a slightly ambiguous wording (such as, "There should be no Shevu'ah," or "You should be clean from a Shevu'ah"), his statement is not able to exempt her from making a Shevu'ah to collect from the heirs, even though it does exempt her from making a Shevu'ah to collect from *him*. The reason for this, as the RAMBAN explains, is that the Rabanan instituted that a woman must make an oath in order to collect her Kesuvah from the orphans, and we do not assume that the husband intended to uproot this rabbinic enactment unless he stated so unequivocally.

(b) However, the other Rishonim (RI, RASHI according to the RITVA, the ROSH, and others) point out that the Gemara later (88b) implies that the Chachamim argue with Aba Shaul, and they hold that the man can exempt the woman from a Shevu'ah even when collecting from the orphans. If so, our Mishnah is following the opinion of the Chachamim and Aba Shaul is indeed arguing with the opinion expressed in the Mishnah. Aba Shaul holds that even though the husband can exempt her from the Shevu'ah of an Apotropos or the Shevu'ah of a Pogemes, he cannot exempt her from the Shevu'ah of collecting from orphans.

The SHITAH MEKUBETZES (citing TALMIDEI RABEINU YONAH and RIVASH) points out that this explains Aba Shaul's strange phraseology: "She should be exempt, but what can I do, for the Chachamim ruled that a woman must swear before collecting from the Yesomim." What he meant was, she will indeed be exempt from the Shevu'ah of an *Apotropus or Pogemes*, but that will not help her, practically, since as soon as she tries to collect her Kesuvah she will have to swear the Shevu'ah of a woman who collects her Kesuvah from the orphans, which includes all that an Apotropus or Pogemes must swear about.

The Rishonim point out that even according to Aba Shaul, there is a way to exempt a wife from a Shevu'ah when collecting from the orphans:

1. Aba Shaul is only discussing a case where the husband *verbally* exempts her from a Shevu'ah, but when he *writes* in a contract that she is exempt from a Shevu'ah, she is indeed exempt (according to the RASHBA).
2. The RASHBA and TALMIDEI RABEINU YONAH also say that the wife is exempt from a Shevu'ah to the orphans when the husband makes a Kinyan on his declaration of her exemption.
3. Furthermore, Talmidei Rabeinu Yonah add that if the husband points to specific items of his property and he says that she may collect from those items without making a Shevu'ah, then the exemption is effective -- since the heirs only inherit that property with the pre-existing condition that the wife will not have to swear upon its collection.
HALACHAH: The SHULCHAN ARUCH (EH 98) rules like the Rambam, that a clear, unambiguous wording *does* exempt the woman from making a Shevu'ah to collect her Kesuvah from the orphans. The REMA, on the other hand, rules like the Rosh, that even an explicitly worded exemption cannot exempt her, since we rule like Aba Shaul and not like the Mishnah.

However, if the wife dies before collecting the Kesuvah, her children *can* collect the Kesuvah from the husband's heirs without a Shevu'ah. If we were to make them make a Shevu'ah, they would not be able to collect at all, since the Shevu'ah was actually the mother's requirement, and a person cannot bequeath to her children the requirement to make a Shevu'ah ("Ein Adam Morish Shevu'ah l'Vanav"). We are not so stringent on the woman's family as to uphold the requirement for her to make a Shevu'ah even if it causes her children to become unable to collect the Kesuvah at all.

Regarding the other exceptions that the Rishonim mention where even Aba Shaul will agree that the husband can exempt his wife from a Shevu'ah to collect from the orphans, the CHELKAS MECHOKEK writes that since the Rema does not mention them, apparently he does not accept those opinions, and he does not make exceptions to Aba Shaul's ruling.


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