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Kesuvos 74



(a) Rav Acha bar Ya'akov Amar Rebbi Yochanan agrees with Rabah. He said - 'ha'Mekadesh al T'nai u'Ba'al, Divrei ha'Kol Einah Tz'richah Heimenu Get' (because by one woman, the man is Bo'eil having the original condition in mind).

(b) The Beraisa validates a Chalitzah Muta'as - which Resh Lakish defines as a Chalitzah where they inform the (errant) Yavam that by making Chalitzah, he will acquire the Yevamah.

(c) Rebbi Yochanan rejects Resh Lakish's definition - because, in his opinion, any Chalitzah which either the Yavam or the Yevamah do not perform for the sake of Chalitzah, is not valid.

(d) *He* therefore defines Chalitzah Muta'as as a Chalitzah which the Yavam performs on the express condition that the Yevamah will give him two hundred Zuz. The Chalitzah is valid even though the condition is not fulfilled.

(a) Rav Acha Brei de'Rav Ika believes that Rebbi Yochanan's definition of Chalitzah Muta'as clashed with the statement of Rav Acha bar Ya'akov Amar Rebbi Yochanan ('ha'Mekadesh al T'nai u'Ba'al Divrei ha'Kol Einah Tz'richah Heimenu Get') - because the statemnt implies that even an act (Bi'ah) does not dispense with the condition, whereas according to Rebbi Yochanan's definition of Chakitzah Muta'as, it seems that it (the Chalitzah) does.

(b) Rav Acha Brei de'Rav Ika was the son of Rav Acha bar Ya'akov's sister.

(c) Rav Acha bar Ya'akov dismissed his nephew's Kashya. He pointed out that Chalitzah Muta'as is valid, not because the Bi'ah dispenses with the condition - but because any condition by Chalitzah is null and void, because it is not similar to the condition made my Moshe with the B'nei Gad and the B'nei Re'uven (which serves as the source for all Dinim of T'nai). Whereas there giving them the Eretz Yisrael could be carried out through a Sh'liach, Chalitzah cannot be performed through a Sh'liach..

(d) He explains the fact that a condition is valid in connection with Kidushei Bi'ah (as we learned above), despite the impossibility of performing Bi'ah through a Sh'liach - due to the Torah's comparison of all three forms of Kidushin ("ve'Haysah le'Ish Acher"). Consequently, whatever applies to Kidushei Kesef and Sh'tar (which can be performed through a Sh'liach), will apply to Kidushei Bi'ah.

(a) 'ha'Mekadesh be'Milveh, Einah Mekudeshes' means - that if a man is states that he foregoes the debt of a woman for the sake of Kidushin, she is not Mekudeshes (because the borrowed money belongs to the woman, and Kidushin must be performed with money belonging to the man).

(b) Ula Amar Rebbi Elazar says that 'ha'Mekadesh be'Milveh u'Ba'al', ' ... al T'nai u'Ba'al', ' ... be'Pachos mi'Shaveh Perutah u'Ba'al' - all require a Get, because of the principle 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus' (see Tosfos DH 'Divrei' and Maharam Shif).

(c) Rav Yosef bar Aba Amar Rebbi Menachem Amar Rebbi Ami concedes the last of these, but argues in the other two cases ...

(d) ... because he holds that it is only by 'ha'Mekadesh be'Pachos mi'Shaveh Perutah', where everybody knows that the Kidushin is invalid, that one is certainly Bo'eil for the sake of Kidushin, but not in the first two cases, where people tend to believe that the Kidushin is valid, either because the woman believes the man when he says that he has no Nedarim, or because they do not know that 'ha'Mekadesh be'Milveh' is not valid. Consequently, they perform Bi'ah with the Kidushin in mind.

4) Rav Kahana Amar Ula too, holds that 'ha'Mekadesh al T'nai u'Ba'al, Tzerichah Mimenu Get'. This does not conform with Rav Yehudah Amar Shmuel however - who Darshened in the name of Rebbi Yishmael from the Pasuk "ve'Hi Lo Nispasah (Asurah)" - 'Ha Nispasah, Muteres', to teach us that there is another case of a woman who was not taken by force, yet she is permitted. This refers to a case of a woman who was married with Kidushei Ta'us (e.g. 'Kidshah al T'nai'), who may make Miy'un even if she is grown-up and has a son from him. Consequently, even if she were to commit adultery with another man deliberately, she would be permitted to return to him and marry him.




(a) According to the Tana of of the first Beraisa, if the woman went to a Chacham after her betrothal, and had her Neder nullified, her Kidushin would be valid, whereas if the same woman went to a doctor and had her blemish cured, it would not - because in the case of the Neder, the Chacham uproots it retroactively, as if it had never existed, which the doctor of course, does not.

(b) The Tana of a second Beraisa says - that there is no difference between the two cases, and either way, she is not Mekudeshes.

(c) Rabah resolves the apparent discrepancy by establishing the first Beraisa like Rebbi Meir - who holds that a husband does not object to his wife going to Beis-Din and having her Neder nullified; and the second one, like Rebbi Elazar - who holds that he does not want his wife to be degraded by going to the Beis-Din. Consequently, even if she were to find an opening for her Neder to be nullified, he does not want a wife who makes Nedarim, and the Kidushin is invalid.

(a) The Tana Kama in a Mishnah in Gitin forbids someone who divorced his wife because she was prone to make Nedarim or because of a bad name, to take her back - because we are afraid that she may marry someone else, and then, after her first husband discovers that she has nullified her Neder or the bad name turns out to have been unjustified, he will negate her Get on the grounds that, had he known that this would happen, he would not have divorced her (with the result that the marriage to the second man is invalid retroactively and her children from him are Mamzeirim).

(b) The reason for the prohibition, according to Rebbi Yehudah is - to teach the people not to treat Nedarim so lightly (in keeping perhaps, with his opinion in Chulin, 2a. that not only should a person not make Nedarim and break them, but that he should avoid making Nedarim altogether).

(a) We have already cited the opinions of Rebbi Meir and Rebbi Elazar in the above-mentioned Mishnah. Rebbi Meir connects the prohibition to a Neder that needs to be examined by a Chacham - because it is not included in the category of Nidrei Inuy Nefesh or Beino le'Beinah, in which case the husband himself is not able to nullify it. But if it were, he could not later claim that had he known that she would nullify her Neder, he would not have divorced her, seeing as it lay within his power to nullify it.

(b) The reason for the prohibition according to him is clearly - the first of the two reasons that we cited earlier (because of the fear that he will negate the Get by claiming that he would never have divorced her had he known that she would have the Neder nullified).

(c) Rebbi Elazar comments on Rebbi Meir's opinion - that quite to the contrary, it is the category of Neder that *does require the examination of a Chacham* that we are worried about, because that is where the husband, claiming that he was not aware of the fact that he was able to nullify it, may nullify the Get; but not those that *don't*, because a man does not want his wife to be degraded by going to Beis-Din (as we explained earlier). Consequently, they only decreed the latter category on account of the former.

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