Ketubot 73

לא תימא טעמיה דרב כיון שכנסה סתם אחולי אחליה לתנאיה אלא טעמא דרב לפי שאין אדם עושה בעילתו בעילת זנות

Do not say that Rav’s reason for requiring a bill of divorce is that since he married her without specification, this indicates that he waived his condition entirely, and therefore he must give her the payment of her marriage contract if he divorces her. Rather, Rav’s reason is because a person does not intentionally engage in licentious sexual intercourse. He is aware that the initial betrothal may possibly be nullified, rendering sexual intercourse licentious. Therefore, when he marries her, he does so with the intention that the consummation of the marriage serves as unconditional betrothal. However, as he does not entirely waive his condition, if it becomes clear that the condition was not fulfilled, she may be divorced without receiving payment of her marriage contract.

הא פליגי בה חדא זימנא דאתמר קטנה שלא מיאנה והגדילה עמדה ונישאת רב אמר אין צריכה גט משני

The Gemara asks: But they already disagree about this fundamental issue of whether it may be assumed that a person does not intentionally engage in licentious sexual intercourse one other time. As it is stated: With regard to a minor girl whose mother or brother married her off, and who did not refuse her husband, despite having the right to do so, and when she became an adult she arose and married someone else, Rav said: She does not require a bill of divorce from the second one. Since she did not refuse the first husband while still a minor, and presumably he later engaged in sexual intercourse with her when she became an adult, and since the assumption is that he does not intentionally engage in licentious relations, the first marriage is binding and the second is meaningless.

ושמואל אמר צריכה גט משני

And Shmuel said: She requires a bill of divorce from the second one. Her first husband did not engage in sexual intercourse with the intention that it serve as a new betrothal, rather he intended to continue the relationship established between them when she was a minor. Therefore, she is not considered to be his wife and the second marriage is binding.

צריכא דאי אתמר בההיא בההיא קאמר רב משום דליכא תנאה אבל בהא דאיכא תנאה אימא מודי ליה לשמואל

The Gemara explains: It is necessary to state the dispute in both instances. For if it was stated only in that case of the minor who did not refuse, one could say that in that case Rav stated his opinion because there is no condition attached to the betrothal. Consequently, when she becomes an adult, he engages in sexual intercourse with intent to betroth her, as he recognizes that the initial betrothal was ineffective. But in this case, where there is a condition and it is unfulfilled, one could say that he concedes to Shmuel that he did not intend to betroth her through intercourse, and she does not require a bill of divorce.

ואי אתמר בהא בהא קאמר שמואל אבל בהך אימא מודי ליה לרב צריכא

And conversely, if it was stated only in this case concerning betrothal, it could be argued that in this case Shmuel said that the betrothal is not valid when he engages in sexual intercourse with her, since she violated a condition, but in that case of the minor who did not refuse, one could say that he concedes to Rav. Therefore, it is necessary to state the argument explicitly in both cases.

תנן כנסה סתם ונמצאו עליה נדרים תצא שלא בכתובה כתובה הוא דלא בעיא הא גיטא בעיא מאי לאו קידשה על תנאי וכנסה סתם תיובתא דשמואל

The Gemara discusses proofs for both sides of this dispute: We learned in the mishna: If he married her without specification, and it was discovered that vows were incumbent upon her, she may be divorced without receiving payment of her marriage contract. The Gemara infers: She does not require or receive payment of her marriage contract, but she does require a bill of divorce. What, is it not speaking about the case discussed in the first clause, namely that he betrothed her conditionally and then married her without specification? If so, the mishna is a conclusive refutation of Shmuel’s opinion.

לא קידשה סתם וכנסה סתם

The Gemara rejects the proof: No, the case there is referring to where he betrothed her without specification and then married her without specification.

אבל קידשה על תנאי וכנסה סתם הכי נמי דלא בעיא גיטא אדתני המקדש את האשה על מנת שאין עליה נדרים ונמצאו עליה נדרים אינה מקודשת ליתני כנסה סתם ונמצאו עליה נדרים אינה מקודשת וכל שכן הא

The Gemara asks: But according to this explanation, if he betrothed her conditionally and then married her without specification, is it indeed the case that she does not require a bill of divorce? If so, instead of teaching in the mishna that if one betroths a woman on condition that there are no vows incumbent upon her to fulfill, and it was subsequently discovered that there are vows that are incumbent upon her, she is not betrothed, let the mishna teach instead a more novel halakha: If he betrothed her with a condition and married her without specification and then it was discovered that vows were incumbent upon her, she is not betrothed. And from this one can derive that all the more so the same halakha would apply in this case, where he betrothed her conditionally but did not repeat the condition when marrying her.

הכי נמי קאמר המקדש את האשה על מנת שאין עליה נדרים וכנסה סתם ונמצאו עליה נדרים אינה מקודשת קידשה סתם וכנסה סתם תצא שלא בכתובה

The Gemara answers: That is also what he is saying, and one should understand the mishna this way: One who betroths a woman on condition that there are no vows incumbent upon her to fulfill, and then marries her without specification, and it is then discovered that vows were incumbent upon her, she is not betrothed. If he betrothed her without specification and married her without specification, she requires a bill of divorce but may be divorced without receiving payment of her marriage contract.

כתובה הוא דלא בעיא הא גיטא בעיא ומאי שנא כתובה דלא בעיא דאמר אי אפשי באשה נדרנית אי הכי גט נמי לא תיבעי

The Gemara asks about this halakha according to Shmuel: The mishna says that she does not require or receive payment of her marriage contract, but one can infer that she does require a bill of divorce. And what is different about a marriage contract that she does not require payment? Because he says: I do not want a vowing wife, and therefore the marriage is considered a mistaken transaction. If so, she should also not require a bill of divorce. Since he is clearly particular about this, shouldn’t the betrothal also be considered a mistaken transaction?

אמר רבה צריכה גט מדבריהם וכן אמר רב חסדא צריכה גט מדבריהם רבא אמר תנא ספוקי מספקא ליה גבי ממונא לקולא גבי איסורא לחומרא

Rabba said: She requires a bill of divorce from the words of the Sages, i.e., by rabbinic law. Although by Torah law the betrothal is in fact invalid, the Sages declared that since he did not explicitly stipulate the condition, she requires a bill of divorce. And similarly, Rav Ḥisda said: She requires a bill of divorce from the words of the Sages. Rava said a different explanation: The tanna is uncertain about the status of the betrothal in this case. Concerning monetary matters, one should be lenient. Therefore, she cannot extract money from the husband for the marriage contract based on the principle that in monetary cases the burden of proof rests upon the claimant. But concerning prohibitions such as adultery, one must be stringent, and she therefore requires a bill of divorce.

אמר רבה מחלוקת בטעות שתי נשים אבל בטעות אשה אחת דברי הכל אין צריכה הימנו גט

Rabba said: The dispute between Rav and Shmuel is in the case of an error concerning two women. The same man married one woman on condition that she had no vows incumbent upon her and then married another woman without specification. Rav and Shmuel disagree whether the condition he explicitly stated for the first woman should be seen as proof that he is particular about this with regard to the second one as well, to the point that the betrothal is invalid if the condition was not fulfilled. But in the case of an error concerning one woman, where he betroths her with a condition, marries her without specification, and subsequently discovered that the condition was not fulfilled, all agree, including Rav, that she does not require a bill of divorce from him.

אמר (ליה) אביי והא מתניתין דטעות אשה אחת היא וקמותבינן תיובתא מיניה

Abaye said to him: But the mishna discusses an error concerning one woman, as a second woman is not mentioned, and we raise an objection from it against Shmuel, implying that Rav and Shmuel have a dispute in this case as well. How, then, can you say that dispute is in the case of an error concerning two women?

אלא אי אתמר הכי אתמר אמר רבה מחלוקת בטעות אשה אחת כעין שתי נשים אבל בטעות אשה אחת גרידתא דברי הכל אינה צריכה הימנו גט

Rather, the previous explanation must be retracted and instead the Gemara says: If the above statement of Rabba was said, it was said as follows: Rabba said that the dispute between Rav and Shmuel is with regard to a case of an error concerning one woman similar to an error concerning two women. He betrothed one woman conditionally and then divorced her, and subsequently married her again without specification. In this case, Rav and Shmuel dispute whether the assumption is that he intended to nullify the initial condition with the second betrothal or whether he married her the second time based upon the conditions of the first betrothal. But in the case of a simple error only concerning one woman, where he betroths her with a condition, marries her without specification, and then discovers that the condition was not fulfilled, all agree that she does not require a bill of divorce from him.

איתיביה אביי קידשה בטעות ופחות משוה פרוטה וכן קטן שקידש אף על פי ששלח סבלונות לאחר מיכן אינה מקודשת שמחמת קדושין הראשונים שלח ואם בעלו קנו רבי שמעון בן יהודה משום רבי ישמעאל אמר אם בעלו לא קנו

Abaye raised an objection to Rabba’s statement from a baraita: In cases where the man betrothed her in error, or he betrothed her with an item worth less than the value of a peruta, and similarly in a case where there was a minor boy who betrothed a woman, even if the man later sent presents [sivlonot] to the bride after he became an adult, she is not betrothed, because he sent them on the basis of the original betrothal. And if the men in any of these cases engaged in sexual intercourse with the woman after betrothal at the appropriate time, they have acquired the women as their wives, since they presumably intended the intercourse to serve as betrothal. Rabbi Shimon ben Yehuda said in the name of Rabbi Yishmael: Even if they engage in sexual intercourse, they have not acquired the women as wives, since they presumably engaged in these relations based upon the earlier betrothal, which was invalid.

והא הכא דטעות אשה אחת היא ופליגי מאי לאו טעות נדרים

Noting that the first case in the baraita is where a man betrothed a woman in error, Abaye asks: But here in this baraita, where the first case is an error concerning one woman, and the first tanna and Rabbi Shimon ben Yehuda disagree; what, is it not that the intention of the phrase: Betrothed her in error, is referring to an error in the condition with regard to vows, where he mistakenly believed she didn’t have any vows incumbent upon her? This would constitute a refutation of Rabba’s statement that all agree that in a case of an error concerning one woman she is betrothed.

לא טעות פחות משוה פרוטה פחות משוה פרוטה בהדיא קתני לה קידשה בטעות ופחות משוה פרוטה פרושי קא מפרש קידשה בטעות כיצד כגון שקידשה בפחות משוה פרוטה

The Gemara responds: No, here it is referring to a halakhic error, that he betrothed a woman with an item worth less than the value of a peruta. The Gemara asks: Concerning the case where the betrothal is with an item worth less than the value of a peruta, the baraita teaches it explicitly as a separate case with the following words: If he betrothed her in error, or if he betrothed her with an item worth less than the value of a peruta. The Gemara answers: It is explaining what it stated earlier: What is the case of one who betrothed her in error? For example, when he betrothed her with an item worth less than the value of a peruta, as he did not engage in sexual intercourse with her based on such a betrothal.

במאי קא מיפלגי מר סבר אדם יודע שאין קדושין תופסין בפחות משוה פרוטה וגמר ובעל לשם קדושין ומר סבר אין אדם יודע שאין קדושין תופסין בפחות משוה פרוטה וכי קא בעל אדעתא דקדושין הראשונים בעל

The Gemara asks: With regard to what do they disagree? The Gemara answers: One Sage, the first tanna, holds that a person knows that betrothal does not take effect with an item worth less than the value of a peruta. Consequently, he decides to engage in sexual intercourse for the purpose of betrothal and therefore acquires the woman as his wife through these relations. And one Sage, Rabbi Shimon ben Yehuda, holds that a person does not know that betrothal does not take effect with an item worth less than the value of a peruta, and when he later engages in sexual intercourse, he does so on the basis of the original betrothal, so no new betrothal takes place.

איתיביה הריני בועליך על מנת שירצה אבא אף על פי שלא רצה האב מקודשת רבי שמעון בן יהודה אומר משום רבי שמעון רצה האב מקודשת לא רצה האב אינה מקודשת והא הכא דכי טעות אשה אחת דמי ופליגי

Abaye again raised an objection to Rabba’s statement from a baraita: If a man said to a woman: I am engaging in sexual intercourse with you for the purpose of betrothal on condition that my father will desire our betrothal, and then he married her without specification, although the father did not desire it, she is nevertheless betrothed through this act of intercourse. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: If the father desires it, she is betrothed, and if the father does not desire it, she is not betrothed, since he engaged in intercourse with her based on the initial condition. But here it is similar to a mistake concerning one woman, and they disagree whether the betrothal is valid.

התם בהא קמיפלגי מר סבר על מנת שירצה האב על מנת שישתוק האב והא שתיק ליה ומר סבר על מנת שיאמר אבא הן והא לא אמר אבא הן

The Gemara responds: There, they disagree about this: One Sage, the first tanna, holds that: On condition that my father will desire it, means: On condition that my father is silent. Consequently, if his father does not protest, the betrothal is valid, and he was indeed silent about it. And one Sage, Rabbi Shimon ben Yehuda, holds that it means: On condition that my father says yes, and he did not say yes. Therefore, the dispute is about the significance of the father’s silence in this case.

איתיביה מודים חכמים לרבי אליעזר בקטנה שהשיאה אביה ונתגרשה והיא יתומה בחיי האב והחזירה שחולצת ולא מתיבמת

Abaye again raised an objection to Rabba’s statement from a baraita: The Rabbis concede to Rabbi Eliezer concerning a minor girl who was married off by her father and then divorced while she was still a minor, and is therefore treated by the halakha as an orphan in the lifetime of the father, since the halakha is that the father is no longer able to marry her off to someone else, and while she was still a minor, her former husband remarried her, and he then died without children, that she performs ḥalitza and may not instead enter into levirate marriage.

מפני שגירושיה גירושין גמורין ואין חזרתה חזרה גמורה

The baraita continues: This is because her divorce was a full-fledged divorce, since the father has authority to receive her bill of divorce from her husband, and her return to her husband afterward is not a full-fledged return, since she remarries her husband while still a minor, and her father no longer has authority to marry her off, and marriage to a minor girl by her own consent is not considered a full-fledged marriage. She is consequently prohibited from entering into a levirate marriage based on the prohibition against a divorcée marrying her former husband’s brother.

במה דברים אמורים שגירשה כשהיא קטנה והחזירה כשהיא קטנה אבל גירשה כשהיא קטנה והחזירה כשהיא גדולה או שהחזירה כשהיא קטנה וגדלה אצלו ומת או חולצת או מתיבמת

The baraita continues: In what case is this statement said? When he divorced her while she was still a minor girl and then remarried her while she was still a minor girl. But if he divorced her while she was still a minor girl, and then remarried her when she was an adult woman, or if he remarried her while she was still a minor girl and she became an adult woman while married to him, the second marriage is binding, and she has the status of a full-fledged married woman. And therefore, if he died, either she performs ḥalitza or she enters into levirate marriage like any other widow.