Ketubot 74

משום רבי אליעזר אמרו חולצת ולא מתייבמת והא הכא דכטעות אשה אחת דמי ופליגי

In the name of Rabbi Eliezer they said that even in this case she performs ḥalitza, but she may not enter into levirate marriage. This dispute seems to hinge on whether, when he engaged in sexual intercourse with her as an adult, he did so for the purpose of betrothal, or whether he relied upon the invalid betrothal performed when she was a minor. But here, this should be considered similar to an error concerning one woman, and yet they disagree.

התם נמי בהא קמיפלגי מר סבר אדם יודע שאין קידושי קטנה כלום וגמר ובעל לשם קידושין ומר סבר אין אדם יודע שאין קידושי קטנה כלום וכי קא בעל אדעתא דקידושין הראשונים קא בעל

The Gemara refutes this claim: This is not the nature of the disagreement. Rather, there too they disagree over a possible halakhic error: One Sage, the first tanna, holds that a person knows that the betrothal of a minor girl is nothing, and consequently, after she reaches adulthood, he decides to engage in sexual intercourse for the purpose of betrothal. Therefore, if the husband dies she may enter into levirate marriage. And one Sage, Rabbi Eliezer, holds that a person does not know that the betrothal of a minor girl is nothing, and therefore when he engages in sexual intercourse with her after she reaches adulthood, he does so on the basis of the initial betrothal, which is not effective according to Torah law, and therefore she cannot enter into levirate marriage.

אתמר נמי אמר רב אחא בר יעקב אמר רבי יוחנן המקדש על תנאי ובעל [דברי הכל ] אינה צריכה הימנו גט איתיביה רב אחא בריה דרב איקא בר אחתיה חליצה מוטעת כשירה איזו היא חליצה מוטעת אמר ריש לקיש כל שאומר לו חלוץ לה ובכך אתה כונסה

It was also stated in accordance with Rabba’s opinion, that there is no dispute with regard to an error concerning one woman: Rav Aḥa bar Ya’akov said that Rabbi Yoḥanan said: One who betrothed a woman conditionally and engaged in sexual intercourse without specifying that he is voiding the condition, all agree that she does not require a bill of divorce from him. Rav Aḥa, son of Rav Ika, son of Rav Aḥa bar Ya’akov’s sister, raised an objection to his opinion from a baraita that states: A mistaken ḥalitza is valid. The amora’im asked: What is meant by the term: A mistaken ḥalitza? Reish Lakish said: Any situation when someone says to a man whose married brother died childless [yavam] not well versed in halakha: Perform ḥalitza with her and by doing so you will thereby marry her. Although he did not intend to release their bond with this ḥalitza, it is nevertheless effective.

אמר רבי יוחנן אני שונה בין שנתכוון הוא ולא נתכוונה היא בין שנתכוונה היא ולא נתכוון הוא חליצתה פסולה עד שיתכוונו שניהם ואת אמרת חליצתה כשרה אלא אמר רבי יוחנן כל שאומר לו חלוץ לה על מנת שתתן לך מאתים זוז

Rabbi Yoḥanan said: I teach with regard to the halakhot of ḥalitza: Whether he intended to release her through ḥalitza and she did not intend it, or whether she intended this outcome and he did not intend it, her ḥalitza is invalid; it will always be invalid until they both intend the appropriate outcome. And you say that in that case, when he intended to marry her and not to release her, that her ḥalitza is valid? Rather, Rabbi Yoḥanan said that in fact, in such a case, the ḥalitza would be invalid, and the term: A mistaken ḥalitza, concerns any situation where someone says to the yavam: Perform ḥalitza with her on condition that she gives you two hundred dinars as payment, and afterward she refuses to give him the money.

אלמא כיון דעבד מעשה אחולי אחליה לתנאיה הכא נמי כיון דבעל אחולי אחליה לתנאיה

The Gemara returns to our issue: Apparently, it can be seen from here that since he performed an action, the halakha views this as though he explicitly waived his condition, for although he stipulated a condition, once he actually performs ḥalitza the condition is ignored. If so, here too, with regard to a conditional betrothal, since he engaged in sexual intercourse, he has waived his condition, which contradicts Rav Aḥa bar Ya’akov’s view.

אמר ליה בר בי רב שפיר קא אמרת מכדי כל תנאי מהיכא גמרינן מתנאי בני גד ובני ראובן

He said to him: Student of the academy, have you spoken well? The reason why the ḥalitza is valid is not because he waived his condition, but rather because the condition was invalid to begin with. After all, from where do we learn through tradition all the laws of conditions? From the conditions made with the descendants of Gad and the descendants of Reuben. Moses made a condition with the tribes of Gad and Reuben: If they would go with the rest of the nation to fight in the battles for the land of Canaan on the western side of the Jordan, they would receive their inheritance on the eastern side, as they requested (see Numbers, chapter 32).

תנאה דאפשר לקיומיה על ידי שליח כי התם הוי תנאיה תנאה דלא אפשר לקיומיה על ידי שליח כי התם לא הוי תנאה

The Gemara derives the halakhot of contractual conditions from that incident, and these include the rule that a condition that can be fulfilled by means of an agent, as was done there, when Moses transferred responsibility for implementing the condition to Joshua and the Elders, and such a condition is a valid condition. Whereas a condition that cannot be fulfilled by means of an agent as was done there is not a valid condition. Accordingly, since ḥalitza cannot be performed by means of an agent, the condition is of no effect and the ḥalitza is valid. There is therefore no proof from here that a husband who performs an action waives his condition.

והא ביאה דלא אפשר לקיומיה על ידי שליח כי התם וקא הוי תנאה

The Gemara raises a difficulty: But sexual intercourse is something that cannot be fulfilled by means of an agent as was done there, in the case of the descendants of Gad and the descendants of Reuben, and yet it is considered a valid condition. If a man says that he is engaging in intercourse with a woman for the purpose of betrothal on condition that a certain stipulation be fulfilled, if that condition is broken the betrothal is invalid.

התם משום דאיתקוש הויות להדדי

The Gemara answers: There, in the case of betrothal, there is a special reason for this law, because the different ways of becoming betrothed are juxtaposed to each other. The Torah describes betrothal with the term becoming, as in the expression: “And she becomes another man’s wife” (Deuteronomy 24:2). Betrothal can be performed through the transference of money or an item of value, through a document, or through sexual intercourse. All three forms are juxtaposed with one another. Conditions can be stipulated for betrothal performed via transference of money or through a document, since these methods of betrothal can be fulfilled through an agent. Therefore, a condition may also be stipulated for betrothal through sexual intercourse, although that cannot be fulfilled through an agent.

אמר רב עולא בר אבא אמר עולא אמר רבי אלעזר המקדש במלוה ובעל על תנאי ובעל בפחות משוה פרוטה ובעל דברי הכל צריכה הימנו גט

Rav Ulla bar Abba said that Ulla said that Rabbi Elazar said: In the case of one who betroths a woman with a loan by forgiving a debt she owes him, which does not effect betrothal, and subsequently engages in sexual intercourse with her; or one who betroths a woman conditionally and the condition was not fulfilled, and he subsequently engages in sexual intercourse with her; or one who betroths a woman with an item worth less than the value of a peruta, and he subsequently engages in sexual intercourse with her, in all of these cases, all agree that she requires a bill of divorce from him. Although the initial betrothal was invalid, they are betrothed due to the subsequent sexual intercourse.

אמר רב יוסף בר אבא אמר רבי מנחם אמר רבי אמי המקדש בפחות משוה פרוטה ובעל צריכה הימנו גט בהא הוא דלא טעי אבל בהנך טעי

Rav Yosef bar Abba said that Rabbi Menaḥem said that Rabbi Ami said: In the case of one who betroths a woman with an item worth less than the value of a peruta and subsequently engages in sexual intercourse with her, she requires a bill of divorce from him. This is because it is in this matter that he does not err. He knows that betrothal must be performed with an item worth at least a peruta, and he therefore must have engaged in intercourse with her for the purpose of betrothal. But with regard to those other cases, i.e., a loan or a condition, he does err. He engages in intercourse based upon his initial betrothal, and therefore she does not require a bill of divorce.

אמר רב כהנא משמיה דעולא המקדש על תנאי ובעל צריכה הימנו גט זה היה מעשה ולא היה כח בחכמים להוציאה בלא גט

Rav Kahana said in the name of Ulla: In the case of one who betroths a woman conditionally and the condition was not fulfilled, and he subsequently engages in sexual intercourse with her, she requires a bill of divorce from him, in accordance with Rabbi Elazar. The Gemara relates: This was an incident that actually occurred. A man betrothed a woman conditionally and then engaged in sexual intercourse with her without specification, and the Sages did not have the power to allow her to leave her husband without a bill of divorce, since they could not definitively rule that the betrothal was invalid. Therefore, they forced him to give her a bill of divorce.

לאפוקי מהאי תנא דאמר רב יהודה אמר שמואל משום רבי ישמעאל והיא לא נתפשה אסורה הא נתפשה מותרת ויש לך אחרת שאף על פי שלא נתפשה מותרת ואיזו זו שקידושיה קידושי טעות שאפילו בנה מורכב על כתיפה

The Gemara comments: This statement comes to exclude the opinion of this tanna, as Rav Yehuda said that Shmuel said in the name of Rabbi Yishmael: The verse states with regard to a woman suspected by her husband of having been unfaithful [sota]: “And she was not seized” (Numbers 5:13), i.e., she was not raped. That is, she is forbidden to her husband since she willingly committed adultery with another man. Consequently, a woman who in fact was seized is permitted to her husband. And you have another woman who, although she was not seized but rather engaged in sexual intercourse willingly, is nevertheless permitted to her husband and is not considered a sota. And who is this? This is referring to one whose betrothal was a mistaken betrothal, as even if her son from this marriage is riding on her shoulders,

ממאנת והולכת לה

she may refuse her husband and go on her way. According to this opinion, the marriage did not take effect at all, despite the fact that they engaged in sexual intercourse, because the betrothal involved an error.

תנו רבנן הלכה אצל חכם והתירה מקודשת אצל רופא וריפא אותה אינה מקודשת מה בין חכם לרופא חכם עוקר את הנדר מעיקרו ורופא אינו מרפא אלא מכאן ולהבא

§ The Sages taught: If a man betroths a woman on condition that there are no vows incumbent upon her to fulfill, but there are vows incumbent upon her, and she goes to a halakhic authority and he dissolves her vows, she is betrothed. However, if he betroths her on condition that she has no blemishes, but she does have blemishes, and she goes to a doctor and he heals her blemishes, she is not betrothed. The Gemara inquires: What is the difference between a halakhic authority and a doctor? The Gemara explains: When a halakhic authority dissolves a vow, he uproots the vow retroactively. It is as if she had never vowed at all, and therefore she was in fact not bound by vows at the time of their betrothal. But a doctor only heals from here onward. Since she had blemishes at the time of betrothal, she is in breach of his condition.

והתניא אצל חכם והתירה אצל רופא וריפא אותה אינה מקודשת אמר רבא לא קשיא הא רבי מאיר הא רבי אלעזר הא רבי מאיר דאמר אדם רוצה שתתבזה אשתו בבית דין הא רבי אלעזר דאמר אין אדם רוצה שתתבזה אשתו בבית דין

The Gemara raises a difficulty: But isn’t it taught in a different baraita that if she goes to a halakhic authority and he dissolves her vows, or to a doctor and he heals her blemishes, she is not betrothed? Rava said: This is not difficult, for this baraita follows the opinion of Rabbi Meir, and that one follows Rabbi Elazar. The Gemara elaborates: This baraita, which states that if her vows were dissolved by a halakhic authority she is betrothed, is in accordance with Rabbi Meir, who said that a man is willing for his wife to be degraded by going to court to have her vow dissolved. That baraita follows the opinion of Rabbi Elazar, who said that a man is not willing for his wife to be degraded in court. Consequently, even if she went to a halakhic authority and he dissolved her vows, such a solution is unacceptable to her husband, as he did not want her to go to court. Therefore, the betrothal is invalid even after the dissolution of the vow.

מאי היא דתנן המוציא את אשתו משום נדר לא יחזיר משום שם רע לא יחזיר

The Gemara poses a question: What is this fundamental dispute between Rabbi Meir and Rabbi Elazar? The Gemara answers: As we learned in a mishna (Gittin 45b): If a man who divorces his wife due to a vow that she took subsequently regrets his decision and wants to take her back, he may not remarry her. Similarly, if he divorces her due to a bad reputation she has acquired, he may not remarry her. This is because if he were allowed to take her back if the vow is dissolved by a halakhic authority or after discovering that the rumors about her were false, he might say that had he known this he never would have divorced her. Such a statement would retroactively cast doubt on the validity of the bill of divorce and could potentially cause her children from a second marriage to have the status of mamzerim. He is therefore informed that if he divorces her due to a vow or a bad reputation he can never remarry her.

רבי יהודה אומר כל נדר שידעו בו רבים לא יחזיר לא ידעו בו רבים יחזיר רבי מאיר אומר כל נדר שצריך חקירת חכם לא יחזיר ושאינו צריך חקירת חכם יחזיר

Rabbi Yehuda says: With regard to any vow that is known by many people and therefore cannot be nullified, he may not remarry her. If it is not known by many people, but rather is a private matter between them, he may remarry her. Rabbi Meir says: Any vow that requires investigation by a halakhic authority, that is, the husband cannot nullify it himself and she needs a halakhic authority to analyze the vow carefully to find an opening that will permit its dissolution, he may not remarry her, for he can claim that had he known the vow could be dissolved he would never have divorced her, thereby undermining the bill of divorce. And with regard to a vow that does not require the investigation by a halakhic authority, which he knows he can nullify himself, he may remarry her. There is no concern that he might impair the bill of divorce, as he knew he could dissolve the vow and yet he chose to divorce her regardless.

רבי אלעזר אומר אחד צריך ואחד אינו צריך לא יחזיר אמר רבי אלעזר לא אסרו צריך אלא מפני שאינו צריך מאי טעמא דרבי יהודה דכתיב

Rabbi Elazar says: Both in the case of a vow that requires investigation by a halakhic authority and one that does not require it, he may not remarry her. Rabbi Elazar said in explanation of his view: They prohibited remarrying a woman who was bound by a vow that requires investigation by a halakhic authority only due to a vow that does not require such investigation. The Gemara explains the respective opinions: What is the reason for Rabbi Yehuda’s statement? As it is written: