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Bava Basra Chart #8
Bava Basra Daf 145a
WHEN IS THE MONEY OF KIDUSHIN RETURNED
TO THE MAN OR TO HIS HEIRS(1)
||IS IT RETURNED?
||WHAT IS THE REASON?
||She may claim, "Give me my husband"(2)
||R. Nasan: Yes(3)
||Kidushin Lav l'Tivu'in Nitnu
|| R. Yehudah ha'Nasi: No
|| Kidushin l'Tivu'in Nitnu
||HE CHANGED HIS MIND
||He caused his own loss(4)
||SHE CHANGED HER MIND(5)
||SHE WAS MARRIED TO A KOHEN AND WAS RAPED(8)
||R. Meir: No
||Kidushin l'Tivu'in Nitnu
||R. Yehudah: Yes(9)
||Kidushin Lav l'Tivu'in Nitnu
||R. Yosi: Half
||Safek whether Kidushin l'Tivu'in Nitnu or not
(1) This refers to *after* Kidushin/Erusin was performed, and *before*
Nisu'in was performed.
(2) According to the Gemara's conclusion, no one argues with this.
(3) It seems from the Rashbam (DH u'Parchinan) that Rebbi Nasan agrees that
in a place where it is the practice not to return the money of Kidushin, it
is not returned, because he gave it to her with the custom of that place in
mind. It is not clear, though, why, then, Rebbi Yehudah ha'Nasi does not
agree, also, that we follow the custom of the place when the custom is to
return the money. The PNEI SHLOMO answers that the Gemara later concludes
that in a case in which the woman changed her mind (see row #4 in chart),
although me'Ikar ha'Din the woman must return the money, the Rabanan enacted
that she *not* return it, as explained below in footnote #7. We see from
there that there is a good reason *not* to return the money of Kidushin even
though me'Ikar ha'Din it should be returned. Therefore, Rebbi Nasan will
agree that even though me'Ikar ha'Din the money should be returned, in a
place where the custom is not to return it, we follow that custom, because
there is an additional reason for not returning the money -- the Gezeirah
that the Rabanan made in a case in which the woman changed her mind (even
though the Gezeirah that they made in that case does not apply here, because
one is permitted to marry the sister of one's deceased wife, nevertheless
there is still an Isur to marry the daughter or mother of one's deceased
wife, and therefore there is still good reason not to return the money (so
that people not think that he was never married to this woman)).
(4) Rabeinu Gershom writes that the reason is because she can say, "Give me
my husband..." (and since he is not giving himself to her as her husband, he
is causing his own loss).
(5) It seems that the same would apply if she was Mezanah v'Mezid.
(6) This is the opinion of Ameimar, and the Halachah according to the
Gemara's conclusion. Rav Papa argues and maintains that she must give the
money back (because she caused the loss to herself; even though we rule that
"Kidushin l'Tivu'in Nitnu," nevertheless she must give the money back
according to Rav Papa because the Chachamim penalize her).
(7) If people see that she returns the money of Kidushin and that they are
not married, they will assume that the Kidushin never took effect in the
first place, and they will say that it is permitted for him to marry her
sister (when, in truth, the Kidushin did take effect, but he gave her a Get
Min ha'Erusin, and he is thus forbidden to marry her sister because of the
Isur of "Achos Ishah").
(8) The Halachah is that an Eshes Kohen she'Ne'ensah may no longer live with
her husband, the Kohen. Thus, it is not her fault that she may not remain
married, nor is it his fault. Therefore, whether or not she must return the
money of Kidushin depends on whether "Kidushin l'Tivu'in Nitnu" or not.
(9) Obviously, this Rebbi Yehudah is not the same Tana as Rebbi Yehudah
ha'Nasi, because Rebbi Yehudah ha'Nasi holds the opposite (above, row #2).
(The "Stam" Rebbi Yehudah is Rebbi Yehudah bar'Rebbi Ila'i)
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