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Kesuvos, 43


43b

1) WHO RECEIVES THE MONEY OF THE KESUVAH OF A KETANAH OR NA'ARAH
OPINIONS: The Rabanan and Rebbi Yehudah argue in the Mishnah regarding who receives the money of the Kesuvah of a Na'arah or a Ketanah who was married and her husband died or divorced her. The Rabanan say that the girl receives the money, because once she gets married, she is no longer in the Reshus of her father. Rebbi Yehudah says that the father receives it.

The Gemara explains that according to Rebbi Yehudah, the father is entitled to the Kesuvah since it is written before the Nesu'in. Even though the girl later got married, the father retains the Kesuvah. For the same reason, if the girl was became a Bogeres before the Nesu'in, and before the time the Kesuvah was written, then even Rebbi Yehudah agrees that she receives the Kesuvah, since at the time of its writing she had already left her father's Reshus.

The Gemara then starts an entirely new discussion about the Kesuvah of an Arusah. The Gemara asks from what point in time may the woman collect her Kesuvah from Nechasim Meshubadim (property that her husband had sold to buyers) -- from the time of the Erusin, or only from after the Nesu'in?

First, what does that question have to do with the Sugya? It has nothing to do with the topic of our Mishnah which discusses the father's entitlement to the Kesuvah of a Ketanah or Na'arah. The question of from what time the woman collects the Kesuvah seems to apply to *any* woman, and has nothing to do with the rights of the father in his daughter's Kesuvah.

Second, what exactly are the possible arguments for whether a woman should or should not be able to collect her Kesuvah from the time of the Erusin? If the Kesuvah was written at the time of the Erusin, or if we hold that the Rabanan instituted that there be a Kesuvah at the time of Erusin (see Rashi later on the Mishnah, and see Kesuvos 54b), then of course she should be able to collect from the time of Erusin! If, on the other hand, the Rabanan did not institute that there be a Kesuvah at the time of Erusin, then of course she should not be able to collect from the Erusin! What, then, are the possible arguments?

There are a number of different approaches to these questions in the Rishonim to this Sugya.

(a) RASHI explains that the Gemara is discussing whether a woman may collect from the husband's fields that were sold after the time of the Erusin but before the Nesu'in. (The Gemara is following the opinion that the Rabanan instituted that an Arusah collects a Kesuvah even in a case where no actual Kesuvah was written at the Erusin.) May she collect her Kesuvah even from Nechasim Meshubadim, from fields that were sold during the time of Erusin, because the Rabanan instituted, through a "Tenai Beis Din," that she is entitled to a Kesuvah even though it is not written down? Or is she not permitted to collect from such fields during Erusin, because the Kesuvah was not yet written down and it remains like an oral obligation, a "Milveh Al Peh," which may not be collected from Nechasim Meshubadim. Is the "Tenai Beis Din" that every Arusah is entitled to collect a Kesuvah considered like there is a contract to that effect (a "Milveh b'Shtar") or not? That is the Gemara's question.

IN SUMMARY, according to Rashi's approach, the question applies to the Kesuvah of any woman, whether she is an Arusah or a Nesu'ah. The question involves only Nechasim Meshubadim; from the time of her Erusin she may definitely collect from fields that were not sold ("Nechasim Bnei Chorin").

The connection of this question to our Sugya is that the Gemara was previously discussing when a father is entitled to the Kesuvah of his daughter according to Rebbi Yehudah (i.e., whether he is entitled to it from when the Kesuvah was written or from the time of her Erusin). Therefore, the Gemara digresses to discuss a similar topic -- when does a normal woman's rights to collect Nechasim Meshubadim begin, from the Erusin or from the Nesu'in? (The two questions are not really parallel, because the father certainly has the rights to the Kesuvah of his daughter while she is an Arusah if she does *not* get married with Nesu'in. Only if she gets married does Rebbi Yehudah say that he loses the Zechus to the Kesuvah from before the Nesu'in, before it was written. With regard to collecting the Kesuvah from Nechasim Meshubadim, though, the question pertains even if she was still an Arusah at the time of her husband's death or her divorce.)

(b) TOSFOS and the other Rishonim reject Rashi's approach, because according to Rashi the question of when may a woman collect from Nechasim Meshubadim (i.e. when does the Shi'abud of the Kesuvah begin) is only very marginally related to the discussion of the Gemara and does not really belong here.

The RI, cited by Tosfos (DH u'Migba) explains that the question of the Gemara is directly related to Rebbi Yehudah's opinion in the Mishnah. The Gemara is asking why is it that Rebbi Yehudah maintains that the father loses his rights to the unwritten Kesuvah when his daughter becomes a Bogeres before getting married (Nesu'in) and writing the Kesuvah? Is it because by writing the Kesuvah, the daughter is Mochel the Shi'abud (the lien on the husband's property) of the pre-writing Kesuvah (that took effect from the time of the Erusin)? Or is it because the Rabanan simply did not give the father rights to the Kesuvah if it is written after the daughter becomes a Bogeres?

We might wonder, how could the daughter be Mochel a Kesuvah to which her father was entitled by writing a new Kesuvah of her own? She has no right to be Mochel the entitlement of her father! TOSFOS and TOSFOS HA'ROSH explain that although she cannot be Mochel her father's right to collect the Kesuvah, nevertheless the *Rabanan instituted* that when the daughter writes a Kesuvah and is thereby Mochel the previous Kesuvah, her father may not collect it. That is, the Rabanan only gave the Kesuvah to the father on condition that the daughter was not Mochel the Kesuvah by writing a new one to take the place of the earlier one.

The Gemara's question regarding from when the Kesuvah is collected involves a girl who became a Bogeres before the Nesu'in, and the Gemara is following the view of Rebbi Yehudah that the father loses the right to collect the Kesuvah when it is written after his daughter becomes a Bogeres. The Gemara is asking which of the abovementioned two arguments is correct: if the father loses the Kesuvah because the daughter was Mochel the first Kesuvah by writing a new one, then the daughter herself cannot collect from the Nechasim Meshubadim that were sold during the Erusin, since she was Mochel that lien (in order to write a new Kesuvah, that would be paid to herself). If she was not Mochel the Kesuvah, but the Rabanan simply did not give the Kesuvah to the father since it was written after she became a Bogeres, then she could collect from Nechasim Meshubadim from the time of the Erusin (since the original Kesuvah is still in effect; it is just being paid to a different person than originally intended).

IN SUMMARY, according to the Ri, the Gemara's question applies only to a girl who became a Bogeres before the Nesu'in, and the question arises only after she became married (with Nesu'in), and it is only according to the opinion of Rebbi Yehudah who might hold that she is writing a new Kesuvah to replace the old one so that she should get the Kesuvah instead of her father. The question is whether her Shi'abud (to collect from Nechasim Meshubadim) starts from the Erusin or from the Nesu'in.

Tosfos himself questions this approach, asserting that it is somewhat forced to explain the entire Sugya only according to the view of Rebbi Yehudah.

(c) The TOSFOS HA'ROSH and other Rishonim explain similarly to Tosfos, that the question is whether Rebbi Yehudah gives the Kesuvah of a Bogeres to the daughter because she is Mochel the previous Kesuvah or because the Rabanan instituted that the father does not collect if the Kesuvah was written when his daughter was a Bogeres. However, they explain that the Gemara's question of whether the woman may collect Nechasim Meshubadim from the time of the Erusin applies to the opinion of the Rabanan just as it applies to the opinion of Rebbi Yehudah. Even though the Rabanan argue with Rebbi Yehudah and say that the father never gets the Kesuvah of his daughter when she is a Nesu'ah, nevertheless they might agree with Rebbi Yehudah that when the Kesuvah of the Nesu'ah is written the woman is Mochel the Shi'abud of her previous Kesuvah. If Rebbi Yehudah says that by writing a Kesuvah at the time of Nesu'in she is Mochel the previous Kesuvah, then the Rabanan will also agree that by writing a Kesuvah at the Nesu'in, she is Mochel the previous Kesuvah.

IN SUMMARY, according to these Rishonim, too, the question of the Gemara is whether a woman, after Nesu'in, may collect from the husband's property that was Meshubad from the time of Erusin. However, the question applies to every woman, and not just to a woman who became a Bogeres before the Nesu'in, and it applies to the opinion of the Rabanan as much as to the opinion of Rebbi Yehudah.

The ROSH is difficult to understand. According to Rebbi Yehudah, it is easy to understand why the daughter might be Mochel the original Kesuvah at the time of the Nesu'in -- because she does not want her father to collect the Kesuvah (with his rights to the original Kesuvah); she wants to have a new Kesuvah that only *she* will collect. According to the Rabanan, however, who hold that she always gets the original Kesuvah, why should every woman be Mochel the Shi'abud of the Kesuvah from the time of Erusin? What interest could she possibly have in losing the Shi'abud for that period of time?

1. Perhaps the Rosh learned that the woman wants to show her love for her husband and therefore she does him a favor and forgives the Shi'abud from the Erusin. This is a rather forced answer, though, and it is apparently because of this question that Tosfos rejects this approach.

2. Rashi also seems to have rejected this approach because of this question. In fact, this explains an apparent contradiction in Rashi.

When Rashi explains the Gemara's question, he says that she should not collect from Nechasim Meshubadim from the time of Erusin because the Kesuvah is not yet written down and is a "Milveh Al Peh." However, when the Gemara rules like Rav Asi that she only collects from the time of Nesu'in, Rashi does not explain that it is because the earlier Kesuvah was not written, but he explains that it is because she was *Mochel the Shi'abuda* from the Kesuvah of the Erusin at the time of the writing of the new Kesuvah at the Nesu'in (similar to the reasoning of the Tosfos ha'Rosh)! Why does Rashi not give this explanation in his comments to the original question of the Gemara? (RITVA)

The answer might be that Rashi could not explain the Gemara's original question by saying that perhaps the woman is Mochel the earlier Kesuvah when she puts the Kesuvah into writing at the time of Nesu'in, because that question would not be related to the Halachah of the Mishnah according to the Rabanan. There is no justification for inferring that according to the *Rabanan* she is Mochel the Kesuvah of the Erusin when she writes a Kesuvah at the time of the Nesu'in. That is why Rashi explains that the Gemara was not considering the possibility that perhaps the woman is Mochel the first Kesuvah.

But in the Gemara's conclusion, when Rav Asi says that she does not have a Shi'abud from the time of the Erusin, Rashi did not want to explain that the reason is because it is not written down, because Rav Asi is the Halachic opinion (44a), and we find elsewhere that the Gemara *does* consider a "Tenai Beis Din" (e.g. the unwritten Kesuvah at time of Erusin) as though it were written in a Shtar and it may therefore be collected from Nechasim Meshubadim. It must be that Rav Asi holds that she cannot collect from the time of Erusin for a different reason, and that reason is because by writing the Kesuvah at the time of Nesu'in, she is Mochel the Shi'abud of the first Kesuvah. (M. Kornfeld)

3. The RITVA explains similarly to the Tosfos ha'Rosh, but he avoids the question of why we should say that she is Mochel the original Kesuvah according to the Rabanan. He also adds that the question may apply not only to collecting from Nechasim Meshubadim but even to collecting from Nechasim Bnei Chorin. He explains that the Halachah of Rebbi Yehudah applies even if a Kesuvah was *written* at the time of Erusin; even when the Kesuvah was written at the time of Erusin, if she becomes a Bogeres before the Nesu'in, the father nevertheless loses the right to collect the Kesuvah. The reason for this is either because the woman is Mochel the Kesuvah of Erusin at the time that she writes a new Kesuvah for the Nesu'in, or because the Rabanan instituted that the father receive the Kesuvah only when his daughter was a Na'arah at the time of the Nesu'in. Depending upon which of the two explanations for Rebbi Yehudah's Halachah is correct, the woman either cannot, or can, collect her Kesuvah with the original Kesuvah document that she wrote at the time of the Erusin.

According to the Ritva's explanation, the Gemara's question now applies to a situation in which a Kesuvah was written at the time of Erusin, but another Kesuvah was written at the time of Nesu'in. The question applies according to both Rebbi Yehudah and the Rabanan: do we say that the Kesuvah of Nesu'in shows a Mechilah of the first Kesuvah, or not? If she was Mochel the first Kesuvah, then she cannot collect even from Nechasim Bnei Chorin with the first Kesuvah, unless she brings the second Kesuvah as proof to her entitlement, because the first Kesuvah was written only to last until the Nesu'in, and then it no longer has any validity. According to the Ritva, she is not actually being Mochel the Kesuvah from the Erusin, but rather l'Chatchilah the Kesuvah was only written to be valid temporarily, until the Nesu'in. The main purpose of a Kesuvah is to prevent the husband from divorcing his wife after the Nesu'in. The Kesuvah of Erusin is only serving a secondary purpose (that she should have a source of support if he dies or divorces her) and is not meant to be a permanent Kesuvah.

IN SUMMARY, according to the Ritva, the Gemara's question applies to any woman after she gets married, even if she had a *written* Kesuvah from the time of her Erusin. The Gemara is asking whether she may collect with the old Kesuvah *even Nechasim Bnei Chorin*, or whether she may only use the new Kesuvah which was written at the time of Nesu'in.

(d) TOSFOS cites the RASHBA (Rabeinu Shimshon mi'Shantz) who explains that the Gemara's question is according to the view of the Rabanan who say that when a girl gets married, the father loses the right to collect her Kesuvah. The question of the Gemara applies specifically to a Na'arah or Ketanah who gets married, and the question is whether she may collect her Kesuvah from the time of the Erusin after she gets married (with Nesu'in), because the Shi'abud of the Kesuvah started at that time (Erusin), or do we say that since there is a change in the Kesuvah when she becomes married (with Nesu'in) in that the Kesuvah goes from being her father's entitlement to being her own, it is therefore as if a new Kesuvah was written at the time of Nesu'in. If so, she may collect only from the property that was Meshubad from that time onwards.

IN SUMMARY, according to this opinion, the question of the Gemara applies only to a Na'arah or Ketanah whose father made her an Arusah and she later became married, and the question is only according to the view of the Rabanan of the Mishnah.

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