Babylonian Talmud: Tractate Kethuboth

Folio 73a

It must not be suggested that Rab's reason¹  is that, because the man has married her without attaching any conditions, he has entirely dispensed with his former condition.²  Rab's reason rather is that no man treats his intercourse as a mere act of prostitution.³

Surely they⁴  once disputed on such a principle.⁵  For it was stated: Where [an orphan] minor⁶  who did not⁷  exercise her right of mi'un⁸  and who, when she came of age, left⁹  [her husband]¹⁰  and married [another man], Rab ruled: She requires no letter of divorce from her second husband,¹¹  and Samuel ruled: She requires a letter of divorce from her second husband!¹²  — [Both disputes were] necessary. For if the latter¹³  only had been stated, it might have been assumed that Rab adhered to his opinion¹⁴  in that case only because no condition was attached [to the betrothal],¹⁵  but that in the former case,¹⁶  where a condition was attached [to the betrothal],¹⁷  he agrees with Samuel.¹⁸  And if the former case¹⁶  only had been stated, it might have been assumed that in that case only¹⁹  did Samuel maintain his view²⁰  but that in the latter¹³  he agrees with Rab.²¹  [Hence both were] required.

We have learned: IF HE MARRIED HER WITHOUT MAKING ANY CONDITION AND SHE WAS FOUND TO BE UNDER A VOW, SHE MAY BE DIVORCED WITHOUT RECEIVING HER KETHUBAH [which²²  implies that] it is only her kethubah that she cannot claim but that she nevertheless requires a letter of divorce. Now does not this²³  refer to one who has betrothed a woman on condition [that she was under no vow]²⁴  and married her without making any condition?²⁵  This then²⁶  represents an objection against Samuel!²⁷

1. For regarding the marriage as valid.
2. And consequently he must not only divorce her but must give her her kethubah also.
3. The consummation of the marriage was, therefore, a legal act necessitating a divorce for its annulment. In respect of the monetary obligation, however, the man still adheres to his original condition which she did not fulfil, and be cannot consequently be expected to give her also her kethubah.
4. Rab and Samuel.
5. I.e., whether intercourse after a conditional betrothal (the case spoken of supra 72b), or a legally imperfect marriage or betrothal (the case cited infra from Yeb. 109b) has the force of a valid and proper marriage to require the divorce for its annulment.
6. Who was given in marriage by her mother or brothers.
7. While she was still in her minority.
8. V. Glos.
9. Lit., 'stood up'.
10. With whom she had intercourse after she had come of age.
11. Because, according to Rab, her second marriage was null and void owing to the kinyan (v. Glos.) effected by the intercourse of the first husband when she came of age. (V. supra n. 12). Being well aware that the original marriage which took place during the woman's minority had no legal force, the man is presumed to have intended his intercourse after she had attained her majority to effect the required legal kinyan of marriage.
12. Yeb. 109b; because any act of intercourse on the part of the first husband, even after the woman had attained her majority, was carried out in reliance on the original betrothal which, having taken place while she was a minor, had no validity. Her betrothal to the second is, therefore, valid and must be annulled by a proper divorce. Though it may be added, Samuel admits that she is prohibited to the second husband, having regard to the fact that she did not exercise her right until she reached her majority (v. Nid. 52a). This prohibition is nevertheless only Rabbinical and consequently has no bearing on the question of the divorce, the purpose of which is to sever a union which is Pentateuchally binding. According to Rab, however, (v. supra p. 455, n. 13) the prohibition of the woman to her second husband is not merely Rabbinical but is, in fact, Pentateuchal. Why then should Rab and Samuel dispute on the same principle twice?
13. Lit., 'that', the dispute in the case of the minor, cited from Yeb. 109b.
14. That the intercourse of the first husband is regarded as a kinyan.
15. And the husband may, therefore, be presumed to be anxious to give to the union all the necessary validity of a proper marriage (cf. supra p. 455, n. 13).
16. That stated supra 72b.
17. And the husband naturally believes that the woman, since she consented to the marriage, was in a position to fulfil it.
18. That, as it never occurred to the husband (v. supra n. 5) that his original betrothal was in any way invalid, and as he did not, therefore, betroth her by subsequent cohabitation, no divorce is required.
19. Since a condition was attached to the original betrothal.
20. That the marriage, owing to its dependence on the original condition, is invalid.
21. That, since no conditions were made, the intercourse of the first husband after her attaining majority has the validity of a kinyan, and no divorce from the second is required.
22. Since the kethubah was excluded and not the letter of divorce.
23. The second clause of our Mishnah.
24. I.e., the case spoken of in the first and previous clause, the second clause of the Mishnah being dependent on the first.
25. Which is the case in dispute between Rab and Samuel.
26. The answer being apparently in the affirmative, and the implication being that a divorce is required.
27. Who ruled (supra 72b ad. fin.) that no divorce is necessary.

— No; [this¹  refers to one who] betrothed her without attaching a condition and also married her without attaching a condition.²  If, however, one betrothed a woman on a certain condition and subsequently married her without attaching a condition would she, [according to our Mishnah], indeed³  require no divorce?⁴  If so, then, instead of stating, IF A MAN BETROTHED A WOMAN ON THE CONDITION THAT SHE WAS NOT SUBJECT TO ANY VOWS AND SHE WAS FOUND TO BE UNDER A VOW, HER BETROTHAL IS INVALID,⁵  it should rather have been stated: If a man married a woman without attaching a condition and she was found to be under a vow, her betrothal is invalid, and [it would be evident, would it not, that this⁶  applies] even more so to the former?⁷  — It is really this reading that was meant:⁸  IF A MAN BETROTHED A WOMAN ON THE CONDITION THAT SHE WAS NOT SUBJECT TO ANY VOWS, and then he married her without making any conditions, AND SHE WAS FOUND TO BE UNDER A VOW, HER BETROTHAL IS INVALID; if, however, he betrothed her without making any conditions and also MARRIED HER WITHOUT MAKING ANY CONDITIONS, SHE MAY BE DIVORCED WITHOUT RECEIVING HER KETHUBAH; it is only her kethubah that she cannot claim but it is necessary for her to obtain a divorce. But why has she no claim to her kethubah? Because, [apparently], he⁹  could plead, 'I do not want a wife that is in the habit of making vows',¹⁰  but if that is the case there should be no need for her to obtain a divorce either!¹¹  — Rabbah replied: It is only according to Rabbinical law that she requires a divorce. So also said R. Hisda: It is only in accordance with the Rabbinical law that she requires a divorce. Raba replied: The Tanna¹²  was really in doubt.¹³  [Hence he adopted] the lenient view in monetary matters¹⁴  and the stricter one¹⁵  in the case of prohibitions.¹⁶

Rabbah stated: They¹⁷  differ only in the case of an error¹⁸  [affecting] two women,¹⁹  but where an error [affects] one woman²⁰  all agree²¹  that she requires no divorce from him.²²  Said Abaye:²³  But our Mishnah, surely, is one which [has been assumed²⁴  to refer to] an error [affecting] one woman but was nevertheless adduced as an objection!²⁵  If, however, such a statement was made at all it must have been made in this form: Rabbah stated: They²⁶  differ only in the case of an error [affecting] a woman [who is in a position] similar [to that of one of] two women,²⁷  but in the case of an error [affecting] merely one woman²⁸  all agree²⁹  that she requires no divorce from him.³⁰

Abaye raised an objection against him:³¹  If a man betrothed a woman in error³²  or [with something worth] less than a perutah,³³  and, similarly, if a minor betrothed a woman, even if any [of them] has subsequently sent presents³⁴  [to the woman], her betrothal is invalid,³⁵  because he has sent these gifts on account of the original betrothal.³⁶  If, however, they³⁷  had intercourse they have thereby effected legal kinyan. R. Simeon b. Judah in the name of R. Ishmael said: Even if they had intercourse they effect no kinyan.³⁸  Now here, surely, it is an error [affecting] only one woman and they³⁹  nevertheless differ. Would you not [admit that by 'error' is meant] an error in respect of vows?⁴⁰  — No; [what was meant is] an error in respect of that which was worth less than a perutah.⁴¹  — But was not 'less than than a perutah' explicitly mentioned: 'If a man betrothed a woman in error or [with something worth] less than a perutah'?⁴²  — [The latter part is] really an explanation [of the former:] What is meant by 'If a man betrothed a woman in error'? If, for instance, he betrothed her with 'something worth less than 'a perutah'.

On what principle do they⁴³  differ?⁴⁴  — One Master⁴⁵  holds the view that everyone is aware that with less than the value of a perutah no betrothal can be effected, and consequently any man having intercourse [after such an invalid act] determines [to do so] for the purpose of betrothal. The other Master,⁴⁶  however, holds the view that not everyone is aware that with less than the value of a perutah no betrothal can be effected, and when a man has intercourse [after such an act⁴⁷  he does so] in reliance on his first betrothal.⁴⁸

He raised [another] objection against him:⁴⁹  [If a man said to a woman,] 'I am having intercourse with you on the condition that my father will consent',⁵⁰  she is betrothed to him even if his father did not consent. R. Simeon b. Judah, however, stated in the name of R. Simeon, If his father consented she is betrothed but if his father did not consent she is not betrothed.⁵¹  Now here, surely, it is a case similar to that of an error affecting one woman⁵²  and they⁵³  nevertheless differ!⁵⁴  — They differ in this case⁵⁵  on the following points.⁵⁶  One Master⁵⁷  holds the opinion that [the expression] 'On the condition that my father consents' implies, 'On condition that my father will remain silent', and [the betrothal is valid] because, surely, his father remained silent. And the other Master⁵⁸  holds the opinion [that the meaning of the expression is] that his father will say, 'yes', and [the betrothal is invalid] because his father in fact did not say, 'yes'.

He raised [a further] objection against him.⁵⁹  The Sages agree with R. Eliezer⁶⁰  in respect of a minor whom her father had given in marriage and who was divorced,⁶¹  [in consequence of which] she is regarded as an 'orphan' in her father's lifetime,⁶²  and who was then remarried,⁶³  that she must perform halizah⁶⁴  but may not⁶⁵  contract the levirate marriage because her divorce was a perfectly legal divorce,⁶⁶  but her remarriage was not a perfectly legal remarriage.⁶⁷  This,⁶⁸  however, applies only where he⁶⁹  divorced her while she was a minor⁷⁰  and remarried her while she was still a minor;⁷¹  but if he⁷²  divorced her while she was a minor⁷³  and remarried her while she was still a minor and she became of age while she was still with him, and then he died,⁷⁴  she must either perform halizah or contract the levirate marriage.⁷⁵

1. The second clause of our Mishnah.
2. I.e., the second clause of our Mishnah is not dependent on the first one.
3. Lit., 'thus'.
4. This would seem to follow from the interpretation of our Mishnah just advanced on behalf of Samuel.
5. A form of expression which, omitting all reference to marriage, might imply that if she was subsequently married unconditionally a divorce is required.
6. That the betrothal is invalid and that consequently no divorce is required.
7. The case enunciated in the present form of our Mishnah where the betrothal was not followed by marriage.
8. Lit., 'thus also he said'.
9. Should be be ordered to pay the kethubah.
10. And her betrothal is, therefore, invalid as if the man had advanced such a plea at the actual time of the betrothal.
11. Cf. p. 457, n. 10. Rab's view that 'no man treats his intercourse as a mere act of prostitution' (supra 73a) cannot be advanced here in reply, since Samuel, whose views are the subject of the present discussion, does not admit it.
12. Of our Mishnah.
13. As to 'whether the presumption that, as a rule, one does not want to live with a wife who is in the habit of making vows is sufficient reason for regarding the betrothal of such a woman as null and void.
14. I.e., the kethubah. As the woman's claim to it is of a doubtful nature, her husband who is the possessor of the money cannot be made to pay it.
15. That a divorce is necessary if she wishes to remarry.
16. It is forbidden to live with another man's wife.
17. Rab and Samuel, supra 72b, ad fin.
18. I.e., the man believed that the woman was under no vow while in fact she was.
19. The first of whom a man betrothed on the condition that she was under no vow and the second of whom he afterwards married without making any condition and subsequently found that she was under a vow. Samuel regards the non-conditional marriage of the second as invalid because the man is presumed to have married her on the same condition as that on which he betrothed the first. Rab, however, maintains that it is quite possible that the man was so attracted by the second woman that he was willing to dispense with his terms.
20. Whom the man betrothed on a certain condition and afterwards married without making any condition.
21. Even Rab.
22. Since the man has made it clear at the betrothal that he objected to live with her if she were encumbered with any vows.
23. Rashal deletes 'to him', which appears in brackets in cur. edd.
24. Supra 73a ad fin.
25. Against Samuel (l.c.); which shews, contrary to Rabbah's assumption, that even in the case of a mistake in respect of one woman, some authorities maintain that a divorce is required.
26. Rab and Samuel, supra 72b ad fin.
27. One, for instance, who was betrothed on a certain condition, was then divorced and subsequently married with no condition. In such a case Rab maintains that a divorce is required as in the case of the second woman where two women were involved (cf. supra p. 458, n. 9), while Samuel maintains that no divorce is required because the man's condition at the betrothal is regarded as a permanent declaration that he would not live with a woman who was in the habit of making vows and, since this condition renders the marriage null and void, no divorce is required to annul such a marriage.
28. I.e., one whose marriage had followed her betrothal, and no divorce had intervened, so that the man may well be presumed to have consummated marriage on the same terms as those he laid down at the betrothal.
29. Even Rab.
30. In raising the objection against Samuel supra our Mishnah was assumed to deal with 'a woman who was in a position similar to that of two women' (cf. supra n. 1).
31. Rabbah.
32. This, at present, is presumed to mean that the woman was under a vow and the man was at the time unaware of it.
33. V. Glos.
34. Sablonoth; v. Kid. Sonc. ed. p. 254, n. 4.
35. Although the presents, if specifically given as a token of betrothal, would effect a valid kinyan of betrothal.
36. And since that betrothal is invalid the gifts cannot effect the necessary kinyan.
37. Any of those mentioned whose betrothal is invalid.
38. Tosef. Kid. IV.
39. R. Ishmael and the first Tanna.
40. Cf. supra note 6. This proves that one authority at least (viz. the first Tanna) regards a non-conditional marriage as valid though it followed a conditional betrothal. How then could Rabbah maintain, according to the second version, that in such a case all agree that, as the marriage is invalid, no divorce is required.
41. The man, at the time of betrothal, having been under the erroneous impression that kinyan may be effected by such an insignificant sum. Since this law is generally known it may well be presumed that subsequent intercourse was intended as kinyan. In the case of an error in respect of vows, however, subsequent intercourse cannot alter the invalidity of the betrothal since during the performance of the latter act the man may still have been under the impression that his wife was not restricted by any vow. The general opinion, therefore, is, Rabbah may well maintain, that no divorce is in this case required.
42. Is it likely that the same law should be repeated in the same context?
43. R. Ishmael and the first Tanna.
44. On the previous assumption (that the 'error' referred to the conditional betrothal of a woman who was under a vow) the principles underlying this dispute might be those upheld supra by Rab and Samuel respectively. On the present assumption, however, (that be 'error' refers to a betrothal attempted with less than a perutah) the difficulty arises (cf. supra note 1) 'on what principles do they differ?' sc. how could R. Ishmael maintain his view that 'even if they had cohabited they effect no kinyan'?
45. The first Tanna.
46. R. Ishmael.
47. Which be believes to be a valid betrothal.
48. Which was in fact invalid and in consequence of which the cohabitation constitutes no kinyan.
49. Rabbah.
50. To the union.
51. Git. 25b.
52. Since in both cases a condition was attached to the betrothal, merely one woman is involved, and no divorce intervened between betrothal and intercourse.
53. R. Simeon and the first Tanna.
54. R. Simeon maintaining that the intercourse is a valid kinyan, and a divorce is consequently required. How then (cf. supra p. 459, n. 14 mutatis mutandis) could Rabbah assert that in such a case all agree that no divorce is necessary?
55. Lit., 'there'.
56. Not on the principle underlying Rabbah's assertion.
57. The first Tanna.
58. R. Simeon.
59. Rabbah.
60. The reading in the parallel passage, Yeb. 109a, is 'Eleazar'.
61. Her father having received the letter of divorce on her behalf.
62. Like an orphan, she has no father to give her away in marriage, because though alive be has lost his right to do so after he has given her in marriage once.
63. Lit., 'he (the first husband from whom she was divorced) married her again'. While she was still in her minority when her actions have no legal validity.
64. V. Glos.
65. If her husband died childless and was survived by a brother.
66. And as the divorcee of his brother she is forbidden to the levir under the penalty of kareth (v. Glos.).
67. Cf. supra n. 13.
68. That the Sages admit that the minor in question may not contract the levirate marriage.
69. Her first husband.
70. The validity of the divorce being due to the fact that her father has accepted the letter of divorce on her behalf.
71. When neither she nor her father (cf. supra p. 461, n. 12) had the right to contract the marriage; and her husband died while she was still in her minority so that no intercourse at all had taken place when she came of age.
72. Her first husband.
73. V. p. 461, n. 20.
74. So that it was possible for intercourse to take place when she was already in her majority.
75. Because the act of intercourse after she had come of age constituted a legal kinyan of marriage, and she became thereby the legally married wife of the deceased.