Babylonian Talmud: Tractate Kethuboth

Folio 74a

In the name of R. Eliezer,¹  however, it was stated: She²  must perform halizah but may not contract the levirate marriage.³  Now, here,⁴  surely, it is a case similar to that of an error⁵  affecting merely one woman and they⁶  nevertheless differ!⁷  — In that case⁸  also [it may be said that]⁹  they⁶  differ on the following principles.¹⁰  One Master¹¹  maintains that everyone is aware that there is no validity in the betrothal of a minor and, consequently, any man having intercourse [after such an invalid act] determines that his intercourse shall serve the purpose of a betrothal.¹²  The other Master,¹³  however, maintains that not everyone is aware that there is no validity in the betrothal of a minor, and when a man has intercourse [after such an act¹⁴  he does so] in reliance on his original betrothal.¹⁵

[So]¹⁶  it was also stated: R. Aha b. Jacob stated in the name of R. Johanan. If a man betrothed a woman on a certain condition and then had intercourse with her, she,¹⁷  it is the opinion of all, requires no letter of divorce from him.

R. Aha the son of R. Ika, his¹⁸  sister's son¹⁹  raised an objection against him: A halizah under a false pretext²⁰  is valid; and what is 'a halizah under a false pretext'? Resh Lakish explained: Where a levir is told, 'Submit to her halizah and you will thereby wed her'. Said R. Johanan to him:²¹  I am in the habit of repeating [a Baraitha,] 'Whether he²²  had the intention²³  [of performing the commandment of halizah] and she had no such intention, or whether she had such intention and he had not, her halizah is invalid, it being necessary²⁴  that both shall [at the same time] have such intention', and you say that her halizah is valid?²⁵  But, said R. Johanan, [this is the meaning:]²⁶  When a levir is told, 'Submit to her halizah on the con dition that she gives you two hundred zuz'.²⁷  Thus²⁸  it clearly follows that as soon as a man has performed an act²⁹  he has thereby dispensed with his condition, [why then should it not be said] here also that as soon as the man has intercourse he has thereby dispensed with his condition?³⁰  — The other replied: Young hopeful,³¹  do you speak sensibly?³²  Consider: Whence do we derive [the law of the validity of] any condition? [Obviously] from the condition in respect of the sons of Gad and the sons of Reuben;³³  [hence it is only] a condition that may be carried out through an agent, as was the case there,³⁴  that is regarded as a valid condition; but one which cannot be carried out through an agent,³⁵  as was the case there, is not regarded as a valid condition.³⁶  But is not intercourse³⁷  an act which cannot be performed through an agent as was the case there³⁴  and yet a condition in connection with it is valid?³⁸  — The reason³⁹  there is because the various forms of betrothal⁴⁰  were compared to one another.⁴¹

R. 'Ulla b. Abba in the name of 'Ulla in the name of R. Eleazar stated: If a man betrothed a woman by a loan⁴²  and then had intercourse with her, or on a certain condition⁴³  and then had intercourse with her, or with less than the value of a perutah⁴⁴  and then had intercourse with her, she,⁴⁵  it is the opinion of all, requires from him a letter of divorce.⁴⁶

R. Joseph b. Abba, in the name of R. Menahem in the name of R. Ammi stated: If a man betrothed a woman with something worth less than a perutah and then had intercourse with her, she⁴⁵  requires a letter of divorce from him.⁴⁶  It is only in this case⁴⁷  that no one could be mistaken,⁴⁸  but in the case of the others⁴⁹  a man may be mistaken.⁵⁰

R. Kahana stated in the name of 'Ulla: If a man betrothed a woman on a certain condition⁴³  and then had intercourse with her, she⁴⁵  requires a divorce from him.⁴⁶  Such a case once occurred and the Sages could find no legal ground⁵¹  for releasing the woman without a letter of divorce. [This is meant] to exclude [the ruling] of the following Tanna. For Rab Judah stated in the name of Samuel in the name of R. Ishmael: And she be not seized⁵²  [only then⁵³  is she] forbidden;⁵⁴  if, however, she was seized⁵⁵  she is permitted.⁵⁴  There is, however, another [kind of woman] who is permitted⁵⁴  even though she was not seized.⁵⁶  And who is she? A woman whose betrothal was a mistaken one⁵⁷  and who may, even if her son sits riding on her shoulder,

1. V. supra p. 461, n. 10.
2. Whom the first husband remarried 'while she was still a minor and she came of age while she was with him, and then be died' (cf. Rashi, second version, s.v. [H] a.l.). Aliter: Even if she was remarried after she came of age, or was divorced and remarried after she came of age, R. Eliezer's reason being that preventive measures were necessary against the possibility of erroneously allowing one who was an 'orphan in the lifetime of her father' to contract levirate marriage. If the former interpretation is adopted the author of the Baraitha here cited would be in disagreement with the one in Yeb. 109a (v. Rashi l.c.); if the latter interpretation is adopted, the reading of cur. edd. infra is to be emended (v. infra note 14).
3. V. Yeb. 109a where this passage occurs with some slight variations.
4. Where remarriage took place 'while she was still a minor and she came of age while she was with him'.
5. The error of believing the betrothal of the minor to be valid.
6. The Sages and R. Eliezer.
7. The Sages maintaining that levirate marriage may be contracted; which proves that the intercourse that took place when she was of age is regarded as a valid kinyan. As the same principle applies also to the case of error in respect of a woman under a vow (supra) an objection arises against Rabbah (cf. supra p. 459, n. 14).
8. Lit., 'there'.
9. If the second interpretation (supra note 7) is adopted the reading is to be emended to: Every one knows that the betrothal of a minor is invalid, but where one betrothed a woman on a certain condition and then had intercourse he does so in reliance on this condition (v. Rashi).
10. Not on the one underlying the case of which Rabbah spoke.
11. The view expressed by the Sages.
12. Hence the validity of the marriage and the permissibility of a levirate marriage.
13. R. Eliezer.
14. Which be believes to be a valid betrothal.
15. Which in fact was invalid. Hence the invalidity of the marriage etc. (cf. supra note 1).
16. In agreement with Rabbah who stated (supra 73b) that 'in the case of an error affecting merely one woman all agree that she requires no divorce from him'.
17. If the condition has not been fulfilled.
18. R. Aba b. Jacob's.
19. MS.M. reads 'son of the sister of Resh Lakish'.
20. [H] (rt. [H], Hof'al.) lit., 'misled'.
21. Resh Lakish. Cur. edd. omit 'to him' which is the reading of MS.M.
22. The levir.
23. When be submitted to halizah.
24. Lit., 'until'.
25. If the levir, according to the interpretation of Resh Lakish, performed the halizah in order to effect thereby a kinyan of marriage, he obviously did not intend to perform the commandment of halizah the very purpose of which is not the union of the woman with, but her separation from, the levir. And, since there was no intention to perform the commandment, how could such a halizah be valid?
26. Of 'a halizah under a false pretext'.
27. V. Glos. Even if the promised sum was not paid to the levir the halizah is nevertheless valid. Tosef. Yeb. XII, Yeb. 106a.
28. Since the non-fulfilment of the condition does not invalidate the halizah.
29. [Without emphasizing at the time that he does so in reliance on the condition (v. Tosaf.).]
30. And the woman should, therefore, become his lawful wife. How then could R. Aha b. Jacob maintain in the name of R. Johanan that a betrothal, on a certain condition that has not been fulfilled, is invalid and no divorce is required even if intercourse followed the betrothal?
31. Lit., 'son of the school house'.
32. Lit., 'beautiful'.
33. V. Num. XXXII, 29, 30 and Kid. 61a.
34. Moses instructed Joshua to act, so to speak, as his agent in carrying out the condition he had made (v. Num. XXXII, 28ff).
35. Halizah, for instance. The levir cannot instruct an agent to submit to halizah on his behalf when the sum promised shall have been handed to him.
36. As the condition is null and void the act of halizah remains valid despite the unfulfilled condition. Where, however, the condition was valid, as in the case of the betrothal spoken of by R. Aha b. Jacob, the non-fulfilment of the condition renders the betrothal null and void and no subsequent intercourse can be regarded as an annulment of the condition and confirmation of the betrothal.
37. When it was intended as a kinyan of marriage.
38. As was stated in the passage quoted from Git. 25b (supra 73b).
39. For the validity of the condition.
40. [H] (rt. [H]) lit., 'beings'. 'becomings'. [H] is the rt. of [H] (Deut. XXIV, 2), and she becometh … wife. A woman may become a man's wife either by receiving from him (a) money (or its equivalent in kind) or (b) a deed or (c) by cohabitation (Kid. 2a).
41. As a condition in connection with (a) and (b) (which may be performed through an agent) is valid, so also is one in connection with (c).
42. Which she owed him. Such betrothal is invalid because loaned money may be spent, while a betrothal cannot be valid unless money or its equivalent (v. p, 464, n. 15) was actually given to the woman at the time of the betrothal (v. Kid. 6b).
43. Which was not fulfilled.
44. V. Glos. The minimum sum for a betrothal to be valid is a perutah.
45. If the union is to be dissolved.
46. Because a man, it is assumed, would not allow his intercourse to deteriorate into a mere act of prostitution.
47. Betrothal with less than a perutah.
48. That the betrothal was valid. Knowing his act to be invalid be determines to effect the kinyan of the marriage through his subsequent intercourse. Hence the necessity for a divorce to dissolve it.
49. Betrothal by a loan or on a certain condition, spoken of supra in the name of R. Eleazar.
50. He might be under the impression that a loan may effect a valid betrothal or that the condition he had made had been fulfilled. As his intercourse would consequently be based on his erroneous presumption of the validity of the betrothal the union would have no validity and, contrary to the view expressed in the name of R. Eleazar (v. supra n. 8), no divorce to dissolve it would be required.
51. Lit., 'there was no power'.
52. Num. V, 13, E.V., neither she be taken in the act.
53. Only if she was 'not seized', i.e., she did not act under compulsion but willingly (cf. Yeb. 56b).
54. To her husband.
55. I.e., if she acted under compulsion.
56. Cf. supra n. 1.
57. I.e., when a condition that was attached to it remained unfulfilled. In such a case the woman may leave her husband without a letter of divorce and is free to marry any other man.

make a declaration of refusal¹  [against her husband] and go away.²

Our Rabbis taught: If she³  went to a Sage [after her betrothal] and he disallowed her vow her betrothal is valid. [If one⁴  went] to a physician who cured her, her betrothal is invalid. What is the difference between the act of the Sage and that of the physician?⁵  — A Sage annuls⁶  the vow retrospectively⁷  while a physician effects the cure only from that moment onwards.⁸  But was it not, however, taught, [that if she⁹  went] to a Sage and he disallowed her vow or to a physician and he cured her, her betrothal is invalid?¹⁰  — Rabbah¹¹  replied: There is no contradiction. The former¹²  represents the view of R. Meir; the latter¹³  represents that of R. Eleazar. 'The former represents the view of R. Meir', who holds that a man does not mind¹⁴  his wife's being exposed to the publicity¹⁵  of a court of law.¹⁶  'The latter represents that of R. Eleazar' who holds that no man wants his wife to be exposed to the publicity¹⁷  of a court of law.¹⁸  What is the source¹⁹  [of these statements]?²⁰  — [The following] where we learned: If a man divorced his wife on account of a vow [she had made] he may not remarry her,²¹  nor may he remarry his wife [if he divorced her] on account of a had name.²²  R. Judah ruled: In the case of a vow that was made in the presence of many people²³  he may not remarry her,²⁴  but if it was not made in the presence of many people he may remarry her.²⁵  R. Meir ruled: In the case of a vow [the disallowance of which] necessitates the investigation of a Sage²⁶  her husband may not remarry her,²⁷  but if it does not require the investigation of a Sage²⁸  he may remarry her.²⁹  R. Eleazar said:³⁰  The prohibition against [remarriage where the disallowance of the vow] required [the investigation of a Sage]³¹  was ordained only on account [of a vow] which requires [no such investigation].³²  (What is R. Judah's reason?³³  Because it is written in Scripture,

1. I.e., she requires no formal letter of divorce.
2. V. supra 51b. The practical ruling of the Sages, as reported by R. Kahana in the name of 'Ulla, shews that the ruling of R. Ishmael was not adopted.
3. The woman who was under a vow at the time of her betrothal.
4. The woman who was afflicted with a bodily defect at the time of her betrothal.
5. I.e., why is the betrothal valid in the case of the former and not in that of the latter?
6. Lit., 'uproots'.
7. So that the woman, at the time of her betrothal, was virtually under no vow. Hence the validity of the betrothal.
8. Since the woman at the time of the betrothal was still suffering from her affliction the betrothal was effected under a false assumption and is therefore invalid.
9. V. supra note 8.
10. How is this statement to be reconciled with the previous one according to which disallowance of a vow by a Sage renders the preceding betrothal valid?
11. V. Marg. glos. Cur. edd. [H], 'Raba'.
12. The ruling that the betrothal is valid if a Sage disallowed the vow.
13. That even where a Sage had disallowed the vow the betrothal is invalid.
14. Lit., 'Is willing'.
15. [H], lit., 'that she shall be disgraced'.
16. By applying in person to the Sage for the disallowance of her vow. It is assumed, therefore, that a man has no objection to betrothing a woman who is under a vow, since she may subsequently apply to a Sage for a disallowance.
17. V. p. 466, D. 20.
18. Consequently, if he had known that she was under a vow he would not have betrothed her. Hence the invalidity of the betrothal.
19. Lit., 'it'.
20. Attributed to R. Meir and R. Eleazar respectively.
21. Because, according to one opinion (v. Git. 45b), it is possible that after the woman had obtained from a Sage the disallowance of her vow and had married another man, her first husband might regret his action in divorcing her and, advancing the plea that he would not have divorced her had he known that her vow could be disallowed, might impair thereby the validity of her second marriage. By the enactment that 'he may not re-marry her' a husband is naturally induced to institute all the necessary enquiries and to consider very carefully his course before he decides upon divorce, and should he nevertheless divorce her and then plead that he was unaware that her vow could be disallowed, his plea might well be disregarded. According to another opinion (Git. l.c.) the prohibition to marry a woman in the circumstances mentioned is a penalty, and a warning to women to abstain from making vows.
22. Immoral conduct. For the reason cf. supra note 6 mutatis mutandis. As a vow may be disallowed so may a bad name turn out to be unfounded, and the first husband might then try to impair the validity of the second marriage. According to the second opinion (v. supra note 6 ad fin.) the prohibition is a penalty for, and a warning against, lax morality and ill-reputed associations.
23. Lit., 'of which many knew', cf. infra 75a ab init.
24. Since such a vow can never be disallowed (v. infra p. 468, n. 6 and text). R. Judah adopts the second reason (supra note 6).
25. Because, since the disallowance of such a vow is permitted, no penalty has been imposed upon the woman.
26. I.e., if it is of the class of vows which a husband is not entitled to invalidate.
27. R. Meir, maintaining that a husband does not mind his wife's being exposed to the publicity of a court of law forbids remarriage on account of the first reason supra p. 467, n. 6, since the first husband might plead that if he had known that the vow could be disallowed by a Sage he would not have consented to give a divorce.
28. I.e., if the vow was of a class the invalidation of which is within the husband's rights.
29. Because in this case the husband cannot advance the plea that the divorce was due to a misunderstanding (cf. supra p. 467, n. 6 and note 12).
30. Cur. edd. insert in parentheses, 'Whether it requires or whether it does not require he may not remarry her' (cf. the reading in Git. 45b, Rashal and Asheri).
31. V. p. 467, n. 11.
32. V. supra note 1. Since in the latter case the husband might plead that he was not aware that he had the right to disallow the vow. In the former case, however, no such plea can be advanced because no man would consent that his wife should be exposed to the publicity of a court of law. V. Git. 45b.
33. For ruling that a vow that was made in public (v. supra p. 467, nn. 8 and 9) may not be disallowed.