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.