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Kesuvos, 70

1) OVERRIDING A "SHIBUD" WITH A "NEDER"

QUESTION: The Mishnah states that a man may prohibit his wife with a Neder from deriving any pleasure from him, and as a result he becomes unable to provide his wife with Mezonos, financial support. The Mishnah says that he may instead appoint a "Parnas" (benefactor) to support his wife.

The Gemara asks that the husband should not be able to prohibit himself with a Neder from providing his wife with Mezonos, since he is obligated to provide her with Mezonos and he cannot remove that obligation.

The Gemara gives a number of answers. Among them, the Gemara says that the Mishnah is referring to a case where the husband made the Neder during Erusin, prohibiting his Arusah from deriving any pleasure from him. The Mishnah earlier (57a) teaches that an Arusah is entitled to receive Mezonos after twelve months have passed. The Mishnah here is teaching that the husband's Neder can override his obligation to provide the Arusah with Mezonos after twelve months.

RASHI explains why the husband's Neder is able to override the obligation to give Mezonos to his Arusah after twelve months. He explains that during Erusin, the obligation to support her is only mid'Rabanan, and since a Neder takes effect mid'Oraisa, it overrides the obligation mid'Rabanan to give Mezonos to the Arusah. Rashi is implying that after Nesu'in, the obligation to feed one's wife is mid'Oraisa, and that is why a Neder cannot override his obligation to give her Mezonos after Nesu'in.

Rashi's explanation is difficult to understand.

(a) The Gemara earlier (47b) cites an opinion that the obligation to provide Mezonos to a Nesu'ah is only mid'Rabanan. Many Rishonim rule in accordance with this view, because Rav Huna in the name of Rav (58b) is following this view when he rules that a woman is entitled to say, "Eini Nizones v'Eini Osah" -- "I decline the right to receive the Mezonos [from my husband], in order not to have to give him my Ma'aseh Yadayim," and the Halachah follows Rav Huna's ruling. According to Rashi, though, who says that whenever a Neder is made against a Chiyuv d'Rabanan, the Neder which is d'Oraisa overrides the Chiyuv d'Rabanan, then even after the Nesu'in the husband should be able to prohibit himself with a Neder from feeding his wife, because the Chiyuv of Mezonos even for a Nesu'ah is only mid'Rabanan!

(b) The Gemara (70a) says that if a woman makes a Neder prohibiting to her husband anything she produces, the Neder does not take effect because of the Shi'abud (obligation) to give her Ma'aseh Yadayim to her husband. However, this Shi'abud of the woman to her husband is certainly only mid'Rabanan. Why, then, should a Neder d'Oraisa not be able to override it?

(c) The Gemara earlier (59b) teaches that Hekdesh and Konamos (Neder) override a Shi'abud. As Rashi explains, if a person designated an object as a lien ("Apotiki") for the repayment of a loan, and then he made that object Hekdesh, the Shi'abud to the debtor is removed and there is no longer a lien on that object for the loan. According to Rashi here who says that a Neder cannot override an obligation that is mid'Oraisa, than Hekdesh also should not be able to override a Shi'abud d'Oraisa, because the Gemara there compares the two! Why, then, should Hekdesh be able to override a lien for a debt? The lien is a Chiyuv d'Oraisa since he specifically designated it as a lien for the debt!

(d) TOSFOS suggests a simpler explanation for the Gemara. When the Gemara mentions that the husband is obligated to support his wife after twelve months of Erusin have passed, it is referring to a case where the husband made the Neder *before* twelve months passed. Once twelve months have passed, the Neder takes effect to exempt him from paying Mezonos, because the Neder *preceded* his obligation of Mezonos. This is exactly the logic that the Gemara suggests in the answer that follows, when it says that a man can prohibit his wife from deriving pleasure from him when he makes the Neder when she is an Arusah and then he marries her, making her a Nesu'ah. Since the Neder preceded the marriage and the obligations of the marriage, it can override those obligations. The only reason the Gemara rejects this answer is because in such a case, when the woman agrees to get married she is accepting upon herself that she is not going to receive Mezonos either, as she goes into the marriage willingly. But when the date marking twelve months arrives, the woman did not do anything to imply that she is ready to lose the Mezonos, and therefore she should not lose the Mezonos and the husband's Neder remains in force; he must appoint a Parnas.

Tosfos' explanation seems to be the most straightforward way of explaining the Gemara. Why does Rashi not explain that way?

ANSWERS:

(a) Rashi seems to have a different approach (from that of the other Rishonim) to how a Neder overrides a Shi'abud. The source for what Rashi says, that a Neder (Konem) overrides an obligation only when the obligation is d'Rabanan, seems to be the Gemara earlier (59b), where the Gemara asks why a woman cannot prohibit her Ma'aseh Yadayim to her husband if a Neder usually overrides a Shi'abud. The Gemara there answers that the Rabanan strengthened the Shi'abud that a husband is entitled to receive from his wife. Rashi explains that this means that the husband is deemed more than just a debtor to the wife, someone to whom the wife owes money, but that he is considered to be a buyer, and what she produced is considered as if it was actually sold to him so that he has the status of a buyer.

We find elsewhere (see Rashi 50a, DH ha'Ba'al) this concept that the husband is considered to have bought the various items of his wife to which he is entitled. However, we never find the converse -- that what the wife is entitled to receive from the husband is considered to have been bought from him. Why, then, does the Gemara assume in many places that the man cannot prohibit himself from giving her the Mezonos or the other Shi'abudim that he has to her (such as Tashmish) because of his obligation (Rashi 61b, DH ha'Madir, see Insights there)? He should be able to prohibit those things to his wife!

Because of this, Rashi understands that a Neder can only override a Shi'abud that is mid'Rabanan, such as the Shi'abud that a woman has to her husband (if not for the fact that the Rabanan strengthened that Shi'abud). However, a Shi'abud that the man has to his wife cannot be removed by a Neder, because his Shi'abudim to provide her with Mezonos and Tashmish are mid'Oraisa. The Gemaras that say that he cannot make a Neder to override his obligation to provide her with Mezonos hold that Mezonos is a Chiyuv d'Oraisa, like the opinion of the Tana on 47b.

The RASHBA points out that if Rashi is ruling here that Mezonos is mid'Oraisa, he is in agreement with the RAMBAM (Hilchos Ishus 12:2), who rules like this as well. The Rashba explains that according to Rashi and the Rambam, it could be that a woman may still say "Eini Nizones v'Eini Osah" and exempt her husband from giving her Mezonos and keep her Ma'aseh Yadayim to herself, because the Rabanan removed his Chiyuv mid'Oraisa of Mezonos in such a case.

(b) The reason the wife cannot prohibit her Ma'aseh Yadayim to her husband even though it is only a Shi'abud d'Rabanan is because the Rabanan strengthened the Shi'abud that a woman has to her husband, like the Gemara says earlier (59b). (RASHBA)

(c) RAV ELYASHIV (in HE'OROS B'MASECHES KESUVOS) says that Rashi might hold that the Gemara that says a Neder overrides a Shi'abud is following the opinion that all Shi'abudim are mid'Rabanan. Even when a person designates a certain object to be a lien for a loan, he cannot create a Shi'abud mid'Oraisa, according to the opinion that says that all Shi'abudim are mid'Rabanan. (This is in contrast to the view of the RITVA in Kidushin 14b, who writes that when one *specifies* that an object is to be used as a lien, it is indeed a Shi'abud d'Oraisa according to all opinions).

(d) Regarding why Rashi does not give the same explanation as Tosfos and say that the husband made the Neder and removed the Shi'abud before the twelve months arrived, Rashi might hold that since the husband accepted upon himself the obligation to support the woman after twelve months of Erusin, the Shi'abud to support her *preceded* the Neder, even though the actual payments do not precede the Neder. Therefore, this cannot be compared to the man who prohibits his wife before Nesu'in, since before Nesu'in he never accepted upon himself any of the Shi'abudim of Nesu'in. (M. Kornfeld)

70b