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Kesuvos, 75

1) MARRYING A PROMINENT WOMAN WHO MAKES NEDARIM

QUESTION: The Gemara asks that there is a contradiction between two Beraisos. One Beraisa states that if a man is Mekadesh a woman on condition that she has no Nedarim, and she has a Neder but she annuls it (before the husband discovers the Neder), the Kidushin takes effect. A second Beraisa states that in such a case the Kidushin does not take effect.

Rava answers that the Beraisa that says that the Kidushin does not take effect is discussing an "Ishah Chashuvah," a woman from a prominent family. RASHI explains that since the woman is from a prominent family, the man does not want the Kidushin to take effect at all if she has any Nedarim, because he wants to retain the right to marry her immediate relatives (and if the Kidushin takes effect and he must divorce her, he will be prohibited to her relatives).

What does Rashi mean? If the woman annulled her Nedarim, there is no reason for him not to want to be married to her. He should not be bothered that he is Asur to her relatives, just like her was not bothered by it at the time that he gave her the Kidushin! On the other hand, if the fact that she had Nedarim which she annulled does not satisfy his stipulation because he is afraid that she will continue to make more Nedarim in the future, then the same concern should apply to any woman, even one who is not an Ishah Chashuvah, and thus the Kidushin should not take effect with any woman who has Nedarim since the stipulation was not fully fulfilled! (TOSFOS HA'ROSH)

ANSWERS:

(a) The TOSFOS HA'ROSH says that when a person makes a stipulation that the Kidushin will take effect only if the woman has no Nedarim, there is a doubt about what his intentions are. We know that he does not want her to have a Neder upon her at the time of the marriage. However, he might also not want her to be the type of woman who has a tendency to make Nedarim even if, at the present moment, she has no Nedarim upon her. This second intention is subject to doubt -- we cannot be certain that he does not want to marry her if she might make Nedarim in the future. He might have that in mind, but, on the other hand, perhaps he does not care about that.

Therefore, in the case of a woman who is not Chashuvah, he is required to give her a Get when she annulled her present Nedarim, because she might make Nedarim in the future and he might have intended not to marry such a woman. In the case of an Ishah Chashuvah, though, we can be certain that he has full intention not to marry her if she is the type of woman who will makes Nedarim (whether she annuls her present Nedarim or not), because any excuse, any imperfection he sees in her, will impel him to not marry her so that he does not become Asur to her relatives if he finds it necessary to divorce her. His stipulation is therefore interpreted to mean that he does not want to marry her if she now has Nedarim *even if* she later annuls them.

(b) The AVNEI MILU'IM (EH 39:5) rejects this explanation. Even in the case of a woman who is not Chashuvah, he argues, the husband should want the Kidushin *not* to take effect if the woman has any imperfection in order to avoid at all costs having to divorce her. If he divorces her, after all, he must pay her the Kesuvah.

The Avnei Milu'im explains instead that Rava must hold like the Yerushalmi. The Yerushalmi rules that even when a person makes a Tenai that he is marrying the woman on condition that she has no Nedarim, and she turns out to have Nedarim, he is still required mid'Rabanan to give her a Get, so that if she later annuls her Nedarim she will not become an Eshes Ish retroactively (by fulfilling the Tenai and having the Kidushin take effect retroactively). (TOSFOS on 74b, DH Chacham, explains that the Bavli argues and holds that it is not considered a fulfillment of the Tenai if she annuls her Nedarim *after* the husband finds out about them.)

In the case of a woman who is not Chashuvah, the man does not mind the fact that he must give her a Get if she is found to have Nedarim, even though he becomes Asur to her relatives. In the case of an Ishah Chashuvah, though, he wants to avoid giving her a Get if it turns out that she has Nedarim. Therefore, he marries her on condition that *even if she annuls her Nedarim*, he still does not want her to be his wife. That way, he will not have to give her a Get if she *does* have Nedarim, since it will not help for her to annul them afterwards and the Yerushalmi's concern will not apply!

75b