Ask A Question about the Daf

Previous daf

Kesuvos, 90

1) A KESUVAH OF AN INVALID MARRIAGE THAT BECAME VALID

QUESTION: The Mishnah states that when a father marries off his son when he was a Katan, and the son remains married until he reaches adulthood, the original Kesuvah remains intact and binding. The Mishnah states that the same Halachah applies to a couple who were married as Nochrim and converted. We assume that they remain married with intention that the original Kesuvah (written while they were Nochrim) remain intact and binding.

The Gemara says that in each case, only the principle amount of the Kesuvah (100 Zuz for an Almanah, or 200 Zuz for a Besulah) remains. The husband is not required to pay the Tosefes (the extra money that he wrote in the original Kesuvah) because, as Rashi explains, the original Kesuvah document itself was not valid (since the original marriage was not a legal Jewish marriage). The husband's only obligation to his wife is based on the "Tenai Beis Din" that requires every husband to give his wife the basic Kesuvah, whether or not a Kesuvah document has been written.

If the original Kesuvah indeed is null and void, then why does the Mishnah state that "the original Kesuvah is intact... because he kept her as his wife on that condition?" Even without the original Kesuvah the husband is automatically required to pay his wife the basic amounts of the Kesuvah (because of the Tenai Beis Din), so in what way is the original Kesuvah is intact? (TOSFOS DH Lo)

ANSWERS:

(a) The Rishonim cite RABEINU TAM (see Tosfos ha'Rosh, Ritva) who answers that the Mishnah is teaching that even though the document has no validity with regard to the time *before* the marriage took effect legally, it is considered a valid document from the time that the marriage took effect legally (i.e. after the Katan reached adulthood or after the Nochrim converted). Hence, any land of the husband's that was sold before the legal marriage cannot be collected for the Kesuvah; it is not considered Nechasim Meshubadim. But any land of the husband's that was sold after the legal marriage *can* be collected for the Kesuvah.

Normally, a pre-dated contract of debt is invalid because it implies that the lien on the property started from the earlier date written in the document and thus it will cause a loss to the buyers who purchased the property from the borrower (or husband) before the actual date of the loan (or marriage). The Mishnah, though, is teaching that in the case of a Kesuvah of a Katan who matured there is no such concern, and the original document, although pre- dated, may be used, because no one could have purchased land from the Katan before he reached adulthood and the marriage became valid, since a Katan does not have the authority to sell land! Therefore, the document is valid even though it is pre-dated.

(b) The TOSFOS HA'ROSH does not accept this explanation, since it does not answer why the Kesuvah of the Ger is acceptable, because a Ger was able to sell land when he was a Nochri. The Tosfos ha'Rosh also asserts that the manager (Apotropos) of the estate of a Katan may sell property on behalf of the Katan, and thus there should be a concern that the buyers will lose their property! The Tosfos ha'Rosh, as well as TOSFOS (DH Lo), therefore maintain that the Mishnah is teaching us that although the original Kesuvah is not valid, the woman nevertheless receives a Kesuvah of a Besulah (200 Zuz) like she would have received had the original marriage been valid, even though at the time that the marriage took effect she was no longer a Besulah. In that sense, the original Kesuvah obligation still remains.

The reason for this is apparently because the Kesuvah of a Besulah is greater because of the more intimate relationship a man has with his wife if he first married her as a Besulah (see Tosfos 4a DH Be'ilas; RASHBA 11a on the second Mishnah). Since the present marriage of the Katan is a continuation of the marriage-like relationship he had with his "wife" before he reached maturity, we consider their relationship to be that of a man and his Besulah wife, rather than that of a man and his Be'ulah wife. (TOSFOS in Sanhedrin 76b proves from our Mishnah that although the act of Nesu'in performed by a Katan is not valid, nevertheless his Bi'ah is not considered Be'ilas Z'nus. We see from here that the logic that the man gives the woman the Kesuvah based on her status at the *beginning* of their relationship applies only if the beginning of the relationship was not deemed Z'nus. If it was started with Z'nus, she would only receive a Kesuvah of 100 Zuz. See also DAGUL MERAVEVAH EH 67:6).

An important question may be posed on Tosfos' answer. Why should a Ger be required to give the wife he converted with the Kesuvah of a Besulah (200 Zuz)? We learned earlier (11a) that a Nochris older than three years of age is always considered to be a Be'ulah. Thus, even when the Nochri originally married her, she had the status of a Be'ulah! Consequently, she should not be entitled to receive 200 Zuz for her Kesuvah, but she should receive only 100 Zuz!

The Rishonim suggest a number of answers to this question:

1. The TOSFID RID says that the case of the Mishnah is where a Nochri (before he converted) married a Jewess, and thus she was indeed a Besulah at the time of the marriage.

The Rishonim strongly reject this explanation, because the wording of the Mishnah implies that both the husband and wife became Gerim. Moreover, the Mishnah would not be teaching a Halachah with regard to someone who performed an Isur (i.e. a woman who married a Nochri).

2. The RIVASH and others say that the case of the Mishnah is where a Nochri married a Nochris when she was under three years old. In such a case, she was certainly a Besulah when she was married (see Mishnah, 11a), and thus she receives 200 Zuz for her Kesuvah.

3. The CHELKAS MECHOKEK (EH 67:13) says that Tosfos is of the opinion that the woman receives 200 Zuz only when he actually wrote her a Kesuvah when they were Nochrim. Even though he is not obligated to give her 200 Zuz based on what he originally wrote in the Kesuvah, we still assume that he remains married with her with the *intention* of keeping the original obligation, since *he* considered her a Besulah at the time (see also IGROS MOSHE EH 1:101).

However, the RAMBAM (Hilchos Ishus 11:7; see also Shitah Mekubetzes in the name of "Rabeinu Moshe") is of the opinion that in the case of the Ger, the woman indeed only receives 100 Zuz for her Kesuvah, even though her original Kesuvah was for 200 Zuz. According to the Rambam, we must find another explanation for what the Mishnah means by saying that "the original Kesuvah remains intact."

(c) The RITVA answers that the Mishnah is not teaching anything about the *amount* of the Kesuvah that she receives. Rather, it is teaching that she is *eligible* to receive the Kesuvah.

He explains that even though the couple did not have a formal marriage after the Katan reached adulthood, or after the Nochri converted, they are considered legally married because of "Ein Adam Oseh Be'ilaso Be'ilas Z'nus"; a person does not want his relations to be extra-marital. This type of marriage happens without *explicit* intent for marriage on the part of the husband, but through the assumption ("Umdena") that he would certainly prefer marriage to extra-marital relations. One might have thought that for an "unplanned" marriage such as this, the Rabanan did not institute a Kesuvah. Therefore the Mishnah teaches that this is not so; his wife has the rights to a Kesuvah since "he kept her as his wife on that condition." This might be the way the Rambam (see end of (b), above) explained our Mishnah as well.

90b