Kesubos - Daf 73
- קידשה על תנאי וכנסה סתם
It was stated: קידשה על תנאי וכנסה סתם – One who was mekadesh a woman with a tannai but married her without a tannai, Rav says: צריכה הימנו גט – the marriage is valid, and she therefore requires a get, but Shmuel says: אינה צריכה הימנו גט – the marriage is not valid, and she therefore does not require a get. Abaye said: Do not say that Rav’s reason for his ruling is that כיון שכנסה סתם אחולי אחליה לתנאיה – since he married her without restating the tannai, he must have waived the tannai that he made earlier. Rather, Rav’s reason is לפי שאין אדם עושה בעליתו בעילת זנות – that a man does not let his biah be considered a biah of zenus. Rashi explains that if he had waived his earlier tannai, then not only would the marriage be valid, but she would also be entitled to her kesubah. Rather, we assume that his intent on his wedding night is that if his tannai was not met, his biah will be considered an act of kiddushin which takes effect and requires a get to dissolve it. She loses her kesubah though since he had no reason to be mochel on his tannai.
- מחלוקת בטעות אשה אחת כעין שתי נשים
Rabbah said that the machlokes between Rav and Shmuel involved an error concerning two women, but when Abaye challenges him, given that the Mishnah only involved one woman, Abaye revises Rabbah’s statement to say: מחלוקת בטעות אשה אחת כעין שתי נשים – the machlokes between Rav and Shmuel is regarding an error involving one woman that is like an error involving two women. Rashi explains that the case is where one was mekadesh a woman with a tannai that she does not have any nedarim, and then divorced her during erusin. He then took her back and married her without any tannai, and then it was discovered that she had nedarim. Rav holds that the marriage is valid since the divorce intervened between the two kiddushins, and we assume that when he married her his intent was that the biah be the kiddushin. Shmuel holds that the tannai of the first kiddushin is still in effect with the second kiddushin since it is with the same woman, and the divorce in between does not intervene. But in a simple case, involving one woman where he was mekadesh her with a tannai and then married on the basis of the tannai, the marriage is not valid, and she does not require a get from him. Abaye brings a number of challenges to Rabbah’s pshat.
- הריני בועליך על מנת שירצה אבא
Abaye challenged Rabbah from a Baraisa that taught: If a man said to a woman, הריני בועליך על מנת שירצה אבא – Behold, I am having relations with you as kiddushin on condition that my father consent, even if it turns out that the father did not consent, she is mekudeshes. Rashi explains that Abaye assumes that he waived his tannai when he had relations with her. Rebbe Shimon ben Yehudah said in the name of Rebbe Shimon, if the father consented, she is mekudeshes. If he did not, she is not mekudeshes. Abaye said that this like a case of טעות אשה אחת – an error involving a single woman and yet there is a machlokes, unlike Rabbah’s position who holds everybody would agree that he did not waive his tannai. The Gemara says that this case is different. The Tanna Kamma holds that the man really meant, "על מנת שישתוק האב" – on condition that the father will remain silent and not object, and the father remained silent. Therefore, the kiddushin is valid. Rebbe Shimon ben Yehudah holds that he really means, "על מנת שיאמר אבא הן" – on condition that the father will say yes, and the father did not say yes. Therefore, the kiddushin is invalid.
