Kesubos - Daf 74
- חליצה מוטעת כשירה
Rav Acha bar Yaakov said in the name of Rebbe Yochanan: המקדש על תנאי ובעל דברי הכל אינה צריכה הימנו גט – If one was mekadesh a woman with a tannai, and then had relations with her, and then it was discovered that the tannai was not fulfilled, according to everyone, meaning, Rav and Shmuel, she does not need a get from him. This is in line with Rabbah’s view. Rav Acha bar Yaakov’s sister’s son, Rav Acha brei d’Rav Ika challenged him from the following: It was taught in a Baraisa: חליצה מוטעת כשירה – A mistaken chalitzah is valid, and Reish Lakish explained that this is כל שאומר לו חלוץ לה ובכך אתה כונסה – Wherever the yavam was told: “Perform chalitzah and through that you will marry her,” meaning, he was tricked into giving her chalitzah. But Rebbe Yochanan said that another Baraisa taught that chalitzah is only effective when both the yavam and yevamah have the proper kavanah. Rather, a חליצה מוטעת is כל שאומר לו חלוץ לה על מנת שתתן לך מאתים זוז – wherever he was told: “Perform chalitzah in order that she gives you two hundred zuz”. Rav Acha brei d’Rav Ika said: Why is the chalitzah valid? It is because דעבד מעשה אחולי אחליה לתנאה – since he performed an act without reiterating the tannai, it must mean he was mochel on the tannai. Here too, since he had biah without reiterating the tannai, he must have been mochel on the tannai.
- Since chalitzah cannot be accomplished through a shaliach, a tannai cannot be attached to it
Rav Acha responded to his nephew’s challenge, by explaining why the chalitzah case is different. Since all tannaim are learned from the tannai that Moshe made with bnei Gad and bnei Reuven, a tannai must resemble that original tannai and be able to be carried out by a shaliach, just like Moshe made Yehoshua his shaliach. תנאי דלא אפשר לקיומיה על ידי שליח לא הוי תנאי – A tannai that cannot be carried out by a shaliach is not a valid tannai, and chalitzah cannot be done by a shaliach. Therefore, no tannai can be attached to it. When the Gemara asks how a tannai can be attached to a kiddushin done through biah, since it also cannot be effected through a shaliach, it answers, התם משום דאיתקוש הויות להדדי – There a tannai is valid because the various ways of becoming married are compared to one another. Rashi explains that the Torah includes all three forms of kiddushin in the passuk, "והיתה לאיש אחר" – she shall become a wife to another man. Since a tannai is effective for the other methods of kiddushin, such as money or a shtar, which can be accomplished through a shaliach, it is also effective for kiddushin through biah, even though it cannot be accomplished through a shaliach.
- הלכה אצל חכם והתירה או אצל רופא וריפא
It was taught in a Baraisa, regarding a case where the husband was mekadesh a woman on condition that she had no vows or physical defects. הלכה אצל חכם והתירה מקודשת – If she went to a Chochom and he was matir the neder, she is mekudeshes. הלכה אצל רופא וריפא אותה אינה מקודשת – If she went to a doctor who healed her, she is not mekudeshes. What is the difference? חכם עוקר את הנדר מעיקרו ורופא אינו מרפא אלא מכאן ולהבא – A chochom uproots the neder retroactively, from its very inception, while a doctor cures the defect only moving forward. When the Gemara brings a contradictory Baraisa, that in both cases she is not mekudeshes, Rabbah answers that the first Baraisa is Rebbe Meir, who says: אדם רוצה שתתבזה אשתו בבית דין – a man is willing to embarrass his wife in Beis Din to annul her vow, and therefore he did not intend to void the marriage if the neder could be annulled. The second Baraisa is Rebbe Elazar, who said that a man is not willing to embarrass his wife by having her appear in Beis Din, and therefore, he intended to void the marriage if she is under a vow, even if it could be annulled.
