Resources for Kesubos 109
1. The משנה brings a מחלוקת אדמון וחכמים where a father promises a dowery to his son-in-law and then after אירוסין the father does not pay. The חכמים say the husband does not need to go through with the marriage and אדמון insists that the wife can force the husband to either go through with the marriage or divorce her. Many of the ראשונים ask why don’t we tell the husband to simply take the father to court and get the money from the father? After all, we have a גמרא on דף ק"ב that says if there is an oral agreement between two parties where the father agrees to pay a certain amount for a dowery it is קונה even באמירה בעלמא. So why are we letting the husband be מעגן this woman when he can simply take the father to ב"͏ד and collect? תוספות brings the רשב"ם that says that the father cannot be forced to pay since we are talking about a case where the dowery condition was not mentioned at the time of the actual קידושין and theקנין doesn’t work if the תנאי was not mentioned at the time of קידושין. The ר"ן agrees with the רשב"ם but explicitly adds that if there was a valid קנין then even the חכמים would agree that the wife can say או כנוס או פּטור since the husband can collect the money if he really wants it. According to this opinion, the reason why our משנה says that (according to the חכמים) the husband can keep the wife hanging forever is because they had made a תנאי originally to pay the dowery. Even though that קנין didn’t work, it’s an אומדנא דמוכח that the marriage was made with that premise. The שער המלך in הלכות אישות פּרק כ"ג הל׳ י"ד points out the מגיד משנה seems to have the opposite opinion. The מגיד משנה there seems to hold that the whole מחלוקת of our משנה is only where the קנין worked, but if the קנין didn’t work then everyone would agree that the wife can say או כנוס או פּטור. The reason for this, שער המלך explains, is because if the condition wasn’t mentioned at the time of קידושין the father can claim משטה אני בך (I wasn’t serious).
2. The גמרא says that if a person claims he owns a field and then signs a document which mentions that field as being owned by someone else, איבד את זכותו. However, if he claims that he later bought the land back from that person then he is believed. רש"י explains that he is believed because of פּה שאסר פּה שהיתר. In other words, since he only lost because we relied on what he said or wrote, so he should be believed on his second claim to add more words which clarify that he didn’t lose. תוספות in ד"ה אם טען disagrees because he no longer has a מיגו to say “if I was a liar I could have not signed on that contract” since he already did sign and מיגו למפרע לא אמרינן. The אבי עזרי in הלכות גירושין פּרק י"ב הל׳ א says that this is really a fundamental מחלוקת רש"י ותוספות all over ש"ס (the קובץ שיעורים back on דף ט"ז said this as well without quoting our גמרא). The מחלוקת is how does פּה שאסר work? Is it simply another way of saying מיגו (as תוספות in most places holds) or is it a totally different נאמנות (as רש"י holds) that just says that if what I said is what you relying on לאסור then you should rely on me to clarify my words that I meant להיתר. The נפקא מינה is whether you are believed after תוך כדי דיבור of the first claim. If it is just a מיגו then you would not be believed about what you could have said months ago. However, if it is a direct נאמנות on your words then the fact that the first words were said months ago is not relevant. However, the אבי עזרי says that תוספות still has a question on רש"י because a normal פּה שאסר is where you are clarifying what you originally said (e.g. אשת איש הייתי and then אבל גרושה אני). However, in our case you are not clarifying what you originally said but rather adding on something that happened later which was not the case originally. That may not be the same נאמנות.
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