THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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KESUVOS 87 - Sponsored anonymously in honor of Yakir and Mira Wachstock, in
honor of their upcoming marriage.
1) EXEMPTING ONE'S WIFE FROM A SHEVU'AH
QUESTION: The Mishnah (end of 86b) describes how a husband can exempt his
wife from having to make a Shevu'ah to him or to his heirs when she wants to
collect her Kesuvah. The Gemara here cites Aba Shaul who says that if a
husband exempts his wife from a Shevu'ah, whether he says, "There should be
no Shevu'ah," or "You should be clean from a Shevu'ah," whether he exempts
her from a Shevu'ah or a Neder in such manners, she really *should* be exempt
from making a Shevu'ah when she collects her Kesuvah either from him or from
his heirs, but, says Aba Shaul, "What can I do? The Chachamim said that when
collecting the Kesuvah from orphans, she must make a Shevu'ah!"
What does Aba Shaul mean by this? If the husband exempted her from a
Shevu'ah, then she should not have to make a Shevu'ah even when she collects
from the orphans, like our Mishnah states!
(a) The RIF and RAMBAM (Hilchos Ishus 16:20) explain that to exempt one's
wife from making a Shevu'ah when collecting from his heirs, the husband must
say a clear and explicit wording of exemption to her, such as the wording
used in our Mishnah. When he says a slightly ambiguous wording (such as,
"There should be no Shevu'ah," or "You should be clean from a Shevu'ah"), his
statement is not able to exempt her from making a Shevu'ah to collect from
the heirs, even though it does exempt her from making a Shevu'ah to collect
from *him*. The reason for this, as the RAMBAN explains, is that the Rabanan
instituted that a woman must make an oath in order to collect her Kesuvah
from the orphans, and we do not assume that the husband intended to uproot
this rabbinic enactment unless he stated so unequivocally.
(b) However, the other Rishonim (RI, RASHI according to the RITVA, the ROSH,
and others) point out that the Gemara later (88b) implies that the Chachamim
argue with Aba Shaul, and they hold that the man can exempt the woman from a
Shevu'ah even when collecting from the orphans. If so, our Mishnah is
following the opinion of the Chachamim and Aba Shaul is indeed arguing with
the opinion expressed in the Mishnah. Aba Shaul holds that even though the
husband can exempt her from the Shevu'ah of an Apotropos or the Shevu'ah of a
Pogemes, he cannot exempt her from the Shevu'ah of collecting from orphans.
The SHITAH MEKUBETZES (citing TALMIDEI RABEINU YONAH and RIVASH) points out
that this explains Aba Shaul's strange phraseology: "She should be exempt,
but what can I do, for the Chachamim ruled that a woman must swear before
collecting from the Yesomim." What he meant was, she will indeed be exempt
from the Shevu'ah of an *Apotropus or Pogemes*, but that will not help her,
practically, since as soon as she tries to collect her Kesuvah she will have
to swear the Shevu'ah of a woman who collects her Kesuvah from the orphans,
which includes all that an Apotropus or Pogemes must swear about.
The Rishonim point out that even according to Aba Shaul, there is a way to
exempt a wife from a Shevu'ah when collecting from the orphans:
1. Aba Shaul is only discussing a case where the husband *verbally* exempts
her from a Shevu'ah, but when he *writes* in a contract that she is exempt
from a Shevu'ah, she is indeed exempt (according to the RASHBA).
HALACHAH: The SHULCHAN ARUCH (EH 98) rules like the Rambam, that a clear,
unambiguous wording *does* exempt the woman from making a Shevu'ah to collect
her Kesuvah from the orphans. The REMA, on the other hand, rules like the
Rosh, that even an explicitly worded exemption cannot exempt her, since we
rule like Aba Shaul and not like the Mishnah.
2. The RASHBA and TALMIDEI RABEINU YONAH also say that the wife is exempt
from a Shevu'ah to the orphans when the husband makes a Kinyan on his
declaration of her exemption.
3. Furthermore, Talmidei Rabeinu Yonah add that if the husband points to
specific items of his property and he says that she may collect from those
items without making a Shevu'ah, then the exemption is effective -- since the
heirs only inherit that property with the pre-existing condition that the
wife will not have to swear upon its collection.
However, if the wife dies before collecting the Kesuvah, her children *can*
collect the Kesuvah from the husband's heirs without a Shevu'ah. If we were
to make them make a Shevu'ah, they would not be able to collect at all, since
the Shevu'ah was actually the mother's requirement, and a person cannot
bequeath to her children the requirement to make a Shevu'ah ("Ein Adam Morish
Shevu'ah l'Vanav"). We are not so stringent on the woman's family as to
uphold the requirement for her to make a Shevu'ah even if it causes her
children to become unable to collect the Kesuvah at all.
Regarding the other exceptions that the Rishonim mention where even Aba Shaul
will agree that the husband can exempt his wife from a Shevu'ah to collect
from the orphans, the CHELKAS MECHOKEK writes that since the Rema does not
mention them, apparently he does not accept those opinions, and he does not
make exceptions to Aba Shaul's ruling.