THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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KESUVOS 70 - dedicated by Uri Wolfson and Naftali Wilk in honor of Rav
Mordechai Rabin of Har Nof, a true beacon of Torah and Chesed.
1) OVERRIDING A "SHIBUD" WITH A "NEDER"
QUESTION: The Mishnah states that a man may prohibit his wife with a Neder
from deriving any pleasure from him, and as a result he becomes unable to
provide his wife with Mezonos, financial support. The Mishnah says that he
may instead appoint a "Parnas" (benefactor) to support his wife.
The Gemara asks that the husband should not be able to prohibit himself with
a Neder from providing his wife with Mezonos, since he is obligated to
provide her with Mezonos and he cannot remove that obligation.
The Gemara gives a number of answers. Among them, the Gemara says that the
Mishnah is referring to a case where the husband made the Neder during
Erusin, prohibiting his Arusah from deriving any pleasure from him. The
Mishnah earlier (57a) teaches that an Arusah is entitled to receive Mezonos
after twelve months have passed. The Mishnah here is teaching that the
husband's Neder can override his obligation to provide the Arusah with
Mezonos after twelve months.
RASHI explains why the husband's Neder is able to override the obligation to
give Mezonos to his Arusah after twelve months. He explains that during
Erusin, the obligation to support her is only mid'Rabanan, and since a Neder
takes effect mid'Oraisa, it overrides the obligation mid'Rabanan to give
Mezonos to the Arusah. Rashi is implying that after Nesu'in, the obligation
to feed one's wife is mid'Oraisa, and that is why a Neder cannot override
his obligation to give her Mezonos after Nesu'in.
Rashi's explanation is difficult to understand.
(a) The Gemara earlier (47b) cites an opinion that the obligation to provide
Mezonos to a Nesu'ah is only mid'Rabanan. Many Rishonim rule in accordance
with this view, because Rav Huna in the name of Rav (58b) is following this
view when he rules that a woman is entitled to say, "Eini Nizones v'Eini
Osah" -- "I decline the right to receive the Mezonos [from my husband], in
order not to have to give him my Ma'aseh Yadayim," and the Halachah follows
Rav Huna's ruling. According to Rashi, though, who says that whenever a
Neder is made against a Chiyuv d'Rabanan, the Neder which is d'Oraisa
overrides the Chiyuv d'Rabanan, then even after the Nesu'in the husband
should be able to prohibit himself with a Neder from feeding his wife,
because the Chiyuv of Mezonos even for a Nesu'ah is only mid'Rabanan!
Tosfos' explanation seems to be the most straightforward way of explaining
the Gemara. Why does Rashi not explain that way?
(b) The Gemara (70a) says that if a woman makes a Neder prohibiting to her
husband anything she produces, the Neder does not take effect because of the
Shi'abud (obligation) to give her Ma'aseh Yadayim to her husband. However,
this Shi'abud of the woman to her husband is certainly only mid'Rabanan.
Why, then, should a Neder d'Oraisa not be able to override it?
(c) The Gemara earlier (59b) teaches that Hekdesh and Konamos (Neder)
override a Shi'abud. As Rashi explains, if a person designated an object as
a lien ("Apotiki") for the repayment of a loan, and then he made that object
Hekdesh, the Shi'abud to the debtor is removed and there is no longer a lien
on that object for the loan. According to Rashi here who says that a Neder
cannot override an obligation that is mid'Oraisa, than Hekdesh also should
not be able to override a Shi'abud d'Oraisa, because the Gemara there
compares the two! Why, then, should Hekdesh be able to override a lien for a
debt? The lien is a Chiyuv d'Oraisa since he specifically designated it as a
lien for the debt!
(d) TOSFOS suggests a simpler explanation for the Gemara. When the Gemara
mentions that the husband is obligated to support his wife after twelve
months of Erusin have passed, it is referring to a case where the husband
made the Neder *before* twelve months passed. Once twelve months have
passed, the Neder takes effect to exempt him from paying Mezonos, because
the Neder *preceded* his obligation of Mezonos. This is exactly the logic
that the Gemara suggests in the answer that follows, when it says that a man
can prohibit his wife from deriving pleasure from him when he makes the
Neder when she is an Arusah and then he marries her, making her a Nesu'ah.
Since the Neder preceded the marriage and the obligations of the marriage,
it can override those obligations. The only reason the Gemara rejects this
answer is because in such a case, when the woman agrees to get married she
is accepting upon herself that she is not going to receive Mezonos either,
as she goes into the marriage willingly. But when the date marking twelve
months arrives, the woman did not do anything to imply that she is ready to
lose the Mezonos, and therefore she should not lose the Mezonos and the
husband's Neder remains in force; he must appoint a Parnas.
(a) Rashi seems to have a different approach (from that of the other
Rishonim) to how a Neder overrides a Shi'abud. The source for what Rashi
says, that a Neder (Konem) overrides an obligation only when the obligation
is d'Rabanan, seems to be the Gemara earlier (59b), where the Gemara asks
why a woman cannot prohibit her Ma'aseh Yadayim to her husband if a Neder
usually overrides a Shi'abud. The Gemara there answers that the Rabanan
strengthened the Shi'abud that a husband is entitled to receive from his
wife. Rashi explains that this means that the husband is deemed more than
just a debtor to the wife, someone to whom the wife owes money, but that he
is considered to be a buyer, and what she produced is considered as if it
was actually sold to him so that he has the status of a buyer.
We find elsewhere (see Rashi 50a, DH ha'Ba'al) this concept that the husband
is considered to have bought the various items of his wife to which he is
entitled. However, we never find the converse -- that what the wife is
entitled to receive from the husband is considered to have been bought from
him. Why, then, does the Gemara assume in many places that the man cannot
prohibit himself from giving her the Mezonos or the other Shi'abudim that he
has to her (such as Tashmish) because of his obligation (Rashi 61b, DH
ha'Madir, see Insights there)? He should be able to prohibit those things to
Because of this, Rashi understands that a Neder can only override a Shi'abud
that is mid'Rabanan, such as the Shi'abud that a woman has to her husband
(if not for the fact that the Rabanan strengthened that Shi'abud). However,
a Shi'abud that the man has to his wife cannot be removed by a Neder,
because his Shi'abudim to provide her with Mezonos and Tashmish are
mid'Oraisa. The Gemaras that say that he cannot make a Neder to override his
obligation to provide her with Mezonos hold that Mezonos is a Chiyuv
d'Oraisa, like the opinion of the Tana on 47b.
The RASHBA points out that if Rashi is ruling here that Mezonos is
mid'Oraisa, he is in agreement with the RAMBAM (Hilchos Ishus 12:2), who
rules like this as well. The Rashba explains that according to Rashi and the
Rambam, it could be that a woman may still say "Eini Nizones v'Eini Osah"
and exempt her husband from giving her Mezonos and keep her Ma'aseh Yadayim
to herself, because the Rabanan removed his Chiyuv mid'Oraisa of Mezonos in
such a case.
(b) The reason the wife cannot prohibit her Ma'aseh Yadayim to her husband
even though it is only a Shi'abud d'Rabanan is because the Rabanan
strengthened the Shi'abud that a woman has to her husband, like the Gemara
says earlier (59b). (RASHBA)
(c) RAV ELYASHIV (in HE'OROS B'MASECHES KESUVOS) says that Rashi might hold
that the Gemara that says a Neder overrides a Shi'abud is following the
opinion that all Shi'abudim are mid'Rabanan. Even when a person designates a
certain object to be a lien for a loan, he cannot create a Shi'abud
mid'Oraisa, according to the opinion that says that all Shi'abudim are
mid'Rabanan. (This is in contrast to the view of the RITVA in Kidushin 14b,
who writes that when one *specifies* that an object is to be used as a lien,
it is indeed a Shi'abud d'Oraisa according to all opinions).
(d) Regarding why Rashi does not give the same explanation as Tosfos and say
that the husband made the Neder and removed the Shi'abud before the twelve
months arrived, Rashi might hold that since the husband accepted upon
himself the obligation to support the woman after twelve months of Erusin,
the Shi'abud to support her *preceded* the Neder, even though the actual
payments do not precede the Neder. Therefore, this cannot be compared to the
man who prohibits his wife before Nesu'in, since before Nesu'in he never
accepted upon himself any of the Shi'abudim of Nesu'in. (M. Kornfeld)