On Condition: No Nedarim

Ketubot (7:7) | Yisrael Bankier | a year ago

The Mishnah (7:7) teaches that if a man performs kiddushin on condition that the woman does not have any nedarim and it is discovered later that she had nedarim, then the kiddushin is null and void. The Bartenura explains that the Mishnah is referring to specific nedarim that cause her great discomfort. It is those nedarim that impact the way he would then relate to her, that are considered significant in this context.¹

The Gemara (74b) however teaches that if the woman went to a Chacham to matir (undo) the neder then the kiddushin would work.

The Ritva however cites the question raised by the Yerushalmi. According to our Mishnah she should be able to go and marry someone else without a get. If we consider our Gemara however, there is reason for concern. It is possible that she could later matir then neder, which would mean that she is retroactively had no nederim at the time of the first kiddushin. This would mean she is married to the first man and her children from the second man would then be mamzerim. There are two answers brought in the Yerushalmi. The first is that even though according to the Mishnah she does not need a get, she would need a get from the first man if she wanted to marry someone else, thus preventing this problem. The second answer however is that she can marry without a get. We need not be concerned that she would matir the neder if we inform her of the consequences of doing so.

The Ritva comments that since the Gemara makes no mention of the concern in the Yerushalmi, it must mean that once she is allowed to marry someone else, it is considered like a get and the first "kiddushin" would never take hold even if she was matir the neder. Nevertheless, the Ritva rules that practically one should still be concerned from the position of the Yerushalmi.

The Tosfot (74b s.v. Chacham) however notes that this law is taught alongside another one. We learn that if the husband performed kiddushin on condition that he or she had no mumim (physical blemishes) and it is discovered that she had mumim then the kiddushin is similarly void. If he went to a doctor and was healed, then it would be valid. From the case of mumim we see that it is not important what the legal status of the neder was at the time of kiddushin. In other words, it is true when a Chachamim is matir a neder it makes it as if there was a never a neder. Nevertheless, when the doctor healed his mumim, it does not change the fact that the mumim were present at the time of kiddushin -- yet the kiddushin is valid. Instead, the issue is kepeid -- it is a matter that would bother him.

Based on this understanding, the Tosfot explains the ability to salvage the kiddushin by her being matir the neder would only work before he learnt about the nedarim. If however he already learnt about the neder then it is too late. The Tosfot explains that this is nature of the tenai (condition) when he perform the kiddushin. As explained it is not related to what the status was at the time of kiddushin. Instead, it related to his kepeida. In other words, the kiddushin hinged on his reaction to learning about the nedarim. If she annulled the nedarim prior to him learning about them, then there is no reaction, they do not exist. If however he first learns of the nedarim, the condition is immediately violated. There is a kepeid because perhaps the nedarim might not be able to be undone. Consequently, even if she was matir the nedarim later, it would be too late, given that the reaction when learning of the nedarim already annulled the kiddushin.

The Ran (35a, Rif) notes that the position of the Tosfot is not consistent with the Yerushalmi, since the Yerushalmi addresses the concern that she might undo the neder after she married someone else.²

¹ The Rambam limits this to three specific nedarim: not eating meat, not drinking wine and not wear nice (colourful) clothing.

² Interestingly however the Rosh present the same position as the Tosfot yet also cites the Yerushalmi.

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