Siman 39

One who betrothes a woman and said to her, "on condition that there are no vows upon her," and vows were found upon her – the kiddushin are void and she does not require a get. However, not all matters of vows are included in this rule, and thus our sages, of blessed memory, said: Regarding which vows did they speak? Those that involve self-affliction, such as that she shall not eat meat, and that she shall not drink wine, and that she shall not adorn herself with colored garments, and even regarding one of them, because there is great self-affliction in this and she becomes repulsive to him. And it is not specifically colored garments, for the same applies to other types of items with which it is the way of women to adorn themselves. And so too if she vowed that she shall not eat bread – it is obvious that this is great self-affliction. And the same applies to matters between him and her regarding major matters that the majority of people are accustomed to be particular about, such as "I am removed from the Jews" and the like, she does not require a get.

But if there were found upon her other blemishes of vows, even if they contain a small amount of affliction of the soul, such as that she shall not eat apples and the like, and similarly regarding minor matters that are between him and her—she requires a get and a ketubah. And even though he stipulated generally "on condition that there are no vows upon her," which implies every type of vow, nevertheless, this phrasing only includes matters that most people are particular about, and not that which there are particular individuals who are concerned even with a minor matter. And even if it is known that this man is exceedingly particular, nevertheless, regarding a matter that people are particular about, his particularity is a valid particularity, but regarding a matter that people are not particular about, his particularity is not a valid particularity [Gemara], for he should have stipulated this explicitly. Since he said "vows" generally, such a phrasing only includes according to the language of most people. And even though when she vows while under him he may annul every type of affliction of the soul, even the smallest of the small, as written in Yoreh Deah siman 234, this is because it is not right that she should vow while under him; but regarding her vowing before she comes into his domain, most people are only particular about major matters of affliction of the soul and of those between him and her [see Ran].

However, if he betrothed her explicitly on the condition that she has no vows upon her, they said in the Yerushalmi that even if it was found that she vowed not to eat carobs, which people almost never eat at all—she is not betrothed, since he specified "any vow," and so the poskim wrote. And there is room to doubt whether this applies specifically to that which pertains to "affliction of the soul," even if it is the smallest of small afflictions, but anything that does not pertain at all to "affliction of the soul," which the husband cannot annul, is not included even in the phrasing of "any vow," for we say he meant any vow that involves some affliction or matters between him and her, but regarding other vows he did not intend; or perhaps if any type of vow is found upon her the kiddushin are void, and the Yerushalmi and the poskim cited carobs to show the extent of the law, and so reason dictates, for the phrasing "any vow" includes everything, and many people are fastidious regarding any type of vow, for the sin of vows is great and "It is better that you should not vow" is written (Ecclesiastes 5:4). And the fact that it is not in the husband's power to annul his wife's vows except for "affliction of the soul" and matters between him and her—this is from the decree of the Torah, but regarding this condition he made, certainly his intention was for every type of vow. Nevertheless, in practice one should not be lenient, and she requires a get without a ketubah [it appears to me].

If vows were found upon her that void the kiddushin and he wishes to waive the condition – the condition is void and there is no need for other kiddushin, for the first kiddushin were established, as any condition stipulated at the time of the kiddushin may be waived, as was written in siman 38, section 13 and 54. However, this is when he did not object when he heard, but if he objected at the time of the hearing, the kiddushin were immediately voided and waiver is no longer effective; and this is what will be explained in siman 60, that he must betroth her anew in cases of mistaken kiddushin, see there [Beit Shmuel, subsection 2]. And even though we explained there that there are opinions that waiver is only effective in monetary matters, nevertheless, the primary ruling is that it is possible to waive any condition, for so our teachers, the authors of the Shulchan Aruch, ruled there as was written there.

And there is a question regarding this: how can we say that when vows are found upon her the kiddushin are void and she is permitted to marry without a get? Behold, if she goes to a sage and he annuls her vows, the kiddushin would be valid, as will be explained, and if so, how do we permit her to marry? Perhaps she will go afterwards to a sage and he will annul the vows for her, and it will be found that the first kiddushin were valid and her children from the second husband are mamzerim? And there are some of our teachers who hold: when does the annulment of a sage take effect? When he annulled them for her before the one who performed kiddushin became aware of the vows; but if he became aware before a sage annulled them for her, the kiddushin are void immediately, and according to this, it can be said that the reason we permit her to marry is when the vows became known to him before the sage annulled them for her. And there are some of the Rishonim who said that we do not need to be concerned for this, for she certainly will not do such a thing and will not go to a sage to annul them, as she would not ruin herself and make her children mamzerim; therefore, when they permit her to marry and she marries, there is no further concern regarding this. And there is proof for this reasoning from later in siman 143 regarding a get with a condition, where we are not concerned that perhaps she will violate the condition through an active deed to ruin herself. And some say further that as soon as the beit din permitted her to marry, the kiddushin were immediately voided, and even if she goes to a sage and he annuls them for her, the first kiddushin do not take effect upon her.

But in the Yerushalmi of HaMadir there is a dispute regarding this, for there is one who holds that she is permitted without a get for the reason that she would not disqualify herself as has been written, and there is one who holds that in truth she is forbidden without a get for the reason that perhaps she will annul her vow. Therefore, even though from our Shas it appears clear that she does not require a get, and so ruled the Rambam and many of the Rishonim, nevertheless there are some of the poskim who were concerned for this Yerushalmi and wrote that she should not marry without a get. And so wrote our teachers, the authors of the Shulchan Aruch, at the end of section 1: that there are those who say we are concerned perhaps she will go to a sage and he will annul it for her, and therefore she is forbidden to marry without a get. Thus far their words. And so too the Rishonim who hold as the law that she is permitted without a get wrote that in practice one should be concerned for the Yerushalmi. And even though in siman 143 we hold that we are not concerned that she would disqualify herself, nevertheless in this case there is concern because her intention would not be to disqualify herself; rather, her intention would be to be saved from the punishment of vows, and it would not enter her mind that through this she would disqualify herself.

And even though one could say that the Yerushalmi is dealing with the period before the husband became known, but after it was known there is no longer a concern because the kiddushin were voided—and a proof for this is from our teachers, the authors of the Shulchan Aruch, who were concerned for the Yerushalmi as has been written, yet in section 2 they ruled that after the husband becomes known she is no longer able to permit [the kiddushin]; and if you were to think that the Yerushalmi is dealing even with the period after the husband became known, why were they concerned for the Yerushalmi?—nevertheless, it does not appear so, and several of the Rishonim hold that the Yerushalmi does not distinguish between before the husband's knowledge and after [Ran and Shita Mekubetzet]. And logic dictates this, for how is it possible to say that it deals with the period before his knowledge? For before his knowledge, even without the concern of a sage's annulment, it is impossible for her to marry, for perhaps when the husband hears of it he will waive the condition and she will be betrothed retroactively, as has been written in siman 38, section 54. And it is a forced argument to say that we depend on the assumption that he will likely not waive it since there is an objection in this, for how is it possible to permit her to marry ab initio based on this? Rather, it is certain that the Yerushalmi does not distinguish between before knowledge and after knowledge. And that which our teachers, the authors of the Shulchan Aruch, were concerned for the Yerushalmi even after his knowledge—in truth, they hold as a matter of law that there is no concern in this, but they were stringent regarding kiddushin due to the gravity of the subject matter, just as they were stringent regarding the primary concern of the Yerushalmi that perhaps a sage will permit it for her, for certainly our Talmud does not hold of this concern, and so too the Rambam, of blessed memory. Nevertheless, due to the gravity, they were concerned for this, and therefore even after his knowledge they were concerned for the Yerushalmi even though as a matter of law they do not hold accordingly [so it appears to me, and see Chelkat Mechokek and Beit Shmuel].

If there were vows upon her and she went to a sage and he released her—she is betrothed, for the sage uproots the vow from its root and it is as if there were no vows upon her at all. In what case is this said? When the sage released her before it became known to the husband, but if it became known to the husband before she released them—the kiddushin are immediately voided. And one should not wonder at this reasoning, for even after the knowledge she has the ability to release them by a sage and uproot them as if they never were, for certainly he betroths her on the condition that if he does not wish to void the kiddushin due to the vows, the kiddushin shall remain standing; and in a case where he knew before they were released, he immediately wants the kiddushin to be voided, for perhaps the sage will not find a release for her. But in a case where they were released before his knowledge, he certainly did not want to void them because of the vows, for now there is no grievance [Tosafot]. And it is a simple matter that this is specifically when he heard and expressed a grievance, but if he did not express a grievance, it is like a waiver of the condition [see Makneh]. However, when she released them before his knowledge, even if he expressed a grievance when he heard—his grievance is nothing, for there are no vows upon her as they were uprooted from their root. And even if he says that his intention at the time of the kiddushin was that if there were merely vows upon her, even if she releases them, he does not desire her—we do not listen to him, and we say that now he is finding a pretext to void the kiddushin, and at the time of the kiddushin his intention was only if the sage would not release them for her before his hearing of them. However, if he explicitly spoke thus at the time of the kiddushin—everything follows his condition [as above according to what Tosafot wrote].

And know, that in the Gemara there, there is an interpretation that distinguishes in this law between an important woman and one who is not important, for a woman who is not important requires a get due to doubt even if she annulled the vows before it became known to the husband, and an important woman does not require a get. And the explanation of the matters – for this reasoning that we wrote, that since the sage uproots the vow from its inception it is as if there were no vows upon her at all and most people are not fastidious about this, the reasoning is not clear and every person has a doubt in this whether this is worthy of fastidiousness or not, and automatically she requires a get due to doubt according to the opinions of people, and all this is regarding ordinary women, but regarding an important woman a person has no doubt about her and every person's mind is that regarding an important woman when there is a doubt there will be no doubt and the kiddushin will be void for it is better for him than a doubt, for in a case of doubt we would require her to have a get and he would be forbidden to her relatives, and this is not pleasing to him, therefore he concludes in his mind at the time of the kiddushin that if there will only be vows upon her even if she annuls them the kiddushin will be void [and a qualification to this I found in the Shita Mekubetzet there], and according to this, for this opinion, regarding ordinary women she requires a get due to doubt and regarding an important woman she does not require a get.

However, regarding the law, since according to the first opinion there is no difference between a prominent woman and one who is not prominent and both are completely betrothed, and according to the second opinion a woman who is not prominent requires a get due to doubt and a prominent woman does not require a get, it follows that even a prominent woman requires a get due to doubt. The doubt is whether we establish the law like the first opinion or we establish the law like the second opinion. And even though through this he will be forbidden to her relatives, nevertheless, what is that to us since according to the first opinion she is completely betrothed. And if she received kiddushin from another, whether she is prominent or not prominent, she requires a get from the second one as well because of the doubt, for perhaps we establish the law like the second opinion that regarding a prominent woman the kiddushin of the first were completely void, and regarding one who is not prominent it is also only a doubt, and it follows that she requires a get from the second.

This is what our teacher, the Beit Yosef, wrote in section 2: If there were vows upon her and she went to a sage and he released her—she is betrothed, etc., and there is one who says that if she is an important woman, even if the sage released her before they became known to the husband—it is a case of doubtful betrothal. Thus far his words. And he means that the doubt is due to our uncertainty as to whom the halakha follows, for according to the first opinion—only if it became known to the husband before the sage released her is she not betrothed, and according to the second opinion that we brought—even if the sage released her beforehand she is not betrothed, and consequently, for the law, there is one who says that it is a doubtful betrothal in the case of an important woman because there is a doubt that perhaps the halakha follows the second opinion, and the same applies even to one who is not an important woman, it is a doubtful betrothal for the reason we explained [and this is the intention of the Shiltei HaGibborim, and the Beit Shmuel in subsection 6 wondered about him in vain, and with what I have written the difficulty of the Chelkat Mechokek in subsection 3 is settled, as well as all that the Beit Shmuel exerted himself with and the precision of the HaMakneh, and delve into this].

If he betrothed her on the condition that she has no vows and then had intercourse without specification, it has already been explained in siman 38, section 13, that even if vows were found upon her, she requires a get. According to the Rambam, the reason is due to the concern of waiver—that he waives the condition and the initial kiddushin take effect; thus, witnesses of seclusion are not required, nor are other kiddushin, and even if he brought her into the home but did not have intercourse, she requires a get. And some say that the concern is lest he betrothed her through this act of intercourse, and according to this, the concern of kiddushin is only from now on, and it also requires witnesses of seclusion, and this applies only to intercourse and not to entering the huppah; see there what I wrote in section 16. However, the Tur in siman 38 wrote the words of the Rambam, yet in this siman he wrote: And if he betrothed on a condition and had intercourse without specification and there are witnesses to the seclusion, she requires a get due to doubt even if he had intercourse immediately after the kiddushin, for a person does not intend his intercourse to be an act of zenut and he had intercourse for the sake of kiddushin, but she has no ketubah, and if she married another, she requires a get from both of them. Thus far his words. And this is according to the opinion of the "some say," and they have already wondered about him regarding this [the Beit Yosef and the Chelkat Mechokek there, subsection 59]. And it seems clear that the Tur holds like the opinion of the "some say," and he only cited the words of the Rambam above regarding the matter that the waiver of the condition is effective, as this is the essence of the Rambam's words there; but regarding how the Rambam concluded—that according to this, in cases of intercourse and entry we concern ourselves with the waiver of the condition—he does not hold like him and relied on what he wrote here. And so it is proven from the words of his father, the Rosh, of blessed memory [and the words of the Avnei Miluim there, subsection 17, are difficult, for if so, why did he not write here "entry into the huppah," and also, he explicitly wrote that he had intercourse for the sake of kiddushin].

And also regarding defects that will be explained, if he betrothed her on the condition that she has no defects and he had intercourse without specification, the law is also as we have written: that she requires a get but has no ketubah, and the get is due to doubt; and if another man came and betrothed her, she requires a get from the second one as well. However, if he remained with her after the intercourse for a long time in the manner of a husband and wife—behold, she is certainly betrothed, whether regarding vows and defects or regarding other conditions, and she has a ketubah. And even though the first ketubah is void, how can she collect? For it can be said that his intent is that if he does not object later, her ketubah will be upheld, and likewise the kiddushin are certainly completed when he remained with her because it was then clarified that he does not object, and this is not a matter of bereirah; and see what I wrote there in section 68.

One who betroths a woman on the condition that she has no mumim, and one of the mumim that disqualify women—which will be explained—was found in her, she is not betrothed. However, if another mum was found in her aside from those mumim, even if he said, "I am particular even about this," she is betrothed. For since he said "mumim" without specification, the intention is only for those mumim about which most people are particular. Therefore, regarding something people are not particular about, his particularity is not considered particularity, as has been written in Nedarim. Therefore, if he said "on the condition that she has no 'any mum,'" even other mumim are an impediment, just as in Nedarim when he said "any neder" ibid.

And what are the blemishes that disqualify in women? All the blemishes that disqualify in kohanim for service, as the Rambam, of blessed memory, enumerated them in chapter 8 of Biat Mikdash, disqualify in women. And there are more in women than there are in kohanim, and they are: bad odor from the body—even any odor at all, even if she is not so filthy, for if one is filthy it is also a disqualification in a kohen, and sweat, and bad breath, and some say even odor from the nose, for odor from the nose is worse than bad breath, as with bad breath she can carry peppers in her mouth to distance the odor. And regarding odor from the nose, they even compel a man to divorce, as I have written in siman 154, and certainly for a woman it is a blemish. And a deep voice, for a deep voice in a woman is a blemish, as it is written, "for your voice is sweet" (Song of Songs 2:14), and the measure of this, how much its thickness is, was not specified; and it appears that if her voice is different from all women in thinness or thickness, it is a blemish. And when her breasts are larger than her peers' by a handbreadth, it is a blemish, and when there is a handbreadth between breast and breast, it is also a blemish. And similarly, if a dog bit her and a scar formed in its place—meaning that even if the wound healed but the mark of the wound remained there—and there is reason to doubt whether this is a blemish only in the revealed places of her body or even in the covered places, and since the poskim did not make a distinction in this, it appears that in the entire body it is a blemish. And a mole that is on the forehead is a blemish; and even though this is also a blemish in kohanim, that is regarding a mole as large as an Italian issar or a small one that has hair in it, but in a woman even a small one that has no hair in it is a blemish. And that which we said "on her forehead" is not literally her forehead, a place revealed to all, for if so, did he not see it and not object? Rather, for example, where the mole stands under the cap of her head, which is sometimes visible and sometimes not visible; and if it is never visible, it is not a blemish. And there is one who says that regarding one as large as an issar or one that has hair in it, it is a blemish on the entire body, but it does not imply so from the wording of the Rambam in chapter 7, who wrote that a mole as large as an issar or one that has hair in it is a blemish like the rest of the face, see there; and it implies explicitly that it is only on the face and not on the body.

And that which we said, that in a visible place where he did not see and was not meticulous even though he stipulated that she should have no blemish, it must be said that his intention was for things other than what he saw. However, there are poskim who disagree on this and hold that even with a visible blemish, as long as she has not entered the husband's domain, it can be said that he did not see it, and only after marriage do we say so [Beit Shmuel]. And so it is implied from the Rambam whom we cited, for behold, the face is a visible place, and nevertheless he wrote that a large mole or one that has hair is a blemish. And likewise, he did not mention there a distinction between a visible blemish and a hidden blemish, and only in chapter 25 of Ishut regarding the ketubah did he mention this, where it deals with after marriage; see there. [And so wrote the Maggid Mishneh, and the Bedek HaBayit and Beit Shmuel hold accordingly; see there].

Our teacher, the Rema, wrote in section 4: And if there is a bathhouse in the city, even hidden defects do not nullify [the marriage]. In what case does this apply? When it is the way of the daughters to go to the bathhouse openly, but in a place where the daughters go to the bathhouse only at night and in hiding—even revealed defects nullify. Thus far his words. This is when he betrothed her via a messenger and did not see her, for if he had seen her—it has already been explained that he has no claim regarding revealed defects, and also this is according to the opinion of those who disagree and the Rambam whom we have written, that even a bathhouse is no proof after erusin, and only after nisuin do we say that when there is a bathhouse he has no claim even regarding hidden defects.

An epileptic, if it occurs at a fixed time—it is like hidden defects, and if it is not at a fixed time—it is like revealed defects; and in siman 116 more of the laws of defects will be explained. And one who urinates during sleep in her bed, it is a defect, and likewise a leper [Beit Yosef], and there is one who says that he must give her a ketubah and only that he may divorce her against her will and there is no violation in this of the enactment of our teacher Gershom [Taz]. And a man who urinates in bed, there is one who says that it is not a defect [Beit Shmuel], and it requires further study why, for seemingly it is a great defect. And some say that that which was explained regarding a bathhouse, that when there is one in the city even hidden defects do not nullify, this is not regarding all defects, for an epileptic and bad breath—there is no difference whether there is a bathhouse in the city or not, for in a short time she can be careful so they will not recognize this, and likewise sweat and a deep voice are not recognizable in a bathhouse for this reason [Chelkat Mechokek]. And besides the defects we have enumerated, there are certainly other defects, such as a contagious disease and likewise if the doctors say she has a hidden disease and the like; also some say that if her nose is much larger than other people it is like a defect, and it requires further study in this.

If he betrothed her on the condition that she has no defects, and she had defects, and she went to a doctor and he healed her even before the husband knew of the defects – nevertheless, she is not betrothed. This is not similar to vows, where the sage uproots the vow from its inception and it becomes as if it never existed, whereas regarding defects, they are healed from this point forward, and he had betrothed her on the condition that she has no defects and she had them. And it is not only for this reason alone, for regarding a man in such a case it would be a betrothal as will be explained, but rather because regarding defects in a woman there is an objection even in such a case, for even now after she has been healed, she is repulsive in his eyes when he remembers that she had defects [Tosafot]. However, regarding vows there is no objection since it is uprooted retroactively. Similarly, regarding defects in a man there is no objection in such a case, for a woman is satisfied with any husband. Furthermore, regarding a woman there is a disgrace when she had defects even previously, which is not the case regarding a man. Therefore, if the woman stipulated on the condition that he has no defects, and he had defects, and he went to a doctor and he healed him – she is betrothed for the reasons that have been explained.

And there are those who are uncertain regarding the condition of a woman, that if there are no defects in him and it became known to her before he was healed, if the kiddushin are voided, as is written regarding vows that a woman [is not betrothed] when it becomes known to the husband before a sage has permitted it for her; or perhaps specifically a man is fastidious regarding a minor matter, and immediately when it becomes known to him he will say, "I do not desire a woman subject to vows," but a woman is not fastidious even regarding defects if there is only a cure for the defects. However, regarding vows, when she stipulated on the condition that he has no vows and it became known to her before the sage permitted it for him, some say that she is certainly not betrothed, for regarding vows there is no issue of repulsiveness; and that which we explained, that when it becomes known to him before a sage permitted it for her she is not betrothed, is because he considers that perhaps there is no permission for her vows and he immediately voids the kiddushin, and this reason applies to her as well. However, there is no proof according to what I wrote, that he voids the kiddushin due to a minor fastidiousness but she does not; if so, even regarding this reason it can also be said that he considers this but she does not, and even if she considers it, nevertheless she does not void the kiddushin because of this until she sees if there is permission for his vow, just as we said that she waits to know if there is a cure for him, for this too is hidden from her and nevertheless she waits, and here too it is similar; and therefore it is a case of uncertain kiddushin.

Nevertheless, if he betrothed her on the condition that she have no defects, and defects were found in her and a doctor healed them—she is betrothed retroactively. It is possible that even if it became known before he healed her it is effective, for the condition that she have no defects has been fulfilled; and it is not relevant to say that she became loathsome in his eyes, for according to his condition, he is not fastidious regarding the past [ibid.]. And even though we have said that there is no fastidiousness regarding the phrasing, that is for the opposite case, but nevertheless it is impossible that we should interpret the condition more than what the phrasing can bear [see Beit Shmuel]. The law is the same regarding vows if he used phrasing referring to the future, that she should have no vows. However, it can be said regarding both that when it became known to him before the release and before the healing, he thought that she had no release or healing and immediately nullified the kiddushin; therefore, in such a case, it is a kiddushin of doubt. And some say that in every case it is a kiddushin of doubt, even if he said that she should not have them and the doctor healed them before it became known to him, because there is no fastidiousness regarding the phrasing [Bach and Chelkat Mechokek].

The Tur wrote: If defects were found in her after she was betrothed and she is still in her father's house, and the father claims that they arose after she was betrothed and his [the husband's] fortune caused it—he must bring proof, and if he has no proof, she leaves without a ketubah, and she must even return the kiddushin. And if they were not found until after he married her—then the father is believed and the husband must bring proof that they were in her before she was betrothed, but if he brought proof that the defects were in her in her father's house after she was betrothed, it does not avail him. In what case is it said that the father must bring proof? Regarding a na'arah, but regarding a bogeret, even if she is in her father's house—the husband must bring proof. Thus far his words. And there are other opinions regarding this matter, it will be explained with the help of Heaven in siman 117, for regarding the kiddushin, that she requires a get, most of the poskim agreed that in every case she requires a get and the distinction is only for the ketubah, therefore it is not relevant to this siman, and although there are those who hesitate regarding this, nevertheless such is the opinion of most of the poskim, and therefore our teachers, the authors of the Shulchan Aruch, also did not write this law except ibid.