Siman 50

It is a simple matter and understood by reason that all gifts a man gives to his wife—whether he gave them to her after the marriage, or whether he gave them to her after the erusin, or whether he gave them to her after the shidduch before the erusin—the gifts are hers absolutely. For even if the husband died or divorced her, the gifts remain with her, as is written in siman 99. And even if he divorced her because he hates her, we do not say that the gifts should be returned to him on the grounds that he only gave them to her out of love and now that he hates her the gift should be voided. For this is no logic at all, for if so, anyone who gives a gift to his fellow because of the love between them and over time he becomes his enemy, shall the gift be voided? For does one who gives a gift take a guarantee from him that he will love him forever?

However, this is from marriage, but from betrothal, when he divorced her or died—the gifts return to him or to his heirs. The reason is that it is a strong assessment that he only gave her the gifts on the condition that he would marry her, but if the marriage is cancelled, the gifts shall be returned to him, and this applies to all types of gifts of silver and gold and jewelry and vessels and garments that have not worn out, as will be explained, except for types of food and drink which do not return for a reason that will be explained in this siman. And there is no distinction regarding the gifts between those he sent her before betrothal after they were bound in shidduchin and those he gave her after betrothal, for there is no reason to distinguish between them. However, a gift that he gave her before the shidduchin, it appears that it does not return to him, for this is like a mere gift, unless he explicitly stated that he gives it to her on the condition that she marries him.

And this applies to other gifts, but regarding the kiddushin money, whether he betrothed her with money or with the equivalent of money, even if he betrothed her with a thousand dinars, the kiddushin does not return to him after erusin. Whether she retracted and compelled him to divorce her, or he retracted and divorced her, or he died, or she died, or even if he divorced her because she was forbidden to him by some prohibition [ibid. subsection 1] – the kiddushin does not return to him, and they are a complete gift for which there is no retraction. And even though it is obvious that regarding the kiddushin there is also an assessment that he only gave it to her on the condition of marrying her, nevertheless the sages, of blessed memory, ruled thus so that people should not say that the kiddushin was nullified and that kiddushin would take effect with her sister [Bava Batra 145a] or with her other relatives who are forbidden to him even after her death, such as her mother and the like.

Therefore, if it was a betrothal in error—it is obvious that the kiddushin return. And likewise, if she was a minor who was betrothed by her mother and brothers and she performed me'un against him, for we do not care if they say kiddushin take effect with her relative; on the contrary, it is better that they say so than they say they do not take effect, for in truth they do take effect. And likewise, if the kiddushin were conditional and the condition was not fulfilled. Our teacher, the Beit Yosef, wrote that even in a case of uncertain kiddushin, the kiddushin return. The great Acharonim [Chelkat Mechokek and Beit Shmuel] wondered about him, for in a case of uncertain kiddushin she requires a get, and her relatives are forbidden to him due to the uncertainty; why then should we not also decree in this case that the kiddushin should not be returned, so that they do not say kiddushin certainly take effect with her sister? For even a minor, whose kiddushin are rabbinic, the kiddushin do not return except through me'un as has been written, and not when he divorced her, even though her relatives were only forbidden rabbinically; and how much more so in a case of uncertain Torah kiddushin.

However, the words of our teacher, the Beit Yosef, are correct, for since by law the kiddushin return and only because of a decree they do not return, it is sufficient that we decree in a case of certain kiddushin and not in a case of doubt. And it is not similar to a minor who leaves with a get, for there, whatever the sages ordained, they ordained similar to a Torah law, and in any event they are certainly rabbinic kiddushin. Furthermore, in a case of doubt there is a decree to the contrary: if the kiddushin are not returned, they will say that it was certain kiddushin and they will say that kiddushin do not take effect with her sister, when in truth they take effect out of doubt. And since there is a decree on both sides, it is better to establish it according to the law [Makneh].

Furthermore, there is no decree here according to what one of the early authorities wrote, that regarding uncertain kiddushin, if she married she does not go out, based on the reasoning that we establish her status upon her presumptive status as an unmarried woman [Kesef Mishneh chapter 4 in the name of the Maharik]. If so, there is truly no concern even if they say kiddushin takes effect with her sister, which is not the case with kiddushin of rabbinic origin, for if she married she goes out by rabbinic law [Avnei Miluim]. And even though we do not rule accordingly in practice—not only in a case of two witnesses against two witnesses where, even though by Torah law one establishes her status upon her presumption, nevertheless by rabbinic law she goes out as written in siman 16, but even in a general uncertainty without contradicting witnesses, such as where two say he threw her kiddushin and it is uncertain whether it was closer to him or closer to her and the like, she also goes out because she lost her presumptive status as an unmarried woman since an act of kiddushin was performed with her, as written there regarding one witness against one witness, see there—nevertheless, it is simple that this is only by rabbinic law, for by Torah law even a presumption that has been weakened is a presumption. Therefore, we do not decree in this case as this is only a rabbinic stringency, but regarding a minor with kiddushin of rabbinic origin, it is a rabbinic certainty [it appears to me]. And so ruled the Mordechai [end of chapter 3 in the gloss] that in a case of uncertainty the kiddushin return, see there.

Even though we have said that in cases of kiddushin in error the money of the kiddushin is returned, nevertheless, one who betroths his sister—the money is a gift. Even though there is no greater error than this, nevertheless, regarding an error that is impossible to make, this law does not apply, for everyone knows that kiddushin does not take effect with forbidden relations, and this is not an error but rather he resolved and gave it for the sake of a gift. And that which we said regarding kiddushin in error that they return the money is in a matter where the mind errs, such as if her husband went to a province overseas and they told her that he died and he betrothed her, and afterwards her husband arrived, and similar cases, but not regarding one who betroths a forbidden relation. And so too, one who betroths a married woman while knowing that her husband is alive, the money is also a gift; and we do not say that only for his relative is his intention for a gift and not for this woman who is not his relative. And although there are some of our teachers who were in doubt about this [the Rosh, first chapter of Bava Metzia, siman 39], nevertheless, as a matter of law there is no distinction in this, as we have explained with the help of Heaven in Choshen Mishpat, siman 356, section 7, see there.

Our teacher, the Rema, wrote that all this only refers to after erusin, but after nisuin—the kiddushin return, thus far his words. For according to the reason that was explained, that they should not say it was a mistaken kiddushin and that kiddushin take effect with her sister, this applies only to kiddushin and not to nisuin, for they will never say mistaken nisuin as this is an uncommon matter; and even a condition does not exist in nisuin, for he surely waives his condition at the time of nisuin [see Tosafot Yevamot 107a]. Nevertheless, his words are perplexing, for we only required this reason regarding after erusin when all the gifts return, but after nisuin when all the gifts remain with her as has been written, why do we need a reason? Is kiddushin any worse than all the gifts which do not return to him [Chelkat Mechokek subsection 5], and behold, he must even give her a ketubah, and all the more so the kiddushin money does not return. And one cannot say that it refers to one who rebels against her husband, for it does not imply so from his wording. And there is one who says that it does not refer to the strict law, but rather in a place where according to the enactment that will be explained, when she dies the husband does not inherit her and everything is returned to the givers of the dowry, and in such a case they also take the kiddushin from her heirs and return it to him. And there is one who says that even when he dies it is the custom in several communities to include the kiddushin ring in her ketubah; but besides that there is no proper reason for this—and behold all the gifts that he gave her certainly do not return, so why should the kiddushin money be worse than all the gifts [ibid.]—and his wording does not tolerate this.

And it appears to me that our teacher, the Rema, holds that kiddushin is inferior to all other gifts, for this is not a gift but rather a kinyan through which he acquires her with the money of kiddushin, as a woman is acquired by her husband with money or the equivalent of money. Certainly, according to the essential law, just as one who purchases land with money and afterwards the seller returns and purchases it from the buyer, does he not return to him the money he received? If so, when he divorces her, she is like one purchasing herself from him so that she is no longer under his authority, and she should have had to return to him his purchase money, which is the kiddushin. It is only because of the decree that the sages, of blessed memory, said it should not be returned to him, as has been written, and this decree does not apply to nissu'in, only to erusin. And that which the poskim wrote regarding kiddushin using the language of a "gift," this is a routine expression, because in the Gemara the Tannaim disagree whether the kiddushin return after erusin or not. And the reason for their disagreement—the one who holds they return holds that it is superior to all other gifts since they are like the price of a purchase; and the one who holds they do not return, either holds that even though they are like the price of a purchase, nevertheless because of the decree we do not remove them, and this is only relevant after erusin and not after nissu'in; or he holds that even so, it is not comparable to a purchase, as he gives it to her absolutely because of affection, and according to this, even after nissu'in they do not return. And the Amoraim disagreed about this, as one holds that even according to the essential law they do not return, and according to this, even after nissu'in they do not return; and one says that the reason is only because of the decree, and according to this, only after erusin they do not return, but not after nissu'in, as it is comparable to the price of a purchase. And our teacher, the Rema, ruled like this Amora, for according to him these Tannaim do not disagree on the essential law and all of them hold that it is comparable to a purchase. According to this, our teacher, the Rema, correctly ruled that from nissu'in they return.

And that which we wrote in section 2, that the gifts always return after the erusin, and all the more so after the shidduchin before erusin, the Rambam, of blessed memory, wrote in the sixth chapter of Zechiyah: One who sends sivlonot to the house of his father-in-law, whether many or few, whether he ate an erusin meal there or did not eat, whether he died or she died, or the man retracted—all the sivlonot return except for food and drink. Similarly, small vessels that he sent to her to use there in her father's house, if she used them and they wore out or were lost, they are not reimbursed; but if they were extant, everything returns and he collects them in beit din, for the matter is known that he only sent them for the sake of beauty alone. If she retracted—she returns everything, and even for the food and drink she gives its value at a low price. And the Geonim have already agreed that if the value of the food and drink was worth six, she pays four if she retracted, for he only gave her this gift with the understanding that she would not retract. Thus far his words.

But the Tur wrote, and this is his wording: And the gifts that he sent sometimes return and sometimes do not return. How so? If he sent her garments and silken vessels, things that are intended to be used in her father's house and it is possible that she will use them until they wear out, and she used them in her father's house, and similarly if he sent her types of food or drink, if he ate and drank in his father-in-law's house the value of a dinar when he sent them—for such is the way to feed him when he sends the gift—then she does not need to return them even if they are still in existence and even if they are worth a hundred maneh. If he did not eat there at all or ate there less than a dinar's value, she must return them. In what case does this apply? When he retracts, but if she retracts, even a bundle of vegetables returns even if he ate there, and when she pays him, she deducts a third from what it was worth and pays two parts. If he sent her silver vessels and gold vessels and garments that are not intended to wear out in her father's house, they return in any case even if he ate there. If they sent for him to eat in his house when he sent the gift, or if he sent the gift via his messenger and they fed the messenger, it was questioned if it is considered as if he ate there and it was not resolved. Furthermore, it was questioned if he ate there the value of half a dinar if he waived half of it. Furthermore, it was questioned if the savlonot increased in value if that increase returns with the savlonot when they return, and it was not resolved, and we do not extract due to doubt and they do not return. Thus far the words of the Tur.

And like the opinion of the Tur, so is the opinion of most of our teachers, and the opinion of the Rambam is a minority opinion, and also the Rif does not hold like him; for according to the Rambam, even without having eaten there, the food and the drink and minor vessels that have worn out do not return, and according to the Tur, these do not return only when he ate there at the time of the gifts [see Beit Yosef] for because of the closeness of the eating he waives all of these, and when he ate the value of a dinar, not less, for a dinar was an important coin in the time of the Shas [Kiddushin 12a, Arachin 23b]. And he further disagrees, for according to the Rambam, if they have not worn out, in any case they return, and according to the Tur, if he ate the value of a dinar, these things do not return even when they are extant. And if he gave a gift of ready money, it is also like vessels that are made to wear out, for they were given for expenditure [Nimukei Yosef chapter 9 of Bava Batra].

And there are some of the poskim who disagree on one detail even with the Tur, for according to the Tur regarding garments and wool vessels, things that can be used until they wear out and he ate there—they do not return even when they are still in existence and have not worn out; and there are those who disagree with him that in this it is a legal doubt, and according to the poskim that seizing is effective in a legal doubt, if he seized we do not remove it from him [Beit Shmuel, subsection 6], except for small ornaments such as types of scarves and women's headbands and shoes, for in such as these he waives even if they are in existence [and this is the "yava" and "savtacha" in the Gemara there, and the Tur explains that this is garments and wool vessels as the Beit Yosef wrote, and in vain did the Beit Shmuel wonder about him, and furthermore the Tur holds that seizing is not effective in a legal doubt as he wrote in Choshen Mishpat in several places].

Items that are not prone to wear out, when she sold them, her law is like that of a robber and she pays according to the value at the time of the robbery. And the improvement of sevelonot, which is a legal doubt whether he collects it, this refers to those sevelonot that depend on eating, which are not collected when he ate and if he did not eat they are collected; regarding these there is a doubt if they improved after he gave them to her and afterwards they wore out before the return, do we say that since at the time of giving his intent was to eat there and they would remain hers, she only pays according to what they were worth then, or perhaps since he did not eat and they remain in his domain until the time of return, she is obligated to return the improvement? And it is a legal doubt, and the one who seeks to extract from his fellow bears the burden of proof, and she shall not return the improvement. But regarding sevelonot that do not depend on eating, which are always returned, such as those not prone to wear out, there is no doubt at all; for in any case, if they are extant, he collects them with their improvement, and if she sold them or gave them away, it is simple that they pay what they improved before the removal. And if they improved after the removal, she should be no more than a robber; all robbers only pay according to the value at the time of the robbery, and certainly they would not return the improvement. And even if they sold them and profited from the money they received for them, it is simple that they are not obligated to return what they profited, for they did not profit for the sake of the groom [Nimukei Yosef ibid.]. And know, that small sevelonot prone to wear out, if they are also numerous, such as if he sent her four pairs of small garments which she certainly will not wear out in her father's house—their law is like large sevelonot and they are collected in any case [ibid.].

The Rambam, of blessed memory, further wrote: My teachers instructed that if the custom of the land is that every person makes a feast and feeds his friends or distributes money to the attendants and the like, and he acted according to the way all the people act and she recanted—she pays for everything, for she caused him to lose his money, and anyone who causes the loss of another's money must pay him, provided that he has witnesses for how much he spent, as this is not a case of "one who swears and takes." Thus far his words. The Rambam, of blessed memory, compared this to all the laws of garmi and causing damage, but they disagreed with him on this, for any loss of money that the owner of the money does of his own volition, even though damage resulted from this, he is exempt. To what is this comparable? To one who sells garden seeds and they did not sprout, where he does not pay him for expenses, as is written in Choshen Mishpat siman 232, and as it is taught in the Tosefta: One who sells jars to his fellow and they were found to be not good and they broke, he is obligated to provide him the value of the jars but not the value of the wine that the buyer put into them, for this is not a matter of damage of garmi or causing damage. However, the opinion of the Rambam is that it is not comparable to all those cases where he intended to profit and incurred expenses, but here he did not intend to profit but rather to behave according to the custom of the land, and therefore the one who recants is obligated to pay the other for all expenses. Therefore, even though it is no more than gerama in damages which is exempt, nevertheless we consider it as if he incurred the expenses at his word, since all the people of the land are accustomed to making a feast and incurring expenses; therefore, the law is to pay for everything according to the law of garmi, as if he commanded him to incur these expenses, and this is not included in gerama in damages such that he would be exempt.

According to the Rambam, of blessed memory, the law is simple in our countries: when people enter into engagements and write memorandums or conditions and travel from place to place and both sides incur many expenses, if one of them subsequently retracts—he must return all the expenses that the other side incurred, which he shall clarify through witnesses or through an assessment by experts or by a beit din; and according to the one who disagrees with him, this is not collected. Our teacher, the Beit Yosef, ruled in the Shulchan Aruch like the Rambam, and so the simple custom appears in all courts, that the breaching party returns to the fulfilling party his expenses, and for the most part they make a compromise between them [what the Beit Shmuel wrote in subsection 7 regarding at least a third, I did not understand what this matter of reduction is, for this is only regarding gifts of food and drink for the bride and her father's house].

Regarding the matter of sivlonot, it appears that nowadays all types of gifts that the groom sends to the bride are called "not made to wear out" and always return, even when he retracts. Regarding types of food and drink that he sent—according to the Rambam, if he retracted they do not return, and if she retracted she pays back less a third; and according to the Tur, this fact that they do not return when he retracts is only if the groom ate there the value of a dinar. Now the custom is not such that the groom himself brings the gifts to the bride at her father's house and eats there. It appears that nowadays, that which they make a feast and rejoice together at the time of the tena'im is like the eating of a dinar in the house of the bride. However, according to the opinion that will be explained, that before erusin everything returns in any case, there is no practical difference now between the Rambam and the Tur according to the custom of our lands, where the erusin are at the time of the chuppah.

Our teacher, the Rema, wrote that there are those who say all of this applies to what he sent after erusin, but before erusin after shiddukhin – everything returns; and there are those who disagree. Thus far his words. The later authorities decided in accordance with the first opinion that everything returns, and according to this, even when he retracts, all his gifts that he sent to her return to him, and even gifts that were worn out in her possession she must pay for even though the prevention is from his side, for with this intention he gave to her: that if he retracts she shall pay him, and all the more so when she retracts. However, we have never heard in our days that they should judge thus, that she should pay him for gifts that were worn out or types of delicacies that he sent to her when he retracts, and it is possible that our tanaim which contain a prohibition and a fine have the status of erusin, and it is possible that the people of the land adopted the law like the "there are those who disagree," and already one of the great ones wondered about this, how it is possible that she should pay when they were worn out when the prevention is from his side.

Our teacher, the Beit Yosef, wrote in section 4: One who betrothes his daughter to another and sent him garments and jewelry, and afterwards the shidduchin were cancelled and the groom or his father-in-law reneged—he shall return what was sent to him, for just as the sivlonot that he sent to her return, so too what she sent to him returns, for it is an assessment of the intent that she only sent them to him on the condition that he would bring her to the chuppah. Thus far his words, for there is one reason for both of them. And that which the Gemara and the poskim cited everything regarding him sending sivlonot to the kallah is because it is the way of the world that the groom sends to the kallah [the Gra], but in truth, just as the law is regarding gifts that the groom sent to the kallah, so too is the law regarding gifts that the kallah or her father sent to the groom.

The general rule is: when they entered into a shidduchim agreement and the shidduchin were canceled, all gifts that are extant that they gave to one another—items that are not prone to wear out, such as pearls, precious stones, and expensive objects—the gifts return to one another, and there is no distinction as to who retracted from the shidduch. Regarding items prone to wear out, such as shoes and the like, and similarly cash when given as a gift to one another—according to the Rambam, when they are extant they return, and when they are not extant they do not return; however, the party that retracted pays the fulfilling party even for the gifts that wore out or were lost, and also for food and drink at a reduction of one-third, and also the expenses of the tena'im according to the custom of the land. Similarly, regarding the shadchanut fee, if the custom is to pay before the tena'im or immediately after the tena'im, the retracting party pays the fulfilling party. We have already explained that there are those who disagree with the Rambam on certain details, but regarding the matter of expenses, they rule like the Rambam simply, for our teachers, the authors of the Shulchan Aruch, brought only his opinion on this. Also, regarding what he ruled that the retracting party pays the fulfilling party even for gifts that wore out or were lost—no one disagrees with him on this. It is only regarding what he ruled concerning items prone to wear out, that when they are extant they always return and when they are not extant they do not return if the party who must return the gifts did not retract—on this the Tur and the poskim disagree with him and distinguish between whether he ate or did not eat, as has been written. We have already explained that in our context, the "eating" that existed in their times in the house of the kallah is not applicable.

The penalties that are written in shidduchin, as is our custom to write in the conditions a penalty from the party that transgresses to the party that fulfills of half the dowry, and also from the days of the early authorities they conducted themselves thus, and according to the law it would appear that there is no substance to this, for they are an asmachta as is written in Choshen Mishpat siman 207. And in truth, our teacher, the Beit Yosef, wrote in section 6 that when they wish to make guarantees for shidduchin, they do so in a manner that it will not be an asmachta, which is that they make a document for this that he is indebted to his fellow a maneh, and after he obligates himself a maneh, he stipulates with the father of the bride that if he fulfills the shidduchin and enters the chuppah with this betrothed of his, behold the debt is forgiven to him. And afterwards they make a document that his fellow is indebted to this one a maneh and he stipulates with him that if he brings his daughter into the chuppah with this betrothed, the debt shall be forgiven to him, and they place these two documents in the hand of a third party. Thus far his words. And this is according to the approach of the Rambam in the eleventh chapter of Sale regarding all types of asmachtot, and we explained the matters in Choshen Mishpat there, section 47, and in our time they do not practice this. [The half-dowry penalty that they write – it appears that the intention is half the dowry of the bride, for this is called nedunya, and not that of the groom].

For in truth, many of our teachers, the Rishonim, wrote that in shidduchin there is no asmachta, as our teacher, the Rema, wrote: There are those who say that all penalties made in shidduchin do not involve asmachta, and so is the common custom to collect penalties made in shidduchin, as he wrote in Choshen Mishpat siman 207. Thus far his words. And we explained there in section 48 the reason, for it is appropriate that the one who retracts should be obligated in a penalty for the value of the shame he caused the other side. And even though we do not judge cases of shame in this time, as written there in siman 1, nevertheless, when he obligated himself in the value of the shame, there is no asmachta in this. And nevertheless, a kinyan is required, for mere words are nothing, and therefore one must perform a kinyan on the penalty. However, they should not perform a kinyan sudar, for currency is not acquired through chalupin unless they perform a kinyan on the value of money with a specific object, or with land or movables in his possession. And there are those who say that a kinyan is not required, since it is the value of shame and is similar to "if I leave it fallow and do not work it, I will pay with the best," which does not require a kinyan [there in the Shach, siff katan 24]. And our teacher, the Beit Yosef, himself in Choshen Mishpat there brought this opinion that there is no asmachta in shidduchin for this reason, and the fact that they did not explain it here is because he relied on what is there. And there we explained that it is possible that the kinyan performed at the time of the tenaim is effective even for the penalty of half the dowry; and even though currency is not acquired through chalupin, nevertheless it is possible that since the kinyan is effective for the rest of the obligations such as food and clothing, it is also effective for the currency. And this requires further study as a matter of law. Furthermore, since it is the custom to gather many people at the time of the tenaim, it is like an important beit din, and the kinyan is like "from now," for in such a case there is no asmachta [Tosafot Nedarim 27b in the name of Rabbeinu Tam]. Furthermore, in shidduchin, since the custom of the world is to acquire with a sudar, it acquires by law even without "from now," and the one who retracts is obligated, for the matter depends on custom like a situmta [Mordechai, chapter Eizehu Neshek in the name of the Raviah]. In any event, according to all our teachers, there is no asmachta in the penalties of shidduchin [and what the Chelkat Mechokek wrote in siff katan 14 in the name of the Maharik, that even if they did not make a penalty, it is close to certain that he is obligated to pay the value of his shame, this is not found in any posek].

Specifically, penalties established at the time of the shidduchin are not considered asmakhta, but if they established penalties before the marriage—those penalties are asmakhta [ibid.]. However, before the marriage, even if one consents to marry but only wishes to change some of the details of the conditions, he is liable for the penalty. For if not so, anyone could easily find pretexts to exempt himself and nullify some of the details, and through this his intention would be realized and the shidduch would be nullified, and consequently the other party would come to shame [ibid.]. However, regarding a delay of the time, where one of the parties wishes to extend the time of the wedding, we have no concern with it, for the penalty does not apply to a delay of the time, unless the beit din sees that there is trickery and a ruse in this to nullify the shidduch. And many times we see that one party desires to nullify the shidduch but fears that he will become liable for the penalty, and seeks such ruses and trickery as if it is not his desire to nullify it; and it is upon the beit din to understand this and to obligate him in the penalty [what the Beit Shmuel wrote there in the name of the Maharit, that even if he swore upon the conditions it does not apply to a delay of the time—requires further study].

Our teacher, the Rema, wrote in section 6 that this is specifically if the shtarot of the knasot were already written, but if they performed a kinyan on the condition to write the shtarot, and before they were written one of them retracted and protested to the witnesses not to write the shtarot, he has the authority to protest the shtar as is written in Choshen Mishpat siman 39 and siman 243. Thus far his words. And consequently, since he said on the condition to write the shtarot and he protests their writing, he is also exempt from the essence of the shidduch and the knas [Beit Shmuel], for a kinyan on the writing of the shtar is nothing as it is only a kinyan devarim, and since he made it dependent on the writing and the writing was nullified, the essence of the matter is also nullified. And if he did not say "on the condition," even though he can protest the writing of the shtar, nevertheless he is obligated to perform the shidduch because of the kinyan [ibid.]. And know that in Choshen Mishpat siman 243 section 7 we explained that even if the shtar was written, as long as they did not deliver it into the hand of the recipient, if he protested the delivery, the matanah is also nullified, for that which he said "on the condition that you write for him," the intention is to write and deliver, for writing without delivery is nothing, and since he retracted from the delivery into his hand and he made the matanah dependent on this—the matanah is nullified, see there, and here too it must be said so, and our teacher, the Rema, relied on what he wrote there. And it is possible that according to our custom, where after the writing of the tana'im and after the performance of the kinyan they read the tana'im publicly and break vessels as a sign of joy—they cannot retract after the reading of the tana'im, for this is the primary finality according to the custom and this is the primary shame, and such is the primary law.

If they performed a kinyan on the marriage alone, that is to say, to perform the marriage on a certain day, some say that it is a kinyan devarim and the kinyan is void, for the kinyan has nothing upon which to take effect [Sma ibid. subsection 12], and some say that the kinyan certainly takes effect [Taz ibid.], and we explained there in section 8 that this appears to be the primary ruling, for the obligation of marriage is an encumbrance of the person, as he obligates himself for her sustenance and clothing and she encumbers her person for labor, and it is no less than the hiring of a person, see there.

Some say that if they wrote the rashei perakim and performed a kinyan, even though they did not say "on condition that the shtarot be written," it is as if he said so, for certainly their intention was for this, as it is a simple custom that after the writing of rashei perakim they write the tanaim. Therefore, each one can retract after the writing of the rashei perakim and can protest not to write the tanaim, and the shidduch is annulled and he is exempt from the knas [Taz and Beit Shmuel]. However, if they deposited a promissory note, with this the obligation is finalized and they are liable for the boshet. And if the tanaim were already written in brief and they give it to the sofer to write at length—no one can retract and they are liable for the boshet [Beit Shmuel]. And behold, in our times the custom is not to write rashei perakim and afterwards to write tanaim immediately, but rather tanaim alone or rashei perakim alone in which they write that they have the force of tanaim. However, it is certain that with us the primary finalization is the public reading of the tanaim and the breaking of the vessels as I have written, and when they receive a kinyan for shidduchim, even without specification and they did not say "on condition that you write," the intention is for the writing and the reading. Therefore, as long as they have not read the tanaim in public, they can retract from the shidduch without a knas, and such is the custom.

If they performed a kinyan in secret before witnesses and commanded the witnesses not to reveal the matter, and afterwards one of them protested to the witnesses that they should not write—he is exempt from the fine and can protest, since because it was done in secret, boshet is not yet applicable. And this is specifically when others were not there at all, but if others were there, even only relatives of the parties, boshet is applicable, however, it has already been explained that according to our custom, until after the reading of the tenaim they can retract without a fine.

It is a simple matter that the obligation of a fine for the future to withdraw from the shiddukh or to change its details is only when one cancels of his own free will. However, if he was under duress to cancel it through any manner of ones that according to the perception of the beit din is considered ones, for we are witnesses that he did not obligate himself except in a case where no ones would occur to him, and it is a strong assessment, and even a monetary ones is called ones. Therefore, if he declined from his financial status and is unable to fulfill the details that he promised and the other side does not desire anything less than this—the shiddukh is void and both are exempt from the fine. And so too anything similar to this, and even regarding an oath, a great loss of money is called ones, as our teacher, the Rema, wrote in Yoreh Deah siman 232, see there.

And similarly, there is no obligation of a fine even upon one who changes their mind of their own will except for one who obligated himself; but if the prevention is not on the part of the one who obligated himself, he is exempt from the fine and from returning expenses to the other side, and only the gifts shall be returned to one another as has been explained. Therefore, among us where the simple custom is that the father of the groom and the father of the bride write the tena'im and obligate themselves with an obligation, and afterwards there was a prevention on the part of their wives, that one of them prevents completing the shidduch or fulfilling the details, and certainly if the groom or the bride do not desire the shidduch without incitement from the fathers—the fathers are exempt. As our teacher, the Rema, wrote: one who agreed regarding his daughter or his daughter's daughter or his female relative that she should marry so-and-so, and afterwards the daughter does not want to, the one who agreed is exempt from the fine, for this is called an ones even though he did not make a condition, provided there is no deception in the matter; and see below at the end of siman 77; thus far his words. For there it was explained that an arusah who said that the groom is repulsive to her, her father is not obligated to give what he agreed to give for her, see there. And even though we do not rule like the Rambam and compel the giving of a get based on the claim of "repulsive to me" as is written there, nevertheless he is not obligated to fulfill what he agreed. And certainly after tena'im before erusin. And even though in our times it has been renewed in several places that the groom and the bride themselves sign the tena'im, nevertheless the primary obligation is upon the fathers, and they are not to be obligated when the prevention is not on their own part. And if the other side suspects him that his hand is in the middle to ruin the matter—they can impose upon him an acceptance that he did not incite this and that on his part there is no prevention at all [it appears to me]. And even if perhaps were he to give the son or the daughter money they would agree, he is not obligated to do this [Beit Shmuel, subsection 16], for this is a complete ones, and also the guarantors are exempt [ibid.]. And he did not need to make a condition regarding this because for the most part children agree to the will of their fathers, and this one or that one who departed from the majority, even if this is not an ones that is not common at all, nevertheless it is also not very common, so he is exempt in money in such a case [ibid.]. And even if he deposited a promissory note or cash with a third party to give to his son-in-law he is exempt, and the third party does not give it to him, for we are witnesses that his intention was specifically when his daughter would agree [ibid.]. And similarly if the father of the groom deposited with a third party and the groom does not agree, the law is also thus. And even if there was also an oath regarding this, he is exempt if he must spend much money until they agree, because it is a proven assessment that he did not swear with such an intention that he would spend great wealth to appease them [ibid. in the name of the Rashba].

And so too regarding other constraints that occurred where there is no ability to fulfill the details he promised, such as if he lost his wealth; and so too a father who stipulated a dowry for his son of such and such and the father died, the heirs do not need to fulfill it and are exempt from the fine. Also, the betrothed son is exempt from the fine, for you have no greater constraint than this. And even though there remained from the father enough for the stipulation, the heirs are not obligated to give it to the betrothed if this is more than his portion of the inheritance, for the betrothed did not acquire the money during the father's lifetime. And even though in the tena'im they accepted with a kinyan sudar to fulfill all the details, for the kinyan is not for the betrothed son to acquire the dowry immediately, but rather to the opposing in-law who betrothed his daughter to his son, and the father stipulated a certain sum for his son, and if he does not give this sum he will give a fine to the opposing side, and on this he accepted with a kinyan sudar; but the son did not acquire any right [Chelkat Mechokek subsection 18]. Therefore, even if he wrote that he obligates himself to give, he is exempt if he became poor or died, and the groom has only his portion of the inheritance. And so too the father of the bride who stipulated a dowry for his daughter of such and such and he lost his wealth, it is a constraint and he is exempt. And so too if he died and the inheritance fell before his male sons, they do not need to fulfill it from the side of their father's stipulation, for the daughter did not acquire anything at all during his lifetime as I wrote regarding the son; rather, they are obligated to give her according to her portion of a tenth of the property or according to the estimation of the father's intent. Therefore, if at the time of the stipulation he was in a better state than the state he left at the time of his death, that estimation which he stipulated himself is void, for he was then in the better state [Beit Shmuel subsection 19, see there].

It is a simple matter that if the father of the groom or the father of the bride deposited with a trustee the dowry that they promised and obligated themselves to in the tena'im—the son acquired this during the father's lifetime, and this is not included in his portion of the inheritance, like a gift that a father gave to one of the sons; and after the death of the father, this is not considered part of the inheritance and he acquired it for himself. And similarly, the father of the bride who deposited the dowry and died—the daughter acquired this during his lifetime and his heirs have no connection to it, even if the money is in the hands of a trustee. For specifically in a mere verbal commitment are they exempt, because in the essence of the dowry the son did not acquire it, and therefore since he died or another mishap occurred, they are exempt from the fine.

And even if they did not deposit cash but rather obligated themselves with a promissory note, our teacher, the Rema, also ruled that his heirs are obligated to pay and an accident does not avail, for a claim of accident does not avail regarding a loan. And similarly, if the kinyan was at the time of the conditions where he transferred ownership to the son himself or to the daughter herself—the heirs are also obligated to pay, however, regarding money, kinyan sudar is not applicable as currency is not acquired through exchange, and only regarding a dowry of movable property or real estate does a kinyan avail, unless nothing remained from the father, for it is obvious that the heirs do not have to pay from their own pockets. And specifically a promissory note for the dowry, but when he gave a promissory note for the penalty—he is exempt, for since they are exempt from the penalty, what does a promissory note for it avail, for behold, they have no obligation of a penalty. And similarly, if there was an absolute obligation to the daughter or to the son by speech alone according to the manners that will be explained in siman 51, that they acquire by speech alone, and they died—the heirs are obligated to pay.

And so, sometimes even the one who obligated himself is exempt from the kenas even if no change occurred in his situation, such as a father who sent his son to find a match for his daughter and gave him a power of attorney regarding these details, and the son deviated from the details and his father refuses and does not want the shidduch – both are exempt from the kenas [Beit Shmuel, subsection 16], but if the son did not deviate from the details and the father does not want to fulfill it – he is liable for the kenas, for a person's agent is like himself.

And similarly, if one side was forced by circumstances to change some detail and the second side does not agree to this, even if the change is in a minor matter—such as two who arranged a shidduch between them and were residing in one city, and presumably the intention was that he should marry her here, and one was forced to leave the city and wants the second to follow him to perform the marriage and the second does not agree to this—both are exempt from the fine; this one because he was forced by circumstances, and this one because he only desires that the marriage be in the city. And if one left without being forced by circumstances, he is liable for the fine and the second is exempt. And if they do not reside in one city and did not write in the conditions in which place he should marry her, the side of the groom is obligated to come to the place of the bride and marry her there, for such is the custom of the world and the way of a man to seek after a woman. And if there is some fixed custom in this regarding the matter of the wedding expenses, they shall act according to the custom if they did not write in the conditions how it should be [see Beit Shmuel, subsection 20].

And sometimes one side is exempt from the fine when they do not wish to fulfill the engagement even without a change in their circumstances and without any duress, and even though the second side wishes to fulfill every obligation; for example, if the groom corrupted his deeds toward Heaven or toward people—the bride may retract and is exempt from the kinyan, from the oath, and from the obligation of the shtar if she gave one. And even if she knew that even before the engagement his deeds were somewhat corrupted, if afterwards he became more corrupted, she may retract [Beit Shmuel, subsection 12]. And even if the shtar was placed in the hand of a third party and he returned it to the groom—he has done nothing, for there is no obligation upon her to fulfill the conditions. And so too conversely, when the bride corrupted her deeds and the groom does not wish [to proceed]—he is exempt from everything. And it is obvious that if one of them became insane, the other may retract; and so too if one of them became ill, for it is obvious that they did not consent with such a possibility in mind.

And more than this, the Rosh ruled regarding Reuven who betrothed his daughter to Shimon with a kinyan and an oath, and they placed deeds in escrow, and afterward it occurred that the sister of the betrothed woman converted to Islam, that Shimon may retract and is exempt from the kinyan and from the oath and from the obligation of the deed, meaning the penalties they established between them; and if the escrow agent returned the deed to the betrothed woman, he has done nothing. And so our teachers, the authors of the Shulchan Aruch, ruled in section 5. And even if the sister of the betrothed woman merely committed adultery and she is a married woman, or even an unmarried woman but she became pregnant from harlotry, which is a great blemish—the betrothed man may retract [Taz and Beit Shmuel]. And the reason for all of this is because it is a strong presumption that with such intent he did not consent to such a great blemish. And whenever, according to the eyes of the beit din, the lineage of one side has changed for the worse until it is a great disgrace in the eyes of the public, the other side may retract. And it is impossible to explain everything in writing, for this depends on the standing of the in-laws, their location, their situation, and their lineage. And it is simple that if the betrothed man became a person with a blemish, the betrothed woman may retract, and likewise the reverse.

Our teacher, the Rema, wrote that there are those who say that all this applies before erusin, but after erusin, his field was flooded. Thus far his words. For even regarding blemishes we say this, and all the more so regarding other matters, and he is obligated to give her a ketubah if he wishes to divorce her [Chelkat Mechokek]. And also regarding what was explained concerning the sister of the betrothed woman, his field was flooded, and even though man possesses free will and it is in his power to do good or evil, nevertheless, his field was flooded [Beit Shmuel]. And in our lands, where we do not perform kiddushin before the chuppah, there is no practical legal difference in this law.

That which they write in the tena'im, "and due to absence or quarrel it shall stand according to the enactment of Shum" – this is regarding the husband's inheritance when she departs life after the wedding, and it will be explained in siman 53. And we also write, "that the fine shall not exempt" etc. – this is regarding the matter that even if one side wishes to pay the fine and break the shidduch, nevertheless there is a great ban upon him from the enactment of the early authorities if he is not under duress and no change has occurred in the other side. And even without the enactment of the early authorities, since in all tena'im they accept a kinyan, it has already been explained in Choshen Mishpat siman 12 regarding two who accepted mediators with a kinyan and a fine, and after the compromise one said "I will pay the fine and not fulfill the compromise" – there is nothing in his words. And all the more so regarding tena'im between a groom and bride [see Chelkat Mechokek subsection 22 and Beit Shmuel subsection 21, and in the tena'im this does not apply since they write the kinyan separately, see there and reflect].

The Tur wrote: Ri wrote that regarding all penalties that are made in the matter of shidduchin, that whoever retracts shall be obligated to his fellow such and such, that it is not an asmakhta. Therefore, if each one made a document against himself and they deposited them in the hand of a third party on the condition that whoever retracts shall give them to the one opposite him—the third party shall carry out his agency.

The Tur further wrote that if each one gives a mashkon to his fellow for the knas that he will be obligated to him if he said to one another: "If I retract, I will give you such and such, and behold this object is in your hand for the knas that I will be obligated to you if I retract" – it is nothing, for in this manner he did not acquire through a mashkon as long as he has not become obligated to him for anything, as a person can subject his property to a lien for a matter in which he is already obligated, but for a matter in which he is not obligated, a lien will not take effect. Rather, he must transfer it to him with a sudar not like an asmachta in a prominent beit din so that he will be obligated to him by law if he retracts, and then he shall give him the object as a mashkon, and then the lien will take effect on the mashkon since he became obligated to him for the knas if he retracts, or he should say to him: "If I retract, you shall merit such and such an amount of money in the body of this object." Thus far his words.

And even though he himself wrote that there is no issue of asmakhta regarding shiddukhin, it is different here since he reveals his intent that he does not rely on the fine but rather wants to provide a mashkon, and there is no mashkon here if he did not say "you shall acquire the body of the object" or if he is not legally obligated to him [Rashal and Bach]. Furthermore, while it is true that there is no issue of asmakhta in this, nevertheless, this pertains to his obligation; however, the mashkon is not acquired if he wishes to collect from the mashkon if he did not act as has been written [Taz]. According to this resolution, the obligation remains upon him and he may withhold it as a mashkon, but he does not acquire the body of the mashkon to sell it or to give it as a gift and the like. But according to the first resolution, even the obligation is void.

The laws of shadchanut were explained in Choshen Mishpat siman 185, and the custom among us is to pay the shadchanut immediately after the tena'im, and even if the shidduch was subsequently cancelled, the shadchanut is not returned. And the custom is that the one who begins takes half and the one who concludes takes half, and those whose involvement was in the middle, according to the law, have nothing; nevertheless, the custom is to give even them something, for it is not possible to establish this according to the strict line of the law. And regarding the fee for shadchanut, they take from the large sum of the dowry, and there are places where they pay five parts per hundred—two and a half from each side, and there are places where they pay six parts per hundred, and there are those who practice that when there is no river separating the parties they pay four per hundred, and each river follows its own course. And this is certainly true, that neither of the parties may bring in his relative or his friend into the shadchanut when other shadchanim have already begun to involve themselves in this, for this is almost complete theft and is at least no less than a poor person turning over a cake, and nevertheless there are those who are not meticulous in this, but there is no correct reason for this. And if the shadchan said at the beginning that he would involve himself for free, he has no shadchanut fee. And two who swore to one another that they would marry one another and one of them transgressed, or if one alone swore, it was explained in Yoreh Deah siman 236, see there.