מתני׳ המקדיש נכסיו והיתה עליו כתובת אשה ר"א אומר כשיגרשנה ידור הנאה רבי יהושע אומר אינו צריך כיוצא בדבר ארשב"ג אף הערב לאשה בכתובתה והיה בעלה מגרשה ידירנה הנאה שמא יעשה קינוניא על נכסים של זה ויחזיר את אשתו: MISHNA: In the case of one who consecrates his property and there was the outstanding debt of the marriage contract of his wife, for whose repayment one’s property is liened, Rabbi Eliezer says: When he divorces her, he shall vow that benefit from her is forbidden to him. This is to prevent collusion, by which he divorces her, she collects payment from the consecrated property, and he then remarries her. Rabbi Yehoshua says: He need not do so. On a similar note, Rabban Shimon ben Gamliel said: Even in the case of the guarantor of a woman for her marriage contract, and her husband was divorcing her and could not pay the debt, the husband shall vow that benefit from her is forbidden to him, lest he and his wife engage in collusion [kinunya] and collect payment from the property of that guarantor, and then the husband will remarry his wife.
גמ׳ במאי קמיפלגי רבי אליעזר סבר אדם עושה קינוניא על ההקדש ורבי יהושע סבר אין אדם עושה קינוניא על ההקדש GEMARA: The mishna teaches that there is a dispute between Rabbi Eliezer and Rabbi Yehoshua with regard to a case where one consecrates his property and then divorces his wife. The Gemara asks: With regard to what principle do they disagree? The Gemara explains: Rabbi Eliezer holds that a person would engage in collusion against even the Temple treasury, and for this reason he divorces his wife. The required vow serves to prevent such a possibility. And Rabbi Yehoshua holds that a person would not engage in collusion against the Temple treasury.
ואלא הא דאמר רב הונא שכיב מרע שהקדיש כל נכסיו ואמר מנה לפלוני בידי נאמן חזקה אין עושה קינוניא על הקדש לימא כתנאי אמרה לשמעתיה The Gemara asks: But if so, consider that which Rav Huna says: If a person on his deathbed consecrated all of his property and said: So-and-so has one hundred dinars that I owe him in my possession, his statement is deemed credible, as there is a presumption that a person does not engage in collusion against the Temple treasury. Let us say that Rav Huna stated this halakha with regard to a matter that is the subject of a dispute between tanna’im.
לא עד כאן לא פליגי אלא בבריא אבל בשכיב מרע דברי הכל אין אדם עושה קינוניא על ההקדש מ"ט אין אדם חוטא ולא לו The Gemara responds: No, Rabbi Eliezer and Rabbi Yehoshua disagree whether or not one colludes against the Temple treasury only with regard to a healthy person. But with regard to a person on his deathbed, everyone agrees that such a person does not engage in collusion against the Temple treasury. What is the reason? Since he will soon die, he does not stand to gain anything from his statement, and a person sins only for his own benefit, not for the benefit of others.
איכא דאמרי בבריא דכ"ע לא פליגי (דאין) אדם עושה קינוניא על הקדש והכא בנדר שהודר ברבים קמיפלגי מר סבר יש לו הפרה ומ"ס אין לו הפרה Some say that in the case of a healthy person, everyone agrees on the question of whether or not a person would engage in collusion against the Temple treasury, i.e., they agree that one must be concerned that a person may engage in collusion. And here, they disagree with regard to a vow administered in public, e.g., a vow administered by the court. One Sage, Rabbi Yehoshua, holds that such a vow has the option of nullification. Consequently, there is no use in requiring the husband to take a vow even in public, as a halakhic authority can later dissolve it. And one Sage, Rabbi Eliezer, holds that such a vow does not have the option of nullification. Therefore, the court administers a vow in public to prevent collusion.
ואיבעית אימא דכ"ע נדר שהודר ברבים יש לו הפרה והכא בנדר שהודר על דעת רבים קמיפלגי And if you wish, say instead: Everyone agrees that a vow administered in public has the option of nullification. And here, they disagree with regard to a vow administered based on the consent of the public, i.e., when the court says to the husband: You are taking a vow that benefit from your wife is forbidden to you based on our consent. According to Rabbi Eliezer, there is no option of nullification for such a vow, and therefore it is effective in preventing collusion, whereas Rabbi Yehoshua maintains that even such a vow can be nullified and is therefore ineffective in preventing collusion.
ואלא הא דאמר אמימר נדר שהודר ברבים יש לו הפרה על דעת רבים אין לו הפרה לימא כתנאי אמרה לשמעתיה ותו רבי יהושע אומר אינו צריך אינו מועיל מיבעי ליה The Gemara asks: But if so, consider that which Ameimar says: A vow that was taken in public has the option of nullification; if it was taken based on the consent of the public it does not have the option of nullification. Let us say that Ameimar stated this halakha with regard to a matter that is the subject of a dispute between tanna’im. And furthermore, Rabbi Yehoshua says in the mishna that the husband need not take a vow. If his reason is that such a vow is ineffective, he should have stated: It is ineffective.
אלא הכא בשאלה דהקדש קמיפלגי Rather, here they disagree with regard to one’s ability to request the dissolution of a vow involving consecrated property. Rabbi Eliezer holds that one may not request the dissolution of a vow involving consecrated property. Accordingly, there is a concern that the husband might collude with his wife by divorcing her in order to extract the consecrated property from the Temple treasury, as he has no other means of releasing the property. In contrast, Rabbi Yehoshua maintains that such a vow may be dissolved and therefore there is no reason for the husband to collude with his wife.
והתניא המקדיש נכסיו והיתה עליו כתובת אשה ר"א אומר כשהוא מגרשה ידור הנאה רבי יהושע אומר אינו צריך וא"ר אלעזר ברבי שמעון הן הן דברי בית שמאי הן הן דברי ב"ה The Gemara adds: And it is likewise taught in a baraita: In the case of one who consecrates his property and there was the outstanding debt of the marriage contract of his wife upon it, Rabbi Eliezer says: When he divorces her, he shall vow that benefit from her is forbidden to him, to prevent collusion. Rabbi Yehoshua says: He need not do so. And Rabbi Elazar, son of Rabbi Shimon, said: This statement of Rabbi Eliezer is the same as the statement of Beit Shammai, and this statement of Rabbi Yehoshua is the same as the statement of Beit Hillel.
שב"ש אומרים הקדש טעות הקדש וב"ה אומרים הקדש טעות אינו הקדש: As Beit Shammai say: Consecration that one performed in error is effective as consecration. Consequently, one cannot request the dissolution of his consecration due to circumstances that unfolded on the grounds that he did not mean to make a vow. And Beit Hillel say: Consecration that one performed in error is not consecration, and one may therefore request the dissolution of his consecration.
וכן היה רבן שמעון בן גמליאל אומר וכו': משה בר עצרי ערבא דכלתיה הוה ורב הונא בריה צורבא מרבנן הוה ודחיקא ליה מילתא אמר אביי ליכא דנסבי עצה לרב הונא דליגרש לדביתהו ותיתבע כתובתה מאבוה ולהדרה מיהדרי § The mishna teaches: On a similar note, Rabban Shimon ben Gamliel said that even in the case of a guarantor for a woman for her marriage contract, he vows that benefit from her is forbidden to him, lest he and his wife engage in collusion. The Gemara relates that Moshe bar Atzrei was the guarantor for the marriage contract of his daughter-in-law, and Rav Huna, his son, was a Torah scholar and was hard-pressed for money. Abaye said: Is there no one who will advise Rav Huna that he should divorce his wife, and she should claim her marriage contract from his father, the guarantor of the marriage contract, and that he should then return and remarry her, and in this manner they will obtain money?
א"ל רבא והאנן ידור הנאה תנן ואביי אטו כל דמגרש בבי דינא מגרש לסוף איגלאי מלתא דכהן הוה אמר אביי בתר עניא אזלא עניותא Rava said to Abaye: But we learned in the mishna that in such a case he shall vow that benefit from her is forbidden to him. If so, Rav Huna cannot remarry her. And the Gemara explains that Abaye would argue: Is that to say that anyone who divorces, divorces in court? Let Rav Huna divorce his wife outside the court, so that he will not be forced to take a vow and he will therefore be allowed to remarry her. The Gemara relates that ultimately it was revealed that Rav Huna was a priest, which means that if he had divorced his wife he would have been prohibited from remarrying her. Abaye said of this revelation: This is an example of the saying that poverty follows the poor, i.e., it is difficult to remove a poor person from a state of poverty.
ומי אמר אביי הכי והאמר אביי איזהו רשע ערום זה המשיא עצה למכור בנכסים כרבן [שמעון בן] גמליאל The Gemara asks: And did Abaye actually say this? Doesn’t Abaye say: Who is a wily, wicked person? This is one who advises another to sell property that he received from someone who stipulated that the property should pass to a second beneficiary upon the death of the first. And this is in accordance with the ruling of Rabban Shimon ben Gamliel, who maintains that the sale is valid and the second beneficiary may not remove the property from the possession of the buyer. If Abaye considers this individual as wicked for advising one to act against the intentions of a benefactor, how could he suggest that Rav Huna should extract money from the guarantor in the above case?
בריה שאני וצורבא מרבנן שאני The Gemara answers: When one is a guarantor for his son it is different, as he would forgive his son for acting in this manner, as the son will in any case inherit his property. And furthermore, when this is performed for the benefit of a Torah scholar it is different, as it is proper to assist him so that he may continue studying Torah.
ותיפוק ליה דערב דכתובה לא משתעבד The Gemara objects: And let Abaye deduce that such a course of action is ineffective, as a guarantor of a marriage contract is not legally responsible to pay the marriage contract.