כי פליגי אליבא דרבי ישמעאל רבי יוחנן כרבי ישמעאל וריש לקיש עד כאן לא קאמר רבי ישמעאל התם אלא דשייך ליה לשיעבודא דאורייתא אבל הכא לא שייך שיעבודא דאורייתא
When they disagree, it is in accordance with the opinion of Rabbi Yishmael. Rabbi Yoḥanan stated his ruling in accordance with the simple interpretation of the opinion of Rabbi Yishmael. And Reish Lakish holds that Rabbi Yishmael states his opinion only there, in the case of the guarantor, which relates to an obligation of Torah law, since a guarantor is obligated by Torah law to pay. But here, where the case does not relate to an obligation of Torah law, as the man did not owe any money until he accepted this obligation upon himself, even Rabbi Yishmael would exempt him from paying.
גופא אמר רב גידל אמר רב כמה אתה נותן לבנך כך וכך וכמה אתה נותן לבתך כך וכך עמדו וקידשו קנו הן הן הדברים הנקנים באמירה
§ The Gemara continues to analyze the matter itself mentioned earlier: Rav Giddel said that Rav said: When two families negotiate the terms of marriage for their respective children and one side says to the other: How much do you give your son? And the second side answers: Such and such amount. How much do you give your daughter? And the first side responds: Such and such amount. Then, if the son and daughter arose and performed the betrothal, all of these obligations are acquired and therefore binding. These are among the things that are acquired through words alone, without the need for an additional act of acquisition. The mishna is referring to a document that records such an agreement.
אמר רבא מסתברא מילתא דרב בבתו נערה דקא מטי הנאה לידיה אבל בוגרת דלא מטי הנאה לידיה לא
Rava said: Rav’s statement is reasonable in a case of a father whose daughter is a young woman, since the father derives benefit from this betrothal. The money given by the groom for the betrothal, as well as the rights to the bride’s marriage contract, belongs to the father of the bride. Consequently, he accepts through verbal agreement alone the obligation to pay the money he specified. However, in the case of a grown woman, where the father does not derive benefit from the betrothal because the rights to the betrothal money and marriage contract belong to the woman herself, no, the father does not become obligated to pay the money he specified through verbal agreement alone.
והאלהים אמר רב אפילו בוגרת דאי לא תימא הכי אבי הבן מאי הנאה אתא לידיה אלא בההיא הנאה דקמיחתני אהדדי גמרי ומקני להדדי
Rava continues: But by God! Rav said his ruling even with regard to a grown woman, as, if you do not say so, in the case of the father of the groom, what monetary benefit does he derive from the betrothal? Rather, it must be explained that in exchange for that benefit, i.e., that the groom and bride marry each other, the fathers fully transfer the rights to the respective payments to each other.
א"ל רבינא לרב אשי דברים הללו ניתנו ליכתב או לא ניתנו ליכתב א"ל לא ניתנו ליכתב
Ravina said to Rav Ashi: Are these matters, i.e., verbal agreements concerning an upcoming marriage, allowed to be written down afterward in a proper contract, or are they not allowed to be written down afterward in a proper contract? Rav Ashi said to him: They are not allowed to be written down.
איתיביה הפקחין היו כותבין על מנת שאזון את בתך חמש שנים כל זמן שאת עמי מאי כותבין אומרים
Ravina raised an objection to this from the mishna: The perspicacious ones would write an explicit stipulation into the agreement: I agree on the condition that I will sustain your daughter for five years only as long as you are with me. This indicates that one may document these verbal agreements. Rav Ashi responded: What is the meaning of the term write in this case? It means say.
וקרי ליה לאמירה כתיבה אין והתנן הכותב לאשתו דין ודברים אין לי בנכסייך ותני ר' חייא האומר לאשתו
Ravina continued to ask: Does the tanna refer to saying as writing? Rav Ashi replied: Yes. And so we learned in the mishna (83a): One who writes to his wife: I have no legal dealings or involvement in your properties, and Rabbi Ḥiyya taught in explanation, that it means: One who says to his wife. This proves that verbal agreements are sometimes referred to in the Mishna as writing.
ת"ש אין כותבין שטרי אירוסין ונשואין אלא מדעת שניהם הא מדעת שניהם כותבין מאי לאו שטרי פסיקתא
The Gemara suggests: Come and hear a proof from the following mishna (Bava Batra 167b): One writes documents of betrothal and marriage only with the consent of both of them. It may be derived from here that with the consent of both of them, one may write the documents. What, is it not that this mishna is discussing documents of stipulation that specify the agreements accepted by each side before the marriage?
לא שטרי אירוסין ממש כדרב פפא ורב שרביא דאיתמר כתבו לשמה ושלא מדעתה רבה ורבינא אמרי מקודשת רב פפא ורב שרביא אמרי אינה מקודשת
The Gemara rejects this: No, the discussion concerns actual betrothal documents. In other words, in a case where a man betroths a woman by giving her a document that states: You are hereby betrothed to me, the document must be written with the consent of both the man and the woman, in accordance with the opinions of Rav Pappa and Rav Sherevya. As it was stated: If the husband wrote a betrothal document for the sake of a specific woman and gave it to her, but he wrote it without her consent, Rabba and Ravina say: She is betrothed to this man. Rav Pappa and Rav Sherevya say: She is not betrothed.
תא שמע מתו בנותיהן ניזונות מנכסים בני חורין והיא ניזונת מנכסים משועבדים מפני שהיא כבעלת חוב
The Gemara suggests further: Come and hear another proof that verbal agreements may be written down, based upon the mishna: If the two husbands died, their daughters are sustained from unsold property, and she, their wife’s daughter, whom they agreed to sustain for five years, is sustained even from liened property that was sold. This is due to the fact that her legal status is like that of a creditor, given that they are contractually obligated to pay her. The fact that she is able to repossess liened property indicates that the agreement is recorded in a document.
הכא במאי עסקינן בשקנו מידו
The Gemara rejects this proof: Here, we are dealing with a case where the woman acquired from each husband the right to her daughter’s sustenance, i.e., they performed an act of acquisition and did not suffice with a mere verbal agreement. Consequently, the agreement may be recorded in a document.
אי הכי בנות נמי בשקנו לזו ולא קנו לזו
The Gemara asks: If that is so, that a proper mode of acquisition was employed, then let the husbands’ own daughters also repossess liened properties that were sold. The Gemara answers: The case is such where they acquired the right to receive sustenance for this daughter of the wife, and they did not acquire this right for that daughter, i.e., they did not perform an act of acquisition confirming their obligations to provide sustenance for their own daughters.
ומאי פסקא איהי דהואי בשעת קנין מהני לה קנין בנות דלא הוו בשעת קנין לא מהני להו קנין
The Gemara asks: What makes it necessary to say that the case is one in which an acquisition was made on behalf of the wife’s daughter and not on behalf of the husbands’ own daughters? The Gemara answers: She, the wife’s daughter from a previous marriage, was present at the time of the transaction when her mother was wed. Consequently, for her the transaction is effective. With regard to the daughters of the husbands, who were born after their parents’ marriage and were not present at the time of the transaction, for them the transaction is not effective.
מי לא עסקינן דהואי בשעת קנין והיכי דמי כגון דגרשה ואהדרה
The Gemara asks: Are we not also dealing with a situation where the husband’s daughters were present at the time of the transaction? And what are the circumstances that would allow for such a reality? This could occur in a situation such as where each one divorced his wife and then took her back, and they had a daughter from their first marriage.
אלא איהי דליתא בתנאי ב"ד מהני לה קנין בנות דאיתנהו בתנאי ב"ד לא מהני להו קנין
Rather, the distinction is as follows: She, the wife’s daughter, is not included in the stipulation of the court requiring a husband to support his daughters. Consequently, for her the transaction is effective. However, with regard to the husband’s own daughters, who are included in the stipulation of the court, for them the transaction is not effective.
מגרע גרעי אלא בנותיו היינו טעמא כיון דאיתנהו בתנאי ב"ד אימר צררי אתפסינהו:
The Gemara wonders about this: Because they are included in the stipulation of the court they are worse off? On the contrary, since the stipulation of the court demands that they be supported, they should wield more power. Rather, this is the reason that his own daughters do not collect from liened property: Since they are included in the stipulation of the court, and it is therefore the norm for fathers to take care to provide their support, say that their father gave them bundles of money while he was still alive. Due to this concern, they cannot repossess liened property. However, in the case of the wife’s daughter, who is not included in the stipulation of the court, there is no concern that the husband gave her anything prior to his death.
לא יאמר הראשון: אמר רב חסדא זאת אומרת בת אצל אמה
§ We learned in the mishna that the first husband may not say that he will provide his wife’s daughter with support only when she is with him. Rather, he must bring the sustenance to her in the place where her mother lives. Rav Ḥisda said: That is to say that in a case of divorce, a daughter lives with her mother.
ממאי דבגדולה עסקינן דלמא בקטנה עסקינן ומשום מעשה שהיה
The Gemara asks: From where do we know that we are dealing with a case of an adult woman and there is a general guideline that in cases of divorce, a girl lives with her mother? Perhaps we are dealing with a case of a minor girl, and she lives with her mother because of concern for her safety, due to an incident that occurred.
דתניא מי שמת והניח בן קטן לאמו יורשי האב אומרים יהא גדל אצלנו ואמו אומרת יהא בני גדל אצלי מניחין אותו אצל אמו ואין מניחין אותו אצל ראוי ליורשו מעשה היה ושחטוהו ער"ה
As it is taught in a baraita: In the case of one who died and left a minor son to the care of his mother, and the heirs of the father say: The son should grow up with us, and his mother says: My son should grow up with me, the halakha is that one leaves the child with his mother, and one does not leave the child with one who is fit to inherit from him, i.e., the father’s heirs. An incident occurred, and the boy lived with his father’s heirs, and they slaughtered him on the eve of Passover. So too, a minor girl is not left in the care of those who are obligated to sustain her and who have a financial interest in her demise.
אם כן ליתני למקום שהיא
The Gemara answers: If that is so, let the mishna teach that the husband must bring the sustenance to the place where she, the daughter, is located.