Ketubot 74a — the Talmud in English

And in this matter —

in the name of Rabbi Eliezer they said: She performs chalitza but does not undergo yibbum,

a decree on account of an orphan during his father’s lifetime

”. Up to here is the discussion of the Gemara in tractate Yevamot.

But here

where he took her back when she was a minor, and she grew up with him,

is this not comparable to the case of a mistaken woman,

as in the case of one who betrothed her conditionally and the condition was not fulfilled—so that his kiddushin was mistaken; so here too, when he betrothed her when she was a minor, his kiddushin did not take effect by Torah law,

and they disagree

—Rabbi Eliezer and the Rabbis—whether, when he has intercourse with her without specification, his intention is now to betroth her with complete kiddushin, or not, and not as Rabba said, that everyone agrees that he has intercourse with her on the basis of his initial kiddushin? And we answer:

There too they disagree over this matter; one Master holds

the Rabbis:

A person knows that the kiddushin of a minor is nothing, and he proceeds to have intercourse for the sake of kiddushin; and one Master holds

Rabbi Eliezer:

A person does not know that the kiddushin of a minor is nothing, and when he has intercourse, he has intercourse on the basis of the initial kiddushin.

But when he betrothed her conditionally and had intercourse, certainly his mind is on his original condition.

It was also stated

in accordance with Rabba’s words,

Rav Aḥa bar Yaakov said in the name of Rabbi Yoḥanan: One who betrothed her conditionally and had intercourse—according to everyone she does not require a get from him.

Since he has intercourse on the basis of his original condition.

Rav Aḥa, son of Rav Ika, the son of his sister, raised an objection to him,

his nephew, Rav Aḥa, challenged him:

We learned:

“An erroneous chalitza is valid,”

and the amoraim discussed:

What is an erroneous chalitza?

Reish Lakish said: Any case in which one says to him, ‘Perform chalitza with her, and by doing so you will take her in yibbum.’

And even though he intended to take her in yibbum through this chalitza, and it was not his intention to permit her to marry anyone else, nevertheless she is permitted to marry anyone else.

Rabbi Yoḥanan said: I teach that whether he intended and she did not intend, or she intended and he did not intend, her chalitza is invalid until both of them intend,

for the sake of a chalitza that permits her,

and you say that her chalitza is valid?! Rather, Rabbi Yoḥanan said: Any case in which one says to him, ‘Perform chalitza with her on condition that she give you two hundred zuz.’

And she did not give him two hundred zuz.

And in this case we learned: “An erroneous chalitza is valid.”

And Rav Aḥa infers:

It follows that once he performed an act,

that is, he performed chalitza after making the condition,

he relinquished his condition,

and therefore the chalitza is valid even though the condition was not fulfilled.

And

here too, once he had intercourse, he relinquished his condition

, and not as Rav Aḥa bar Yaakov said above—that if he betrothed her conditionally and had intercourse, and the condition was not fulfilled, she does not require a get, since he has intercourse on the basis of his original condition

? He said to him

, Rav Aḥa bar Yaakov to Rav Aḥa:

Son of the house of

Rav, you have spoken well [young man, did you ask according to the law]?!

But Rabbi Yoḥanan’s reason is not that he relinquished his condition; rather, a condition is entirely ineffective in chalitza.

Since

from where do we derive every condition? From the condition of the sons of Gad and the sons of Reuben.

After all, all the laws of conditions were learned from the condition that Moses our master stipulated with the sons of Gad and the sons of Reuben: If you cross over as armed men, you shall inherit the land across the Jordan, and if you do not cross over, you shall not inherit it. And if so, every condition must fulfill all the requirements that existed in the condition of the sons of Gad.

And therefore—

a condition that can be fulfilled through an agent

in an act that can be fulfilled through an agent

as there,

where Moses could give them the land through an agent—

its condition is valid

a condition is effective in it

. A condition that cannot be fulfilled through an agent, as there,

such as in chalitza, where only the brother can perform chalitza, and not his agent,

its condition is not valid

[a condition has no effect in such a case] .

a condition is not effective in it . And we challenge this:

But intercourse cannot be fulfilled through an agent, as there, and yet a condition is valid?

For if he said, “I have intercourse with you on condition that my father consents,” and the father did not consent, she is not betrothed, even though it is impossible to betroth through intercourse by means of an agent?

And we answer:

There,

a condition is effective

because the forms of havayot were juxtaposed to one another.

That is, all the forms of acquisition in marriage were made equivalent to one another. And since a condition is effective in kiddushin through money and a document, it is also effective in kiddushin through intercourse.

The Gemara brings a third possibility for explaining the disagreement between Rav and Shmuel:

Rav Ulla bar Abba said that Ulla said that Rabbi Elazar said: One who betrothed with a loan,

whose kiddushin was not effective,

and

afterward

had intercourse.

Or he betrothed her

conditionally,

and the condition was not fulfilled,

and

afterward

had intercourse.

Or he betrothed her

with less than the value of a peruta and had intercourse—in everyone’s view

she requires a get from him.

Since a person does not make his intercourse an act of promiscuity, and he completes the act and has intercourse for the sake of kiddushin.

And Rav and Shmuel disagreed only when he did not have intercourse, and took her in without specification: whether he relinquished his condition or not.

Rav Yosef bar Abba said that Rabbi Menaḥem said that Rav Ami:

Only

one who betrothed with less than the value of a peruta and had intercourse requires a get from him.

Since

in this matter he is not mistaken,

he does not mistakenly think that his kiddushin will be effective even with less than the value of a peruta, and he has intercourse for the sake of kiddushin.

But with regard to these,

that is, one who betrothed with a loan or condition,

he is mistaken,

and thinks that his kiddushin took effect [and thinks that she knows that she has no vows and therefore she is marrying him, and when he had intercourse, he had intercourse on the basis of the initial kiddushin, and not for the sake of kiddushin. And likewise, if he betrothed with a loan, he mistakenly thinks that the kiddushin took effect, since he is not versed in the laws of kiddushin. Rashi], and he does not intend to have intercourse for the sake of kiddushin. And this is not in accordance with Rabbi Elazar’s words.

Rav Kahana said in the name of Ulla: One who betrothed her conditionally and had intercourse requires a get from him,

lest he completed the act and had intercourse for the sake of kiddushin.

This was the incident,

in which a man betrothed a woman conditionally, and the condition was not fulfilled, and he had intercourse,

and the Sages did not have the power to remove her without a get,

because of the doubt, lest he had intercourse for the sake of kiddushin. But she has no ketuba, for the one who seeks to extract from his fellow bears the burden of proof.

To exclude the following tanna, for Rav Yehuda said that Shmuel said in the name of Rabbi Yishmael:

It is written in the Torah that a woman who had intercourse,

“and she was not seized,”

that is, she was not violated,

is forbidden. But

if she

was seized, she is permitted.

And

we infer: Since it is written “and she,” this implies that specifically she is forbidden to her husband if she committed adultery willingly, but

there is another woman whom, even though she was not seized

and committed adultery willingly,

is permitted

to her husband.

And which

woman is this?

This is one whose kiddushin was mistaken,

such as one who betrothed her conditionally and the condition was not fulfilled,

so that even if her son is riding upon her shoulder—