Many of the Mishnayot this week (6:2-6) deal with the Nedunya (dowry). We shall try to understand its source.
The Gemara previously addressed the source when analysing the Mishnah that discussed the gezeirah of benin dichrin (4:10). Recall, that one of the assumed conditions in a ketubah, even if not explicitly stated, is that if she passes away, then in the advent of the husband's death, her sons will inherent the value of the ketubah including the property that she brought into the married. An important part of this clause, is that this property will be considered separate to the rest of the estate that is shared along with the sons of any other marriage.
In the Gemara, R' Yochanan, in the name of R' Shimon ben Yochai (52b) explains that the motivation for this decree was to encourage the father to commit to a large nedunya of the same magnitude that his son would inherit. It would have this effect since he would be confident that his grandchildren would ultimately be the sole beneficiaries and not be shared with children born to his son-in-law from other marriages.
The Gemara however asks, by Torah law the sons are meant to inherit the estate. This arrangement, which is presumably rabbinic, encourages equal division with the daughter, albeit while the father is alive. This therefore appears to contradict Torah law.
The Gemara answers that this law is also biblical. The Gemara cites the following pasuk (Yermiyahu 29:6): "Take wives and beget sons and daughters; take wives for your sons and give your daughters to men and let them give birth to sons and daughters." The Gemara continues that one can encourage his sons to go out and "find wives", but the same does not apply for his daughter. So what does the pasuk mean when it say, "give your daughter's to men"? The Gemara understands that the pasuk is instructing one to clothe and provide a nedunya for his daughter so that her hand is sought. The Gemara appears to suggest that the concept of a nedunya is a biblical mitzvah, midivrei kabala.
This is the position of the Ritva. He explains however that while it is a mitzvah, it is not an obligation. Indeed we have learnt (6:5) that the father can decide not to provide his daughter with anything.
The Gemara (53a) however recounts an incident where Rav Papa was marrying off his son to the daughter of Abba from Sura. Yehuda bar Mereimar went to greet Rav Papa. However when he saw that Rava Papa reached Abba's house where they were going to finalise the matter of the nedunya, Yehuda bar Mereimar separated from him. Rav Papa invited Yehuda bar Mereimar to join them, yet he resisted. Noticing this, Rav Papa stressed that the meeting was not considered transferring inheritance in conflict with Torah law since what they were doing constituted a rabbinic decree. He cited R' Yochanan, in the name of R' Shimon ben Yochai above that it was to motivate the father to provide a large nedunya. The Maharasha notes that while that may the case for the law of benin dichrin, the Gemara earlier implied that a nedunya is biblical. The Maharsha suggest that perhaps the law of nedunya is also rabbinic, with the above cited pasuk acting as an asmachta. Once the rabbinic law is in place, the transfer of funds to the daughter in this context is no longer considered as transferring the son's inheritance to the daughter and no longer a violation of the Torah law. In fact the Rambam (Ishut 20:1) also understands that a nedunya is rabbinic.
The Chatam Sofer however argues that if a nedunya is understood as being rabbinic, the original question of the Gemara still stands. How could the Chachamim institute a nedunya that conflict with the Torah law?
The Chatam Sofer explains that there are two separate laws that appear to conflict with the Torah law. One is that the father is portioning off part of his estate as part of the dowry. The second is that the chatan is agreeing to increase the size of the ketubah of his wife which also affectively deducts from amount the sons from another wife would inherit. Both nedunya and benin dichrin need explanation and the answer for one does not satisfy the other. Consequently, two answer are provided – one is biblical and the other rabbinic. When Rav Papa cited R' Yochanan, the beginning of the above Gemara, it was trigger for both answers.
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