What was his intention when he had sex? TB Ketubot 73-74

If a man betrothed a woman on the condition that she had no vows incumbent upon her and reaffirms this condition at the time of marriage, the condition wasn’t met. Consequently, she never became halakhically betrothed and of course there’s no marriage. The Gemara on dappim TB Ketubot 72b-74, discuss the case when the man betrothed the woman on the condition that she had no vows incumbent upon her, but married her and presumably had sexual relations with her without reaffirming his condition. When we shall study massekhet Keddushin, we shall learn that “A woman is acquired by, i.e., becomes betrothed to, a man to be his wife in three ways…She is acquired through money, through a document, and through sexual intercourse.” (TB Kiddushin 2b, Sefaria.org)What was the man’s intention when he had sex with her is the question that the Gemara discusses.

“It was stated that the Sages had a dispute concerning the following question: If he betrothed her conditionally, such as that she had no vows incumbent upon her, and he subsequently married her without specification, and then it was discovered that the condition had not been fulfilled, Rav said: Although he may divorce her without payment of her marriage contract, the betrothal is not nullified, and therefore she requires a bill of divorce from him. And Shmuel said: The betrothal was invalid from the outset, and therefore she does not require a bill of divorce from him.

“Abaye said: Do not say that Rav’s reason for requiring a bill of divorce is that since he married her without specification, this indicates that he waived his condition entirely, and therefore he must give her the payment of her marriage contract if he divorces her. Rather, Rav’s reason is because a person does not intentionally engage in licentious sexual intercourse. He is aware that the initial betrothal may possibly be nullified, rendering sexual intercourse licentious. Therefore, when he marries her, he does so with the intention that the consummation of the marriage serves as unconditional betrothal. However, as he does not entirely waive his condition, if it becomes clear that the condition was not fulfilled, she may be divorced without receiving payment of her marriage contract.” (Sefaria.org translation)

Rav holds that the very act of intercourse demonstrates his desire to marry this woman and that he renounces his vow because a person does not intentionally engage in licentious sexual intercourse. Don’t think that Shmuel believes that men do engage in licentious sexual intercourse. In our case the man is not having intercourse intentionally for the purpose of betrothal, he just believes he’s a married man having regular marital relations with his wife. Consequently, Shmuel holds that the original conditions remain and the woman never became halakhically betrothed. Because she never was halakhically betrothed, the groom doesn’t need to divorce her with a bill of divorce.

Rav and Shmuel were first-generation Babylonian amoraim, early third century. This conversation continued in the land of Israel into the next generation. Rabbi Yoḥanan, second generation Land of Israel amora, aligned himself with Shmuel’s position and Ulla, a late second-early third Land of Israel amora, aligned himself with Rav’s position.

I find it interesting that this discussion about the man’s intentions begins in Babylonia and continues in the land of Israel.