I do not have a Gemara Ketuboth. However I recall the issue over there if one marries a girl he thinks is a virgin and it turns out she is not that one opinion is she is not married. Another is she loses the Ketubah of 200 and gets only 100. [Or gets no Ketubah at all?]
In terms of a regular מקח טעות [purchase by mistake] there seems to be a similar disagreement of opinion in Bava Batra 92
If one buys an ox for plowing and it turns out to be unsuitable because it is not tamable. So the deal is off, but what about the money given to the seller. Does he owe the money as would a borrower? Or is there no deal at all, and if he spends he money, it is considered that he is a מזיק [a person that causes damage]?
The Rashbam considers that money is owed even though he thinks of the seller as a מזיק [one that causes damage]. That is confusing enough all by itself. If the seller is a מזיק [damager], then it ought to be that if the money is still around, then he gives it back;- and if not, he pays like any מזיק [damager]. And that is in fact exactly what the Ri says.
Thus it is in fact hard to know what the Rashbam is thinking here.
The Rashbam brings from a Rav Hananel from Rome [not the other famous one that I think taught the Rif.] and that Rav Hananel does seem to consider the מקח טעות {a deal done by mistake} as being akin to a regular debt. That is the seller pays back money if he has and שווה כסף if not.That at least makes sense.
To be short I am not sure how to understand the Rashbam and I also wonder if in fact one can tie this into the case in Ketuboth.
[I also am wondering why when I was learning Ketuboth in Shar Yashuv in NY that the connection with Bava Batra escaped me. To me today it seems highly relevant.]
In any case what I am trying to say is if the seller is considered to be a מזיק that means he does not own the money until he spends it. So before he spends it it still belongs to the buyer. So then why would it not make a difference if he gives back that money or other money? If the seller would be thought to be a בעל חוב then I can understand why giving back any money is the same as giving back the actual coins of the transaction. But if he is thought to be a מזיק the the coins were not his at any time. {I figure there must be an answer for this but it escapes me this minute.}
The Rashbam considers that money is owed even though he thinks of the seller as a מזיק [one that causes damage]. That is confusing enough all by itself. If the seller is a מזיק [damager], then it ought to be that if the money is still around, then he gives it back;- and if not, he pays like any מזיק [damager]. And that is in fact exactly what the Ri says.
Thus it is in fact hard to know what the Rashbam is thinking here.
The Rashbam brings from a Rav Hananel from Rome [not the other famous one that I think taught the Rif.] and that Rav Hananel does seem to consider the מקח טעות {a deal done by mistake} as being akin to a regular debt. That is the seller pays back money if he has and שווה כסף if not.That at least makes sense.
To be short I am not sure how to understand the Rashbam and I also wonder if in fact one can tie this into the case in Ketuboth.
[I also am wondering why when I was learning Ketuboth in Shar Yashuv in NY that the connection with Bava Batra escaped me. To me today it seems highly relevant.]
In any case what I am trying to say is if the seller is considered to be a מזיק that means he does not own the money until he spends it. So before he spends it it still belongs to the buyer. So then why would it not make a difference if he gives back that money or other money? If the seller would be thought to be a בעל חוב then I can understand why giving back any money is the same as giving back the actual coins of the transaction. But if he is thought to be a מזיק the the coins were not his at any time. {I figure there must be an answer for this but it escapes me this minute.}
