Babylonian Talmud: Tractate Kethuboth

Folio 86a

She might remit¹  her mother's kethubah in favour of her father,²  and then she may inherit it frons him'.³  When she heard this she went and remitted it [in her father's favour]. Thereupon R. Nahman said: 'We have put ourselves in the [unenviable] position of legal advisers'.⁴  What was the opinion that he held at first⁵  and what made him change it afterwards?⁶  — At first he thought [of the Scriptural text.] And that thou hide not thyself from thine own flesh,⁷  but ultimately he realized that [the position of] a noted personality is different [from that of the general public].⁸

[Reverting to] the main text; Samuel said, 'If a man sold a bond of indebtedness to another person, and then he released the debtor, the latter is released; and, moreover, even [a creditor's] heir may release [the debtor].'⁹  Said R. Huna the son of R. Joshua; But if he¹⁰  is clever he¹¹  rattles some coins in his¹²  face and [the latter]¹³  writes the bond¹⁴  in his¹⁵  name.

Amemar said; He¹⁶  who adjudicates [liability] in an action [for damage] caused indirectly would here also¹⁷  adjudge damages¹⁸  to the amount [recoverable] on a valid bond,¹⁹  but he who does not adjudicate [liability] in an action for damage caused indirectly²⁰  would here adjudge damages only to the extent of the value of the mere scrap of paper.²¹  Such²²  an action was [once tried] when through Rafram's insistence²³  R. Ashi²⁴  was compelled to order the collection [of damages]²⁵  in the manner of a beam that is fit for decorative mouldings.²⁶

Amemar stated in the name of R. Hama; If a man has against him, the claim of his wife's kethubah and that of a creditor, and he owns a plot of land and has also ready money, the creditor's claim is settled by means of the ready money while the woman's claim is settled by means of the land, the creditor being treated in accordance with his rights,²⁷  and the wife in accordance with her rights.²⁸  If, however, he owns only one plot of land and it suffices to meet the claim of one only, it is to be given to the creditor;²⁹  it is not to be given to the wife. What is the reason?³⁰  — More than the man's desire to marry is the woman's desire to be married.³¹

Said R. Papa to R. Hama, Is it a fact that you have stated in the name of Raba; If a man, against whom there was a monetary claim owned a plot of land, and who, when his creditor approached hini with the claim for repayment, replied, 'Collect your loan from the land', he is to be ordered [by the court,] 'You must yourself go and sell it, bring [the net proceeds] and deliver it to him'?³²

'No', the other replied. 'Tell me then', [the first said to him,] 'how the incident³³  had actually occurred'. '[The debtor]' the other replied, 'alleged that his money belonged to³⁴  an idolater; and since he acted in an improper manner³⁵  he was similarly treated in an improper manner'.³⁶

Said K. Kahana to R. Papa; According to the statement you made that the repayment of [a debt to] a creditor is a religious act,³⁷  what is the ruling where [a debtor] said, 'I am not disposed to perform a religious act'?³⁸  — 'We', the other replied. 'have learned: This³⁹  applies only to negative precepts, but in the case of positive precepts, as for instance, when a man is told, 'Make a sukkah'⁴⁰  and he does not make it [or, 'Perform the commandment of the] lulab'⁴¹  and he does not perform it

1. Lit., 'let her go and remit'.
2. Since, as has been stated (supra 85b ad fin.), even a creditor's heir may release the debtor'. The daughter is in this case the heir to a debt (the kethubah) which her father owed her mother who sold it to others who, like the buyers of a bond, lose all their claims upon it as soon as the heir has remitted it.
3. Upon whom the buyers have no claim.
4. [H], lit., 'those who arrange (the pleas) before the judges'. A judge is forbidden to act even indirectly as legal adviser to one of the parties. Cf. Aboth I, 8, Sonc. ed. p. 6. n. 1.
5. When he tendered advice.
6. Lit., 'and in the end what did he think?' sc. why did he finally reproach himself for acting as 'legal adviser'?
7. Isa. LVIII, 7, implying that it is one's duty to come to the assistance of one's relative.
8. A judge, in order to be free from all suspicion of partiality, must subject himself to greater restrictions and must consequently tender no legal advice whatever to line of the parties in a lawsuit, even in cases where the action is not to be tried by him, v. supra 52b.
9. V. p. 541, nn. 15ff.
10. The buyer.
11. As soon as he buys the bond and before the creditor has had time to think of remitting it to the debtor.
12. The debtor.
13. Being naturally in need of ready money.
14. For the amount involved. As soon as he buys the bond and before the creditor has time to think of remitting it to the debtor.
15. The buyer's.
16. I.e., R. Meir (cf. B.K. 100a f).
17. Lit., 'by it'; in the case of a bond the debt in which had been remitted to the debtor after the creditor had sold the bond of indebtedness.
18. In favour of the buyer.
19. The creditor who was the cause of the damage must compensate the buyer for his loss.
20. As to the dispute on this point v. B.K. 116b.
21. On which the bond is written, since the creditor might plead that he is only liable for the piece of paper which he sold. For the debt itself he is not liable since it was only indirectly that he caused the loss of it.
22. Cf.. however, Infra n. 17.
23. By his legal and scholastic arguments.
24. Who was the adjudicator in the action (cf however, infra n. 17).
25. From, the creditor who remitted the debt. According to another interpretation (cf. Rashi on the parallel passage, B.K. 98b) R. Ashi in his childhood had destroyed a bond of indebtedness, and Rafram made him pay for it in accordance with the ruling of R. Meir (v. supra note 8).
26. Metaph. As the beam is smooth and straight and of the best quality of wood so was the collection made to the full extent of the damage and of the best of the creditor's estate.
27. As he advanced ready money he is justly entitled to ready money.
28. As her statutory kethubah is secured on the husband's lands she is entitled to his land only. The amount (if the kethubah corresponding to the on barzel (v. Glos.) property, though this might have consisted of ready money, is, like the statutory kethubah with which it is amalgamated, also secured on the husband's lands only.
29. If the bond of indebtedness and the kethubah bear the same date. Otherwise, the holder of the document bearing the earlier date takes precedence.
30. For the preference of the creditor where the documents were issued on the same date.
31. And the disadvantage in respect of the collection of her kethubah would not in any way deter her from marriage. If a creditor, on the other hand, were to experience undue difficulty in the collection of his debt he might decide to turn away from his door all future borrowers.
32. Is it possible that a debtor would be expected to go to all this trouble when the creditor's security was not that of ready money but of land?
33. That gave rise to the erroneous report.
34. Lit., 'attached his money to'.
35. By attempting to deprive his creditor from his due.
36. In being ordered to find a buyer for his land, though elsewhere (cf. supra n. 6) it is the task of the creditor to do so.
37. V. 'Ar. 22a.
38. [Since, that is to say, the payment of a debt is a religious obligation, where is the sanction for the employment of compulsory measures to make one pay his debts? Others connect the question with the preceding case of one who ascribes his money to a non-Jew so as to evade payment, v. Tosaf. s.v. [H]].
39. That flogging is administered and the sinner is thereby purged.
40. The festive booth for the Feast of Tabernacles (cf Lev. XXIII, 34ff).
41. 'Palm-branch', the term applied to the festive wreath used in the Tabernacles ritual and consisting of four species of which the palm-branch is one (cf. Lev. XXIII, 40).

he is flogged¹  until his soul departeth.²

Rami b. Hama enquired of R. Hisda: What is the ruling where [a husband said to his wife,] 'Here is your letter of divorce but you shall be divorced thereby only after [the lapse of] thirty days'. and she went and laid it down at the side of a public domain?³  — 'She', the other replied, 'is not divorced, by reason of the ruling of Rab and Samuel, both of whom have stated, 'It must be heaped up and lie in a public domain'⁴  and the sides of a public domain are regarded as the public domain itself.⁵  On the contrary! She should be deemed divorced by reason of a ruling of R. Nahman, who stated in the name of Rabbah b. Abbuha, 'If a man said to another, "Pull this cow, but it shall pass into your possession Only after thirty days", he legally acquires it even if it stands at the time in the meadow';⁶  and a meadow presumably has, has it not, the same status as the sides of a public domain?⁷  — No; a meadow has a status of its own⁸  and the sides of a public domain, too, have a status of their own.⁹  Another version: He¹⁰  said to him,¹¹  'She¹²  is divorced by reason of a ruling of R. Nahman,¹³  the sides of a public domain having the same status as a meadow'. — 'On the contrary! She should not be regarded as divorced by reason of a ruling of Rab and Samuel.¹³  for have not the sides of a public domain the same status as a public domain?' — 'No; a public domain has a status of its own⁸  and the sides of a public domain, too, have a status of their own'.⁹

MISHNAH. IF A HUSBAND SET UP HIS WIFE AS A SHOPKEEPER¹⁴  OR APPOINTED HER AS HIS ADMINISTRATRIX HE MAY IMPOSE UPON HER AN OATH¹⁵  WHENEVER HE DESIRES TO DO SO. R. ELIEZER SAID; [SUCH AN OATH¹⁵  MAY BE IMPOSED UPON HER] EVEN IN RESPECT OF HER SPINDLE AND HER DOUGH.¹⁶

GEMARA. The question was asked; Does R. Eliezer mean [that the oath¹⁷  is to be imposed] by implication¹⁸  or does he mean that it may be imposed directly?¹⁹  Come and hear: They²⁰  said to R. Eliezer, 'No one can live with a serpent in the same basket'.²¹  Now if you will assume that R. Eliezer meant the imposition of a direct oath¹⁹  one can well understand the argument;²²  but if you were to suggest [that he meant the oath to be imposed] by implication only, what [it may be objected] could this²³  matter to her?²⁴  — She might tell him, 'Since you are so particular with me I am unable to live with you'.²⁵

Come and hear:²⁶  If a man did not exempt his wife²⁷  from a vow²⁸  and from an oath²⁹  and set her up as his saleswoman or appointed her as his administratrix, he may impose upon her an oath²⁹  whenever he desires to do so. If, however, he did not set her up as his saleswoman and did not appoint her as his administratrix, he may not impose any oath upon her. R. Eliezer said: Although he did not set her up as his saleswoman and did not appoint her as his administratrix, he may nevertheless impose upon her an oath wherever he desires to do so, because there is no woman who was not administratrix for a short time, at least, during the lifetime of her husband, in respect of her spindle and her dough. Thereupon they said to him: No one can live with a serpent in the same basket. Thus you may infer that [R. Eliezer meant that the oath²⁹  may he imposed] directly. This is conclusive.

MISHNAH. [IF A HUSBAND] GAVE TO HIS WIFE AN UNDERTAKING IN WRITING, 'I HAVE NO CLAIM UPON YOU FOR EITHER VOW³⁰  OR OATH',³¹  HE CANNOT IMPOSE AN OATH³²  UPON HER. HE MAY, HOWEVER, IMPOSE AN OATH UPON HER HEIRS³³  AND UPON HER LAWFUL SUCCESSORS.³⁴  [IF HE WROTE,] I HAVE NO CLAIM FOR EITHER VOW³⁰  OR OATH³¹  EITHER UPON YOU, OR UPON YOUR HEIRS OR UPON YOUR LAWFUL SUCCESSORS', HE MAY NOT IMPOSE AN OATH EITHER UPON HER OR UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS. HIS HEIRS, HOWEVER, MAY³⁵  IMPOSE AN OATH UPON HER, UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS. [IF THE WRITTEN UNDERTAKING READ.] 'NEITHER I NOR MY HEIRS NOR MY LAWFUL SUCCESSORS³⁶  SHALL HAVE ANY CLAIM UPON YOU OR UPON YOUR HEIRS OR UPON YOUR LAWFUL SUCCESSORS FOR EITHER VOW OR OATH', NEITHER HE NOR HIS HEIRS NOR HIS LAWFUL SUCCESSORS MAY IMPOSE AN OATH EITHER UPON HER OR UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS.

IF SHE³⁷  WENT FROM HER HUSBAND'S GRAVE TO HER FATHER'S HOUSE,³⁸  OR RETURNED TO HER FATHER-IN-LAW'S HOUSE BUT WAS NOT MADE ADMINISTRATRIX, THE HEIRS ARE NOT ENTITLED TO IMPOSE AN OATH UPON HER;³⁹  BUT IF SHE WAS MADE ADMINISTRATRIX THE HEIRS MAY IMPOSE AN OATH UPON HER IN RESPECT OF [HER ADMINISTRATION] DURING THE SUBSEQUENT PERIOD⁴⁰  BUT NOT IN RESPECT OF THE PAST.⁴¹

GEMARA. What is the nature of the oath?⁴²  — Rab Judah replied in the name of Rab:

1. In an endeavour to coerce him to perform the precept.
2. Hul. 132b; if he persists in his refusal. Thus it follows that no one is at liberty to declare, 'I am not disposed to perform a religious act'.
3. Where fewer people walk, and where it remained intact until the lapse of the thirty days. Is the letter of divorce, it is asked, regarded as being still in the possession of the woman, despite its place of deposit, and the woman is consequently legally divorced, or is the spot, being at the side of a public domain, subject to the same restrictions in respect of kinyan as the public domain itself.
4. Supra 84b, 85a, q.v., from which it follows that an object in a public domain cannot be acquired except by a specific act of kinyan.
5. Cf. supra n. 9. The woman cannot consequently he regarded as being in possession of the letter of divorce and her divorce is, therefore, invalid.
6. Supra 82a q.v. for notes.
7. As the cow is acquired after the specified period, though stationed in a meadow', so should the woman be deemed to be in the possession of the letter of divorce, though it lies at the side of a public domain.
8. Hence the validity of a deferred kinyan if at the specified period the object was within its boundaries.
9. No deferred kinyan being effective within such a spot.
10. R. Hisda.
11. Rami b. Hama.
12. The woman to whom her husband gave a letter of divorce stipulating that it shall take effect only after the lapse of thirty days.
13. V. supra.
14. That she should sell his wares
15. That she has not dealt fraudulently with anything that had been put in her charge.
16. Sc. not only when she is engaged in commercial transactions, but also when she is occupied with her domestic affairs only. (V. Gemara infra).
17. He has spoken of in our Mishnah.
18. [H], lit., 'rolling'. sc only where the wife has to take an oath in respect of her commercial transactions may an oath in respect of her domestic occupations be added.
19. Sc. even if she is attending to her domestic occupations only.
20. The Rabbis who differed from him.
21. Proverb. Serpent _ cantankerous husband.
22. A wife could justly object to live with a cantankerous man who does not trust her in her domestic responsibilities.
23. The oath by implication.
24. When she has in any case to take an oath in respect of her business transactions.
25. Her refusal to live with him is not due to the actual oath but to his mistrust of her integrity.
26. An answer to the question supra as to what was R. Eliezer's meaning.
27. By a formal declaration.
28. E.g., 'may all the produce of the world be forbidden to me if I misappropriated any of your goods or money' (cf. Git. 34b).
29. V. supra p. 546. n, 10.
30. V. p. 547. n. 10.
31. V. supra p. 546, n. 20.
32. The nature of this oath is explained infra.
33. If, having been divorced by him, she died and they claim from him the amount of her kethubah. The oath they take affirms that the deceased had not enjoined upon them either while, or before, she was dying, not did they find any entry among her papers that the kethubah was paid (v. Shebu. 45a).
34. People who bought her kethubah from her. Cf. n. 4, mutatis mutandis.
35. If on the death of their father the widow, her heirs or lawful successors claim from them the payment of her kethubah.
36. The purchasers of his estate from whom the kethubah is claimed in the absence of unencumbered property.
37. The woman whom her husband had granted exemption from vow and oath (v. supra).
38. Sc. she severed all connection with her husband's business affairs as soon as he was buried.
39. Even in respect of the period between her husband's death and burial.
40. Lit., 'for that which is to come', the exemption having expired at the moment the estate passed into the possession of the heirs.
41. The period of her administration prior to their father's death, when she was protected by his exemption.
42. The exemption from which is discussed in the first clause of our Mishnah.