Babylonian Talmud: Tractate Kethuboth

Folio 88a

If he¹  is clever he may bring her under the obligation²  of a Pentateuchal oath:³  He pays her⁴  the amount of her kethubah in the presence of one witness, associates the first witness⁵  with the second⁶  and then treats his first payments⁷  as a loan.⁸  R. Shisha son of R. Idi demurred: How can one associate the first witness with the second one?⁹  — But, said R. Shisha the son of R. Idi, [he might proceed in this manner:]¹⁰  He pays her the amount of her kethubah in the presence of the first witness and a second one, and then treats his first payments as a loan. R. Ashi demurred: Might she not still assert that there were two kethubahs?¹¹  — But, said R. Ashi: He might inform them¹²  [of the facts].¹³

FROM ASSIGNED PROPERTY. Elsewhere we have learned; And so also orphans cannot exact payment unless they first take an oath.¹⁴  From whom?¹⁵  If it be suggested. From a borrower¹⁶  [it may be objected;] Since¹⁷  their father would have received payment without an oath¹⁸  should they require an oath?¹⁹  — It is this, however, that was meant: And so also orphans cannot exact payment from orphans unless they first take an oath.²⁰

R. Zerika stated in the name of Rab Judah: This²¹  has been taught only [in the case] where the orphans²²  stated, 'Father told us; I have borrowed and paid up'. If, however, they said, 'Father told us: I have never borrowed' [the others] cannot exact payment even if they take an oath. Raba demurred: On the contrary. wherever a man says. 'I have not borrowed', it is as if he had said, 'I have not paid'!²³  — [The fact,] however, [is that] if such a statement²⁴  was at all made it was made in these terms: R. Zerika stated in the name of Rab Judah. This²⁵  has been taught only [in a case] where the orphans²²  stated, 'Father told us: I have borrowed and paid up'. If, however, they said — 'Father told us: I have never borrowed', [the orphans of the creditor] may exact payment from them without an oath, because to say, 'I have not borrowed' is equivalent to saying, 'I have not paid'.

AND²⁶  [FROM THE PROPERTY OF] AN ABSENT HUSBAND [A WOMAN] MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH. R. Aha, the governor of the castle,²⁷  stated: A case²⁸  was once brought before R. Isaac Nappaha²⁹  at Antioch³⁰  and he made this statement, 'This³¹  has been taught only in respect of the kethubah of a woman [who receives preferential treatment] in order to maintain pleasant relations³²  [between her and her husband] but not [in respect of] a creditor. Raba, however, stated in the name of R. Nahman; Even a creditor [has been given the same privilege],³³  in order that every person shall not take his friend's money and abscond and settle in a country beyond the sea and thus [cause the creditor's] door to be shut in the face of intending borrowers.³⁴

R. SIMEON RULED: WHENEVER SHE CLAIMS HER KETHUBAH etc. What is R. Simeon referring to? — R. Jeremiah replied. To this; AND³⁵  [FROM THE PROPERTY OF] AN ABSENT HUSBAND [A WOMAN] MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH [which implies that] there is no difference between [a claim] for maintenance and one for a kethubah,'³⁶  and [in opposition to this ruling] R. Simeon came to lay down the rule that WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY IMPOSE AN OATH UPON HER

1. The husband whose plea is supported by one witness only.
2. Lit., 'bring her to the hands of'.
3. Cf. supra p. 553. n. 6.
4. A second time.
5. Who saw the first payment.
6. Should she deny having had her kethubah paid, he presents the two witnesses in support of his claim.
7. On account of her kethubah.
8. Should she then deny receiving the money he may well impose upon her a Pentateuchal oath on the strength of the evidence of the first witness who was present when she received it. It is only in the case of a kethubah which is an hypothecary obligation (v. supra) that a witness cannot impose upon a defendant the Pentateuchal oath.
9. In view of the fact that the evidence of the one relates to a transaction at which the other was not present. The law of evidence demands that both witnesses testify to the same transaction. Should the woman he prepared to deny the second payment also, no Pentateuchal oath could be imposed upon her and she would thus be able to obtain a third payment also on taking a Rabbinical oath.
10. V. supra notes 1-8.
11. The first of which she had returned when she had received her first payment. As the first witness, who knows that the two payments were made to her in settlement of a kethubah would naturally corroborate her statement, the dispute would still relate to a kethubah and not to a loan. How then could a Pentateuchal oath be imposed upon her?
12. The two witnesses.
13. Before he makes his second payment. As the first witness would thus be aware that the second payment is made solely for the purpose of imposing upon her a Pentateuchal oath in respect of the first payment which she fraudulently denied, he would refrain from giving evidence in her favour and the man would thus be able to recover his money. Her peculiar plea that she had two kethubahs would naturally be disregarded in the absence of all supporting evidence.
14. Shebu. 45a. Cf. supra p. 548, n. 4.
15. Can they not 'exact payment etc.'.
16. Against whom they produce a bond of indebtedness bequeathed by their father.
17. Lit., 'now'.
18. As all creditors who produce a bond of indebtedness against a debtor.
19. Obviously not, since orphans would not be subject to a restriction from which their father was exempt.
20. Cf. Shebu. 47a.
21. That after taking an oath the orphans of a lender are entitled to receive payment of a bond they have inherited.
22. Of the borrower.
23. B.B. 6a, Shebu. 41b. If a man did not borrow he obviously did not repay; but since the bond shews that he did borrow, he must obviously be ordered to pay. How then could it be said that if the orphans pleaded that their father told them that he never borrowed they are exempt from payment?
24. As the one attributed to R. Zerika.
25. That the orphans cannot exact payment of a bond they have inherited unless they first take an oath.
26. V. our Mishnah. Cut. edd. add here [H] MS.M. [H].
27. A surname (v. Rashi). Cf. Neb. VII, 2, where Hananiah is so described.
28. Of a claim against an absent debtor.
29. So MS.M. and BaH. Cut. edd. omit 'Nappaha'.
30. The capital of Syria, on the river Orontes. It was founded by Seleucus Nicator and was at one time named Epidaphnes.
31. That a claimant may be authorized by a court to seize the property of a defendant in the latter's absence.
32. V. supra p. 532, n. 11f.
33. Cf. supra n. 5.
34. Metaph. Undue difficulty in the collection of a debt would prevent people from risking their money in the granting of loans.
35. Cf. supra p. 558. n. 13.
36. For either claim the woman cannot recover from her absentee husband's property without an oath.

BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CANNOT IMPOSE AN OATH UPON HER. And they¹  [in fact] differ on the same principles as those on which Hanan and the sons of the High Priests differed; for we learned: If a man went to a country beyond the sea and his wife claimed maintenance, she must, Hanan ruled, take an oath at the end²  but not at the beginning.³  The sons of the High Priests, however, differed from him and said that she must take an oath both at the beginning³  and at the end.⁴  R. Simeon [is thus of the same opinion] as Hanan while the Rabbis⁵  [hold the same view] as the sons of the High Priests.

R. Shesheth demurred; Then⁶  [instead of saying,] THE HEIRS MAY IMPOSE AN OATH UPON HER, It should have said, 'Beth din⁷  may impose an oath upon her'! — The fact, however, is, said R. Shesheth.[that R. Simeon referred] to this:⁸  If she went from her husband's grave to her father's house, 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; but if she was made administratrix the heirs may exact an oath from her in respect of [her administration] during the subsequent period but may not exact one concerning the past;⁹  and [in reference to this ruling] R. Simeon came to lay down the rule that WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY ENACT AN OATH FROM HER BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CANNOT IMPOSE AN OATH¹⁰  UPON HER. And they¹¹  differ on the same principles as those on which Abba Saul and the Rabbis differed; for we have learned: An administrator whom the father of the orphans had appointed must take an oath,¹⁰  but one whom the Beth din have appointed need not take an oath. Abba Saul, however, said, The rule is to be reversed: If Beth din appointed him he must take an oath but if the father of the orphans appointed him he need not take an oath.¹²  R. Simeon [thus holds the same view] as Abba Saul¹³  and the Rabbis [in our Mishnah hold the same view] as the Rabbis.¹⁴  Abaye demurred: Then¹⁵  [rather than say,] WHEREVER SHE CLAIMS HER KETHUBAH¹⁶  it should have said,¹⁵  'If¹⁷  she claims'.¹⁸  The fact, however, is, said Abaye, [that R. Simeon referred] to this: [If a husband] gave to his wife an undertaking in writing, 'I renounce my claim upon you for either vow or oath', he cannot impose an oath upon her etc. [If the written undertaking read,] 'Neither I nor my heirs nor my lawful successors will have any claim upon you. or your heirs or 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;¹⁹  and [in reference to this ruling]²⁰  R. Simeon came to lay down the rule²¹  that²²  WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY ENACT AN OATH FROM HER.²²

And they²³  [consequently] differ on the same principles as those on which Abba Saul the son of Imma Miriam, and the Rabbis differed.²⁴  R. Simeon agreeing with Abba Saul and the Rabbis [of our Mishnah] with the Rabbis.²⁵  R. Papa demurred: This would satisfactorily explain [the expression] WHENEVER SHE CLAIMS HER KETHUBAH.²⁶  What, however, can be said [in justification of] BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH?²⁷  The fact, however, is, said R. Papa, [R. Simeon's ruling was intended] to oppose the views of both R. Eliezer and those who differed from him.²⁸

MISHNAH. IF SHE²⁹  PRODUCED A LETTER OF DIVORCE WITHOUT A KETHUBAH³⁰

1. R. Simeon and the first Tanna.
2. Sc. when her husband dies and she claims her kethubah.
3. I.e., when he is still alive and she claims maintenance.
4. Infra 104b.
5. The first Tanna in our Mishnah.
6. Lit., 'that', i.e., if it is a case of a wife's claim for maintenance during her husband's lifetime.
7. The court. V. Glos.
8. The preceding Mishnah.
9. Supra 86b, q.v. for notes.
10. Affirming faithful and honest administration.
11. R. Simeon and the first Tanna.
12. Git. 52b, q.v. for the reasons of the respective rulings.
13. Since the woman also has been appointed by the 'father of the orphans'.
14. Of the Mishnah cited.
15. Since R. Simeon relaxes the law in favour of the woman.
16. Then THE HEIRS MAY IMPOSE AN OATH, an expression which implies that R. Simeon is adding a restriction.
17. I.e., only if.
18. 'May an oath be exacted'. 'WHENEVER SHE CLAIMS … THE HEIRS MAY' implies that whereas the first Tanna exempted the woman from an oath even where she claimed her kethubah, R. Simeon differed from him and imposed upon her an oath 'WHEREVER SHE CLAIMS'.
19. Supra 86b q.v. for notes.
20. Which exempts the woman from an oath even when she seeks to recover payment from orphans.
21. Restricting the woman's privilege. Cf. supra n. 2f.
22. Cf. supra n. 4.
23. R. Simeon and the first Tanna.
24. Supra 87a.
25. Of the Baraitha referred to.
26. Cf. supra note 4. The Rabbis having exempted the woman from the oath that the orphans might wish to impose upon her, R. Simeon laid down that WHEREVER etc.
27. What need was there for this statement which has no beating on what the Rabbis have said?
28. I.e., R. Simeon differs from the views expressed in the two Mishnahs, supra 86b, and not only, as Abaye maintained, from those of the second Mishnah only. Contrary to what has been stated in these two Mishnahs, R. Simeon laid down that a wife's liability to take an oath is not determined by the action of the husband in granting her exemption and by the terms of that exemption, but is entirely dependent on whether the woman does or does not claim her kethubah. (V. Rashi and Tosaf'. s.v. [H] a.l.). [On this interpretation R. Papa does not disagree with Abaye but merely adds that R. Simeon's interpretation refers also to the second clause. This is supported by MS.M. which omits: The fact is however, (lit. 'but'), said R. Papa. For other interpretations v. Shittah Mekubbezeth].
29. A woman who seeks to recover the amount of her kethubah.
30. I.e., the written marriage contract (v. Glos.). It is now assumed that the woman asserts that the document was lost.