Babylonian Talmud: Tractate Kethuboth

Folio 89a

SHE IS ENTITLED TO COLLECT THE AMOUNT OF HER KETHUBAH.¹  [IF SHE, HOWEVER, PRODUCED HER] KETHUBAH WITHOUT A LETTER OF DIVORCE AND, WHILE SHE PLEADS, MY LETTER OF DIVORCE WAS LOST',²  HE³  PLEADS, 'MY QUITTANCE⁴  WAS LOST', AND SO ALSO A CREDITOR WHO PRODUCED⁵  A BOND OF INDEBTEDNESS THAT WAS UNACCOMPANIED BY A PROSBUL,⁶  THESE⁷  ARE NOT PAID. R. SIMEON B. GAMALIEL RULED; SINCE THE TIME OF DANGER⁸  A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITH OUT A LETTER OF DIVORCE AND A CREDITOR IS ENTITLED TO COLLECT [HIS DEBT] WITHOUT A PROSBUL.

GEMARA. This⁹  implies [does it not] that a quittance¹⁰  may be written;¹¹  for if a quittance may not be written would not the possibility have been taken into consideration that the woman might produce her kethubah [after her husband's death] and¹²  collect therewith [a second time]?¹³  — Rab replied: We are dealing¹⁴  with a place where no kethubah is written.¹⁵  Samuel, however, said: [Our Mishnah refers] also to a place where a kethubah is written.

May then¹⁶  a quittance be written according to Samuel?¹⁷  R. Anan replied, This was explained to me by Mar Samuel;¹⁸  Where it is the custom not to write [a kethubah] and [the husband] asserted, 'I have written one' it is he who must produce the proof, where it is the usage to write one and she pleads. 'He did not write one for me' it is she that must produce the proof.¹⁹

Rab²⁰  also withdrew from [his previously expressed opinion]. For Rab had stated: Both in a place where [a kethubah] is written and in one where it is not written, a letter of divorce [enables a woman to] collect her statutory²¹  kethubah [while the written document of the] kethubah [enables her to] collect the additional jointure;²²  and whosoever wishes to raise any objection may come and do so.²³

We have learned: [A WOMAN, HOWEVER, WHO PRODUCED HER] KETHUBAH WITHOUT A LETTER OF DIVORCE AND, WHILE SHE PLEADS, 'MY LETTER OF DIVORCE WAS LOST HE PLEADS, 'MY QUITTANCE WAS LOST'. AND SO ALSO A CREDITOR WHO PRODUCED A BOND OF INDEBTEDNESS WITHOUT A PROSBUL, THESE ARE NOT PAID. Now, according to Samuel²⁴  this statement is quite intelligible since one might interpret it as applying to a locality where it is the practice to write [no kethubah] and the husband pleaded. 'I did write one'. In such a case [the man] might justly be told, 'Produce your evidence', and should he fail to do so he might well be told, 'Go and pay up'.²⁵  According to Rab,²⁶  however, [the question arises,] granted that she²⁷  is not to collect her statutory kethubah,²⁸  let her at least collect the additional jointure!²⁹  — R. Joseph replied: Here³⁰  we are dealing with a case where no witnesses to the divorce were present. Since [the husband] could have pleaded. 'I have not divorced her',³¹

1. Sc. the sum she claims. Should the husband plead that he already paid her that sum and that the document had been returned to him at the time and was then duly destroyed, his plea would be disregarded since the provision for a kethubah has the force of 'an act of a court', [H], and is as binding in the absence of a written document as if one had been actually in existence. Only the production of valid evidence could exempt the man from payment. Cf. B.M. 17b.
2. 'Before I collected my kethubah'.
3. The husband.
4. 'Which was given to me at the time I paid the amount of the kethubah'. His wife, he alleges. had produced at that time her letter of divorce only asserting that her written kethubah was lost. As is the procedure in such cases, he maintains, the letter of divorce was duly destroyed in order to prevent the woman from claiming therewith a second payment at another court of law, while he was furnished with a quittance as a protection for his heirs should the woman produce her kethubah after his death, and, denying that she was ever divorced, claim the amount of her kethubah as the widow of the deceased.
5. After the Sabbatical year when all debts must be released (v. Deut. XV. 2).
6. Pleading that the prosbul was lost, while the debtor asserts that such a document had never been made out and that he was consequently released from his debt by the Sabbatical year. [H], a form of declaration which enables a creditor to retain his rights to the collection of his debts even after the Sabbatical year. (V. Glos. and cf. Git. 34b).
7. Lit., 'behold these'.
8. The Hadrianic persecutions that followed the rebellion of Bar Cochba (132-135 C.E.) when all religious practices were forbidden on the penalty of death and it was hazardous to preserve a letter of divorce or a prosbul.
9. The ruling in out Mishnah that the amount of a kethubah may be collected by a woman who produces her letter of divorce only, even if, under the plea that she lost it, she does not surrender her kethubah.
10. In lieu of the return of the original document, such as the kethubah or any bond of indebtedness.
11. Despite the pleas of the defendant who objects to become the custodian of a quittance and demands the return of the original record of his obligations or, in its absence, exemption from payment.
12. As a widow (cf. supra p. 562, n. 6 ad fin.).
13. As this possibility is disregarded it follows that a quittance may well be written despite the defendant's objection. But how is this ruling to be reconciled with the accepted view of the authority (B.B. 171b) who holds that the defendant may rightly object to have to 'guard his quittance from mice'?
14. In our Mishnah.
15. The women relying on the general provision of the Rabbis which entitles every wife to a kethubah.
16. Cf. supra notes 2 and 3.
17. Cf. supra n. 9.
18. MS.M.: Samuel.
19. Samuel also is thus of the opinion that a quittance may not be written, as was laid down in B.B. 171b, while our Mishnah, according to his interpretation, refers both to places where a kethubah is written as well as to those where a kethubah is not written. The woman IS ENTITLED TO COLLECT THE AMOUNT OF HER KETHUBAH even if she fails to produce the document when, in the former case, she produced valid proof that her husband did not write one for her, and, in the latter case, where the man failed to produce valid proof that he did write one for her.
20. Who first restricted the ruling of our Mishnah to a place where no kethubah is written.
21. Lit., 'root', i.e., the amount of two hundred and a hundred zuz to which a virgin and a widow respectively are entitled.
22. The first clause of our Mishnah thus refers to the statutory kethubah which may be collected with a letter of divorce, while the second clause refers to the additional jointure, both clauses applying to all localities irrespective of whether the custom of the place was to write a kethubah or not to write one.
23. Sc. no possible objection could be raised to this view, since the woman would never be able to collect mote than what is her due.
24. Who allows the statutory kethubah as well as the additional jointure to be collected on the strength of a letter of divorce.
25. Both the additional and the statutory jointure, on the evidence of the letter of divorce. Should the woman subsequently produce a written kethubah without her letter of divorce, payment, as stated in our Mishnah, might justly be refused if the husband pleads that he had already paid her all that was due to her, at the time she produced her letter of divorce, that her letter of divorce was then destroyed and that a quittance was given to him. The ruling that she NEED NOT BE PAID is consequently quite logical.
26. Who allows only the statutory kethubah to be collected on the production of a letter of divorce.
27. When she produces her written kethubah alone.
28. Because she might have already collected it with her letter of divorce (cf. supra p. 564, n. 5).
29. Which is at all events due to her (cf. supra p. 564. n' 5). As our Mishnah, however, ruled that she NEED NOT BE PAID anything at all, an objection against Rab's view thus arises.
30. In the statement of our Mishnah under discussion.
31. And thereby procured exemption from payment of the kethubah.

he is also entitled to plead, 'I have divorced her but I have already paid her the kethubah'.¹

But since it was stated in the final clause, R. SIMEON B. GAMALIEL RULED: SINCE THE TIME OF DANGER A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITHOUT A LETTER OF DIVORCE AND A CREDITOR IS ENTITLED TO COLLECT [HIS DEBT] WITHOUT A PROSBUL, [it follows that] we are dealing with a case where witnesses to the divorce are present; for had no such witnesses been present whereby could she have collected [her kethubah]?²  — [The fact], however, is that the entire Mishnah represents the view of R. Simeon b. Gamaliel, but some clauses are missing, the correct reading being the following: NEED NOT BE PAID'. This applies only where no witnesses to the divorce are present, but if such witnesses are present she is entitled to collect her additional jointure. As to the statutory kethubah, if she produces her letter of divorce she may collect it, but if she does not produce her letter of divorce she may not collect it.³  Since the time of danger, however, a woman may collect her kethubah even if she does not produce her letter of divorce, for R. SIMEON B. GAMALIEL RULED; SINCE THE TIME OF DANGER A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITHOUT A LETTER OF DIVORCE AND A CREDIT OR [IS ENTITLED TO COLLECT HIS DEBT] WITHOUT A PROSBUL'.

R. Kahana and R. Assi said to Rab; According to the ruling you have laid down that the statutory kethubah is collected by the letter of divorce, [the question arises,] whereby does a woman who was widowed after her marriage collect her kethubah? [Obviously] through the witnesses [who testify to the] death [of her husband]. Should we not, however, take into consideration the possibility that her husband might have divorced her and that she might subsequently⁴  produce the letter of divorce⁵  and collect⁶  with it also? — [A widow may collect her kethubah only] if she lived with her husband.⁷  But is it not possible that he might have divorced her near the time of his death?⁸  — [In such a case] it is he⁹  who has brought the loss upon himself.

Whereby does a woman who was widowed after her betrothal collect her kethubah? [Obviously] by the witnesses [who testify to the man's] death. Should we not, however, take into consideration the possibility that the man might have divorced her and that she would subsequently produce her letter of divorce and collect with it also?¹⁰  — [This],¹¹  however, [is the explanation:]¹²  Where no other course is possible a quittance may be written.¹³  For were you not to admit this [the objection might be raised even in respect of] the very witnesses [who testify to her husband's] death:¹⁴  The possibility should be considered that the woman might present [one pair of] witnesses to [her husband's] death before one court and so collect [her kethubah] and then present [another pair] before another court and collect it [again]. It must he obvious, therefore,¹⁵  that where no other course is possible a quittance may be written.

Said Mar Kashisha the son of R. Hisda to R. Ashi: Whence is it derived that a woman who was widowed after her betrothal is entitled to a kethubah.¹⁶  If it be suggested [that it may he derived] from this passage: 'A woman who was widowed or divorced either after her betrothal or after her marriage is entitled to collect all¹⁷  [that is due to her]',¹⁸  is it not possible [it may be retorted that this applies to a case] where the man had written a kethubah for her? And were you to argue. 'If he has written one for her, what need was there to tell [such an obvious rule?' It could be retorted that it serves the purpose] of rejecting the view of R. Eleazar b. Azariah who maintained that 'the man wrote the [additional jointure] for her with the sole object of marrying her'.¹⁹  The inference too [from the Mishnah cited leads to the same conclusion].²⁰  For it has been stated, '[She] is entitled to collect all [that is due to her]'. Now if you agree that [this is a case where] the man had written [a kethubah] for her one can well understand why she 'is entitled to collect all [that is due to her]'.²¹  If you submit, however, that the man did not write a kethubah for her, what [it may be objected is the justification for the expression.] 'is entitled to collect all', seeing that she is only entitled to one hundred or two hundred²²  zuz?²³  [Should it,] however, [be suggested that the law²⁴  may be derived] from that which R. Hiyya b. Abin²⁵  taught: 'In the case of a betrothed wife²⁶  [a husband] is neither [subject to the laws of] onan²⁷  nor may he²⁸  defile himself for her,²⁹  and she likewise is not subject to the laws of the onan³⁰  nor is she³¹  obliged³²  to defile herself for him;³³  if she died he³⁴  does not inherit from her though if he died she is entitled to collect the amount of her kethubah',³⁵  is it not possible [it might be retorted that this refers only to a case] where the man had written a kethubah for her? And should you argue. 'If he had written one for her what need was there to state [such an obvious ruling?' It might be replied that] 'it was necessary [in order to inform us that if] she died he does not inherit from her'.³⁶

R. Nahman said to R. Huna: According to Rab who laid down that a letter of divorce [enables a woman to] collect her statutory kethubah, is there no cause to apprehend that she might produce the letter of divorce at one court of law and collect her kethubah therewith and then again produce it at another court of law and collect therewith [a second time]? And should you reply that it might be torn up,³⁷  could she not [it may be retorted] demand, 'I need [it to be enabled] thereby³⁸  to marry again? — [What we do is,] we tear it up and endorse on the back of it: 'This letter of divorce has been torn by us, not because it is an invalid document but in order to prevent the woman from collecting therewith a second payments.

MISHNAH. [A WOMAN WHO PRODUCED] TWO LETTERS OF DIVORCE AND TWO KETHUBAHS MAY³⁹  COLLECT PAYMENT OF THE TWO KETHUBAHS.⁴⁰  [IF SHE PRODUCES, HOWEVER.] TWO KETHUBAHS AND ONE LETTER OF DIVORCE⁴¹  OR ONE KETHUBAH AND TWO LETTERS OF DIVORCE,⁴²  OR A KETHUBAH, A LETTER OF DIVORCE AND [EVIDENCE OF HER HUSBAND'S] DEATH,⁴³  SHE MAY COLLECT PAYMENT FOR ONE KETHUBAH ONLY, FOR ANY MAN WHO DIVORCES HIS WIFE AND THEN REMARRIES HER CONTRACTS HIS SECOND MARRIAGE ON THE CONDITION OF THE FIRST KETHUBAH.⁴⁴

GEMARA. If she desired it, she⁴⁵  could [evidently]⁴⁶  collect [payment of her kethubah] either with the one kethubah or with the other.⁴⁷  May it not then be argued that this ruling presents an objection against the ruling which R. Nahman stated in the name of Samuel? For R. Nahman stated in the name of Samuel: Where two bills⁴⁸  are issued one after the other⁴⁹  the latter annuls the former!⁵⁰  — Has it not been stated in connection with this ruling that R. Papa said: 'R. Nahman in fact admits that if one⁵¹  has added in the [second] bill one palm-tree⁵²  [it is assumed that] he has written it⁵³  for the sake of that addition',⁵⁴  so also here [it is a case] where the husband has added something for her [in the second kethubah].⁵⁵

Our Rabbis taught: If [a woman] produced a letter of divorce, a kethubah and [evidence of her husband's] death⁵⁶

1. His plea is accepted because by abstaining from the use of the false though convenient plea, 'I have not divorced her at all', he has established his reputation for honesty.
2. It is obvious, therefore, that witnesses were available; contrary to R. Joseph's interpretation (supra 89a ad fin.).
3. Since it is possible that she had already collected it once on the strength of her letter of divorce.
4. After receiving payment of her kethubah on the evidence of the witnesses who testified to the death of her husband.
5. Before another court.
6. Her statutory kethubah.
7. Where it is well known that she was not divorced by him.
8. So that the fact would remain unknown.
9. By consenting to a secret divorce.
10. The answer previously given, which well explains the case of a widow after her marriage, is inapplicable here since a betrothed man and woman do not live together.
11. And not as has been first suggested, 'where she lived with her husband'.
12. Of the difficulty pointed out by R. Kahana and R. Assi.
13. Had no quittance been allowed in such instances claimants would be deprived unjustly of their legitimate rights.
14. In localities where no kethubah is written.
15. Lit., 'but it is certain'.
16. Even where the man did not write one for her. That this is the case is apparent from the previous discussion where the husband's liability has been tacitly assumed. Had not a betrothed woman been allowed a kethubah unless she possessed also a written document, the objection that she might collect her kethubah mote than once could must have been advanced, since the document would have been destroyed as soon as payment had been made.
17. I.e., both her statutory kethubah and her additional jointure.
18. Supra 47b, 54b, B.M. 17b.
19. Cf. loc. cit., and since be died before he married her she, it might have been thought, is only entitled to her statutory kethubah but not to the additional jointure. Hence it was necessary for the ruling that she 'is entitled to collect all (that is due to her)'.
20. That the case dealt with is one 'where the man had actually written a kethubah for her'.
21. The reason being that the man had expressly promised her in writing not only the statutory kethubah but also the additional jointure.
22. One hundred if she married as a widow, and two hundred if as a virgin.
23. I.e., the statutory kethubah only and nothing more.
24. That a woman who was widowed after her betrothal is entitled to her kethubah (v. supra p. 567, n. 2).
25. The reading elsewhere (cf. B.M. 18a, Sanh. 28b) is 'Ammi'.
26. Before the marriage took place.
27. A mourner during the period between the death and burial of certain relatives is called onan (v. Glos.) and is subject to a number of restrictions. A priest whose betrothed wife died may, unlike one whose married wife died, partake of sacrificial meat or any other holy food.
28. If he is a priest.
29. Cf. Lev. XXI, 1ff.
30. She is allowed to partake of holy food.
31. Unlike a married wife whose duty it is to attend to the burial of her husband.
32. Cf. supra n. 10. The laws of defilement do not apply to women. Cf., however, infra n. 22.
33. Aliter; 'Nor may she defile herself for him', i.e., during a festival when not only priests but also Israelites and women are forbidden to attend on the corpses of those who are not their near relatives (v. R.H. 16b).
34. Unlike a husband who is heir to his wife (v. B.B. 111b).
35. Yeb. 29b, B.M. 18a.
36. Which is not obvious. And since the case where 'she deed' had to be stated, the one where 'he died', though self-evident, had, by way of contrast, also to be mentioned.
37. As soon as payment is made.
38. By using it as evidence that she had been legally divorced.
39. If the date of the first kethubah is earlier than that of the first divorce and that of the second kethubah is earlier than that of the second divorce.
40. Because it is assumed that after he had once divorced her the man had remarried her and then divorced her again. The kethubahs are consequently both due to her.
41. The dates of both kethubahs being earlier than that of the letter of divorce, so that both obviously refer to the same marriage.
42. I.e., the man married her after she had once been divorced by him, but did not write for her a second kethubah before he again divorced her.
43. If the order was marriage, divorce, remarriage, death.
44. I.e., that she should be entitled only to the first kethubah.
45. WHO PRODUCED TWO KETHUBAHS AND ONE LETTER OF DIVORCE.
46. Since our Mishnah does not specify which of the two kethubahs is to be used, the choice is evidently left to the woman.
47. I.e., either with the kethubah that bears the earlier, or with the one that bears the later date. Should she prefer to use that of the earlier date she would obviously be able to seize even such property as her husband had sold after the earlier, though prior to the later, date.
48. Signed by the same person and referring to the same transaction.
49. Sc. the date on the one is later than on the other.
50. Supra 44a; and the holder of the two bills is entitled to seize only such property as the defendant had sold subsequent to the later date. This then is in contradiction, is it not, to the ruling in out Mishnah which authorizes the woman (cf. supra p. 569, n. 11) to make use of her earlier kethubah?
51. A seller or donor.
52. That was not included in the bill of the earlier date.
53. The second bill.
54. And not with the intention of annulling the first one.
55. Cf supra n. 7. Hence the ruling that the woman may collect payment with either of the two kethubahs. She may not collect, however, with both kethubahs unless the second document contained a specific insertion to the effect that it was the husband's desire that the second one shall form an addition to the first. In the absence of such an insertion the woman may collect either (a) the smaller amount contained in the first kethubah and enjoy the right of seizing all property her husband had sold since that date or (b) the bigger amount in the second kethubah and restrict her right of seizure to such property only as bad been sold after the second date. By the issue of a second kethubah, containing an addition to the first one without the specific insertion mentioned, a husband is assumed to have conferred upon his wife the right of choosing between the respective advantages and disadvantages of the two documents. Where the second kethubah, however, contains no addition at all, the latter document is assumed to have been intended as a cancellation of the first, since otherwise it need not have been issued, and seizure of property is restricted to the later date.
56. Claiming one kethubah as a divorcee from her first marriage and the other as a widow from her second marriage.