Babylonian Talmud: Tractate Kethuboth

Folio 81a

it is the duty of her heirs, even those who inherit her kethubah, to bury her. Said Abaye, We also have learned a [similar Mishnah]: A widow is to be maintained out of the estate of [her deceased husband's] orphans, and her handiwork belongs to them. It is not their duty, however, to bury her; it is the duty of her heirs, even those who inherit her kethubah, to bury her.¹  Now, what widow is it that has two kinds of heirs?²  Obviously³  she who is awaiting the decision of a levir.⁴

Said Raba: But could⁵  he not plead, 'I am only heir to my brother; it is not my duty to bury his wife'!⁶  — Abaye replied: [Such a plea would be untenable] because he is approached by two alternative demands:⁷  If he is heir to his brother he should bury his wife;⁸  if he does not bury his wife he should return her kethubah.⁹  [Raba] retorted, it is this that I mean: [Might he not plead], 'I am only heir to my brother; it is not my duty to bury his wife; and if [I am expected to bury her] on account of the kethubah¹⁰  [I may point out that] a kethubah is not payable during [the husband's] lifetime'?¹¹  — Who is it that was heard to admit the kethubah as a text for legal exposition?¹²  Beth Shammai, of course.¹³  But Beth Shammai have also been heard to lay down the rule that a note of indebtedness which is due for payment is regarded as repaid.¹⁴  For we have learned: If their husbands¹⁵  died before they drank,¹⁶  Beth Shammai rule that they are to receive their kethubah and that they need not drink,¹⁶  and Beth Hillel rule that they either drinks or they do not receive their kethubah.¹⁷  [Now how could it be said,] 'They either drink', when the All-Merciful said, Then shall the man bring his wife to the priest,¹⁸  and he is not there? [The meaning must] consequently be: As they do not drink¹⁹  they are not to receive their kethubah. Again 'Beth Shammai rule that they are to receive their kethubah and that they need not drink', but why [should they receive their kethubah]? Is not their claim of a doubtful nature,²⁰  it being uncertain whether she had committed adultery or not;²¹  then how could an uncertainty²²  override a certainty?²³  Beth Shammai [must consequently] hold the view that 'a note of indebtedness that is due for payment is regarded as repaid'.²⁴  But is it not required [that the proviso], 'When thou wilt be married to another man thou wilt receive what is prescribed for thee' [be complied with], which is not the case here?²⁵  — R. Ashi replied: A levir is also regarded as 'another man'.²⁶

Raba addressed [the following message] to Abaye²⁷  through R. Shemaya b. Zera: Is a kethubah²⁸  indeed payable during [the levir's] lifetime? Has it not, in fact, been taught: R. Abba²⁹  stated, 'I asked Symmachus, "How is a man³⁰  who desires to sell his brother s property to proceed" [and he replied,] "If he is a priest,³¹  he should prepare a banquet³²  and use persuasive means;³³  if he is an Israelite³⁴  he may divorce her and then marry her again".'³⁵

1. Supra 43a, infra 95b.
2. The expression 'her heirs, even those who inherit her kethubah' implies that there exists also another class of heirs who do not inherit her kethubah.
3. Lit., 'be saying'.
4. [The last clause is to be taken independently of the first, which cannot refer to such a widow since it speaks of orphans, v. Tosaf.].
5. The levir who, in fact, inherits only the statutory kethubah and the additional jointure, which are the property of his brother, and not the zon barzel, the original property of the woman. Cf. however, Tosaf. s.v. [H] a.l.
6. It was only his brother's duty to bury his wife in return for her kethubah which he inherits (cf. supra 47b) but not his duty, since he does not inherit from the widow but from his brother.
7. Lit., 'they come to him from two sides'.
8. As his brother would have done had he survived her.
9. To her heirs. Which is conceded to a husband in return for his wife's burial expenses.
10. Cf. note 10.
11. And he, representing her husband, since it was his intention to consummate levirate marriage, is still alive.
12. The exposition being: Since the kethubah contains the proviso, 'When thou wilt be married to another man, thou wilt receive what is prescribed for thee', it may be inferred that, except in the case of divorce, the kethubah is not payable during the lifetime of the husband, when his wife cannot 'be married to another man.
13. V. Yeb. 117a.
14. Yeb. 38b, Sol. 25a. The amount of the debt is deemed to he in the virtual possession of the creditor. So, too, with the amount of the kethubah which is deemed to he in the virtual possession of the widow. The levir is consequently inheriting it not from his brother but from the widow, in return for which he must incur the obligation of burying her.
15. Of women suspected of illicit intercourse with strangers after they had been warned by their husbands.
16. The water of bitterness. (V. Num. V, 24).
17. Yeb. 38b. Sol. 24a.
18. Num. V, 15, emphasis on man.
19. The water of bitterness (v. Num. V, 24.)
20. Of course it is.
21. In the former case she loses her right to her kethubah; in the latter case she does not.
22. That of her claim (v. supra n. 10).
23. It is certain that the husband's heirs are the rightful owners of his estate.
24. So that the woman (and not the heirs) being regarded as the virtual possessor of the amount of her kethubah, no certainty is here overridden by an uncertainty.
25. Since one awaiting the decision of a levir is not permitted to marry any stranger. How, then, could it he said supra that the kethubah is collected in the levir's lifetime?
26. At the moment her husband's death had set her free to marry the levir the proviso of her kethubah was fulfilled, and her kethubah is payable.
27. Who maintained supra that the kethubah is payable even during the lifetime of the levir.
28. Of a woman awaiting the decision of the levir.
29. I.e., R. Abba Arika or Rab.
30. A levir who married his deceased brother's widow for whose kethubah (v. our Mishnah) all the property he inherited from his deceased brother is mortgaged.
31. Who is forbidden to marry a divorced woman (v. Lev. XXI, 7).
32. For his wife, his former sister-in-law.
33. To secure her consent to sell so much of the property (v. supra note 6) as is in excess of the amount of her kethubah. If her consent cannot he obtained and he wishes to live with her he has no redress. He cannot divorce and remarry her as an Israelite may (v. infra) since his priesthood (v. supra note 7) would preclude him from marrying a woman he has once divorced.
34. Who may marry a divorced woman.
35. Adopting this course, he may either (a) pay her the amount of her kethubah as soon as she is divorced and, after selling all the property which is in excess of it, marry her again (on the condition of the first kethubah, v. infra 80b) or (b) he may remarry her before paying to her the amount of her kethubah and on remarriage give her a new one which, as all ordinary kethuboth, is secured not only on his present possessions but also on his future acquisitions. It is only a levir whose future acquisitions are not pledged for the kethubah of his deceased brother's widow (whom he marries and whose only security is the property left by her deceased husband) that is forbidden to sell the property he has inherited from that brother. Any other husband, including a levir who remarried his sister-in-law after he consummated levirate marriage and after he divorced her, since such a kethubah is secured by present possession and future acquisition, may well sell all his property even without his wife's consent.

Now if it could be assumed that a kethubah is payable during the lifetime [of the levir] why should he not set aside exclusively for her some property equal in value to the amount of the kethubah, and then sell the rest?¹  'But according to your argument²  [it might be asked] why should not the same objection³  be raised from our Mishnah [where it was stated,] HE CANNOT SAY TO HER, "BEHOLD YOUR KETHUBAH LIES ON THE TABLE", BUT ALL HIS PROPERTY IS PLEDGED FOR HER KETHUBAH?' — 'There⁴  we might merely have been given a piece of good advice;⁵  for, were you not to admit this, [how would you] read the final clause where it is stated, So, TOO, A MAN MUST NOT SAY TO HIS WIFE, "BEHOLD YOUR KETHUBAH LIES ON THE TABLE", BUT ALL HIS PROPERTY IS PLEDGED FOR HER KETHUBAH, would he here also [it may be asked] not be able to sell if he wished to do so?⁶  Consequently [it must be agreed that] he was there merely giving a piece of good advice;⁷  and similarly here also we might merely be given a piece of good advice;⁵  the statement of R. Abba, however, does present an objection!'⁸  — 'R. Abba's statement also does not give rise to any objection [because the restrictions on the man's liberty to sell] are due to [the desire of avoiding] hatred.'⁹

A sister-in-law once fell to the lot of a man¹⁰  at Pumbeditha, and his [younger] brother wanted to cause her to be forbidden to marry him¹¹  by [forcing upon her] a letter of divorce.¹²  'What is it', [the eldest brother] said to him, 'that you have in your mind? [Are you troubled] because of the property¹³  [that I all, to inherit]?¹⁴  I will share the property with you'. R. Joseph [in considering this case] said: Since the Rabbis have laid down that he¹⁵  may not sell,¹⁶  his sale is invalid even if he had already sold it.¹⁷  For it was taught:¹⁸  If a man died¹⁹  and left a widow who was awaiting the decision of a levir²⁰  and also left a bequest of property of the value of a hundred maneh,²¹  [the levir] must not sell the property although the widow's kethubah amounts only to one maneh, because all his property is pledged to her kethubah.²²  Said Abaye to him:²³  Is it so that wherever the Rabbis ruled that one must not sell, the sale is invalid, even after it had taken place? Did we not, in fact, learn: Beth Shammai said, She²⁴  may sell it, and Beth Hillel said, She may not sell it; but both agree that if she had sold it or given it away her act is legally valid?²⁵  The case was sent to R. Hanina b. Papi who sent [the same reply] as that of R. Joseph. On this Abaye remarked: Has R. Hanina b. Papi, forsooth, hung jewels²⁶  upon it?²⁷  It was then sent to R. Minyomi the son of R. Nihumai who sent [the same reply] as Abaye²⁸  [and added:]²⁹  'Should R. Joseph give a new reason report it to me. R. Joseph thereupon went out, investigated, and discovered that it was taught: If a man who had a monetary claim against his brother died,³⁰  and left a widow who had to await the decision of a levir, [the latter]³¹  is not entitled to plead, 'Since I am the heir I have acquired [the amount of the debt]', but it must be taken from the levir and spent on the purchase of land and he is only entitled to its usufruct.³²  But 'is it not possible', said Abaye to him, 'that provision was made in his own interests?'³³  — 'The Tanna stated', the other replied, 'that it must be "taken" from him,³⁴  and you say that "provision was made in his own interests"'! The case was again sent to R. Minyomi the son of R. Nihumai who said to then: Thus said R. Joseph b. Minyomi in the name of R. Nahman, 'This³⁵  is not an authentic teaching'.³⁶  What is the reason?³⁷  If it be Suggested, 'Because money is a movable thing and movables are not pledged to a kethubah',³⁸  is it not possible [it might be retorted] that the statement represents the view of R. Meir who holds that movables are pledged to a kethubah?³⁹  [Should it be suggested,] however,⁴⁰  'Because he⁴¹  could say to her: You are not the party I have to deal with',⁴²

1. What need then was there for persuasion or divorce and remarriage?
2. 'Since you can see no reason against the sale of the property in excess of the kethubah except that a kethubah is not payable during the levir's lifetime'.
3. Against Abaye, supra.
4. In our Mishnah.
5. In the interests of the woman; but not a legal ruling. Hence no objection can arise from it.
6. Of course he could sell, since his future acquisitions are also pledged for the kethubah (cf. supra p. 512, n. 11).
7. Cf. supra n. 6.
8. As shewn supra.
9. Between husband and wife. Were he allowed to set aside a particular part of his property as surety for her kethubah she might misinterpret his action to be a preliminary to a permanent divorce. By adopting the measures described supra he makes it clear to all that the only motive for his action was his desire to sell the property.
10. The woman's husband died without issue and the duty of marrying her or submitting to her halizah fell upon that man who was the eldest surviving brother of the deceased.
11. His eldest brother.
12. A divorce by one of the surviving brothers causes the widow to be forbidden to all the brothers (v. Yeb. 50a).
13. Of the deceased.
14. The brother who marries the widow inherits also the estate of the deceased (v. Yeb. 40a).
15. A levir for whose marriage (or halizah) a sister-in-law is waiting.
16. The estate of his deceased brother, which he inherits.
17. Similarly, here, the share promised to the younger brother under a legal kinyan is deemed to be a sale which is invalid.
18. Cf. infra n. 10.
19. Without issue.
20. Cf. supra p. 507, n. 8.
21. V. Glos.
22. Which proves that the levir who is responsible far his sister-in-law's kethubah may not sell any of his deceased brother's property which he inherits.
23. R. Joseph.
24. A wife who came into the possession of property.
25. Supra 78a; which proves that a sale ex post facto is valid even though it was not originally permitted.
26. [H] (H 'stone') 'precious stones'.
27. He has not. His ruling is no more supported by proof or reason than that of R. Joseph, and may he equally disregarded.
28. That the sale is valid.
29. Cf. MS.M. which inserts, 'and he (also) sent (word) to them'.
30. Without issue.
31. I.e., the debtor who, as brother of the deceased, marries his widow and also inherits his estate (v. supra p. 514, n. 4).
32. The debt in this case is similar to a sale ex post facto, and nevertheless it is invalid; which proves the correctness of R. Joseph's ruling.
33. Lit., 'that which was good for him they did for him'; it is more advantageous for a person when his money is invested than when it is spent.
34. Implying forcible action against his will.
35. The Baraitha discovered by R. Joseph.
36. It is spurious and not to be relied upon.
37. V. previous note.
38. And a statement that regards them as pledged to a kethubah must consequently be spurious.
39. Cf. Yeb. 99a, Kid. 68b.
40. As a reason why the statement under discussion must be considered spurious.
41. The levir.
42. He is the debtor of the deceased but not hers. Cf. supra n. 8 mutatis mutandis.