Babylonian Talmud: Tractate Kethuboth

Folio 87a

[It is one that is incumbent] upon a woman who during the lifetime of her husband was made administratrix [of his affairs].¹  R. Nahman replied in the name of Rabbah b. Abbuha: [It is one that is incumbent] upon a woman who impairs her kethubah.²  R. Mordecai went to R. Ashi and submitted to him this argument: One can well imagine [the origin of the exemption], according to him who holds [that the oath is one incumbent] upon a woman who impairs her kethubah [by assuming that] it occurred to the woman that she might sometime be in need of money and would draw it from her kethubah and would, therefore, tell her husband, 'Give me an undertaking in writing that you will impose no oath upon me'.³  According to him, however, who holds [that the oath is one incumbent] upon a woman who during the lifetime of her husband was made administratrix [of his affairs],⁴  did she know [it may be objected] that he would set her up as administratrix that she should say to him, 'Give me a written undertaking that you will impose no oath upon me'?⁵  — The other replied: You taught this statement⁶  in connection with that clause;⁷  we teach it⁸  in connection with this:⁹  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 IMPOSE AN OATH UPON HER IN RESPECT OF [HER ADMINISTRATION] DURING THE SUBSEQUENT PERIOD BUT NOT IN CONNECTION WITH THE PAST, [and, in reply to the question as to] what exactly was meant by THE PAST, Rab Judah stated in the name of Rab: [The period] during the lifetime of her husband for which she was made administratrix [of his affairs], but in respect of [the period intervening] between death and burial an oath may be imposed upon her.¹⁰  R. Mattena, however,¹¹  maintained that no oath may be imposed upon her¹²  even in respect of [the period between] death and burial;¹³  for the Nehardeans laid down: For poll-tax,¹⁴  maintenance¹⁵  and funeral expenses. an estate¹⁶  is sold without public announcement.¹⁷

Said Rabbah in the name of R. Hiyya: [If in giving exemption to his wife a husband wrote,] 'Neither vow nor oath' it is only he who cannot impose an oath upon her, but his heirs may impose an oath upon her. [If he wrote, however,] 'Free from vow, free from oath', neither he nor his heirs may exact an oath from her, [since by this expression] he meant to say to her: 'Be free from the obligation of an oath'.

R. Joseph. however, stated in the name of R. Hiyya: [If in giving exemption to his wife a husband writes,] 'Neither vow nor oath' it is only he who cannot impose an oath upon her but his heirs may; [but if he wrote,] 'Free from vow, free from oath', both he and his heirs may exact an oath from her [since by such an expression] he thus meant to say to her: 'Clear yourself by means of an oath'.

R. Zakkai sent to Mar 'Ukba the following message: Whether [the husband wrote,] 'Neither oath' or 'Free from oath', or whether [he wrote.] 'Neither vow', or 'Free from vow', [and he used the expression] 'In respect of my estates',¹⁸  he cannot impose an oath upon her, but his heirs may. [If he wrote, however,] 'In respect of these estates', neither he nor his heirs may exact an oath from her.

R. Nahman stated in the name of Samuel in the name of Abba Saul the son of Imma Miriam: Whether [the husband wrote,] 'Neither oath' or 'Free from oath'' whether [he wrote,] 'Neither vow' or 'Free from vow, or whether [he used the expression,] 'In respect of my¹⁸  estates' or 'In respect of these estates', neither he nor his heirs may exact an oath from her; but what can I do in view of a ruling of the Sages that anyone who comes to exact payment out of the property of orphans is not to be paid unless he first takes an oath.¹⁹

Others read this²⁰  as a Baraitha: Abba Saul the son of Imma Miriam stated; Whether [the husband wrote.] 'Neither oath' or 'Free from oath', whether [he wrote,] 'Neither vow' or 'Free from vow, or whether [he used the expression,] 'In respect of my¹⁸  estates, or 'In respect of these estates'. neither he nor his heirs may impose, an oath upon her; but what can I do in view of a ruling of the Sages that anyone who comes to exact payment out of the property of orphans need not be paid unless he first takes an oath. [It was in connection with this Baraitha²¹  that] R. Nahman said in the name of Samuel: The halachah is in agreement with the ruling of the son of Imma Miriam.

MISHNAH. A WOMAN WHO IMPAIRS²²  HER KETHUBAH IS NOT PAID²³  UNLESS SHE FIRST TAKES AN OATH.²⁴  IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID,²⁵  SHE IS NOT BE PAID UNLESS SHE FIRST TAKES THE OATH. FROM THE PROPERTY OF ORPHANS, FROM ASSIGNED PROPERTY²⁶  AND [FROM THE PROPERTY OF] AN ABSENT HUSBAND²⁷  SHE MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH.²⁸

HOW [ARE WE TO UNDERSTAND THE STATEMENT,] 'A WOMAN WHO IMPAIRS HER KETHUBAH'? IF HER KETHUBAH WAS FOR A THOUSAND ZUZ²⁹  AND [HER HUSBAND] SAID TO HER, 'YOU HAVE ALREADY RECEIVED [THE FULL AMOUNT OF] YOUR KETHUBAH', AND SHE SAYS, 'I RECEIVED ONLY A MANEH',²⁹  SHE IS NOT PAID [THE BALANCE] UNLESS SHE TAKES AN OATH. WHAT IS MEANT BY³⁰  'IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID'? IF HER KETHUBAH WAS FOR A THOUSAND ZUZ²⁹  AND WHEN [HER HUSBAND] SAID TO HER, 'YOU HAVE RECEIVED [THE FULL AMOUNT OF] YOUR KETHUBAH', SHE REPLIED, 'I HAVE NOT RECEIVED IT WHILE ONE WITNESS TESTIFIES AGAINST HER THAT [THE KETHUBAH] HAS BEEN PAID²⁵  SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS MEANT BY THE EXPRESSION,³⁰  'FROM ASSIGNED PROPERTY'? IF [HER HUSBAND] HAD SOLD HIS PROPERTY TO OTHERS AND SHE SEEKS TO RECOVER PAYMENT FROM THE BUYERS, SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS THE EXPLANATION OF THE EXPRESSION,³⁰  FROM THE PROPERTY OF ORPHANS'? IF [HER HUSBAND] DIED AND LEFT HIS ESTATE TO HIS ORPHANS AND SHE SEEKS TO RECOVER PAYMENT FROM THE ORPHANS, SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS TO BE UNDERSTOOD BY³¹  'AN ABSENT HUSBAND'? IF HER HUSBAND WENT TO A COUNTRY BEYOND THE SEA AND SHE SEEKS TO RECOVER PAYMENT IN HIS ABSENCE,³²  SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH.

1. It is from such an oath only that a husband exempts his wife, but not from one which a woman incurs when she impairs her kethubah (v. infra). A husband, according to this view, only exempts his wife from an obligation which is in his power to impose upon her but not from one which she has brought upon herself.
2. By admitting that part of it has been paid to her. A woman who makes such an admission while her husband pleads that he has paid her the full amount is not entitled to receive the balance she claims except on oath, and it is the opinion of the authority cited by R. Nahman that a husband's general exemption extends to such an oath also, much more so to that required from her as administratrix (cf. supra note 2).
3. And while asking for exemption from this particular oath she might at the same time ask for an exemption from both oaths.
4. Cf. supra note 2.
5. As she cannot be assumed to divine her husband's thoughts and intentions, the desire for such a request could naturally never arise.
6. Rab Judah's, (supra 86b f).
7. The case dealt with in the first clause of our Mishnah (cf. supra p. 549. n. i).
8. I.e., you assume that R. Judah and R. Nahman refer to one and the same clause.
9. The final clause dealing with the oath of an administratrix.
10. Cf. supra p. 548, n. 11. Whereas R. Nahman refers to the first clause, Rah Judah refers to the case of an administratrix in the last clause, and so R. Mordecai's objection does not arise.
11. Differing from Rab Judah.
12. The administratrix whom her husband has exempted from oath.
13. This period also coming under the term of THE PAST.
14. On behalf of orphans.
15. Of one's widow or daughter.
16. A bequest now belonging to the orphans of the deceased.
17. Because in all these cases money is urgently needed and there is no time for the public announcement that must precede all sales effected on the order of a court. The urgency of the sale must inevitably lead to some undercutting of prices which the widow cannot possibly avoid (v. Git. 52b). It would consequently be an act of injustice to impose upon her an oath in respect of her administration during the period between her husband's death and burial.
18. Omitting the demonstrative pronoun 'these'.
19. V. B.B. 5b.
20. The ruling cited in the name of Abba Saul.
21. Cf. supra n. 3.
22. This is explained anon.
23. The balance she claims.
24. Affirming her claim.
25. In full (v. infra).
26. Mortgaged or sold.
27. Lit., 'and not in his presence', i.e., if a husband who was abroad sent a divorce to his wife and she claims her kethubah in his absence.
28. Which is imposed upon her by the court even if the respective defendants mentioned do not demand it.
29. V. Glos.
30. Lit., 'how'.
31. Lit., 'how'.
32. Cf. supra p. 552, n. 6.

R. SIMEON RULED: WHENEVER¹  SHE²  CLAIMS HER KETHUBAH THE HEIRS MAY IMPOSE AN OATH UPON HER BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CAN NOT IMPOSE AN OATH UPON HER.

GEMARA. Rami b. Hama wished to assume that the OATH³  was Pentateuchal,⁴  since [it is a case where] one [of two persons] claims two hundred [zuz] and the other admits one hundred [the defence] being an admission of a part of the claim,⁵  and whoever admits part of a claim must⁶  take an oath.⁷  Said Raba: There are two objections to this assumption: In the first place, all who take an oath in accordance with Pentateuchal law take the oath and do not pay,⁸  while she⁹  takes the oath and receives payment. And, secondly, no oath may be imposed⁶  in respect of the denial of [a claim that is] secured¹⁰  on landed property.¹¹  [The fact,] however, is, said Raba, [that the oath is only] Rabbinical. As it is the person who pays that is careful to remember the details while he who receives payment is not, the Rabbis have imposed an oath upon her¹²  that she might be careful to recollect the details.

The question was raised; What if a woman impaired her kethubah by [admitting that she received part payment in the presence of] witnesses? [Is it assumed that] were [her husband] to pay her [the balance] he would do it in the presence of witnesses,¹³  or [is it rather assumed that] it was a mere coincidence [that witnesses were present when the first payment was made]?¹⁴  — Come and hear;¹⁵  All who take an oath in accordance with Pentateuchal law, take the oath and do not pay,¹⁶  but the following take an oath and receive payment; A hired labourer,¹⁷  a man who was robbed¹⁸  or wounded,¹⁹  [any claimant] whose opponent is suspected of [taking a false] oath²⁰  and a shopkeeper²¹  with his [accounts] book,²²  and also [a creditor] who impaired his bond [the first instalment of which had been paid] in the absence of witnesses.²³  Thus only²⁴  [where the first instalment was paid] 'in the absence of witnesses'²⁵  but not where it was paid in the presence of witnesses!²⁶  — This is a case of 'there is no question …'²⁷  There is no question²⁸  that [when the first instalment was paid] in the presence of witnesses she must take an oath; when, however, [it was paid] in the absence of witnesses, it might be assumed that she has [the same privilege] as one who restores a lost object [to its owner]²⁹  and should, therefore, receive payment without taking an oath. It was, therefore, taught [that the oath is nevertheless not to be dispensed with].

The question was raised: What if a woman impaired her kethubah [by including in the amount she admitted] sums amounting to³⁰  less than the value of a perutah?³¹  Is it assumed that since she³²  is so careful in her statements she must be speaking the truth³³  or is it possible that she³⁴  is merely acting cunningly?³⁵  — This remains unsolved.³⁶

The question was raised: What if a woman declares her [original] kethubah to have been less [than the amount recorded in the written document]?³⁷  Is it assumed that such a woman is in the same position as the woman who impaired [her kethubah] or is it possible [that the two cases are unlike, since] the woman who impairs [her kethubah] admits a part [of the sum involved]³⁸  while this one does not admit a part [of the sum involved]?³⁹  — Come and hear: A woman who declares that her [original] kethubah was less [than the amount recorded in the document] receives payment without an oath. How [is this to be understood]? If her kethubah was for a thousand zuz⁴⁰  and when her husband said to her, 'You have already received your kethubah,'⁴¹  she replies. 'I have not received it,⁴¹  but [the original kethubah] was only for one maneh,'⁴²  she is to receive payment without an oath.⁴³

Wherewith, however, does she collect [the amount she claims]? Obviously with that document.⁴⁴  But is not that document a mere potsherd?⁴⁵  — Raba the son of Rabbah replied: [This is a case] where she states, 'There was an arrangement of mutual trust between me and him'.⁴⁶

IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID [etc.]. Rami b. Hama wished to assume that the OATH was Pentateuchal, for it is written In Scripture, One witness shall not rise up against a man for any iniquity, or for any sin;⁴⁷  it is only for ally iniquity or for any sin that he may not rise up, but he may rise up [to cause the imposition upon one of the obligation] of an oath. And, furthermore, a Master has laid down: In all cases where two witnesses render a man liable to pay money, one witness renders him liable to take an oath.⁴⁸  Said Raba: There are two objections to this assumption. In the first place, all who take an oath in accordance with Pentateuchal law, do so and do not pay,⁴⁹  while she takes an oath and receives payment; and, secondly, no oath may be imposed in respect of the denial of [a claim that is] secured on landed property. [The fact], however, is, said Raba [that the oath is only] Rabbinical, [having been enacted] to appease the mind of the husband.

R. Papa said:

1. Lit., 'all the time'.
2. The Gemara infra explains what R. Simeon refers to.
3. Which A WOMAN WHO IMPAIRS HER KETHUBAH must take.
4. On the difference between a Rabbinical oath and one imposed by the Torah v. Shebu. 41a.
5. [Read with MS.M.: for she claims of him two hundred (zuz) and he admits to her one hundred, so that he is admitting part of the claim].
6. Pentateuchally.
7. That he has repaid the difference. The woman, having admitted receipt of a part of her kethubah, must consequently be in a similar position.
8. I.e., it is the defendant, not the claimant, who takes the oath.
9. The woman who impaired her kethubah and claims the balance.
10. As is a kethubah.
11. V. Shebu. 42b, B.M. 57b.
12. V. supra p. 553, n. 11.
13. As he did in the case of the first payment. The woman would consequently be entitled to payment without taking the oath.
14. And since the man was not particular to secure witnesses on the first occasion, he might have been equally indifferent on the second occasion, and the woman would consequently have to take an oath.
15. V. Mishnah Shebu. 44b.
16. V. supra p. 553, n. 10.
17. Who swears that he has not received his wages.
18. Witnesses testifying that they saw the robber emerging from that person's house carrying an object which they could not identify.
19. The evidence shewing that the wound had been inflicted while the two men were alone in a particular spot, though no third party had witnessed the actual wounding.
20. I.e., if the defendant is known to have once before sworn falsely.
21. Who was given an order by an employer to supply a certain amount of goods to his workmen on account of their wages.
22. If the book shews that the goods had been duly supplied and the workmen deny receiving them, the shopkeeper, like the workmen, is ordered to take an oath (the former that he supplied the goods and the latter that they had Dot received them) and both receive payment from the employer.
23. [Add with MS.M. 'and she who impairs her kethubah without witnesses']. These last two mentioned cases are not found in the Mishnah (v. supra n. 11 ad fin.) and their source is a Baraitha (cf. Tosaf. s.v. [H] a.l.).
24. Lit., 'yes'.
25. Must the claimant take the oath.
26. The woman, in the case under discussion, would consequently be entitled to collect the balance she claims without taking an oath.
27. Lit., 'he implied (the formula)."It is not required" (to say etc.)'.
28. Lit., it is not required (to say that)'.
29. In such a case a person is not expected to take an oath that he had returned all that he had found. His honesty is taken for granted in view of the fact that a dishonest man would have kept the object entirely to himself. Similarly with the impaired kethubah. Had the woman been dishonest she need not have admitted the receipt of an instalment at all and could have collected the full amount of her kethubah by virtue of the written document she possesses.
30. Lit., 'less less'.
31. V. Glos.
32. By including even small and insignificant payments.
33. And should, therefore, be exempt from an oath in respect of the balance.
34. In mentioning insignificant payments.
35. She mentioned the small sums in order to give the impression of being a careful and scrupulous person while in fact the instalment or instalment she received were substantial sums. Consequently an oath should be imposed upon her.
36. Teku, v. Glos.
37. And she claims that amount; while her husband states that he had paid her all her kethubah.
38. The husband asserting that he paid the full amount and she admitting the receipt of a part of it. In such a case an oath may justly be imposed upon the woman.
39. Since according to her statement the kethubah never amounted to more than the sum she now claims.
40. V. Glos.
41. The amount entered in the document.
42. While the document contains a larger sum.
43. This solves the problem.
44. The kethubah she holds.
45. Sc. of no legal value, since she herself admits that the amount it records is fictitious.
46. They agreed, she states, that she would claim the smaller sum only despite the entry in the kethubah which shewed a larger one. This verbal agreement does not in any way affect the validity of the kethubah which, having been written and signed in a proper manner and attested by qualified witnesses, is a valid document on the strength of which a legal claim may well be founded; cf. supra 19b.
47. Deut. XIX. 15.
48. As two witnesses would have caused the woman to lose her kethubah entirely, one witness may rightly cause an oath to be imposed upon her. V. Shebu. 40a.
49. V. supra p. 553, n. 10ff.