Babylonian Talmud: Tractate Kethuboth

Folio 90a

she may. if the letter of divorce bears an earlier date than the kethubah, collect payment for two kethubahs,¹  but if the kethubah bears an earlier date than the letter of divorce she may collect payment of 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.

MISHNAH. [IN THE CASE OF] A MINOR WHOM HIS FATHER HAD GIVEN IN MARRIAGE, THE KETHUBAH OF HIS WIFE²  REMAINS VALID,³  SINCE IT IS ON THIS CONDITION THAT HE KEPT HER AS HIS WIFE. [IN THE CASE OF ONE WHO BECAME] A PROSELYTE AND HIS WIFE WITH HIM, THE KETHUBAH REMAINS VALID,⁴  SINCE IT IS ON THIS CONDITION THAT HE KEPT HER AS HIS WIFE.

GEMARA. R. Huna stated: [The ruling of our Mishnah]⁵  was given only in respect of the maneh⁶  or the two hundred zuz;⁷  to the additional jointure, however, she⁸  is not entitled.⁹  Rab Judah, however, stated: She¹⁰  is entitled [to receive payment for] her additional jointure also.

An objection was raised: If an additional monetary obligation was undertaken¹¹  the woman receives that which was added.¹²  [Thus it follows, does it not, that] only if an additional monetary obligation was undertaken¹³  is the woman to receive any addition¹⁴  but if no such addition was made¹⁵  [she does] not [receive any addition at all]?¹⁶  — Read: 'Also that which had been added'.¹⁷  But surely, [in the following Baraitha] it was not taught so: 'If an additional monetary obligation was undertaken¹³  the woman receives that which was added, and if no additional monetary obligation was undertaken a virgin receives two hundred zuz and a widow receives a maneh'. Is not this then an objection against Rab Judah?¹⁸  — Rab Judah was misled by the wording of our Mishnah. He thought that the rule, 'THE KETHUBAH OF HIS WIFE REMAINS VALID', applied to the full amount;¹⁹  but in fact it is not so. It applies to the statutory kethubah alone.

CHAPTER X

MISHNAH. IF A MAN WAS MARRIED TO TWO WIVES AND DIED, THE FIRST [WIFE] TAXES PRECEDENCE²⁰  OVER THE SECOND, AND THE HEIRS²¹  OF THE FIRST WIFE TAKE PRECEDENCE²²  OVER THE HEIRS OF THE SECOND. IF HE MARRIED A FIRST WIFE AND SHE DIED AND THEN HE MARRIED A SECOND WIFE AND HE HIMSELF DIED,²³  THE SECOND WIFE²⁴  AND HER HEIRS²⁵  TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE.²⁶

GEMARA. Since it was stated THE FIRST [WIFE] TAKES PRECEDENCE OVER THE SECOND but not 'The first wife receives payment²⁷  and the second does not',²⁸  it may be implied that if the second wife forestalled [the first] and seized [the payment of her kethubah] it cannot be taken away from her.²⁹  May it then be inferred from this ruling that if a creditor of a later date has forestalled [one of an earlier date] and 'distrained [on the property of the debtor], his distraint is of legal Validity?³⁰  In fact it may be maintained that his distraint is of no legal validity, and as to [the phrase] TAKES PRECEDENCE, It means complete [right of seizure];³¹  as we have learned: A son takes precedence over a daughter.³²

Some there are who say: Since it was not stated, 'If the second wife forestalled [the first] and seized [the payment of her kethubah] it is not to he taken away from her', it may be implied that even if she has seized payment it may be taken away from her. May it then be concluded that if a creditor of a later date has forestalled [one of an earlier date] and distrained [on the property of a debtor] his distraint is of no legal Validity?³³  — In fact it may be maintained that his distraint is of legal validity, only because the Tanna stated, THE SECOND WIFE AND HER HEIRS TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE,³⁴

1. Since in such a case it is evident that the kethubah was given to her in connection with her second marriage. Her first kethubah she collects on the evidence of her letter of divorce.
2. The sum of two hundred in which is assigned to a virgin.
3. Even when he becomes of age, though the woman at that time is no longer a virgin. (V. Tosaf. s.v [H]). The kethubah of a non-virgin is only one hundred in.
4. Though it was given to her before her husband became a proselyte.
5. That the wife of a minor is entitled to her kethubah even when he becomes of age.
6. V. Glos.
7. I.e., the statutory kethubah (cf supra n. 3) which is a woman s due in accordance with a Rabbinical enactment and is entirely independent of the minor's will or consent.
8. The woman married to a minor.
9. Since a minor cannot legally be bound to any contract.
10. The woman who married a minor.
11. Lit., 'they renewed', sc. the monetary addition was undertaken by the minor after he came of age or by the intending proselyte after he had embraced Judaism.
12. Tosef. Keth. IX. It is now assumed that this refers to the additional sum only.
13. V. p. 571. n. 11.
14. Lit., 'yes'. Cf. p. 571, n. 12.
15. After the minor came of age or the idolater had embraced Judaism.
16. An objection against Rab Judah who allows a woman even the additional jointure that a minor or an idolater may have settled upon her.
17. To the additional jointure that had been settled upon her while her husband was still an idolater or in his minority.
18. Since here it was explicitly stated that only the statutory kethubah may be recovered (cf. supra n. 4).
19. That was mentioned in the kethubah, i.e., the statutory kethubah as well as the additional jointure.
20. In respect of her claim to her kethubah.
21. If the women, having survived their husband, died before they had collected the payments of their kethubahs.
22. Cf. supra n. 1, mutatis mutandis.
23. And the sons of the first wife claim (a) their mother's kethubah to which they are entitled by virtue of the 'male children' clause (v. Mishnah supra 52b) which their father had entered in their mother's kethubah, or (b) their due share in their father's estate.
24. Who, unlike the first, has survived her husband and consequently has, in respect of her claim upon her kethubah, the same legal status as a creditor.
25. Who, like their mother, have the status of creditors.
26. Who predeceased her husband and consequently lost her claim to her kethubah, since a surviving husband is the heir of his wife, her sons' claim to her kethubah (v. n. 4) being treated as a claim for an inheritance (v. supra 55a) and as such must yield precedence to that of a creditor.
27. Lit., 'she has'.
28. Lit., 'has not'.
29. Since the expression of 'PRECEDENCE' only Implies priority of claim but not actual and inalienable right.
30. Lit., 'what he collected is collected'. But If this were the case there would have been no dispute on the subject infra 94a.
31. Lit., 'and what … he taught completely', i.e., the claim of the first wife to her kethubah is absolute; and, should there be no balance, the second wife would receive nothing.
32. B.B. 115a, where the meaning is that if there is a son he has full rights to the estate whilst a daughter has no claim of heirship upon it at all.
33. Cf. supra n. 1 mutatis mutandis.
34. Where the statement, 'If the heir's of the first forestalled the heirs of the second and seized payment it is not to be taken away from them' is inapplicable, since, in fact, it is taken away from then, the estate being mortgaged to the heirs of the second who have the status of creditors.

he also taught. THE FIRST WIFE TAKES PRECEDENCE OVER THE SECOND.¹

IF A MAN MARRIED A FIRST WIFE. Three rulings may be inferred from this statement. It may be inferred that if one [wife died] during her husband's lifetime and the other after his death, [the sons of the former] are entitled to the kethubah of 'male children'²  and we do not apprehend any quarrelling.³  Whence is this inferred? Since it was stated, THE SECOND WIFE AND HER HEIRS TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE [it follows that] they are only entitled to precedence but that if there is [a balance, the others also] take [their share]. It may also be inferred that the kethubah [of the second wife]⁴  may be regarded as the surplus⁵  over the other.⁶  Whence is this inferred? Since it was not stated [that payment⁷  is made only] if a surplus of a denar remained there. Furthermore It may be inferred that a kethubah [claimed by virtue] of the 'male children' [clause] may not be distrained on mortgaged property;⁸  for if it could be imagined that it may be distrained on mortgaged property, the sons of the first wife⁹  should [be entitled to] come and distrain on [the property] of the sons of the second.¹⁰

To this R. Ashi demurred: Whence [these conclusions]? Might I not in fact maintain that if one [wife died] while her husband was alive, and the other after his death, [the sons of the former] are not entitled to the kethubah [that they claim by virtue] of the 'male children' clause, whilst the expression of¹¹  TAKE PRECEDENCE¹²  might refer¹³  to the inheritance?¹⁴  And were you to retort: What was the object¹⁵  [of the description] THE HEIRS OF THE FIRST WIFE?¹⁶  [I might reply that] as the Tanna used the expression, THE SECOND WIFE AND HER HEIRS¹⁷  he also spoke of THE HEIRS OF THE FIRST WIFE!¹⁸  And with reference to your conclusion that 'the kethubah [of the second wife] may be regarded as a surplus over the other', might I not in fact still maintain that no kethubah may be regarded as a surplus over the other, but here¹⁹  it is a case where there was a surplus of a denar!²⁰ 

[As to the case where] one [wife died] during her husband's lifetime and the other after his death, this is [a matter in dispute²¹  between] Tannaim. For it was taught: [If a man's wives] died, one during his lifetime and the other after his death, the sons of the first wife, Ben Nannus ruled, can say to the sons of the second,²²  'You are the sons of a creditor;²³  take your mother's kethubah²⁴  and go'.²⁵  R. Akiba said: The inheritance²⁶  has already been transferred²⁷  from [the sole right of inheritance by] the sons of the first wife²⁸  [the joint right of inheritance by these and] the sons of the second.²⁹  Do they³⁰  not differ on the following principle: One Master³¹  holds the Opinion that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the kethubah [of their mother by Virtue of the] 'male children' clause, and the other Master holds that where one [wife died] during a husband's lifetime and the other after his death [the sons of the former] are not entitled to the 'male children' kethubah?³²  Said Rabbah: I found the young scholars of the academy while they were sitting [at their studies] and arguing: All³³  [may hold the view that where] one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to [their mother's] 'male children' kethubah, but here they³⁴  differ [on the principle whether the second wife's]³⁵  kethubah may be regarded³⁶  as a surplus over the other; and the same dispute applies to [the debt] of a creditor.³⁷  One Master³¹  holds that the [second wife's]³⁵  kethubah is regarded as a surplus over the other,³⁶  and the same law applies to [the debt] of a creditor, and the other Master holds that no one kethubah may be regarded as a surplus over the other, and the same law applies to [the debt] of a creditor. Thereupon I said to them: In respect of [a claim of] a creditor no ones disputes [the view] that [the debt] is regarded as a surplus;³⁸  they³⁰  only differ in respect of a kethubah.³⁹

To this R. Joseph demurred: If so⁴⁰  [instead of saying.] 'R. Akiba said: The inheritance has already been transferred' it should [have said.] 'If there is a surplus of a denar [the sons of the first wife receive their mother's kethubah].'⁴¹  [The fact]. however, is, said R. Joseph. that they⁴²  differ [on the question whether the 'male children' kethubah is payable where] one [wife died] during her husband's lifetime and the other after his death.⁴³

These Tannaim⁴⁴  [differ on the same principle] as the following Tannaim. For it was taught: If a man married his first wife and she died and then he married his second wife and he himself died, the sons of this wife⁴⁴  may come after [her]⁴⁵  death and exact their mother's kethubah.⁴⁶  R. Simeon ruled: If there is a surplus of one denar⁴⁷  both⁴⁸  receive the kethubahs of their mothers but if no [such surplus remains] they⁴⁸  divide [the residue]⁴⁹  in equal portions. Do they⁵⁰  not differ on this principle: Whereas one Master⁵¹  holds that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the 'male children' kethubah, the other Master holds that where one [wife died] during her husband's lifetime and the other after his death [the children of the former] are not entitled to the 'male children' kethubah?⁵²  No; all⁵³  may agree that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are to receive the 'male children' kethubah,

1. omitting here also an expression which is inapplicable in the other case.
2. Cf. supra 52b and supra p. 573' n. 4.
3. Between the heirs of the second, who claim their mother's kethubah as creditors (cf. supra p. 57. n. 6) and those of the first, who claim (cf. loc. cit. n. 7) their 'male children' kethubah as heirs, the former disputing the right of the latter to have a larger share in the father's estate than they.
4. Which has the force of a debt.
5. V. Mishnah infra 91a. The kethubahs that wives heirs receive by virtue of the 'male children' clause (supra 52b) is subject to a surplus of one denar, at least, that must remain after the kethubahs have been paid in full, to safeguard the application of the Pentateuchal law of succession in regard to at least part if the estate. If no such minimum surplus remains the 'male children' kethubahs cannot he collected and the entire estate is divided in accordance with the Pentateuchal law of succession among all the sons.
6. The kethubah which the heirs of the first wife claim by virtue of the 'male childrens' clause. The kethubah of the second wife which has to he paid as a debt by all the heirs (cf. infra p. 573, n. 5) who first inherit that amount, provides for the application of the Pentateuchal law' of succession. The heirs the first wife consequently receive their 'male children' kethubah and no minimum surplus of a denar is required as would have been the case had the second kethubah also been dependent on the 'male children' clause.
7. Of the 'male children' kethubah of the first wife.
8. I.e., it has the status of an inheritance and not that of a debt.
9. Whose claim is of an earlier date than that of the second.
10. Hence it may be inferred that their claim cannot be distrained on mortgaged property.
11. Lit., 'and what'.
12. Which implies that if there is any residue they also receive a share.
13. Lit., 'it was taught'.
14. Of their father's estate; and not to the 'male children' kethubah.
15. Lit., 'wherefore to me'.
16. 'OF THE FIRST WIFE' in the final clause has no point if bet sons claim, not the 'male children' kethubah by virtue of her rights, but their share in their fathers estate as his heirs.
17. A proper description, since it is by virtue of their mother's rights that their claim to her kethubah is established.
18. A mere balancing of expression which has no bearing in the latter case on the source from which their claim is derived.
19. If the PRECEDENCE spoken of refers even, as at first suggested, to the 'male children' kethubah.
20. Though this fact was not specifically stated in our Mishnah it may have been taken for granted in view of the ruling laid down in the following Mishnah (infra 91a).
21. As to whether the sons of the first wife are entitled to their mother's kethubah by virtue of the 'male children' clause.
22. Wherever the estate does not allow of a surplus of a denar above the amount of the two kethubahs.
23. Cf. supra p' 573, n. 5.
24. Which becomes due to her on the father's death, and which you inherit from her. This provides for the application of the Pentateuchal law of succession, all the heirs discharging a debt incurred by the father (cf. supra p. 575' n. 3)'
25. The Pentateuchal law of succession having been fulfilled (v. supra n 10) the sons of the first wife are entitled to the full payment of their mother's 'male children' kethubah out of the residue of the estate.
26. Of the kethubah of the first wife who predeceased her husband.
27. Lit., 'jumped'. at the time the man died and was survived by his second wife.
28. Lit., 'and fell before'.
29. I.e., the residue of the estate, remaining after the deduction of the second wife's kethubah, is the common inheritance of all the sons of the deceased, those of the wife who predeceased him having no claim whatsoever in respect of the male children' kethubah which is payable only where both wives predeceased their husband.
30. Ben Nannus and R. Akiba.
31. Ben Nannus.
32. V. supra note I.
33. Lit., 'all the world' (v. supra note 2).
34. V. supra note 2.
35. The woman who survived her husband and whose claim has the same force as that of a creditor.
36. Where not even a denar remained after the claims of the two kethubahs had been met.
37. In the ease where both wives predeceased their husband and the sons of both claim the 'male children' kethubahs of their mothers while the creditor lays claim to the residue.
38. And the sons of the two wives are consequently entitled to their mother's 'male children' kethubahs respectively.
39. Ben Nannus holds the view that the kethubah of a wife, who had survived her husband, has the same status as a debt and consequently (v. supra P. 575. n. 3) enables the sons of the first wife to collect the payment of the 'male children' kethubah of their mother; while R. Akiba maintains that the payment of a kethubah is not on a par with that of any other debt; for, whereas any other debt is paid by the heirs to another person after they had first inherited that sum (v. l.c ). the amount of a kethubah is received by the sons themselves, in the first instance, as debtors without it having first fallen into their possession as heirs. The sons not having inherited the kethubah, there is no application here of the Pentateuchal law of succession. In order, therefore. that the Pentateuchal law of succession might not be superseded by the Rabbinical enactment of the 'male children' kethubah, it was ordained that in such a ease the sons of the first wife shall lose completely their rights to the kethubah.
40. That R. Akiba allows the 'male children' kethubah where there is a surplus.
41. The expression. however, which he actually used implies that the sons never receive their mother's kethubah.
42. Ben Nannus and R. Akiba.
43. As has been assumed at first (cf supra p. 576. notes 7-14 and p. 577 nn. 1-4).
44. This (according to Rashi) is at present assumed to refer to the second wife who survived him and whose kethubah has, therefore, the status of a debt. R. Han, however, reads explicitly 'the sons of the second' (v. Tosaf infra 91a s.v. [H]).
45. V. Tosaf. l.c.
46. While the sons of the wife who predeceased her husband, as at present assumed (v. supra n. 5), are not entitled to their mother's kethubah, in virtue of the 'male children' clause.
47. After the sum of the two kethubahs bad been deducted.
48. The sons of both wives.
49. The balance remaining after the kethubah of the second wife bad been paid.
50. R. Simeon and the first Tanna.
51. R. Simeon.
52. But since the principles are the same what need was there to record two disputes on the very same principles?
53. R. Simeon and the first Tanna,