016 - הִלְכוֹת אִישׁוּת פֵּרֶק טז

Laws of Marriage, Chapter 16

1. The property that a woman brings into her husband's possession—whether land, slaves, or movable property—even though it is recorded in the kesubah document, is not called "kesubah," but rather is called "nedunyah" (dowry). If the husband accepts responsibility for the nedunyah and it enters his domain—if it decreases in value, the loss is his; if it increases, the gain is his—this is called "nichsei tzon barzel." But if he does not accept responsibility for the nedunyah, and it remains under the woman's domain—if it decreases, the loss is hers; if it increases, the gain is hers—this is called "nichsei melug."

2. Likewise, any property that a woman owns which she did not bring into her husband's possession, nor recorded in the kesubah, but rather remains hers alone, or that she received as an inheritance after she was betrothed, or was given to her as a gift—all of these are called "nichsei melug," for they all remain under her domain. Only the principal kesubah, which is one hundred or two hundred (zuz), together with the additional amount, is called "kesubah."

3. We have already explained that the Sages instituted the kesubah for a woman, and the law of the additional amount is the same as the principal. They did not institute it to be collected whenever she wishes, but rather it is like a debt with a set time, and the kesubah is collected only after the husband's death or if he divorces her. Likewise, they instituted that if the husband had good, bad, and average fields, and the woman comes to collect her kesubah after his death, she collects only from the inferior property among his assets, which is called "ziburis."

4. Likewise, they instituted that when she comes to collect after his death, she does not collect until she swears with a "nikitas cheifetz" oath that she has nothing of his in her possession, and that she did not sell or forgo her kesubah. They appraise everything she is wearing and deduct its value from her kesubah. But if he divorced her of his own will, she collects without an oath, and her clothing is not appraised—since he bought them for her, and she has acquired them, and he is the one who wishes to send her away, not she.

5. Likewise, they instituted that a widow collects her kesubah only from land. She does not collect from any appreciation that the property gained after the husband's death; and daughters are not supported after their father's death from appreciation that the property gained after his death; and she does not seize her kesubah from appreciation added by a purchaser, even though a creditor does collect such appreciation. These matters are among the leniencies of the kesubah.

6. Likewise, among the leniencies of the kesubah is that a woman collects her kesubah from the least valuable of the coins. How so? If a man married a woman in one place and divorced her in another—if the coins of the place of marriage are better than those of the place of divorce, he gives her from the coins of the place of divorce; and if the coins of the place of divorce are better than those of the place of marriage, he gives her from the coins of the place of marriage. When does this apply? When her kesubah mentions coins without specification. But if a specific coin was specified, whether in the principal or the addition, it is like one who lends his fellow a specific coin, and he must repay him with what he borrowed, as will be explained in the Laws of Loans.

7. The Geonim instituted in all the yeshivos that a woman may collect her kesubah after her husband's death even from movable property, just as they instituted for a creditor to collect from movables. This enactment spread throughout all of Israel. Likewise, all other conditions of the kesubah are like the kesubah itself, and apply to movables as to land—except for the "kesubas benin dichrin" (the portion for male children), for we have not found its inheritance practice to be universally established in all the yeshivos. Therefore, I say that we follow the Talmudic law, that heirs collect their mother's kesubah only from land.

8. It has already become the practice in all the places we know and have heard of, to write in the kesubah both land and movable property; and this is a great improvement, instituted by wise men—for this is a monetary condition, and thus the widow collects from movables by virtue of this condition, not by the later enactment.

9. If he did not write this in the text of the kesubah, but rather married her without specifying, if he was aware of this enactment of the Geonim, she collects. But if not, or if we are uncertain about the matter, there is much deliberation about this: for the enactment of the Geonim does not have the power to be ruled upon, even though it was not specified, like the conditions of the kesubah, which are the enactment of the Great Sanhedrin, to the extent that we would extract money from the heirs based on it.

10. Furthermore, the Sages enacted that all of the husband's property is responsible and serves as collateral for the kesubah: even if her kesubah is only a maneh, and he owns land worth thousands of gold coins—all is under the lien of the kesubah. Anything he sells after the marriage from his property—even though his sale is valid, and he is permitted to sell all his property if he wishes—she may seize them for her kesubah when he divorces her or when he dies, if she does not find property that is free of liens; and when she seizes, she may do so only with an oath taken while holding a sacred object, as is the law for all creditors. This enactment is so that her kesubah will not be regarded lightly in his eyes.

11. When Beis Din or the heirs administer an oath to the widow when she comes to collect her kesubah, they do not administer the oath to her inside the Beis Din, because the courts would refrain from making her swear, since they are concerned that she might not be exacting with herself in the oath. If the orphans wish to impose a vow upon her, she may vow to them whatever they wish; and they impose the vow upon her in Beis Din, and afterwards she collects her kesubah.

12. If the widow died before she took the oath, her heirs do not inherit anything from her kesubah, for she does not have a right to the kesubah until she takes the oath. But if she remarried before taking the oath, she may take the oath after the marriage and collect whenever she wishes; however, she does not vow and collect, lest the husband annul the vow.

13. If land was designated for her in her kesubah—whether it was designated with all four boundaries, or with one boundary—she collects her kesubah from it without an oath. Similarly, if he wrote movable property for her, and those items themselves still exist, she takes them without an oath. Likewise, if they were sold and other movable property was acquired with their proceeds, and it is known that these second items were purchased with the proceeds of the original movables, she takes them without an oath.

14. A woman who partially admits to having received her kesubah does not collect the remainder except with an oath. How so? She produces a kesubah document stating one thousand zuz; the husband says, "She received the entire amount," and she says, "I only received such-and-such." Even if there are witnesses that she received part of it, or even if she was meticulous in accounting for what she received down to half a perutah, she does not take the remainder except with an oath.

15. If the husband says, "She received the entire amount," and she says, "I did not receive anything," and a single witness testifies that she received all or part of it, she does not collect except with an oath.

16. A woman who collects not in his presence does not collect except with an oath. How so? If he divorced his wife and left, Beis Din seizes his property after she takes an oath and pays her the kesubah. This is when he is in a distant place, so that it would be burdensome to notify him; but if it is easy to notify him, they send and inform him—if he does not come, she takes an oath and collects.

17. If she reduces the amount of her kesubah, she collects without an oath. How so? She produces a kesubah document for one thousand zuz; he says, "She received the entire amount," and she says, "I did not receive anything, and I am only entitled to five hundred, for that which he wrote for me as a thousand was a trust between us." In this case, she collects without an oath. But if she says, "There is only five hundred in my kesubah document," she does not collect anything with this document that states a thousand, for she has thereby nullified it and it is as if she admitted it is false; therefore, he swears a heses oath and is exempt.

Laws of Marriage, Chapter 16

18. In every case where we have said that she may not collect except with an oath, the Beis Din tells her: "Take an oath and collect." And in a case where it was said that she may collect without an oath, they tell the husband: "Stand and give her [the payment], and you are not believed regarding this claim unless you bring proof for your words."

19. If the husband himself says, "Take an oath to me regarding my claim," they tell her: "Take an oath and collect," and she must swear with a Torah-level oath, holding a sacred object.

20. If he stipulated with her that she may collect her kesubah without an oath, or that she is believed in whatever she claims, she collects from him without any oath at all. But if she comes to collect from his heirs, she must take an oath and then collect.

21. If he stipulated with her that she may collect from his heirs without an oath, or that she is believed regarding his heirs, she collects from them without an oath. But if she comes to seize from property that has been sold to others, she may not seize except with an oath, even though the husband believed her; for the husband's stipulation is effective only regarding himself and his heirs, but it is not effective to cause others to lose money.

22. A widow who has her kesubah document in her possession always takes an oath and collects her kesubah, even after one hundred years, whether she was in her husband's house or in her father's house. But if she does not have the kesubah document, she has nothing—not even the principal of the kesubah—even if she made a claim on the day of her husband's death. The same applies to a divorced woman: she does not even have the principal of the kesubah unless she produces the kesubah document.

23. In what case are these words said? In a place where it is customary to write a kesubah. But in a place where it is not customary to write a kesubah, and instead they rely on the stipulation of the Beis Din, she collects the principal of the kesubah even if she does not have the kesubah document, whether she was divorced or widowed, whether she was in her husband's house or in her father's house. But for any additional amount [beyond the principal], she has nothing anywhere unless she brings clear proof.

24. And up to what point does the widow collect the principal in a place where they do not write a kesubah? If she was in her husband's house, she collects forever. But if she was in her father's house, [she may collect] up to twenty-five years. If she comes to claim after twenty-five years, she has nothing, for if she had not forgiven [the kesubah], she would not have remained silent for all that time; and she is not with the heirs such that she could say, "I was embarrassed to claim while they were with me in the house."

25. Therefore, if the heir himself would bring her sustenance to her father's house and take care of her, she may claim her kesubah even after twenty-five years, because her silence and not claiming was due to her being embarrassed before the heir.

26. If she says, "I was married as a virgin and my kesubah principal is two hundred," and the husband or his heirs say, "You were married as a widow and have only one hundred," if there are witnesses who saw that they performed for her the customs that the people of that city do for a virgin—such as certain celebrations, a known garment, crowns, or other things that are done only for a virgin—she collects two hundred. If she does not have witnesses for this, she collects one hundred. If the husband is alive, she may require him to take a Torah-level oath, for he has admitted to part of the claim. A minor is believed, when he grows up, to testify and say, "I remember when I was a child that the customs of virgins were performed for so-and-so." All these matters apply in a place where they do not write a kesubah, as we have said.

27. A woman who says to her husband, "You divorced me," is believed, for she would not be so brazen as to say this in her husband's presence. Therefore, a woman who produces a kesubah document but does not have a get, and says to her husband, "You divorced me and my get was lost; give me my kesubah," and he says, "I did not divorce you," he is obligated to give her the principal of the kesubah. But he does not give her the additional amount until she brings clear proof that she was divorced, or until a get is produced together with the kesubah from her possession.

Laws of Marriage, Chapter 16

27. If the husband says to her, "This is what happened: I divorced you and gave you the entire kesubah, both the principal and the additional amount, and you wrote me a receipt, but my receipt was lost"—since he could have said, "I did not divorce you," and would not be obligated for the additional amount, he is believed. She must take an oath with a severe form of oath, and he gives her the principal amount, and he himself takes a heses oath regarding the additional amount.

28. If she produces a get, but does not have a kesubah document—if the custom in that place is not to write a kesubah, she collects the principal kesubah amount from the get that she has. But if the custom is to write a kesubah, she does not even receive the principal unless she produces the kesubah document, as explained above. The husband takes a heses oath regarding her claim and is then exempt.

29. If she produces two gittin and two kesubah documents, she collects two kesubahs. If she produces two kesubahs and one get, she collects only one kesubah. Which one does she collect? If both are equal, the latter nullifies the former, and she collects only from the date of the latter. If one of them contains an addition over the other, she may collect from whichever one she wishes, and the other is nullified.

30. If she produces two gittin and one kesubah, she receives only one kesubah, for if a man divorces his wife and then remarries her without specifying otherwise, he remarries her on the basis of her original kesubah.

31. If she produces a get and a kesubah after her husband's death—if the get precedes the kesubah, she collects the principal kesubah amount with this get, if it is not customary to write a kesubah, and she collects everything written in the kesubah, for she acquired it upon his death. But if the kesubah precedes the get, she receives only one kesubah, for he remarried her on the basis of her original kesubah.

32. A woman is believed to say, "My husband died," in order to be permitted to remarry, as will be explained in the Laws of Divorce. And it is a condition of the kesubah that if she marries another after his death, she takes what he wrote for her in her kesubah. Therefore, if she comes to Beis Din and says, "My husband died, permit me to remarry," and she never mentioned the kesubah at all, they permit her to remarry, administer an oath to her, and give her the kesubah. If she comes and says, "My husband died, give me my kesubah," they do not even permit her to remarry, for she has come regarding the kesubah, and she is presumed that her husband did not die; her intent is not to remarry, but only to collect the kesubah from him while he is alive. If she comes and says, "My husband died, permit me to remarry and give me my kesubah," they permit her to remarry and give her the kesubah, because her main statement concerns remarriage. But if she says, "Give me my kesubah and permit me to remarry," they permit her to remarry but do not give her the kesubah; but if she seized it, it is not taken from her.