Babylonian Talmud: Tractate Kethuboth

Folio 101a

but [a minor who] was released by a letter of divorce must wait three months.¹  What does he²  teach us when all these cases have already been taught:³  If [a minor] has exercised the right of mi'un against her husband he is permitted to marry her relatives⁴  and she is permitted to marry his relatives,⁴  and he does not disqualify her from marrying a priest;⁵  but if he gave her a letter of divorce he is forbidden to marry her relatives and she is forbidden to marry his relatives and he also disqualifies her from marrying a priest?⁶  — He found it necessary [to restate these rulings in order to mention:] 'She must wait three months' which we did not learn.⁷

Must one assume [that they⁸  differ on the same principles] as the following Tannaim: R. Eliezer stated, There is no validity whatsoever in the act of a minor, and her husband is entitled neither to anything she finds,⁹  nor to the work of her hands,⁹  nor may he invalidate her vows;¹⁰  he is not her heir⁹  and he may not defile himself for her;¹¹  this being the general rule: She is in no respect regarded as his wife, except that it is necessary for her to make a declaration of refusal;¹²  and R. Joshua stated, The act of a minor is valid, and her husband has the right to anything she finds¹³  and to the work of her hands,¹³  to invalidate her vows,¹⁴  to be her heir,¹³  and to defile himself for her;¹⁵  the general principle being that she is regarded as his wife in every respect, except that she may leave him¹²  by declaring her refusal against him?¹⁶  Must one then assume that Rab¹⁷  has laid down the same principle as that of R. Eliezer¹⁸  and that Samuel¹⁹  has laid down the same principle as that of R. Joshua?²⁰  — There is no difference of opinion between them²¹  as to what was the view²²  of R. Eliezer;²³  they differ only in respect of the view²²  of R. Joshua. Samuel [ruled] In agreement with R. Joshua; but Rab argued that²⁴  R. Joshua maintained his view only there²⁵  [where the benefits²⁶  are transferred] from her to him²⁷  but not [where the benefits²⁸  are to be transferred] from him to her.²⁹

OR TO HER WORN OUT ARTICLES. Said R. Huna b. Hiyya to R. Kahana: You have told us in the name of Samuel that this³⁰  was taught only in respect of melog,³¹  but that to zon barzel³¹  property she is entitled. R. Papa, in considering this statement, raised the point: To which [class of women did Samuel refer]? If it be suggested: To [A MINOR] WHO EXERCISED THE RIGHT OF MI'UN [the difficulty would arise:] If [the articles] are still in existence she would be entitled to receive them in either case,³²  and if they were no longer in existence she would in neither case³²  be entitled to receive them.³³  [Is the reference], then, to A WOMAN WHO IS INCAPABLE OF PROCREATION? [But here again, it may be objected:] If [the articles] were still in existence she would receive them in either case,³²  and if they no longer existed [the ruling] should be reversed: She should receive melog property since [the capital] always remains in her legal possession³⁴  but should not receive zon barzel property since [the capital] does not remain in her possession.³⁵  [The fact,] however, [is that the reference is] to A FORBIDDEN RELATIVE OF THE SECOND DEGREE, in whose case³⁶  the Rabbis have penalized the woman in respect of [what is due to her] from the man,³⁷  and the man in respect of [what is due to him] from the woman.³⁸  R. Shimi b. Ashi remarked: From R. Kahana's statement³⁹  it may be inferred [that if a lawful wife] brought to her husband⁴⁰  a cloak,⁴¹  the article is [to be treated as] capital and the man may not continue to wear it until it is worn out.⁴²  But did not R. Nahman, however, rule that [a cloak must be treated as] produce?⁴³  — He⁴⁴  differs from R. Nahman.

IS NOT ENTITLED […] TO A KETHUBAH. Samuel stated: This was taught only in respect of the maneh⁴⁵  and the two hundred zuz,'⁴⁶  to the additional jointure,⁴⁷  however, she⁴⁸  is entitled. So it was also taught: The women concerning whom the Sages have ruled, 'They are not entitled to a kethubah' as, for instance, a minor who exercised the right of mi'un³⁹  and the others enumerated in the same context,⁴⁹  are not entitled to the maneh⁵⁰  or to the two hundred zuz,⁵¹  but are entitled to their additional jointures; women, however, concerning whom the Sages have ruled, 'They may be divorced without [receiving their] kethubah' as, for instance, [a wife who] transgresses the [Mosaic] law, and others enumerated in the same context,⁵²  are not entitled to their additional jointures⁴⁷  and much less to [their statutory kethubahs of] a maneh⁵⁰  or two hundred zuz;⁵¹  whilst a woman who is divorced on the ground of in repute⁵³  takes only⁵⁴  what is hers⁵⁵  and departs. This⁵⁶  provides support to R. Hunah who laid down: If she played the harlot [a wife] does not in consequence forfeit

1. As any other woman (v. supra note 8).
2. Samuel, in the statement cited.
3. In a Mishnah.
4. V. supra p. 639, n. 11.
5. Cf. note 5'
6. Yeb. 1085.
7. in the Mishnah of Yeb. cited.
8. Rab and Samuel.
9. To which a lawful husband is entitled.
10. Which is the privilege of a husband (cf. Num. XXX, 7ff).
11. If he is a priest. Only a lawful husband may (cf. Lev. XXI, 2).
12. If she wishes to marry another man.
13. Rabbinic law has conferred upon him the same rights as those of a lawful husband. Cf. p. 640, n. 17.
14. Which is the privilege of a husband (cf. Num. XXX, 7ff).
15. Even if he is a priest (cf. supra n. 1). Since he inherits her she is regarded as a meth mizwah (v. Glos.) for whom he may defile himself though Pentateuchally she is not his proper wife; v. Rashi Yeb. 108a.
16. And no letter of divorce is required. Yeb. 89b, 108a.
17. Who does not allow a kethubah to a divorced minor.
18. Who ruled: 'There is no validity whatsoever in the act of a minor'.
19. Who allows to a minor her kethubah.
20. Who ruled that 'the act of a minor is valid'. Is it likely, however, that Rab and Samuel who were Amoraim would engage in a dispute which is practically a mere repetition of that of Tannaim?
21. Lit., 'all the world', sc, Rab and Samuel.
22. Lit., 'according'.
23. I.e., even Samuel must admit that according to R. Eliezer, no kethubah is due to a minor a minori ad majus (cf. infra nn. 16 to 19 and text mutatis mutandis).
24. Lit., 'up to here'.
25. In the case cited from Yeb.
26. Inheritance, handiwork and finds.
27. A husband may well be given such privileges in order to encourage men to undertake the responsibilities of married life.
28. Such as the kethubah and the other privileges contained therein.
29. There is no need to hold out inducements of marriage to a woman who is assumed to be always craving for marriage.
30. That the woman spoken of in our Mishnah is not entitled to compensation for the WORN OUT CLOTHES. It will be discussed anon to which of the three classes of woman mentioned Samuel referred.
31. V. Glos.
32. Whether they were melog or zon barzel.
33. Since, in the case of zon barzel, the husband might plead that what he used up was legally his, and in respect of melog also, though he had no right to use up the 'capital'. he might still plead justification on the ground that it would have become his by the right of heirship if he had survived her. In either case he would be justified in his claim that the minor's right to compensation does not come into force except on divorce.
34. And the husband, therefore, had no right to use it up.
35. But in that of the husband who was consequently entitled to use it up completely.
36. Since both husband and wife are guilty of a transgression.
37. Lit., 'fined her in respect of what is his'. Viz the kethubah and maintenance as well as for the wear of melog articles which he used up unlawfully and for which, in the case of a lawful marriage, he would have been liable to pay compensation to the woman.
38. Lit., 'fined him in respect of what is hers'. He must pay compensation for the wear of zon barzel articles which he used up, though a lawful wife cannot object to such use. [Although the woman is nor mally entitled to compensation for the wear of the zon barzel property, it is still considered a fine, as legally the husband should, in this case, not be made to pay since he does not divorce of his own free will (R. Nissim). Var. lec., they fined her in respect of what is hers (i.e..the melog property) and him in respect of what is his (i.e., the zon barzel property).]
39. That in a forbidden marriage the woman is not entitled to compensation for worn out melog articles.
40. On marrying him.
41. As melog.
42. If he did so he must pay compensation.
43. Supra 79b.
44. R. Kahana.
45. The statutory kethubah that is due to one who married as a widow or divorcee.
46. Due to a virgin (cf. supra note 7 mutatis mutandis).
47. Which a husband settles on his wife at his own pleasure.
48. Lit., 'they', sc, the classes of women mentioned in our Mishnah.
49. Lit., 'and her associates'.
50. V. supra note 7.
51. V. supra n. 8.
52. Cf. supra n. 10 and v. Mishnah supra 72a.
53. Lit., 'on evil name', sc. of faithlessness.
54. MS.M. inserts, 'the worn out clothes'.
55. Lit., 'before her', sc. her 'melog property.
56. The last ruling in the cited Baraitha.

her worn out articles that are still in existence.

A tanna recited in the presence of R. Nahman: [A wife who] played the harlot forfeits in consequence her worn out articles [though they are still] in existence. 'If she', the other said to him, 'has played the harlot, have her chattels also played the harlot?¹  Recite rather: She does not forfeit her worn out articles [that are still] in existence' — Rabbah b. Bar Hana stated in the name of R. Johanan: This²  is the view of the unnamed R. Menahem,³  but the Sages ruled: [A wife who] played the harlot does not thereby forfeit her worn out articles that are still in existence.

IF THE MAN, HOWEVER, HAD MARRIED HER etc. Said R. Huna: A woman incapable of procreation [has sometimes the status of] a wife and [sometimes she has] no such status;⁴  a widow⁵  [has always the status of] a proper wife. 'A woman incapable of procreation [has sometimes the status of] a wife and [sometimes she] has no such status'; if the husband knew of her [defect]⁶  she is entitled to a kethubah⁷  and if he did not know of her [defect] she is not entitled to a kethubah. 'A widows [has always the status of] a proper wife', for, whether her husband was aware of her [widowhood] or whether he was not aware of it, she is always entitled to a kethubah. Rab Judah, however, said: The one⁸  as well as the other⁹  [has sometimes the status of] a wife and [sometimes she has] no such status,⁴  for [in either case] if her husband was aware of her [condition or status] she is entitled to a kethubah and if he was not aware of it she is not entitled to a kethubah. An objection was raised: If [a High Priest] married on the presumption that [the woman] was in her widowhood¹⁰  and it was found that she had been in such a condition,¹⁰  she is entitled to her kethubah. Does not this imply that if¹¹  there was no presumption¹²  she is not entitled to a kethubah?¹³  — Do not infer 'that¹¹  if there was no such presumption' but infer [this:] If he married her on the presumption that she was not in her widowhood¹⁴  and it was found that she had been in such a condition,¹⁴  she is not entitled to a kethubah. What, however, [is the ruling where he married her] with no assumption? Is she entitled [to a kethubah]? Then instead of stating, 'On the presumption that [the woman] was in her widowhood¹⁴  and it was found that she had been in such a condition,¹⁴  she is entitled to her kethubah', should it not rather have been stated, 'With no assumption she is entitled to her kethubah'¹⁵  and [it would have been obvious that this¹⁶  applied] with even greater force to the former?¹⁷  Furthermore, it was explicitly taught: If he¹⁸  married her in the belief¹⁹  [that she was a widow] and it was found that his belief was justified,¹⁹  she is entitled to a kethubah, but if he married her with no assumption she is not entitled to a kethubah. [Does not this present] an 'objection against R. Huna? — It was our Mishnah that caused R. Huna to err. He thought that, since a distinction was drawn in the case of a woman incapable of procreation²⁰  and no distinction was drawn in respect of a widow, it must be inferred that a widow is entitled [to a kethubah even if she was married] with no assumption of her status. [In fact, however] this is no [proper conclusion], for in stating the case of a widow the author intended to apply to it²¹  the distinction drawn in the case of the woman who was incapable of procreation.²²

CHAPTER XII

MISHNAH. IF A MAN MARRIED A WIFE AND SHE MADE AN ARRANGEMENT WITH HIM THAT HE SHOULD MAINTAIN HER DAUGHTER²³  FOR FIVE YEARS, HE MUST MAINTAIN HER FOR FIVE YEARS. IF SHE WAS [SUBSEQUENTLY]²⁴  MARRIED TO ANOTHER MAN AND ARRANGED WITH HIM ALSO THAT HE SHOULD MAINTAIN HER DAUGHTER²³  FOR FIVE YEARS, HE, TOO, MUST MAINTAIN HER FOR FIVE YEARS. THE FIRST HUSBAND IS NOT ENTITLED TO PLEAD, 'IF SHE WILL. COME TO ME I WILL MAINTAIN HER',²⁵  BUT HE MUST FORWARD HER MAINTENANCE TO HER AT THE PLACE WHERE HER MOTHER [LIVES].²⁶  SIMILARLY, THE TWO HUSBANDS CANNOT PLEAD, 'WE WILL MAINTAIN HER JOINTLY', BUT ONE MUST MAINTAIN HER AND THE OTHER ALLOW HER THE COST OF HER MAINTENANCE. IF SHE²⁷  MARRIED²⁴  HER HUSBAND MUST SUPPLY HER WITH MAINTENANCE AND THEY²⁸  ALLOW HER THE COST OF HER MAINTENANCE. SHOULD THEY²⁹  DIE, THEIR OWN DAUGHTERS ARE TO BE MAINTAINED OUT OF THEIR FREE ASSETS ONLY³⁰  BUT SHE²⁷  MUST BE MAINTAINED EVEN OUT OF ASSIGNED PROPERTY, BECAUSE SHE³¹  [HAS THE SAME LEGAL STATUS] AS A CREDITOR. PRUDENT MEN USED TO WRITE,³²  'ON CONDITION THAT I SHALL MAINTAIN YOUR DAUGHTER FOR FIVE YEARS WHILE YOU [CONTINUE TO LIVE] WITH ME'.

GEMARA. It was stated: A man who said to his fellow, 'I owe you a maneh'³³  is, R. Johanan ruled, liable; but Resh Lakish ruled: He is free. How is one to understand [this dispute]? If [it refers to a case] where the man said to them³⁴  'You are my witnesses', what [it might be objected] is the reason of Resh Lakish who holds him to be free?³⁵  If [it is a case] where he did not say to them,³⁴  'You are my witnesses, what [it might equally be objected] can be the reason of R. Johanan who holds him liable?³⁶  The fact is³⁷  that [the dispute relates to a case] where he did not tell them, 'You are my witnesses', but here we are³⁸  dealing [with the case of a person] who said to another, 'I owe you a maneh'³³  by [handing to him]³⁹  a note of indebtedness.⁴⁰  R. Johanan ruled: He is liable, because the contents⁴¹  of a bond⁴²  has the same force as if the man [who delivered it] said, 'You are my witnesses'; but Resh Lakish ruled: He is free, because the contents⁴¹  of a bond has no binding force.

We learned: IF A MAN MARRIED A WIFE AND SHE MADE AN AGREEMENT WITH HIM THAT HE SHALL MAINTAIN HER DAUGHTER FOR FIVE YEARS, HE MUST MAINTAIN HER FOR FIVE YEARS. Does not this refer to,⁴³  a case like this?⁴⁴

1. Surely not.
2. The version recited by the Tanna in the presence of R. Nahman.
3. Sc. whose rulings were often quoted anonymously in the Mishnah and the Baraitha. [The reference is to R. Menahem b. R. Jose, v, Neg. 262.]
4. Lit., 'and not a wife'.
5. Even if married to a High Priest (cf. Lev. XXI, 14).
6. Before he married her.
7. He is assumed to have acquiesced.
8. MS.M., one incapable of procreation'.
9. 'A widow' (so MS.M.) who was married to a High Priest.
10. Lit., 'so'.
11. Lit., 'but'.
12. A case analogous to that where the High Priest was not aware of the woman's widowhood, supra.
13. An objection against R. Huna.
14. Lit., 'so'.
15. So BaH. Cur. edd. omit the last six words.
16. The woman's right to her kethubah.
17. Lit., 'that', where the High Priest actually presumed the woman's widowhood.
18. A High Priest.
19. [H] particip. pass. of [H] ('to know') with prefix.
20. 'IF THE MAN, HOWEVER, HAD MARRIED HER AT THE OUTSET … SHE IS ENTITLED etc.'.
21. Lit., 'stands on'.
22. Which immediately precedes it.
23. From another husband.
24. before the expiration of the five years.
25. Sc. refusing maintenance on the ground that her mother with whom she lives was no longer his wife.
26. Var. lec., 'to the place of her mother' (so according to the separate edd. of the Mishnah and Alfasi).
27. The daughter.
28. Respectively; each one the full cost.
29. The two husbands (v. supra n. 2).
30. Cf. 48b.
31. Whose rights are based on a written bond.
32. In any agreement to maintain a wife's daughter.
33. V. Glos.
34. Those who were present at the time of his admission of the debt.
35. Such a ruling, surely. is contrary to what has been laid down in Sanh. 29b.
36. This, surely, is also contrary to what was taught in Sanh. 29b, that the admission is valid only where the debtor explicitly stated, 'You are my witnesses'.
37. Lit., 'always'.
38. Lit., 'in what are we'.
39. In the presence of witnesses.
40. In which the debt is acknowledged in the man's handwriting but is not attested by his signature nor by that of witnesses.
41. Lit., 'thing'.
42. Delivered in the presence of witnesses.
43. Lit., 'what, not?'
44. Where the husband had handed over the written agreement (cf. supra note 8 mutatis mutandis) in the presence of witnesses without specifically appointing them as such. Had the document been duly signed the ruling, being so obvious, would have been superfluous. Does this then present an objection against Resh Lakish?