משנה: הַפּוֹגֶמֶת כְּתוּבָּתָהּ לֹא תִיפָּרַע אֶלָּא בִשְׁבוּעָה. עֵד אֶחָד מֵעִידָהּ שֶׁהִיא פְרוּעָה לֹא תִיפָּרַע אֶלָּא בִשְׁבוּעָה. מִנִּיכְסֵי יְתוֹמִים וּמִנְּכָסִים מְשׁוּעְבָּדִין וְשֶׁלֹּא בְּפָנָיו לֹא תִיפָּרַע אֶלָּא בִשְׁבוּעָה. MISHNAH: If she had compromised her ketubah159She had signed a receipt for part of the ketubah, as explained in the next Mishnah., she shall not be able to collect without an oath160She can collect the remainder of the ketubah only in a court proceeding in which she will have to swear to the amount of the ketubah which still is unpaid.. If one witness161A single witness cannot legally prove anything (Deut. 19:15). That rule is stated for criminal proceedings. In money matters, it is a rabbinic institution that the testimony of a single witness creates a presumption that he testified truthfully. The opposing party therefore either has to produce a witness who contradicts the first, or she can swear that her claim is not satisfied. testifies that [the ketubah] was paid, she shall not be able to collect without an oath. From orphans’ property162Since the heirs are not usually cognizant of all business dealings between their deceased father and his wife (who might not be their mother), she has to swear that she did not receive any valuables on account of the ketubah., or from encumbered property163If the husband sold real estate after the date of his wedding, the sale did not remove the ketubah lien on the property. If the ketubah cannot be paid by the estate, the widow has regress on the buyer. Clearly, the buyer can require the widow to swear for the same reason the heirs of the estate can., in his164If the husband sends his wife a bill of divorce from abroad, the court handling the delivery of the bill of divorce to the wife will require her to swear that no part of the ketubah had been paid before overseeing the payment of the ketubah.
The Mishnah is repeated in Šebuot7:7. absence she shall not be able to collect without an oath.
הלכה: הָֽלְכָה מִקֶּבֶר בַּעֲלָהּ לְבֵית אָבִיהָ כול׳. אָמַר רִבִּי זְעוּרָה. כְּעֵין שְׁבוּעַת תּוֹרָה יָֽרְדָה לָהֶן. כְּתוּבָּה הוּחְזְקָה בְיָדָהּ לְגַבּוֹת. כְּמִי שֶׁגָּבָה. וְהוּא כָתוּב עִם הַשְּׁטָר שֶׁלְּמָאתַיִם פָּרוּעַ. וְהִיא אוֹמֶרֶת מְנָה. לֹא תִיפָּרַע אֶלָּא בִשְׁבוּעָה. HALAKHAH: “If she went from her husband’s grave to her family,” etc.165This quote has nothing to do with the Halakhah which discusses only Mishnah 8. Rebbi Ze‘ura said, this came down in the manner of a biblical oath. The ketubah is acknowledged in her hand for collection; it is as if collected. But since with the document of 200 there is an acknowledment of payment and she says, one mina [is due to her], she cannot be paid without an oath166He discusses the first case of the Mishnah, if she had compromised the ketubah by signing a receipt for partial payment without specifying the amount. The basic biblical text is Ex.22:8: “About any guilty behavior, about an ox, or a sheep, or a garment, or anything lost, if he agrees that this is it, the case of the two parties shall come before Elohim.” This is explained as follows (Mekhilta dR. Ismael, ed. Horovitz-Rabin p. 301; Mekhilta dR. Simeon bar Ioḥai ed. Epstein-Melamed p. 203; Babli Baba Qama 107a, Baba Meṣi‘a 5a,98a): The paragraph speaks in vv. 6–7 about a person who holds another’s property without being paid for his services, who will not have to pay if the property is stolen and the holder never used it for his own purposes. Then v. 8 continues about any behavior implying monetary obligation, i. e., any monetary claim of one person against another, and requires first that the object of the claim be well defined (an ox, a sheep, etc.) and that the defendant of the suit agree that “this is it”, i. e., that there is a case, then there shall be a trial before a judge acting as Elohim, as a representative of God as judge. In praxi this means that if the claimant cannot prove his case by witnesses or documents, the defendant can free himself from paying by swearing while holding a copy of the Torah and being subject to all the rules of judicial oaths. But if the claim is for one thing (e. g., an ox) and the defendant agrees only that something else is owed to the claimant (e. g., a sheep), or if the defendant disputes the entire claim, he cannot be forced to swear and the claimant loses his case.
R. Ze‘ura notes that the case of the damaged ketubah has most of the features of a case requiring an oath by biblical standards, even though it seems otherwise since the divorced wife claims the remainder of the ketubah but the husband claims that all was paid. For that he argues that everybody knows that a ketubah becomes payable at the moment of divorce. Therefore, the husband is considered to have paid the ketubah sum and now he requests to get his money back, and the ex-wife disputes part of his claim. (In the opinion of the Babli, Šebuot 48b, 81a, this is held only by the House of Shammai; cf. Note 178.) There are two points why the case does not fit the framework of Ex.22:8: The person who swears a biblical oath does not have to pay, but in the case under discussion the wife swears in order to collect money. This is by rabbinic tradition. Second, since the ketubah is a mortgage lien (or: in talmudic times was a mortgage lien), the suit is about real estate and real estate claims cannot be settled by oaths (Mishnah Šebuot 6:5). This argument is explicit in the Babli, 87b, where the place of R. Ze‘ura is taken by (the slightly younger) Rami bar Ḥama..
תַּנֵּי הַפּוֹגֶמֶת. לֹא הַפּוֹחֶתֶת כְּתוּבָּתָהּ. כֵּיצַד. הָֽיְתָה כְּתוּבָּתָהּ מָאתַיִם וְהִיא אוֹמֶרֶת מְנָה. נִפְרַעַת שֶׁלֹּא בִשְׁבוּעָה. מַה בֵין פּוֹגֶמֶת וּמַה בֵין פּוֹחֶתֶת. אָמַר רִבִּי חֲנִינָה. פּוֹגֶמֶת בָּא מַשָּׂא וּמַתָּן בֵּינֹתַיִים. פּוֹחֶתֶת לֹא בָא מַשָּׂא וּמַתָּן בֵּינֹתַיִים. It was stated “compromised”. Not that she reduced her ketubah167This statement is quoted in Šebuot 7:7 (38a 1. 25), Sanhedrin 8:6 (26b 1. 49); Babli 87b.. If her ketubah was 200 but she claims a mina, she is paid without an oath168In the Babli, this is made more explicit: If her ketubah was 1000 zuz, the husband claims that it was paid but he has no receipt, the divorced wife states that she received nothing but that her claim was only a mina, this is not conceding part of the husband’s claim (cf. Note 166) and she collects without an oath. It seems that the Yerushalmi would agree to that interpretation.
On documents which show that 200 zuz written in the ketubah might mean 100 zuz in actual money (and the standards by which the value of a zuz is determined), cf. M. A. Friedman, loc. cit. Note 87.. What is the difference between one who compromises and one who claims less? Rebbi Ḥanina said, if she compromises there was a transaction between them169Therefore, the oath is required if only to protect creditors with claims against the estate.; if she claims less there was no transaction between them170At least, there is no presumption of any transactions between her and her husband regarding her ketubah during her marriage. Therefore, anybody claiming that there was such a transaction in order to impose an oath on the widow would have to prove his case in court..
רִבִּי יִרְמְיָה בְעָא. כְּמַה דְאַתְּ אֲמַר תַּמָן. עֵד אֶחָד מֵעִידָהּ שֶׁהִיא פְרוּעָה לֹא תִיפָּרַע אֶלָּא בִשְׁבוּעָה. וְדִכְװָתָהּ. וְעֵד אֶחָד מֵעִידָהּ שֶׁהִיא פְחוּתָה לֹא תִפְחוֹת אֶלָּא בִשְׁבוּעָה. אָמַר רִבִּי יוֹסֵי. בְּשָׁעָה שֶׁעֵד אֶחָד מֵעִידָהּ שֶׁהִיא פְחוּתָה בְעֵד אֶחָד מַכְחִישׁ אֶת שְׁנַיִם. וְאֵין עֵד אֶחָד מַכְחִישׁ אֶת שְׁנַיִם. Rebbi Jeremiah asked: Since we stated there: “If one witness testifies that [the ketubah] was paid, she shall not be able to collect without an oath,” should it be similar that if one witness testifies that [the ketubah] was reduced, she shall not be able to collect the reduced sum without an oath? Rebbi Yose said, at the moment that one witness testifies that the amount should be reduced, he is like a single witness who contradicts the testimony of two [witnesses]172The two witnesses who signed the ketubah document. but no single witness can contradict the testimony of two173There can never be an oath imposed for a lesser claim in the settlement of a ketubah since the preceding paragraph dealt with the case of no witnesses and there can be no oath if there are two witnesses..
תַּנֵּי. יוֹרֵשׁ שֶׁפָּגַם אָבִיו שְׁטָר חוֹבוֹ הַבֶּן גּוֹבֶה שֶׁלֹּא בִשְׁבוּעָה. בְּזֶה יָפֶה כֹחַ הַבֶּן מִכֹּחַ הָאָב. שֶׁהַבֶּן גּוֹבֶה שֶׁלֹּא בִשְׁבוּעָה. וְאָב אֵינוֹ גוֹבֶה אֶלָּא בִשְׁבוּעָה. אָמַר רִבִּי אֶלְעָזָר. וְנִשְׁבַּע שְׁבוּעַת יוֹרֵשׁ. שֶׁלֹּא פָקַדְנוּ אַבָּא. שֶׁלֹּא אָמַר לָנוּ אַבָּא. שֶׁלֹּא מָצִינוּ שְׁטָר בֵּין שִׁטְרוֹתָיו שֶׁלָּאַבָּא שֶׁשְּׁטָר זֶה פָרוּעַ. רִבִּי הוֹשַׁעְיָה בְעָא. מַתְנִיתָא דְבֵית שַׁמַּי. דְּבֵית שַׁמַּי אוֹמְרִים. נוֹטֶלֶת כְּתוּבָּתָהּ וְלֹא שוֹתָה. אָמַר רִבִּי יוֹסֵי. תַּמָּן טָעֲמוֹן דְּבֵית שַׁמַּי. הָבִיאוּ בַעֲלִי וַאֲנִי שׁוֹתָה. בְּרַם הָכָא. בְּדִין הָיָה אֲפִילוּ אָבִיו לֹא יִשְׁבַּע. תַּקָּנָה תִיקְּנוּ בוֹ שֶׁיִּשְׁבַּע. בּוֹ תִיקְּנוּ. בִּבְנוֹ לֹא תִיקְּנוּ. כֵּיוָן שֶׁמֵּת הֶעֱמַדְתָּה אֶת בְּנוֹ עַל דִּין תּוֹרָה. It was stated: If an heir’s father held a compromised promissory note, the son collects without swearing174If the father had indicated that a certain part of the note was paid, and both the lender and the borrower had died, the lender’s son collects the remainder from the borrower’s son without swearing that no more than the sum indicated had been paid (assuming that the borrower’s son cannot produce a document or witnesses that more had been paid than was claimed), since he could not collect if he had to swear that he was 100% sure that his claim was in the correct amount.. In that the son’s power is greater than the father’s, since the son collects without swearing while the father can collect only by swearing175If the borrower had died.. Rebbi Eleazar said176The same statement in the Babli, Šebuot 48a. It is in the heirs’ power to swear that according to their best knowledge the claim is justified., nevertheless he has to execute an heir’s oath, “that our father did not charge us, that our father did not tell us, that we did not find a document among our father’s documents that this note was paid.177Mishnah Šebuot 7:7.” Rebbi Hoshaia asked, does the baraita178The one mentioned at the start of this paragraph, and also the Mishnah (cf. Note 166). follow the House of Shammai? For the House of Shammai say, “she collects her ketubah and does not drink.”179Mishnah Soṭah 4:3, about a woman whose husband, having no witnesses, formally accused her of adultery but died before he could bring her to the Temple for the cleansing ceremony. Since the verse requires the presence of the husband at the Temple ceremony (Yerushalmi Soṭah, p. 180, Note 14), the woman is prevented from clearing her name. The House of Hillel hold that she cannot collect her ketubah since she cannot prove her innocence to the heirs (loc. cit. p. 185, Note 38) based on the general principle that “the burden of proof is on the claimant.” Since the House of Shammai also agree to that principle, it must follow that for them the ketubah is as good as paid and the heirs are the claimants who want to have the money back but who cannot prove their case. This shows that for the House of Shammai the ketubah is the widow’s property from the moment of the husband’s death. Rebbi Yose said, there the reason of the House of Shammai is: Bring my husband and I shall drink180The preceding argument is invalid. The House of Shammai may not hold that the ketubah is the widow’s property from the moment of the husband’s death, but they hold that if the woman was ready to clear her name, any impediment which is not her fault cannot be held against her. The House of Hillel hold that the heirs do not have to pay her ketubah; since she brought the problem on herself by being seen with another man after having been duly warned by her husband in front of two witnesses; she cannot collect except by successfully clearing her name. The problem is discussed in similar terms in Soṭah 4:1, Notes 13–16.! But here, it would be in order that even his father would not have to swear. They instituted a rule that he has to swear181His oath is a purely rabbinic institution for the prevention of fraud. Since it is rabbinic, it cannot be enforced if it would prevent anybody from collecting what is rightfully his.. They instituted that for him, but not for his son182Meaning, it could not be instituted as a burden on his son.. When he died, you put his son on the biblical rule.
נִתְחַייֵב אָבִיו שְׁבוּעָה בְּבֵית דִּין וּמֵת אֵין בְּנוֹ גוֹבֶה. דִּלֹ כֶן מָה אֲנָן אָֽמְרִין. וְיֵשׁ אָדָם מוֹרִישׁ שְׁבוּעָתוֹ לִבְנוֹ. אָמַר רִבִּי אָבִין. אַתְּ אָמַרְתְּ. פָּגַם אָבִיו שְׁטָרוֹ בְּבֵית דִּין אֵין בְּנוֹ גוֹבֶה. רַב חִסְדָּא בְּעָא. בְּגִין דַּהֲלַךְ אִילֵּין תַּרְתֵּי פְסִיעָתָא הוּא מַפְסִיד. אִילּוּ פְגָמוֹ חוּץ לְבֵית דִּין אַתְּ אֲמַר. גּוֹבֶה. מִפְּנֵי שֶׁפְּגָמוֹ בְּבֵית דִּין אַתְּ אֲמַר. אֵינוֹ גוֹבֶה. If a father became obligated to swear in court183The context shows that the oath is a rabbinic one imposed on the person who wants to collect money. and died, his son cannot collect. If it were otherwise, what could we say? Can a man let his son inherit an obligation to swear184Since he lacks the knowledge about the details of his father’s business transactions, he can only swear a disclaimer of knowledge (Note 177) but not the required positive statement. In the Babli, Šebuot 48a, this is a common formal statement by Rav and Samuel, not an obvious fact.? Rebbi Avin said, you mean, if a man compromised his document in court, his son cannot collect. Rav Ḥisda asked: Because he walked those two steps, he loses? If he compromised it outside the court, he collects. Because he compromised it in court, he cannot collect185In the Babli, Šebuot 48a, R. Eleazar holds (with Rav Ḥisda here) that the heirs swear the heir’s oath (Note 177) in any case. R. Abin’s statement is rejected.?
הַפּוֹגֶמֶת כְּתוּבָּיָהּ לֹא תִפָּרַע אֶלָּא בִשְׁבוּעָה כול. אָמַר רִבִּי יוֹחָָנָן בְּשֵׁם רִבִּי יַנַּאי. אֵין פּוֹרְעִין מִנִּיכְסֵי יְתוֹמִים אֶלָּא בִשְׁטָר שֶׁהָרִיבִּית אוֹכֶלֶת בּוֹ. וְיֵשׁ אוֹמְרִים. אַף לִכְתוּבַּת אִשָּׁה. אָמַר רִבִּי יַנַּאי. מִפְּנֵי מְזוֹנוֹת. אָמַר רִבִּי מַתַּנְיָה. מָאן חָשׁ לִמְזוֹנוֹת. רִבִּי שִׁמְעוֹן. דְּרִבִּי שִׁמְעוֹן אוֹמֵר. בְּמִגְבָּה הַדָּבָר תָּלוּי. מַאי כְדוֹן. מִפְּנֵי חִינָא. מִפְּנֵי שֶׁיְּהוּ הַכֹּל קוֹפְצִין עְלֶיהָ לִישָּׂאֶנָּה. וְיֵשׁ אוֹמְרִים. אַף לִגְזֵילָה וְלִנְזִיקִין. אָמַר רִבִּי יוֹסֵי. אַף אֲנָן נַמֵּי תַנִּינָן תַּרְתֵּיהוֹן. לִגְזֵילָה מִן הָדָא. אִם הָיָה דָבָר שֶׁיֵּשׁ לוֹ אַחֵרָיוּת חַייָב לְשַׁלֵּם. לִנְזִיקִין מִן הָדָא. אֵין נִפְרָעִין מִנִּיכְסֵי יְתוֹמִין אֶלָּא מִן הַזִּיבּוֹרִית. כֵּינִי מַתְנִיתָא. אֵין נִפְרָעִין מִנִּיכְסֵי יְתוֹמִין לִנְזִיקִין אֶלָּא מִן הַזִּיבּוֹרִית. וְהָא תַנֵּי. עָמַד הַבֶּן תַּחַת הָאָב הַנִיזָּקִין שָׁמִין בַּעִדִּית וּבַעֲלֵי הַחוֹב בַּבֵּינוֹנִית וּכְתוּבַּת אִשָּׁה בַּזִיבּוֹרִית. אָמַר רִבִּי יוֹסֵי בֵּירִבִּי בּוּן. כָּאן בְּיָתוֹם גָּדוֹל. כָּאן בְּיָתוֹם קָטוֹן. “If she had compromised her ketubah, she shall not be able to collect without an oath,” etc. 187The Halakhah is repeated in Giṭṭin 5:3, Šebuot 7:9. Rebbi Joḥanan said in the name of Rebbi Yannai: One pays from an orphan’s property only a document on which interest is due188To preserve the orphan’s property. In the Babli, ‘Arakhin 22a, this opinion is ascribed to Rav Assi., and some say189In the almost parallel text in Šebuot 7:9, this is attributed to R. Nathan [who is called “some say” in the Babli (Horaiot 13b)]; in the Babli (loc. cit.) it, together with R. Yannai’s explanation, appears in R. Joḥanan’s name., also a woman’s ketubah. Rebbi Yannai said, because of her sustenance. Rebbi Mattaniah said, who is worried about sustenance? Rebbi Simeon! Since Rebbi Simeon said, it depends on the collection190Mishnah 11:2 states that a married woman, for whose upkeep the husband is responsible, and whose husband does not fulfill his support duty, may sell from the estate without court supervision. The same holds for the estate after the husband’s death as long as the ketubah was not paid. R. Simeon grants this right only to the definitively married woman and the wife who becomes a widow after definitive marriage, but not to the preliminarily married who cannot claim support but only ketubah if widowed or divorced. Mishnah 11:1 gives the estate the right to the widow’s earnings in exchange for the support; it is held that R. Simeon thinks that, in general, the amount needed for her support is greater than her prospective earnings (Babli loc. cit.).. What about it? For attraction, that everybody should jump to marry her191Since in those times a single woman had few possibilities of earning a living, if the heirs were not her children she needed the ketubah as dowry to attract a new husband.. Some say, also for robbery and torts192If the father had been found guilty of robbery or causing damage but died before he paid the sums assessed by the court.. Rebbi Yose said, we stated both of these. Robbery from the following: “If it was mortgageable, he has to pay.193Mishnah Baba Qama 10:1: “If somebody robbed and used the proceeds to feed his children, [if the father died] they do not have to pay. But if it was mortgageable [real estate], they have to pay.”” For torts from the following194Mishnah Giṭṭin 5:2.: “One pays from an orphan’s property only from the least valuable.195An estate’s real estate holdings are classified by their values per unit of area. It is assumed that the higher the unit value, the easier it is to sell the property. The debtor in general will try to satisfy his obligations with real estate of the lowest quality. The property which per unit area is valued highest is called עידִית “elite”, the average בֵּינוֹנִית “medium”, and the lowest זִיבּוֹרִית “stony field”. These categories are not absolute; they refer to the holdings of an individual.” So is the Mishnah: One pays for torts from an orphan’s property only from the least valuable196This statement was not discussed by J. N. Epstein in his treatment of כֵּינִי מַתְנִיתָא (cf. Note 199). The statement should not be considered as emendation. A simple reading of the text will require that the statement apply to all cases in which an orphan’s real estate is to be alienated. In the opinion of both Talmudim (Giṭṭin 5:1, Babli 48b–50a; Baba meṣi‘a 9:14, 12b 1. 11) rabbinic practice demands that tort judgments have to be satisfied by best quality, financial debts by medium quality, and ketubah by lowest quality. In the opinion of most authorities, biblical law requires only minimal quality for the settlement of financial obligations. The rabbinic upgrading was a necessity to make it easier for people to get a loan. Since this argument is irrelevant for orphans, one does not need the Mishnah to know that mortgage debts paid by an estate are settled by low quality real estate. Where the Mishnah is really needed is payment for torts for which (Ex. 22:4) “the best of his fields or the best of his vineyards” are required. The statement therefore should be read: One pays even for torts from an orphan’s property only from the least valuable; cf. Tosaphot 84a, s. v.לכתובת אשה.. But was it not stated: If the son took his father’s place, one estimates torts from the most valuable land, creditors from average quality, and a woman’s ketubah from the least valuable197The rules for the adult heir are the same as they would have been for the bequeather.. Rebbi Yose ben Rebbi Abun said, here197The rules for the adult heir are the same as they would have been for the bequeather. about an adult orphan, there about an underage orphan.