Ketubot 81
יוֹרְשֶׁיהָ יוֹרְשֵׁי כְּתוּבָּתָהּ חַיָּיבִין בִּקְבוּרָתָהּ. אָמַר אַבָּיֵי, אַף אֲנַן נָמֵי תְּנֵינָא: אַלְמָנָה נִיזּוֹנֶת מִנִּכְסֵי יְתוֹמִין, וּמַעֲשֵׂה יָדֶיהָ שֶׁלָּהֶן, וְאֵין חַיָּיבִין בִּקְבוּרָתָהּ. יוֹרְשֶׁיהָ יוֹרְשֵׁי כְתוּבָּתָהּ חַיָּיבִין בִּקְבוּרָתָהּ, וְאֵיזוֹהִי אַלְמָנָה שֶׁיֵּשׁ לָהּ שְׁנֵי יוֹרְשִׁין? הֱוֵי אוֹמֵר: זוֹ שׁוֹמֶרֶת יָבָם.
her heirs, i.e., the heirs of her marriage contract, are obligated in her burial. This indicates that her husband’s heirs, who inherit her marriage contract, must attend to her burial. Abaye said: We too learn in a mishna (95b): A widow is sustained from the property of the orphans, and her earnings are theirs, and they are not obligated in her burial. Instead, her heirs, the heirs of her marriage contract, are obligated in her burial. And who is the widow who has two sets of heirs, necessitating the ruling that only the heirs of her marriage contract are obligated in her burial? You must say that this is a widow waiting for her yavam, as the yavam inherits her marriage contract.
אָמַר רָבָא, וְלֵימָא: אָח אֲנִי יוֹרֵשׁ. אִשְׁתּוֹ אֵין אֲנִי קוֹבֵר. אֲמַר לֵיהּ אַבָּיֵי: מִשּׁוּם דְּבָאִין עָלָיו מִשְּׁנֵי צְדָדִין: אִם אָחִיו יוֹרֵשׁ — יִקְבּוֹר אֶת אִשְׁתּוֹ. אִם אֵינוֹ קוֹבֵר אֶת אִשְׁתּוֹ — יִתֵּן כְּתוּבָּתָהּ.
Rava said: But let the yavam say: I inherit my brother, and I am therefore entitled to this marriage contract as my brother’s heir, while his wife I am not obligated to bury, as I have no connection to her. Abaye said to him: This claim is not valid because they come upon him from two sides, by force of two complementary claims: If he inherits his brother he should inherit his duties as well as his rights, and he should bury his wife. If he does not bury his wife, as he does not wish to take his brother’s place, he should give her marriage contract to her.
אֲמַר לֵיהּ, הָכִי קָא אָמֵינָא: אָח אֲנִי יוֹרֵשׁ, אֶת אִשְׁתּוֹ אֵין אֲנִי קוֹבֵר. וְאִי מִשּׁוּם כְּתוּבָּה — לֹא נִיתְּנָה כְּתוּבָּה לִגָּבוֹת מֵחַיִּים.
Rava said to him: I say as follows: The yavam claims that I inherit my brother, and his wife I will not bury, as this is not my responsibility. And if the brother should be responsible due to her marriage contract, a marriage contract cannot be collected during the husband’s lifetime but only after his death. The yavam is the first husband’s replacement, as he is prepared to perform levirate marriage with the woman, and therefore she is not entitled to her marriage contract, which means he is also not obligated to bury her. This assumption that a marriage contract may not be claimed during the husband’s lifetime is derived from a close reading of the wording of the marriage contract, which states: When you may marry another you may claim this marriage contract, which indicates that if the woman is unable to marry another man because her husband is still alive she is not entitled to her marriage contract.
מַאן שָׁמְעַתְּ לֵיהּ דְּאִית לֵיהּ מִדְרַשׁ כְּתוּבָּה — בֵּית שַׁמַּאי. וְשָׁמְעִינַן לְהוּ לְבֵית שַׁמַּאי דְּאָמְרִי: שְׁטָר הָעוֹמֵד לִגְבּוֹת כְּגָבוּי דָּמֵי!
The Gemara asks: Who did you hear who is of the opinion that one expounds the marriage contract and infers halakhot from its exact language, like expositions from the Torah? It is the opinion of Beit Shammai, and yet we have heard that Beit Shammai say a document that is ready to be collected is considered collected. Here too, it should be considered as though she had already claimed her marriage contract, and he cannot claim to be acting as his brother’s heir.
דִּתְנַן: מֵתוּ בַּעֲלֵיהֶן עַד שֶׁלֹּא שָׁתוּ — בֵּית שַׁמַּאי אוֹמְרִים: נוֹטְלוֹת כְּתוּבָה וְלֹא שׁוֹתוֹת, וּבֵית הִלֵּל אוֹמְרִים: אוֹ שׁוֹתוֹת אוֹ לֹא נוֹטְלוֹת כְּתוּבָה.
The proof of this is as we learned in a mishna (Sota 24a): If the husbands of women suspected of being unfaithful died before their wives drank from the bitter waters in accordance with the halakha of a sota, and it was never established whether they had engaged in relations with another man, Beit Shammai say: They take the marriage contract and do not drink, and Beit Hillel say: Either they drink or they do not take the marriage contract.
אוֹ שׁוֹתוֹת?! ״וְהֵבִיא הָאִישׁ אֶת אִשְׁתּוֹ אֶל הַכֹּהֵן״ אָמַר רַחֲמָנָא, וְלֵיכָּא! אֶלָּא: מִתּוֹךְ שֶׁלֹּא שׁוֹתוֹת — לֹא נוֹטְלוֹת כְּתוּבָה.
The Gemara digresses to express puzzlement at the wording of this mishna: Either they drink? How can they drink the bitter waters? The Merciful One states: “Then shall the man bring his wife to the priest” (Numbers 5:15), and there is no way to fulfill that verse after the husband has died. Rather, Beit Hillel’s ruling should be understood as follows: Since they do not drink, as they have no husband who can compel them to drink the waters, they do not take the marriage contract, in case they were in fact unfaithful.
בֵּית שַׁמַּאי אוֹמְרִים: נוֹטְלוֹת כְּתוּבָה וְלֹא שׁוֹתוֹת. וְאַמַּאי? סְפֵיקָא הוּא: סָפֵק זַנַּאי סָפֵק לָא זַנַּאי — וְקָאָתֵי סָפֵק וּמוֹצִיא מִידֵי וַדַּאי.
That mishna stated that Beit Shammai say: They take the marriage contract and do not drink. But why do they collect the marriage contract? It is a case of uncertainty: Perhaps she committed adultery; perhaps she did not commit adultery. If she was unfaithful she is not entitled to the marriage contract, and yet, although her position cannot be verified, Beit Shammai maintain that her uncertain claim comes and supersedes the certain claim of the heirs, as they are certainly the rightful heirs of their father.
קָסָבְרִי בֵּית שַׁמַּאי: שְׁטָר הָעוֹמֵד לִגְבּוֹת — כְּגָבוּי דָּמֵי.
It must therefore be concluded that Beit Shammai maintain: A document that is ready to be collected is considered collected. Consequently, the sum of the marriage contract is already considered in the woman’s possession, which means that when the heirs do not wish to pay the sum of the marriage contract they are actually trying to claim money due to an uncertainty.
וְהָא בָּעֵינַן: ״כְּשֶׁתִּנָּשְׂאִי לְאַחֵר תִּטְּלִי מַה שֶּׁכָּתוּב לִיכִי״, וְלֵיכָּא?
The Gemara questions the earlier statement that the marriage contract may not be collected during the husband’s lifetime due to the exposition of the language of the document: But even if the language of a marriage contract is not expounded, the simple meaning of its words indicates that she may not claim it during the lifetime of the yavam, as we require the fulfillment of the clause: When you may marry another you may take that which is written to you, and this is not the case here, as the yevama may not marry anyone else before she takes part in ḥalitza. How, then, can the two claims come upon him, as Abaye suggested?
אָמַר רַב אָשֵׁי: יָבָם נָמֵי כְּאַחֵר דָּמֵי.
Rav Ashi said: The yavam is also considered like another man, and it is as though she were about to marry another. Therefore, she is entitled to the marriage contract.
שְׁלַח לֵיהּ רָבָא לְאַבָּיֵי בְּיַד רַב שְׁמַעְיָה בַּר זֵירָא: וּמִי נִתְּנָה כְּתוּבָּה לִגָּבוֹת מֵחַיִּים?
The above discussion took place when Abaye and Rava were learning this halakha together. Sometime later, Rava sent Abaye the following related difficulty by way of Rav Shemaya bar Zeira: And can the marriage contract of a yevama be collected during his lifetime?
וְהָתַנְיָא, רַבִּי אַבָּא אוֹמֵר, שָׁאַלְתִּי אֶת סוֹמְכוֹס: הָרוֹצֶה שֶׁיִּמְכּוֹר בְּנִכְסֵי אָחִיו, כֵּיצַד הוּא עוֹשֶׂה? אִם כֹּהֵן הוּא — יַעֲשֶׂה סְעוּדָה וִיפַיֵּיס. אִם יִשְׂרָאֵל הוּא — מְגָרֵשׁ בְּגֵט וְיַחְזִיר.
But isn’t it taught in a baraita: Rabbi Abba says: I asked Sumakhos: With regard to a yavam who wants to sell his brother’s property but is unable to do so because all his brother’s possessions are mortgaged to the yevama, how can he proceed? He replied: If he is a priest, who is prohibited from remarrying his divorced wife, he should prepare a feast for his wife after yibbum has been performed, and during the feast he should persuade her to allow him to sell the late brother’s property. If he is a regular Israelite, who may remarry his divorced wife, he can divorce her with a bill of divorce, at which point he is obligated to pay her only the sum of her marriage contract, and the rest of the property is then no longer mortgaged for it. While they are divorced he may sell the property and subsequently remarry her.
וְאִי סָלְקָא דַּעְתִּין נִתְּנָה כְּתוּבָּה לִגָּבוֹת מֵחַיִּים, נְיַיחֵד לַהּ שִׁיעוּר כְּתוּבָּה, וְהַשְּׁאָר לִיזַבֵּין! וּלְטַעְמָיךְ, וְלוֹתְבַהּ מִמַּתְנִיתִין: לֹא יֹאמַר לָהּ הֲרֵי כְּתוּבָּתִיךְ מוּנַּחַת לִיךְ עַל הַשֻּׁלְחָן, אֶלָּא כׇּל נְכָסָיו אַחְרָאִין לִכְתוּבָּתָהּ?!
And if it enters our mind that a marriage contract can be collected during his lifetime, why is all this necessary? Let him set aside for her part of the property that corresponds to the amount of the marriage contract, and the rest let him sell. Abaye replied: And according to your reasoning, rather than asking this question based on a baraita, let him raise this difficulty from the mishna, which teaches that he may not say to her: Your marriage contract is placed on the table for you. Rather, all his property is mortgaged for her marriage contract. Why can’t he designate property equivalent to the sum of her marriage contract and sell the rest?
הָתָם עֵצָה טוֹבָה קָא מַשְׁמַע לַן. דְּאִי לָא תֵּימָא הָכִי, סֵיפָא דְּקָתָנֵי: וְכֵן לֹא יֹאמַר אָדָם לְאִשְׁתּוֹ ״הֲרֵי כְּתוּבָּתִיךְ מוּנַּחַת לִיךְ עַל הַשֻּׁלְחָן״, אֶלָּא כׇּל נְכָסָיו אַחְרָאִין לִכְתוּבַּת אִשְׁתּוֹ — אִי בָּעֵי לֵיהּ לְזַבּוֹנֵי, הָכָא נָמֵי דְּלָא מָצֵי מְזַבֵּין?! אֶלָּא עֵצָה טוֹבָה קָמַשְׁמַע לַן, הָכָא נָמֵי עֵצָה טוֹבָה קָא מַשְׁמַע לַן,
The Gemara answers: The tanna in the mishna there teaches us good advice, i.e., that one should not do so ab initio, so as to ensure that the amount set aside for her marriage contract is not lost, which would necessitate writing a new marriage contract. However, it should not be inferred from the mishna that it is prohibited to do so. As, if you do not say so, that it is merely good advice, consider the latter clause of the mishna, which teaches: And similarly, a man may not say to his wife: Your marriage contract is placed on the table. Rather, all his property is mortgaged for her marriage contract. If he wants to sell, here too, may he not sell? Rather, in that case the tanna teaches us good advice, and therefore here too, with regard to a yevama, he teaches us good advice.
אֶלָּא, דְּרַבִּי אַבָּא קַשְׁיָא? דְּרַבִּי אַבָּא נָמֵי לָא קַשְׁיָא, מִשּׁוּם אֵיבָה.
The Gemara asks: But if so, the question is raised once again, as the statement of Rabbi Abba said in the name of Sumakhos is difficult. Why is it necessary for the husband to divorce his wife when he can set aside the sum of her marriage contract? The Gemara answers: That teaching of Rabbi Abba is also not difficult, as the reason one may not do so is not that he cannot designate a sum as her marriage contract but due to enmity. If he were to set aside a certain portion for her marriage contract, she would perceive this as a sign that he desires to be rid of her. If he divorces and remarries her, she would realize it is only a ploy to allow him to sell the property and does not indicate his desire to divorce her.
הָהוּא גַּבְרָא דִּנְפַלָה לֵיהּ יְבָמָה בְּפוּמְבְּדִיתָא, בָּעֵי אֲחוּהּ לְמִפְסְלַהּ (לַהּ) בְּגִיטָּא מִינֵּיהּ.
The Gemara relates: A certain man had a yevama who happened before him for levirate marriage in the city of Pumbedita. His brother wanted to disqualify her from him by means of a bill of divorce, as the halakha is that if one of the potential yevamin gives the yevama a bill of divorce she may no longer enter into levirate marriage with the others.
אֲמַר לֵיהּ: מַאי דַּעְתָּיךְ — מִשּׁוּם נִכְסֵי? אֲנָא בְּנִכְסֵי פָּלֵיגְנָא לָךְ.
The brother who wished to perform levirate marriage said to him: What is your opinion? Why are you doing this? Is it due to the property, as you are jealous that his property will belong to me, in accordance with the halakha that the brother who performs levirate marriage inherits the late brother’s property, whereas if the yevama receives ḥalitza or a bill of divorce all the brothers share the inheritance equally? I will divide the property with you. Upon hearing this, the brother consented to him performing levirate marriage. However, when he married the woman, the husband refused to give his brother anything, and the case came before the court.
אָמַר רַב יוֹסֵף: כֵּיוָן דַּאֲמוּר רַבָּנַן לָא לִיזַבֵּין, אַף עַל גַּב דְּזַבֵּין — לָא הֲוָה זְבִינֵיהּ זְבִינֵי. דְּתַנְיָא: מִי שֶׁמֵּת וְהִנִּיחַ שׁוֹמֶרֶת יָבָם, וְהִנִּיחַ נְכָסִים בְּמֵאָה מָנֶה, אַף עַל פִּי שֶׁכְּתוּבָּתָהּ אֵינָהּ אֶלָּא מָנֶה — לֹא יִמְכּוֹר, שֶׁכׇּל נְכָסָיו אַחְרָאִין לִכְתוּבָּתָהּ.
Rav Yosef said: Since the Sages have said that one may not sell the property of a widow waiting for her yavam before marrying her, although he sold it, his sale is not a valid sale. So too, his promise to give half the property to his brother, which is equivalent to a sale in this case, is of no consequence. As it is taught in a baraita: With regard to one who died and left a widow waiting for her yavam and also left behind property worth the value of one hundred maneh, equivalent to ten thousand dinars, although her marriage contract is worth only one maneh, or one hundred dinars, the yavam may not sell any part of his possessions, as all of his property is mortgaged for her marriage contract. The Sages prohibited him from selling it. Therefore, if he did so the transaction is void.
אֲמַר לֵיהּ אַבָּיֵי: וְכׇל הֵיכָא דַּאֲמוּר רַבָּנַן לָא לִיזַבֵּין — אַף עַל גַּב דְּזַבֵּין לָא הֲוָה זְבִינֵיהּ זְבִינֵי? וְהָתְנַן: בֵּית שַׁמַּאי אוֹמְרִים תִּמְכּוֹר, וּבֵית הִלֵּל אוֹמְרִים לֹא תִּמְכּוֹר, אֵלּוּ וְאֵלּוּ מוֹדִים שֶׁאִם מָכְרָה וְנָתְנָה — קַיָּים. שַׁלְחוּהָ לְקַמֵּיהּ דְּרַבִּי חֲנִינָא בַּר פַּפֵּי, שַׁלְחַהּ: כִּדְרַב יוֹסֵף.
Abaye said to Rav Yosef: And anywhere that the Sages said that one may not sell, is it the halakha that although he sold, his sale is no sale? But didn’t we learn in the mishna (78a) with regard to a betrothed woman selling property: Beit Shammai say: She may sell, and Beit Hillel say: She may not sell; both these, Beit Shammai, and those, Beit Hillel, agree that if she sold it or gave it away, the transaction is valid? Evidently, even Beit Hillel agree that despite the violation of the Sages’ injunction, the sale is valid. Abaye therefore rejects Rav Yosef’s ruling. They sent this problem before Rabbi Ḥanina bar Pappi, who sent back the following reply: The halakha is in accordance with the opinion of Rav Yosef.
אָמַר אַבָּיֵי: אַטּוּ רַבִּי חֲנִינָא בַּר פַּפֵּי כִּיפֵי תְּלָה לַהּ? שַׁלְחוּהָ לְקַמֵּיהּ דְּרַב מִנְיוֹמֵי בְּרֵיהּ דְּרַב נְחוּמִי, שַׁלְחַהּ: כִּדְאַבָּיֵי, וְאִי אָמַר בַּהּ רַב יוֹסֵף טַעְמָא אַחֲרִינָא שִׁלְחוּ לִי.
Abaye said in response: Is that to say that Rabbi Ḥanina bar Pappi has hung jewelry upon it, i.e., this ruling? His blunt declaration that the halakha is in accordance with Rav Yosef’s opinion without a logical explanation adds nothing to the discussion, and his decision should be rejected. They sent this inquiry before Rav Minyumi, son of Rav Naḥumi, who sent back the following written reply: The halakha is in accordance with the opinion of Abaye, but if Rav Yosef states a different reason for it, send his reasoning to me and I will reconsider the matter.
נְפַק רַב יוֹסֵף דָּק וְאַשְׁכַּח דְּתַנְיָא: הֲרֵי שֶׁהָיָה נוֹשֶׁה בְּאָחִיו, וּמֵת וְהִנִּיחַ שׁוֹמֶרֶת יָבָם, לֹא יֹאמַר: הוֹאִיל וְשֶׁאֲנִי יוֹרֵשׁ — הֶחְזַקְתִּי, אֶלָּא מוֹצִיאִין מִיָּבָם, וְיִקַּח בָּהֶן קַרְקַע וְהוּא אוֹכֵל פֵּירוֹת.
Rav Yosef went, examined the mishnayot carefully, and found the following source for his opinion. As it is taught in a baraita: If one claimed money from his brother that he had previously lent him, and then the lender died and left behind a widow waiting for her yavam, then the yavam who borrowed money may not say: Since I inherit my brother’s property by means of the yevama, I may also take possession of the debt, and I do not have to restore it to the other brothers. Rather, one appropriates the sum of the debt from the yavam, and he purchases land with it for the woman’s marriage contract, and he eats the produce. This serves as proof for Rav Yosef’s opinion that a yavam may not sell his brother’s property or take possession of a debt he owed his brother.
אֲמַר לֵיהּ אַבָּיֵי: דִּלְמָא דְּטָבָא לֵיהּ עֲבַדוּ לֵיהּ. אֲמַר לֵיהּ: תַּנָּא תָּנֵי מוֹצִיאִין, וְאַתְּ אָמְרַתְּ דְּטָבָא לֵיהּ עֲבַדוּ לֵיהּ?
Abaye said to him: Perhaps they did for him that which is good for him. In other words, the baraita that states that one should purchase land and eat the produce is merely good advice to prevent the money from being lost. Rav Yosef said to him: The tanna teaches: One appropriates, i.e., against his will, and you say that they did for him that which is good for him? The language indicates that this is an obligation, not a matter of advice.
הֲדוּר שַׁלְחוּהָ קַמֵּיהּ דְּרַב מִנְיוֹמֵי בְּרֵיהּ דְּרַב נְחוּמִי. אֲמַר לְהוּ: הָכִי אָמַר רַב יוֹסֵף בַּר מִנְיוֹמֵי אָמַר רַב נַחְמָן: זוֹ אֵינָהּ מִשְׁנָה.
They once again sent this question before Rav Minyumi, son of Rav Naḥumi. He said to them: So said Rav Yosef bar Minyumi that Rav Naḥman said: This baraita is not a mishna and therefore is not authoritative. Consequently, no proof may be adduced from it.
מַאי טַעְמָא? אִילֵּימָא מִשּׁוּם דְּהָווּ לְהוּ מִטַּלְטְלִי, וּמִטַּלְטְלִי לִכְתוּבָּה לָא מְשַׁעְבְּדִי — דִּלְמָא רַבִּי מֵאִיר הִיא, דְּאָמַר: מִטַּלְטְלִי מְשַׁעְבְּדִי לִכְתוּבָּה.
The Gemara inquires: What is the reason that this baraita is rejected? If we say it is because the money he owes is considered movable property, as it is not present, and movable property is not mortgaged to a marriage contract, as only land can be mortgaged for this purpose, such an argument does not negate the baraita. Perhaps it is in accordance with the opinion of Rabbi Meir, who said that movable property is mortgaged to a marriage contract.
וְאֶלָּא — מִשּׁוּם דְּאָמַר לַהּ: אַתְּ לָאו בַּעֲלַת דְּבָרִים דִּידִי אַתְּ.
Rather, the reason for doubting the reliability of the baraita is because he says to her: You are not my litigant. There is no legal dispute between the man and the yevama. He claims that she is not a party to this suit, as he owes money to his late brother. Therefore, she cannot claim the money from him by arguing that it is mortgaged for her marriage contract.
