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Babylonian Talmud: Tractate Kethuboth

Folio 56a

— The fact, however, is that both1  follow [the rule of] assumption; and he who stated that the halachah [was so]2  was well justified, [while in respect of] him who stated that the halachah was not [so],3  [it may be explained that] here4  also [the ruling is based on] an assumption, that the man's object5  [it is assumed] was the formation of a mutual attachment,6  and such attachment has indeed been formed.7

R. Hanina8  once sat in the presence of R. Jannai when he stated: The halachah is in agreement with R. Eleazar b. Azariah. [The Master] said to him, 'Go Out' read your Biblical verses outside;9  the halachah is not in agreement with R. Eleazar b. Azariah'.

R. Isaac b. Abdimi stated in the name of our Master:10  The halachah is in agreement with R. Eleazar b. Azariah. R. Nahman stated in the name of Samuel: The halachah is in agreement with R. Eleazar b. Azariah.

R. Nahman in his own name, however, stated that the halachah was not in agreement with R. Eleazar b. Azariah, while the Nehardeans stated in the name of R. Nahman that the halachah was in agreement with R. Eleazar b. Azariah. And though R. Nahman uttered a curse, proclaiming, 'Such and such a fate shall befall every judge who gives a ruling in agreement with the opinion of R. Eleazar b. Azariah', the halachah is nevertheless in agreement with R. Eleazar b. Azariah.

And the halachah in practice is in accordance with the Opinion of R. Eleazar b. Azariah.

Rabin enquired: What is the law11  where the bride only entered the bridal chamber but there was no intercourse? Is the kinyan12

    effected by the affectionate attachment in the bridal chamber13  or is the kinyan effected by the affectionate attachment of the intercourse?14  — Come and hear what R. Joseph learnt: 'Because he assigned15  it to her only on account of the affectionate attachment of the first night'. Now, if you grant that it is the affectionate attachment in the bridal chamber that effects the kinyan it was correct for him to state 'the first night'. If, however, you contend that it is the affectionate attachment of the intercourse that effects the kinyan, does this [it may be objected, first] take place on the first night only and not subsequently? — What then [do you suggest]? The [affectionate attachment in the] bridal chamber? Is the bridal chamber [it may be retorted] entered16  in the night only and not in the day time!17  — But according to your argument does intercourse take place at night and not in the day time? Surely Raba stated: If one was in a dark room [intercourse] is permitted!18  — This is no difficulty. He19  may have taught us that it is proper conduct20  that intercourse should be at night; but [if it is maintained that it is the affectionate attachment in the] bridal chamber [that effects the kinyan] the difficulty arises!21  — [The assumption that kinyan is effected in the] bridal chamber also presents no difficulty. Since, usually, the bridal chamber is a prelude to22  intercourse he taught us that it was proper that [it should be entered] at night.

R. Ashi enquired: What is the law23  where [a bride] entering the bridal chamber became menstruous?24  If you should find [some reason] for saying that it is the affectionate attachment in the bridal chamber that effects the kinyan25  [the question still remains whether this applies only to] a bridal chamber that is a prelude26  to intercourse but not to a bridal chamber that is no prelude to intercourse,27  or is there perhaps no difference?28  — This remains unanswered.

R. JUDAH SAID: IF [A HUSBAND] WISHES HE MAY WRITE OUT FOR A VIRGIN etc. Does R. Judah hold the opinion that a quittance is written?29  Surely we learned: If a person repaid part of his debt, R. Judah said, he30  must exchange [the bond for another].31  R. Jose said: He32  must write a quittance for him!33  — R. Jeremiah replied: [Here it is a case] where the quittance is [written] within.34  Abaye replied: You may even say [that here it is a case] where the quittance is not written within.35  There36  it is quite correct37  [to disallow the use of a quittance, since the debtor] had undoubtedly repaid him38  and it is possible that the quittance might be lost and that he38  would produce the bond and thus collect [the paid portion of the debt] a second time. Here,39  however, did he indeed give her anything?40  It is a mere statement that she addressed to him.41  If, then, he preserved [the quittance] well and good;42  and if he did not preserve it, well, it is he himself who is the cause of his own loss. One can well understand why Abaye did not give the explanation as R. Jeremiah, since it was not stated43  that the quittance was entered within,44  but why did not R. Jeremiah give the same explanation as Abaye? — The quittance here45  is forbidden as a preventive measure against the [erroneous permitting of] a quittance elsewhere.46

The reason [for the husband's exemption47  is apparently] because she gave him a quittance in writing.48  If, however, [she had surrendered a portion of her kethubah] by word of mouth only [he would] not [have been exempt];49  but why? This,45  surely, is a monetary matter, and R. Judah was heard to rule that in a monetary matter one's stipulation50  is valid. For was it not taught: If a man said to a woman, 'Behold thou art consecrated unto me51  on condition that thou shalt have no [claim] upon me [for] food, raiment or conjugal rights', she is consecrated,52  but the stipulation is null;53  so R. Meir. R. Judah, however, said: In respect of monetary matters his stipulation is valid?54  — R. Judah is of the opinion that the kethubah is a Rabbinical enactment,55  and the Sages56  have applied to their enactments57  higher restrictions than to those of the Torah.58  But what of the case of usufruct59  which is a Rabbinical law and the Rabbis nevertheless did not apply any restriction to it;60  for we learned: R. Judah said, He61  may for all time eat the fruit of the fruit62  unless he wrote out for her [the undertaking], 'I have no claim whatsoever63  upon your estates and their produce and the produce of their produce for ever';64

To Part b

Original footnotes renumbered.
  1. Rah and R. Nathan.
  2. l.e., that it was in agreement with R. Eleazar b. Azariah.
  3. Cf. preceding note, mutatis mutandis.
  4. The statement supra against R. Eleazar b. Azariah.
  5. In promising his bride an additional sum in her kethubah.
  6. Between him and his bride.
  7. Even though no marriage has taken place. The woman is, therefore, entitled to the full sum she had been promised. Hence the statement (which has been ascribed to Rab) against the ruling of R. Eleazar b. Azariah.
  8. Following the reading of Ber. 30b BaH adds 'the Bible teacher'.
  9. [I.e., Go teach the Bible to children instead of venturing into the realms of the halachah. Bible instructions were given in a place 'outside' the academy].
  10. Rab (v. Rashi) or Rabbi, i.e., R. Judah the Patriarch (v. Tosaf. a.l. s.v. [H]). According to Tosaf, the speaker here was the first R. Isaac b. Abdimi who was a disciple of Rabbi (cf. Shab. 4ob) and a teacher of Rab (cf. B.B. 87a and Hul. 110a).
  11. According to R. Eleazar b. Azariah's views in our Mishnah.
  12. V. Glos. The legal and final union that may be regarded as marriage.
  13. Huppah v. Glos. And the bride is consequently entitled to the full amount of the statutory, and the additional kethuhah.
  14. And since this has not taken place the bride can only claim the statutory minimum.
  15. Lit., 'wrote'.
  16. Lit., 'there is'.
  17. Why then did R. Joseph mention 'night'?
  18. In the day time. V. infra 65b, Shab. 86a.
  19. R. Joseph. V. supra n. 5.
  20. Lit., 'the way of the earth'.
  21. V. supra n. 5.
  22. Lit., 'stands for'.
  23. Is the bride entitled to the additional jointure of her kethubah? Cf. supra p. 328, n. 9.
  24. The bridegroom dying before intercourse had taken place. Intercourse with a menstruant is Pentateuchally forbidden. (Cf. Lev. XVIII, 19).
  25. Cf. supra p. 328, n. 10.
  26. Lit., 'suitable'.
  27. Cf. p. 329, n. 12. The bride would consequently have no claim upon the additional sum she was promised.
  28. The bride being entitled in either case to the full amount.
  29. By a creditor to whom part of a debt was repaid; and consequently there is no need to exchange the bond for one in which the balance only is entered.
  30. The creditor.
  31. In which only the balance of the original debt is entered while the first bond is destroyed. The debtor cannot be compelled to accept a quittance which he would have 'to guard from mice' and the loss of which might involve him in a claim for the repayment of the full loan. It is more equitable that the creditor should change the bond.
  32. The creditor.
  33. B.B. 170b. Such a course is advantageous to the creditor, since a bond entitles its holder to seize any real estate which the debtor has sold or mortgaged after, but not before the date of his bond. Were a new bond for the balance to be written, the creditor would lose his right to seize any of the debtor's property that was sold or mortgaged between the date of the original bond and that of the new one. In the opinion of R. Jose the rights of the creditor must not be impaired, while in the opinion of R Judah equity demands that the debtor be not encumbered with the necessity of taking care of the quittance (cf. supra n. 6). How then could it be stated here that R. Judah allowed the writing of a quittance?
  34. I.e., is entered on the kethubah itself, so that the husband, unlike the debtor spoken of in B.B., has no need to preserve any document.
  35. Cf. supra n. 9.
  36. The case of the payment of the part of a debt.
  37. For R. Judah.
  38. The creditor.
  39. In our Mishnah.
  40. So MS.M. reading [H].
  41. She received no money at all from her husband.
  42. Lit., 'he preserved it'.
  43. In our Mishnah.
  44. V. supra p. 330, n. 9.
  45. The case of the kethubah.
  46. A debt, for instance, where R. Judah does not allow it (cf. supra p. 330, n. 6).
  47. From the payment of the part of the kethubah which his wife has surrendered (v. our Mishnah).
  48. Lit., 'she wrote for him'.
  49. Since our Mishnah speaks of writing.
  50. Even though it deprives a person from a right to which he is Pentateuchally entitled.
  51. The formula of marriage used by the bridegroom is, 'Behold thou art consecrated unto me by this ring according to the law of Moses and Israel'.
  52. Becomes his lawful wife.
  53. Since it is contrary to the law of the Torah. Cf Ex. XXI, 10.
  54. B.M 51a, 94a, B.B. 226b
  55. Not Pentateuchal.
  56. Sc. the Rabbis.
  57. In order to prevent laxity.
  58. The laws of the Torah, being universally respected, required no such additional restrictions.
  59. Melog property (v. Glos.) to the fruit of which a husband is entitled during his lifetime while the property itself remains the possession of his wife.
  60. A husband being allowed to surrender his right to the usufruct.
  61. A husband who renounced his claim to the fruit of melog property.
  62. The fruit produced by lands that were purchased out of the proceeds of the fruit of the original property.
  63. Lit., 'judgment and words'.
  64. Infra 83a.
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Kethuboth 56b

and it had been established that by 'writing'1  only saying was meant!2  — Abaye replied: All [married women] have a kethubah; not all, however, have fruit. In respect of what is usual the Rabbis have applied restrictions. In respect of what is not usual, however, the Rabbis have made no restrictions.

But what of the case of ass-drivers3  which is a common occurrence and the Rabbis have nevertheless applied no restrictions to it; for we learned: Where ass-drivers entered a town and one of them declared, 'My [produce] is new and that of my fellow is old' or 'Mine is not fit for use4  but that of my fellow is fit', they are not believed; but R. Judah said, They are believed!5  — Abaye replied: To any Rabbinical enactment of an absolute character6  the Rabbis have applied further restrictions, but to any Rabbinical enactment of uncertain origin7  the Rabbis have added no further restrictions. Raba replied: They8  relaxed the law in respect of demai.9

R. MEIR RULED … ANY MAN WHO … GIVE … LESS etc. The expression, 'WHO … GIVE … LESS' [implies]10  even [if the assignment remained a mere] stipulation.11  Thus it follows that he12  is of the opinion that the man's stipulation is void and that the woman receives [her full kethubah];13  yet since14  the man had said to her15  'You will have but a maneh',16  her mind is not at ease17  and his intercourse is regarded as an act of prostitution.18  But, surely, R. Meir was heard to rule that any stipulation19  which is contrary to what is written in the Torah is20  null and void, [from which it may be inferred,21  may it not, that if it is] but against a law of the Rabbis it is20  valid?22  — R. Meir holds the view that the kethubah is a Pentateuchal institution.

It was taught: R. Meir ruled, If any man assigns to a virgin23  a sum less than two hundred zuz or to a widow less than a maneh his marriage is regarded as24  an act of prostitution. R. Jose ruled: One is permitted [to contract such a marriage].25  R. Judah ruled: If the man wished he may write out for a virgin a bond for two hundred zuz while she writes26  for him, 'I have received from you a maneh'; and [he may write a bond] for a widow for a maneh while she writes26  for him, 'I have received from you fifty zuz'.27

Is R. Jose then of the opinion that 'one is permitted [to contract such a marriage]'?28  This surely is contrary [to the following:] A woman's kethubah may not be made [a charge on] movable property as a social measure.29  Said R. Jose: What social measure is this?30  Their31  price, surely, is not fixed and they deteriorate in value.32  Now, did not the first Tanna also say that [a kethubah] may not be made [a charge on movable property]?33  Must he34  not, consequently, have meant to say: This35  applies only where he36  accepted no responsibility;37  but where he accepted responsibility37  [the kethubah] may be made [a charge upon them].38  Thereupon came R. Jose to question: Even If he36  did accept responsibility how [could the kethubah be] made [a charge upon them]39  when their price, surely, is not fixed and they deteriorate in value.40  Now, if there,41  where the diminution in value [of the movables] is only a possibility,42  R. Jose provides against it, would he not even more so [adopt a similar course] here43  where the diminution [of the kethubah] is a certainty? — How now! There44  she did not know it45  to think of surrendering her rights;46  but here she was well aware [of the fact]47  and has definitely surrendered her rights.

The sister of Rami b. Hama was married to R. Iwia

- To Next Folio -

Original footnotes renumbered.
  1. In R. Judah's statement.
  2. Lit., 'what writes? says'. Which proves that, according to R. Judah no restrictions were made even in the case of a Rabbinical law.
  3. About whose imported produce it is uncertain whether it has been tithed (v. Glos. s.v. Demai). Such produce is only Rabbinically forbidden.
  4. I.e., it had not been duly tithed.
  5. Demai IV, 7, v. supra p. 131 notes. Which shows that, according to R. Judah, no restriction was imposed even on a Rabbinically forbidden produce. (Cf. supra note 8).
  6. Lit., 'a certainty of their words'.
  7. As in the case of demai where the prohibition is due to the uncertainty whether or not the produce had been tithed.
  8. The Rabbis, though they applied restriction even in cases where their prohibition was due merely to an uncertainty.
  9. V. Glos. The uncertainty here is so great, since most people even among the 'amme ha-'arez (v. Glos. s.v. 'Am ha-'arez) do give tithe, that no restrictions were applied to it.
  10. Since the expression used is not 'if the virgin received less'.
  11. While the woman in fact receives the full amount of her kethubah.
  12. R. Meir.
  13. Cf. supra n. 2. Lit., 'and there is to her'.
  14. [Lit., 'and since'. The text is not smooth. MS.M. preserves a better reading 'but since she had (a full kethubah) what is the reason (of R. Meir)?' — Since he said to her etc.].
  15. The virgin who is entitled to two hundred zuz.
  16. One hundred zuz (v. Glos.).
  17. [Lit., 'her mind does not rest, rely upon', i.e., she contracted her marriage on the expectation of a kethubah of a smaller amount than the prescribed minimum.]
  18. [Since the marriage was not performed in accordance with the requirements of the law, it is regarded as an act of prostitution.]
  19. Lit., 'whoever makes a stipulation'.
  20. Lit., 'his stipulatlon'.
  21. Since he mentions the Torah only.
  22. As a kethubah is an enactment of the Rabbis (v. R. Judah's view supra 56a), why is the stipulation void?
  23. As her kethubah.
  24. Lit., 'behold this'.
  25. The stipulation being valid even if the woman's surrender of her right was only verbal.
  26. Contrary to the opinion of R. Jose, R. Judah maintains that a verbal stipulation or undertaking against a Rabbinical measure is of no validity.
  27. Half a maneh.
  28. I.e., one where the kethubah amounts to less than the prescribed minimum.
  29. Lit., 'because of making the world right'. Movable objects may be easily lost and do not provide a reliable security for the kethubah.
  30. Lit., 'there is in this'.
  31. Movable objects.
  32. While a kethubah must always amount to a legally fixed minimum.
  33. Wherein, then, does R. Jose differ from him?
  34. The first Tanna.
  35. That movable property provides no security for a kethubah.
  36. The husband.
  37. For the loss of the movable property.
  38. The possibility of deterioration in value being disregarded by the first Tanna.
  39. Movable objects.
  40. R. Jose is consequently of the opinion that it is not only against loss but also against a diminution in value that provision must be made.
  41. Where movable objects are assigned as a security.
  42. Lit., 'perhaps they diminish'.
  43. Where the husband definitely assigned no more than half of the legal maximum.
  44. V. supra note 14.
  45. That the value would be diminished.
  46. Lit., 'that she shall forgive' or 'surrender'.
  47. That her husband has contracted for a sum less than her due.
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