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Friday, 9 Iyar 5773 / April 19, 2013

Rambam - 3 Chapters a Day

Rambam - 3 Chapters a Day

Ishut - Chapter Fourteen, Ishut - Chapter Fifteen, Ishut - Chapter Sixteen

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Ishut - Chapter Fourteen

Halacha 1

The [obligation of] conjugal rights1 as prescribed by the Torah [is individual in nature], depending on the strength of each particular man and the [type of] work that he performs.

What is implied? Healthy men who are pampered and indulged, and who are not employed in labor that weakens their strength - but rather eat, drink and spend [the majority of their day] at home - should fulfill their conjugal duties every night.

[The following rules apply to] workers - e.g., tailors, weavers, construction workers and the like. If they work in the city [in which they live], they should fulfill their conjugal duties twice a week. If they work in another city, they should fulfill their conjugal duties once a week.

Donkey-drivers should fulfill their conjugal duties once a week. Camel-drivers should fulfill their conjugal duties once every thirty days. Seamen should fulfill their conjugal duties once every six months.

Students of the Torah should fulfill their conjugal duties once a week. [Their obligation is limited,] because the Torah weakens their strength. It is the practice of Torah scholars to engage in marital relations on Friday night.2

Halacha 2

A wife has the right to prevent her husband from making business trips except to close places, so that he will not be prevented from fulfilling his conjugal duties. He may make such journeys only with her permission.

Similarly, she has the prerogative of preventing him from changing from a profession that grants her more frequent conjugal rights to one that grants her less frequent rights - e.g., a donkey-driver who wishes to become a camel-driver, or a camel-driver who wishes to become a seaman.3

Students of the Torah may, however, depart for Torah study for two or three years without their wives' permission. Similarly, a wife cannot prevent a husband who is pampered and indulged from becoming a student of the Torah.

Halacha 3

A man [has the prerogative of] marrying several wives4 - even 100, whether at one time or one after the other. His wife may not object to this, provided he has the means to provide each [wife] with her subsistence, clothing and conjugal rights as befits her. He may not, however, compel his wives to live in the same courtyard. Instead, each one is entitled to her own household.5

Halacha 4

What are [his obligations with regard to his wives'] conjugal rights? [They are determined according to] the number [of wives he has.]

What is implied? If a worker has two wives, he is obligated to fulfill his duties towards each one once a week. If he has four wives, he is obligated to fulfill his duties towards each one once every two weeks. Similarly, a seaman who has four wives is obligated to fulfill his duties towards each one once every two years.

Therefore, our Sages6 commanded that a person should not marry more than four wives, although he has ample financial resources, so that he will be able to fulfill his conjugal obligations towards each one once a month.7

Halacha 5

When a man makes a vow requiring his wife to tell other people what he told her - or what she told him - of the jests and frivolities that a man and his wife will [occasionally] speak [in preparation for] marital relations, he must divorce [his wife] and pay her [the money due her by virtue of her] ketubah. For a woman may not [be compelled] to speak brazenly and tell others lascivious things.

Similarly, if a man makes a vow requiring his wife to take actions during marital relations to prevent conception, or if he makes a vow requiring her to act foolishly, [performing] acts that have no meaning and are merely foolishness,8 he must divorce [his wife] and pay her [the money due her by virtue of her] ketubah.

Halacha 6

When a man makes a vow causing marital relations with his wife to be forbidden, he is given a respite of one week.9 After that time, he must divorce [his wife] and pay her [the money due her by virtue of her] ketubah, or absolve his vow. [This ruling applies even if the man] is a seaman whose obligation towards conjugal duties is once every six months. [The rationale is that] since he took a vow, he has caused his wife distress, and she despairs [of ever resuming intimacy].

How can such a vow be effective? If he tells her: "Marital relations with me are forbidden for you," or he takes an oath not to engage in marital relations, his vow is of no consequence, and by taking an oath he violates the prohibition against taking a false oath, for he is obligated [by the Torah to engage in relations with her].10 If, however, he tells her, "The satisfaction of engaging in relations with you is forbidden to me," it is a [binding] vow, and he is forbidden to engage in relations with her.11 For a person should not be fed food that is forbidden to him.

Halacha 7

It is forbidden for a man to deprive his wife of her conjugal rights. If he transgresses and deprives her of these rights in order to cause her distress, he violates one of the Torah's negative commandments, as [Exodus 21:10] states: "Do not deprive [her] of her sustenance, garments or conjugal rights."12

If he becomes sick or his virility is weakened, and he is unable to engage in sexual relations, he is given a period of six months13- for [a woman is never required to wait] longer for her conjugal rights than this - in the hope that he recovers. Afterwards, the prerogative is hers [whether to remain married] or whether he must divorce her and pay her [the money due her by virtue of her] ketubah.

Halacha 8

A woman who withholds marital intimacy from her husband is called a moredet ("a rebel"). She is asked why she has rebelled. If she answers: "Because I am repulsed by him and I cannot voluntarily engage in relations with him," her husband should be compelled to divorce her immediately. For she is not like a captive, [to be forced] to engage in relations with one she loathes.14

[In such an instance, as part of] the divorce [settlement], she does not receive any of the money promised her in her ketubah.15 She is entitled to whatever remains of the possessions she brought into the marriage arrangement, both those for which her husband assumed responsibility and those for which he did not assume responsibility - i.e., nichsei m'log.16

She is not entitled to anything that belongs to her husband. She should remove even the shoe on her foot and her head-covering that he gave her and return them to him. [Similarly,] she should return to him any presents that he gave her. For he did not give them to her with the intent that she take them and [leave his home].

Halacha 9

[Different rules apply, however,] if she rebelled against her husband with the intent of causing him distress,17 saying: "I intend to cause him distress this way, because he did this or this to me," "...because he cursed me," "...because he has caused me strife," or the like, she is sent a messenger from the court, [who] tells her: "Take note. If you continue your rebellious conduct, you will forfeit your ketubah, even if it is worth one hundred maneh."18

Afterwards, announcements are made concerning her in the synagogues and the houses of study each day for four consecutive weeks,19 saying: "So and so has rebelled against her husband."20

Halacha 10

After the announcement has been made, the court sends her a messenger a second time. He tells her: "If you continue your rebellious conduct, you have forfeited your ketubah." If, nevertheless, she continues this conduct and does not retract, she is consulted by the court. [If she does not change her mind,] she then forfeits her ketubah and has no rights to a ketubah at all.21

She is not given a divorce until twelve months pass.22 During these twelve months, [her husband is] not [required] to provide for her subsistence. If she dies before being divorced, her husband inherits her [property].

Halacha 11

This is the sequence followed with regard to a woman who rebels [against her husband] in order to cause him distress. These laws apply even when the woman is in the niddah state or when she is ill and is not fit to engage in sexual relations. Similarly, they apply even when her husband is a seaman whose conjugal duties are only once in six months, and even when [her husband] has another wife.23

Halacha 12

Similarly, when the time comes for an arusah to enter nisu'in,24 and she refuses to do so, rebelling in order to cause [her husband] distress, she is considered to be one who rebels [and refuses to engage] in marital relations. Similarly, the above sequence is followed when a yevamah refuses to undergo yibbum in order to cause [her yavam] distress.25

Halacha 13

When this woman who rebels is divorced after twelve months without receiving [any of the money due her because of] her ketubah, she must also return everything that belongs to her husband.

With regard to the property that she brought to [the marriage arrangement] and what remains [of her trousseau, different rules apply].26 If she takes physical possession of these articles, they are not taken from her, but if her husband takes physical possession of them,27 they are not taken from him. Similarly, her husband is not held liable for anything that has been lost from her possessions for which he accepted responsibility.28 This is the law prescribed by the Talmud with regard to a woman who rebels [against her husband].

Halacha 14

There are geonim who say that in Babylonia different customs were followed with regard to a woman who rebels [against her husband].29These customs have not, however, spread throughout the majority of the Jewish community, and in most places within the Jewish community, there are many sages of stature who differ with them. [Therefore,] it is proper to follow the laws prescribed by the Talmud.

Halacha 15

[The following ruling applies when] a man rebels against his wife and says, "I will support her and provide her with her subsistence, but I will not be intimate with her, because she has become loathsome to me." He must increase her ketubah by the equivalent of 36 barleycorns worth of [pure] silver30 each week. They may remain married without engaging in relations for as long as she desires.31

Although her ketubah continues to increase, [her husband] also transgresses a negative commandment, for [Exodus 21:10] states: "Do not deprive [her of her... conjugal rights]." If the husband hates her, let him divorce her; causing her anguish, however, is forbidden.

Why is he not punished by lashes for [violating] this negative commandment? Because its [violation] does not involve a deed.32

Halacha 16

[The following rules apply when] a man and his wife come to court and he claims that his wife refuses to engage in marital relations, and she replies: "I follow the way of the world with him," or if she claims that he deprives her of her conjugal rights, and he replies that he "follows the way of the world with her." At first, a ban of ostracism is issued against anyone who denies his or her spouse marital intimacy and refuses to acknowledge the matter before the court.33

Afterwards, if acknowledgement is [still] not made, the couple are asked to enter into privacy in the presence of witnesses. If they do this, and yet the claims continue as before, a request is made of the defendant, and a compromise is made [as just] as the judge can make. It is, however, forbidden to engage in relations in the presence of others. For it is forbidden to engage in relations in the presence of any living being.

Halacha 17

When a woman becomes ill, [her husband] is obligated [to provide] medical treatment for her until she recovers. If the husband sees that her illness is prolonged, and he will be forced to spend much money treating her, he may tell her: "Here is the money due you by virtue of your ketubah. Either pay for your treatment from this money, or I will divorce you and pay you what is due you and abandon you." [Although] he is given this prerogative, it is not ethical to act in this manner.34

Halacha 18

[When a man's wife] is taken captive, he is obligated to redeem her. If he is a priest, [although] she has become forbidden to him,35 he must redeem her and have her returned to her father's home. If he was in another city, he must still provide for her until she is returned to her native locale. [Then] he must divorce her and pay her [the money due her by virtue of her] ketubah.

If her husband was an Israelite - who is permitted to remain married to a woman who was held captive36 - he must return her to her station as his wife, as she was previously.37 Afterwards, if he desires,38 he may divorce her, [provided] he pays her [the money due her by virtue of her] ketubah.

Halacha 19

A husband is not obligated to redeem his wife for more than her worth. Instead, [the laws applying] to her [redemption] are the same as with regard to others held captive.39

When her ransom exceeds [the money due her by virtue of] her ketubah, her husband is not given the prerogative of saying: "I will divorce her. Here is [the money due her by virtue of] her ketubah. Let her redeem herself." Instead, [if necessary,] he should be compelled to redeem her, even if her ransom is ten times [the value of] her ketubah - even if it is equivalent to all of his assets.

When does the above apply? On the first occasion [that she is held captive]. If, however, he redeems her and she is taken captive again, if he desires to divorce her he may divorce her, pay [her the money due her by virtue of] her ketubah, and [then] she must redeem herself.40

Halacha 20

When a man's wife is taken captive and he is abroad, the court expropriates his assets and sells them after announcements have been made,41 and redeems his wife as he would be required to.

Halacha 21

When a person causes his wife to be bound by a vow that requires him to divorce her42 and pay her [the money due her by virtue of] her ketubah, and she is taken captive after he causes her to be bound by this vow, he is not required to redeem her. For from the time he caused her to be bound by the vow, he was obligated to divorce her and pay her [the money due her by virtue of her] ketubah.43

Halacha 22

When a woman who is forbidden to [engage in relations] with her husband because of one of the Torah's prohibitions is taken captive, he is not obligated to redeem her.44 Instead, he must provide her with [the money due her by virtue of] her ketubah, and she must redeem herself.

[One might ask: Why is this instance different from the wife of a priest who is taken captive?] A woman who has been taken captive is forbidden to a priest, and yet he is obligated to redeem [his wife in such an instance]. [There is, however, a difference between the two instances. The priest's wife] was not forbidden to him beforehand. It is the prohibition stemming from her being taken captive that causes [their relationship to be forbidden].45

Halacha 23

When a man's wife dies, he is obligated to bury her and to have eulogies and lamentations performed as is the local custom. Even a poor Jewish man should provide at least two flutes46 and one woman to lament. If [her husband] is rich, [the funeral should be carried out] in a manner appropriate to his wealth.

If the social standing of [a man's wife] exceeded his own, he must have her buried in a manner appropriate to her social standing. For [when she marries,] a woman ascends to her husband's social standing [if his is higher than hers], but does not descend [to his, if her social standing surpasses his].47 [This principle applies] even after death.

Halacha 24

If a husband does not desire [to pay for] the burial of his wife, and another person voluntarily takes the initiative and has her buried, [the costs of the burial] should be expropriated from her husband against his will and given to the person [who arranged the burial].48 [The rationale is to prevent the body of a Jew] from being thrown to the dogs.

If a man is in another city when his wife dies, the court should expropriate his property and sell it without an announcement.49 The woman should be buried as appropriate to her husband's financial resources and his social standing or her social standing.

FOOTNOTES
1.

The very word onah - and its translation as "conjugal rights" - conveys a fundamental conception with regard to the Torah's conception of marital intimacy. Marital intimacy is not for the husband's sake, but rather for his wife's. Onah also means "respond." A man should be responding to his wife's desires and satisfying her wishes for closeness.

2.

See Hilchot Shabbat 30:14, where the Rambam states that marital relations are one of the expressions of oneg Shabbat, "Sabbath delight." (See also Hilchot De'ot 4:19, 5:4.)

3.

Ketubot 62b states that even if the other profession is more profitable, the prerogative is granted to the woman, for a woman values intimacy with her husband more than financial advancement.

4.

Yevamot 65a states that if it is the local custom for a man to have only one wife, a man may not deviate from that custom. In the Ashkenazic community, as ordained by the ban of Rabbenu Gershom, it is forbidden for a man to marry more than one wife. (See Shulchan Aruch (Even HaEzer 1:9-10).)

5.

The commentaries draw support for this law from the Biblical narrative (Genesis 31:33), which mentions that Jacob had separate tents for Leah, Rachel, Bilhah and Zilpah. (See also Chapter 13, Halachah 14.)

6.

Yevamot 65a.

7.

From this, it appears that the custom of engaging in sexual relations once a week was not the practice of Torah scholars alone.

8.

To fill up pitchers of water and dump them down the drain (Ketubot 7:3; Even HaEzer 76:12).

9.

In this time, it is hoped that he will change his mind and retract his vow.

10.

As mentioned in Chapter 12, Halachah 2, a husband is obligated by the Torah to give his wife conjugal rights. Once an obligation is imposed on a person by the Torah, he may not free himself of it by taking a vow or an oath.

11.

Since this vow does not forbid anything to the woman, but states instead, that her husband is prohibited from appreciating pleasure that results from relations with her, it can be effective.

12.

Rav Kapach notes that although this prohibition involves three rights, the Rambam mentions its violation only with regard to the denial of conjugal rights. He explains that with regard to her sustenance and garments, a woman can take legal recourse and sue for the money due. This, however, is not possible with regard to conjugal rights.

13.

The later authorities (Chelkat Mechokek 76:18; Beit Shmuel 76:17) quote the opinion in the Shiltei HaGiborim that states that if a man is afflicted with an ailment that will heal, his wife is required to remain married to him, despite the fact that the treatment will last longer than six months.

14.

The Maggid Mishneh and many other authorities differ with the Rambam on this point and maintain that a man should not be forced to divorce his wife even in such a situation. This view is followed by the Shulchan Aruch (Even HaEzer 77:2). Even those opinions that favor the Rambam's ruling emphasize that the court should seek to clarify that the woman is not making her statements because she fell in love with another man and seeks to end her previous marriage because of him.

15.

For, as implied by the Rambam's statements below, this money was promised to her only on the condition that she maintain the marriage relationship.

16.

Those authorities who differ with the Rambam regarding whether the husband is compelled to divorce his wife also differ with regard to this point. They maintain that even with regard to the possessions for which her husband accepted responsibility, the woman is granted only what she takes possession of. (See Maggid Mishneh; Ramah (Even HaEzer, loc. cit.).

17.

I.e., she is not necessarily interested in terminating the marriage, but rather in withholding marital relations as a means to communicate her position to her husband.

18.

A maneh is equivalent to 100 dinarim.

19.

The Shulchan Aruch (Even HaEzer 77:2) quotes the Rambam's wording. The Ramah, however, differs, stating that the announcement need be made only on four consecutive Sabbaths.

20.

The purpose of these announcements is obviously to shame her and to cause her to reconsider her course of behavior.

21.

I.e., she does not receive the fundamental requirement of the ketubah, nor any additional amount that her husband promised her (tos'fot ketubah).

22.

The Maggid Mishneh explains that, as a favor, the court requests the husband not to divorce his wife until this time has passed, for it is disgraceful for a Jewish couple to part because of strife. It is hoped that during the twelve months they are required to wait, they will resolve their differences.

There are opinions that state that in the present age, the husband is not required to wait an entire year and may instead divorce his wife immediately. Nevertheless, the majority of authorities do not accept this view (Ramah, loc. cit.).

According to the Rambam, during these twelve months, the husband has no financial responsibilities to his wife whatsoever. If she is held captive, he is not required to redeem her, and if he dies, she does not inherit her ketubah from his estate. Rabbenu Asher (as interpreted by the Tur, Even HaEzer 77) differs and maintains that during these twelve months, the woman's ketubah is still in effect. The Shulchan Aruch (Even HaEzer 77:2) cites the Rambam's view, while the Ramah follows that of Rabbenu Asher.

23.

In all the instances mentioned in this halachah, the governing principle is that the fact that a woman makes a categorical statement refusing to engage in marital relations in the future is sufficient to warrant her being placed in this category, despite the fact that her conduct is of no immediate consequence.

24.

One year, for a na'arah, one month for a bogeret, as stated in Chapter 10, Halachah 17.

25.

Yibbum refers to the marriage of the widow (the yevamah) of a childless man by his brother (the yavam). The Rambam's ruling is dependent on his decision that even in the present age, the mitzvah of yibbum takes precedence over the mitzvah of chalitzah (Hilchot Yibbum 1:2). The latter decision is not accepted in the Ashkenazic community, and therefore, the ruling in our halachah is also a matter of dispute. (See Ramah, Even HaEzer 165:1.)

26.

I.e., the laws governing a woman who rebels against her husband differ from those governing a woman who claims that she is repulsed by her husband, as described in Halachah 8.

27.

In both the Kessef Mishneh and the Shulchan Aruch (Even HaEzer 77:3), Rav Yosef Karo states that the husband does not have to take physical possession of this property. As long as the wife does not take possession of it, it is considered to be his.

28.

This refers to nichsei tzon barzel, property whose full value must ordinarily be returned to the woman. In contrast, nichsei m'log - property for which the husband did not accept responsibility and is returned to the woman in whatever condition it is, regardless of its worth - must be returned to her, even if she rebels against him. (See Ramah, Even HaEzer 77:2.)

The rationale for this distinction is that since he takes responsibility for the nichsei tzon barzel, these articles are considered to be possessed by him unless she takes physical possession of them. With regard to the nichsei m'log, by contrast, since the husband does not take responsibility, they are not considered to be in his possession.

29.

The customs of these geonim are quoted in the Halachot of Rav Yitzchak Alfasi. They are far more considerate of the woman's position and interests. The Ramah (Even HaEzer 77:3) states that if the woman gives a reasonable explanation for her conduct, these customs should be followed.

30.

I.e., three dinarim of the currency employed during the Talmudic period.

31.

If she does not desire to remain married, she may ask the court to compel him to grant her a divorce, as stated in Halachah 7.

32.

And lashes are given only for a transgression that involves a deed (Hilchot Sanhedrin 18:2).

33.

Although the Ra'avad differs with the Rambam's ruling, it is quoted by the Shulchan Aruch (Even HaEzer 77:4).

34.

As mentioned by the Maggid Mishneh and the Kessef Mishneh, there are authorities who maintain that there is an explicit prohibition preventing a husband from divorcing a wife who is too ill to care for herself. The later authorities, however, follow the Rambam's view.

In the Ashkenazic community, there is a question if the Rambam's ruling applies in the present age, after the ban of Rabbenu Gershom, which prevents divorcing a woman against her will. (See the Chelkat Mechokek 79:3, which quotes an opinion that states that as long as the husband is prepared to meet all the financial obligations of the divorce, he has the prerogative to divorce a woman against her will, even when she is ill.)

35.

As mentioned in Chapter 24, Halachah 21, a priest is forbidden to have relations with a woman who engaged in sexual relations with a gentile, even when she was raped. Our Sages assumed that women taken captive by gentiles were raped by them, and therefore prohibited a priest from remaining married to such a woman. (See Hilchot Issurei Bi'ah 18:17-30.)

36.

The Ramah (Even HaEzer 78:6) notes that even an Israelite is forbidden to remain married to a woman who is held captive by gentiles if she willingly engaged in relations with one of them. In such instances, he is not obligated to redeem her.

37.

I.e., he may not merely redeem her and send her a divorce.

38.

I.e., out of suspicion that she willingly engaged in relations with her captors, or because he does not want to live with a woman who had relations with others (Ma'aseh Rokeach).

39.

As explained in Hilchot Matnot Ani'yim 8:12, our Sages decreed that captives should not be redeemed for more than their worth, so that the gentiles will not be overwhelmingly encouraged to seize Jews as captives.

The Rambam's wording has aroused the attention of the later authorities (Chelkat Mechokek 78:2; Beit Shmuel 78:2), for it implies that if the husband desires to redeem her for more than her worth, he may, while with regard to other captives it is forbidden to do so. They interpret the Rambam's words as applying this prohibition to the husband as well. The Beit Shmuel interprets the ruling of the Ramah (Even HaEzer 78:2) as meaning that a husband is required to redeem his wife even though her captors demand more than her worth.

40.

In both the Kessef Mishneh and in the Beit Yosef (Even HaEzer 78), Rav Yosef Karo states that the husband is not obligated to redeem his wife a second time. If he desires, he may remain married to her without redeeming her. Many, however, differ with this as the interpretation of the Rambam's words. (See Chelkat Mechokek 78:4; Beit Shmuel 78:4.)

41.

See Hilchot Malveh V'Loveh 12:8-11, which states that an announcement is made regarding the sale of the person's property so that he will receive the best price.

42.

E.g., the vows mentioned in Chapter 13, Halachah 8ff.

43.

The obligation for a husband to redeem his wife stems from her ketubah, which states: "If you are taken captive, I will redeem you and take you back as my wife." Since he is already obligated to divorce her, he is not bound by this clause.

44.

The rationale for this ruling is that the obligation to redeem one's wife involves returning her to her status as a wife, and this is forbidden in this instance. Nevertheless, although this is the rationale, the same ruling applies with regard to a High Priest who married a widow, or an ordinary priest who married a divorcee.

In these instances, the obligation of the woman's ketubah - that she be redeemed and returned to her native land - could be fulfilled without transgressing a prohibition of the Torah. Nevertheless, since relations with her were forbidden previously, her husband is not obligated to redeem her (Ketubot 52a).

45.

With regard to a woman forbidden to her husband by virtue of a Torah prohibition, by contrast, the prohibition existed before she was taken captive.

46.

Flutes have a mournful tone that arouses tears (Rambam's Commentary on the Mishnah, Shabbat 23:4).

47.

This principle applies to many aspects of the financial relationship of the marriage bond - e.g., the woman's subsistence, her garments and her lodging. It is curious that this instance is the first time the Rambam mentions it explicitly.

48.

Although the Rambam makes a distinction between this instance and a similar situation mentioned in Chapter 12, Halachah 19, the Rashba and others do not. The Shulchan Aruch (Even HaEzer 89:2) quotes the Rambam's view, but the Beit Shmuel 89:2 states that because of the other views, the husband's property may not be expropriated against his will.

49.

Although usually announcements are made for 30 days prior to the sale of property by the court, an exception is made in this instance, so that the woman's burial will not be delayed (Ketubot 100b).

Ishut - Chapter Fifteen

Halacha 1

It is permissible for a woman to authorize her husband to ignore her conjugal rights. When does this apply? When he has children already and has fulfilled the mitzvah to be fruitful and multiply. If, however, he has not fulfilled the mitzvah of being fruitful and multiplying, he is obligated to engage in sexual relations whenever his conjugal duties require, until he fathers children.1 For this is a positive commandment of the Torah, as [Genesis 1:28] states: "Be fruitful and multiply."2

Halacha 2

The mitzvah of being fruitful and multiplying is incumbent on the husband and not on his wife. When does a man become obligated to fulfill this mitzvah? From the time he reaches seventeen. If he reaches twenty and has not married, he is considered to have transgressed and negated the observance of this positive commandment. If, however, he is occupied with the study of Torah and absorbed in this endeavor and is hesitant of marrying, lest he be forced to work to support his wife and thus be prevented from studying Torah, he is permitted to delay marriage. For a person who is occupied in the performance of one mitzvah is freed from the obligation to perform another. Surely this applies with regard to the study of Torah.

Halacha 3

When a person's soul desires [to study] Torah at all times and is obsessed with its [study] as was ben Azzai,3 and clings to it throughout his life, without marrying, he is not considered to have transgressed.4

[This applies] provided a man's natural inclination does not overcome him.5 If, however, his natural inclination overcomes him, he is obligated to marry, even if he has already fathered children, lest he be prompted to [sexual] thoughts.6

Halacha 4

How many children is it necessary for a man to have fathered to be considered to have fulfilled this mitzvah? One boy and one girl,7 as [implied by Genesis 5:2]: "He created them, a male and a female." If the son was a saris or the daughter an aylonit, he is not considered to have fulfilled this mitzvah.8

Halacha 5

A man is considered to have fulfilled the mitzvah of being fruitful and multiplying [even when] he fathers [children] and they die, so long as [his children] have left behind children [of their own]. For grandchildren are considered to be children.

When does the above apply? When the person's grandchildren are both male and female, and they are descended from a male and a female, even though the male grandchild is the son of the man's daughter, and the female grandchild is the daughter of the man's son.9 Since they come from two of his children, he is considered to have fulfilled the mitzvah of being fruitful and multiplying. If, however, he had a son and a daughter who both died, and [one did not leave any children, while] one left a son and a daughter, the grandfather is not considered to have fulfilled this mitzvah.

Halacha 6

When [a convert] had fathered children as a gentile, and both he and they convert,10 he is considered to have fulfilled this mitzvah. By contrast, a freed slave who had fathered children as a slave is not considered to have fulfilled this mitzvah, although his children were also freed. Instead, he must father children after he has been freed. [The rationale is that] a slave is not considered to have any paternal lineage.

Halacha 7

A man should not marry a barren women, an elderly woman, an aylonit or a minor who is not fit to bear a child11 unless he has already fulfilled the mitzvah of being fruitful and multiplying,12 or he has another wife with whom he can father children.13

When a man has married a woman and remained married to her for ten years14 without her bearing children,15 he must divorce her and pay her [the money due her by virtue of her] ketubah, or marry a woman who is fit to bear children.

If he does not desire to divorce her, he should be compelled to do so; he should be beaten with a rod until he divorces her.16 Even when he says, "I will not engage in marital relations with her. Instead, we will dwell together with witnesses so that we will not ever be in private," regardless of whether it is he or she who offers this proposition,17 it is not accepted. Rather, he is required to divorce [his wife] or marry another woman who is fit to bear children.

Halacha 8

When a man has lived [together with his wife] for ten years without her bearing children, and he releases semen as one shoots an arrow,18 it can be assumed that the affliction comes from her.19 Therefore, he should divorce her without paying her [the essential requirement of] the ketubah. She is, however, entitled to the additional sum [by which the ketubah was increased]. [The rationale is that] such a woman should not be judged more severely than an aylonit whose husband did not recognize her condition, who is granted the additional amount, as will be explained.20

If [the husband] does not [release semen] as one shoots an arrow, it can be assumed that the affliction comes from him alone. When he divorces her, he must pay her [the entire sum due her by virtue of her] ketubah: the essential requirement and the additional sum.

Halacha 9

[The following rules apply when there is a dispute with regard to which of the couple it is whose affliction prevents the couple from having children. The husband] claims: "It is she who cannot bear children," and she claims "He cannot conceive children, for he does not [release semen] as one shoots an arrow." Her word is accepted. He may, however, have a ban of ostracism issued conditionally against anyone who makes a claim that she does not definitely know to be true. Afterwards, he must pay her [the money due her by virtue of her] ketubah.

If she says, "I do not know if the difficulty stems from me or from him," she is not entitled to the essential requirement of the ketubah, as explained. [The rationale is that] the money should stay in the possession of its owner until she makes a definite claim21 that he does not [release semen] as one shoots an arrow.

Why is the woman's word accepted when she makes such a claim? Because she can feel whether or not he [releases semen] as one shoots an arrow, and he cannot make such a distinction.

Halacha 10

When a woman demands of her husband to divorce her after ten years [of marriage], because she has not given birth,22 and she claims that he does not [release semen] as one shoots an arrow, her request is accepted.23 Although she is not commanded to fulfill the mitzvah of being fruitful and multiplying, she needs sons [to assist] her in her old age.24 [Therefore,] he should be compelled to divorce her.

He is required to give her only the essential requirement of the ketubah. [He is not required to give her the additional amount,] because he did not promise her this additional amount with the intent that she leave him at her will and take this money.

Halacha 11

If [a husband] travels on an [extended] business trip during these ten years, or either the husband or the wife were ill or confined in prison, [the time that the couple did not share together] is not included in the calculation [of the ten years].25

Halacha 12

If a woman miscarries, [the ten years are] recalculated from the day of the miscarriage.

If a woman has three successive miscarriages,26 we can presume that she will continue to miscarry, and there is the possibility that [her husband] will not merit to have children from her. Therefore, he should divorce her,27 and pay her [the money due her by virtue of her] ketubah.

Halacha 13

[The following rules apply when there is a difference between the information stemming from the claims of a husband and his wife.] He claims that she has miscarried within the ten years so that they can continue [their marriage], and she denies the miscarriage. [Her claim] is believed; [if it were not true,] she would not cause herself to be considered barren.28

If he claims that she has miscarried twice, and she claims to have miscarried three times, [her claim] is believed. [If it were not true,] she would not cause herself to be considered a woman who [continually] miscarries.

[Therefore, in both instances,] he should divorce her and pay her [the money due her by virtue of her] ketubah. With regard to the above situations, he may require her to take a Rabbinic oath that she did not miscarry or that she miscarried three times. For this claim obligates him to pay her [the money due her by virtue of her] ketubah.29

Halacha 14

[When a woman] marries one man, remains married to him for ten years without bearing a child and is divorced [for that reason], she is permitted to marry a second husband.30 If she remained married to the second husband for ten years without bearing a child, she should not marry a third husband.31

If she marries a third husband, she should be divorced; [he is] not [required to pay her the money due her by virtue of] her ketubah.32 [This applies] unless he has another wife, or he has already fulfilled the mitzvah of being fruitful and multiplying.

Halacha 15

[The following laws apply when] a woman comes to court and claims that her husband cannot perform sexually in an ordinary way that will lead to the conception of children, or that he does not [release semen] as one shoots an arrow.33 The judges should try to arrange a compromise,34 telling the woman: "It is proper for you to conduct yourself with your husband [as follows]: Remain [married] for ten years. [If] you do not give birth, come to him with a claim at that time."

We protract the negotiations of this matter with her; we do not require her to continue living with him, nor do we judge her as a woman who rebels against her husband. Instead, the dealings are prolonged until the two parties reach a compromise.

Halacha 16

Although a man has fulfilled the mitzvah of being fruitful and multiplying, he is bound by a Rabbinic commandment not to refrain from being fruitful and multiplying as long as he is physically potent.35 For anyone who adds a soul to the Jewish people is considered as if he built an entire world.36

Similarly, it is a mitzvah of our Sages that a man should not live without a wife,37 so that he will not be prompted to [sexual] thoughts.38 Similarly, a woman should not live without a man,39 so that she will not be suspected [of immoral conduct].

Halacha 17

It is an obligation for a man to admonish40 his wife. Our Sages declared:41 "A man will not admonish his wife unless a spirit of purity enters his being." [Nevertheless,] he should not admonish her more than necessary.42

[A man] should never compel [his wife] to engage in sexual relations against her will. Instead, [relations] should be with her agreement, [preceded by] conversation and a spirit of joy.43

Halacha 18

Similarly, our Sages commanded a woman to conduct herself modestly at home, not to proliferate levity or frivolity before her husband, not to request intimacy verbally,44 nor to speak about this matter.

She should not deny her husband [intimacy] to cause him anguish, so that he should increase his love for her. Instead, she should oblige him whenever he desires. She should keep her distance from his relatives and the members of his household so that he will not be provoked by jealousy and should avoid scandalous situations - indeed, any trace of scandal.45

Halacha 19

Similarly, our Sages commanded that a man honor his wife more than his own person, and love her as he loves his own person. If he has financial resources, he should offer her benefits in accordance with his resources. He should not cast a superfluous measure of fear over her. He should talk with her gently, being neither sad nor angry.

Halacha 20

And similarly, they commanded a woman to honor her husband exceedingly and to be in awe of him. She should carry out all her deeds according to his directives, considering him to be an officer or a king. She should follow the desires of his heart and shun everything that he disdains.

This is the custom of holy and pure Jewish women and men in their marriages. And these ways will make their marriage pleasant and praiseworthy.

FOOTNOTES
1.

Conjugal rights are a privilege granted to a wife, and she has the right to forego them if she and her husband consent. Fathering children, by contrast, is one of the Torah's commandments, and a woman may not prevent her husband from fulfilling his obligation. See Yevamot 65b.

The Turei Zahav (Even HaEzer 1:1) and the Beit Shmuel 1:1 question the Rambam's decision. For, as stated in Halachah 16, even after the person has fulfilled the mitzvah of being fruitful and multiplying, he is obligated by rabbinic law to continue to father children. Seemingly, just as a man's wife may not prevent him from fulfilling the obligations imposed on him by the Torah, so too, she may not prevent him from fulfilling the obligations imposed on him by our Sages.

The Pitchei Teshuvah 1:1 resolves this difficulty by quoting the Chidah, who explains that our Sages did not equate the obligation to continue to father children with the Torah's obligation to be fruitful and multiply. As long as a man endeavors to continue to father children from time to time, it is acceptable. There is no need to persist with the same perseverance as one who has not yet fulfilled this mitzvah. (See also the notes on Halachah 7.)

2.

Sefer HaMitzvot (Positive Commandment 212) and Sefer HaChinuch (Mitzvah 1) include this as one of the Torah's 613 mitzvot.

3.

See Yevamot 63b.

4.

The Turei Zahav 1:6 interprets this expression as meaning that, at the outset, this is not a desirable course of action to follow.

5.

This condition applies also to the license to delay marriage mentioned in the previous halachah.

6.

In connection with this law, the commentaries cite Yoma 29a, which states: "Thoughts of sin are more damaging than sin itself." Instead of pointing his life to spiritual refinement, the individual is directing himself to sinful thoughts.

7.

But if a man has only several sons or only several daughters, he is not considered to have fulfilled the mitzvah.

8.

See Chapter 2 for a definition of these terms. Since this child is incapable of conceiving children, the child's father is not considered to have fulfilled the mitzvah.

9.

Tosafot (Yevamot 62b) states that even if the grandchildren are two males or two females, one is considered to have fulfilled this mitzvah. The Shulchan Aruch (Even HaEzer 1:6), however, quotes the Rambam's view.

10.

Tosafot states that even if the convert's children did not themselves convert, the convert is considered to have fulfilled this mitzvah. (See Beit Shmuel 1:12.)

11.

From the Shulchan Aruch (Even HaEzer 23:1), one can infer that sexual relations with a minor are considered as emitting wasted seed, one of the more severe prohibitions of the Torah. The Ramah (loc. cit.:5) and other authorities, however, differ and explain that as long as relations are carried out in an ordinary manner, having relations with a minor or an aylonit does not violate this prohibition.

12.

Rav Moshe Cohen states that since, as mentioned in Halachah 16, a person is obligated to continue fathering children, a man is obligated to marry a woman who can bear children even after fulfilling the mitzvah. The Maggid Mishneh states that in principle the Rambam also accepts this ruling, as indicated by his wording in Hilchot Issurei Bi'ah 21:26. In this instance, he was merely stating the law required by the Torah.

The Ramah (Even HaEzer 1:3) states although it would be proper to rebuke a person for marrying such a woman, this is not done in the present age.

13.

As mentioned previously, in the Ashkenazic community it is customary not to marry more than one wife. All the laws mentioned in this halachah must be viewed with that principle in mind.

14.

In his Commentary on the Mishnah (Yevamot 6:7), the Rambam writes that the source for this practice is Sarah's giving Hagar to Abraham: "After ten years in which Abram had lived in the Land of Canaan" (Genesis 16:3). Since this period passed without her bearing children, she provided him with another wife who could.

15.

The Rivash (Responsum 15, quoted by the Ramah 154:10) explains that if after having one child together, a couple do not have children for ten years, they are not forced to divorce.

16.

The Ramah (Even HaEzer 1:3) states that in his time, it was no longer customary to compel a man to divorce a woman who has not borne children to her husband. (See also the Hagahot Maimoniot, which quote opinions that state that in this age, and particularly in the diaspora, there is no obligation to divorce a woman even though she has not borne children in this amount of time. At present, there are many Rabbis who have divorced their wives in such a situation, but at least an equal number who have not. Every person has the prerogative of making his own decision regarding this matter.)

17.

I.e., rather than bear the expense of paying her ketubah immediately, the man desires to remain married; or from the woman's perspective, rather than have to earn her own subsistence, she desires to remain married.

18.

Chaggigah 15a states that unless a man releases semen as one shoots an arrow, he will not be able to father children.

19.

As reflected in the following halachah, the Rambam maintains that unless the man's wife explicitly claims that he does not release semen as one shoots an arrow, it is assumed that the affliction is the woman's. Therefore, she is not entitled to the essential requirement of the ketubah.

The Ra'avad differs and maintains that for the responsibility to be placed on the woman, she must have been married to two other men previously, and in both instances, divorced after ten years for not bearing children. The Ramah (Even HaEzer 154:6) accepts this opinion.

20.

See Chapter 23, Halachot 2 and 3.

21.

The husband keeps possession of the money he is required to pay his wife by virtue of her ketubah. Although our Sages accepted her word when she issues a claim against her husband, they did so only when that claim was definite. If she is in doubt, the money should remain in the possession of its immediate owner.

22.

The Beit Yosef (Even HaEzer 154) states that as long as a woman has given birth to one child, whether a son or a daughter, she is not given the prerogative of making such a claim.

The Ma'aseh Rokeach explains that this refers to an instance in which the man fathered children before marrying this woman, but then his physical condition deteriorated, and, according to the woman's claim, he is no longer able to release semen in an ordinary way. Were this not the case, he would be compelled to divorce her in order to fulfill the mitzvah of having children. Since he has, however, fulfilled that mitzvah, he is not compelled to divorce his wife. Therefore, it is the woman who must take the initiative.

23.

As reflected in the ruling of the Shulchan Aruch (Even HaEzer 154:6), other authorities emphasize that the woman's request must be made solely for this reason. If the court feels that she desires [the money due her by virtue of] her ketubah or to marry another man (Be'urei HaGra 154:25), her request is not accepted.

24.

Yevamot 65b states "she needs a staff for support and a spade for burial" - i.e., sons to support her in her old age and to take care of her funeral arrangements.

25.

The Shulchan Aruch (Even HaEzer 154:11) follows the understanding of Rabbenu Asher, who interprets this ruling as applying even when it was possible for the couple to engage in marital relations during the situations mentioned. It is possible that just as their conduct aroused negative spiritual influences resulting in illness or imprisonment, those negative influences - and not the physical condition of the man or woman - prevented them from having children. From the Rambam's Commentary on the Mishnah (Yevamot 6:7), it does not appear that he shares this understanding.

26.

Even within a period shorter than ten years (Rabbenu Asher).

27.

She is, however, permitted to marry another man (Shulchan Aruch, Even HaEzer 154:12).

28.

The Beit Shmuel 154:29 emphasizes that this law and the following law apply only when the court does not suspect that the woman desires to marry another man. This is also reflected in the Rambam's wording, which indicates that her claim comes as a response to the court's initiative.

29.

Although the Ra'avad differs and does not require an oath in this situation, the Maggid Mishneh and the Kessef Mishneh support the Rambam's position. It is the Rambam's position that is accepted by the Shulchan Aruch (Even HaEzer 154:15).

30.

It is possible that the woman is not barren. It was merely that the two did not merit to conceive children together (Yevamot 64a).

31.

Although a factor must normally repeat itself three times for a chazakah (a presumption that can be relied on) to be established, an exception is made with regard to the laws of marriage. In this context, the opinion that considers a twofold occurrence to be a chazakah is followed.

32.

This ruling applies only if the husband had been unaware of the woman's condition previously. If he knew of her condition, he is obligated to pay her [the money due her by virtue of her] ketubah, as is the law with regard to an aylonit (Chapter 24:1-2).

33.

As reflected in the Rambam's Commentary on the Mishnah (the conclusion of Nedarim), the Rambam does not interpret this as referring to an instance where the husband is sexually impotent entirely. Instead, it refers to a situation in which he can function, but it is the woman's belief that he will never conceive children. See the Lechem Mishneh and the interpretation of the Ralbach (Responsum 32). If, however, the woman were to claim that her husband is impotent, her word would be accepted.

Note, however, the Rashba (Vol. I, Responsum 628) and K'nesset HaGedolah (Even HaEzer 154:60), which interpret this halachah as speaking about an instance where the husband is sexually impotent.

34.

In his Commentary on the Mishnah (loc. cit.), the Rambam states that, in theory, it would be proper to compel the husband to grant his wife a divorce immediately. This is not done, however, out of fear that her claim is untrue and she merely desires to marry another man.

He continues, stating that the court should try to develop communication between the couple. If those efforts fail, a compromise should be negotiated - e.g., in return for not compelling the woman to wait ten years for the divorce, the amount of money the husband is required to pay because of the ketubah should be reduced.

35.

Yevamot 62a states: "[Although a man] fathers children in his youth, he should continue to do so at an advanced age, as implied by [Ecclesiastes 11:6]: 'In the morning, sow your seed; and in the evening, do not withhold your hand.'"

As mentioned above, the Chidah explains that as long as a man endeavors to continue fathering children from time to time, it is acceptable. One need not attempt to conceive children at every opportunity. Based on this decision, there are authorities who permit the limited use of certain birth control devices. The matter is not, however, entirely clear cut and should be discussed with a competent Rabbinic authority with regard to one's actual conduct.

36.

Similarly, having children leads to the coming of the Redemption. Yevamot 63b states that the Mashiach will not come until all the souls destined to be conceived are born.

37.

The Shulchan Aruch (Even HaEzer 1:8) explains that this commandment applies when the husband cannot support a wife who can bear children and increase the size of his family.

38.

See Yevamot 62b, which states: "Any man who is unmarried is left without happiness, without good and without blessing."

Rav David Cohen quotes Rav Yitzchak Alfasi as maintaining that the requirement to marry stems from the Torah and not from our Sages, as the Rambam maintains.

39.

See Hilchot Issurei Bi'ah 21:26, which states that it is permissible for a woman never to marry.

40.

Here the term לקנאת, translated as "admonish," has a specific meaning: to warn one's wife not to enter into privacy with another man. If this warning is disobeyed, the woman must undergo the rites of a sotah to continue her marriage.

41.

Sotah 3a. Although this is the subject of a difference of opinion among our Sages, the Rambam follows the opinion of Rabbi Akiva.

42.

See the conclusion of Hilchot Sotah for a more detailed treatment of this subject.

43.

See Hilchot De'ot 5:4-5.

44.

Eruvin 100b states that a woman requests intimacy with her heart.

45.

See Chapter 24, Halachah 15ff.

Ishut - Chapter Sixteen

Halacha 1

The property that a woman brings to her husband's [resources] - be it landed property, movable property or servants - is not referred to with the term ketubah, but rather with the term nedunyah.

[More particularly, there are two subdivisions within this category.] When the husband accepts responsibility for the nedunyah and it is considered to be his property1 - i.e., if it decreases in value he suffers the loss, and if it increases in value the gain is his - the property is referred to as nichsei tzon barzel.2

If the husband did not accept responsibility for the nedunyah,3 and it instead remained the property of the woman4 - if it decreases in value she suffers the loss, and if it increases in value the gain is hers - the property is referred to as nichsei m'log.5

Halacha 2

Similarly, all the property that a woman owns that she did not bring to her husband's household, nor had written in her ketubah, but rather left as her own, or property that came to her as an inheritance, or that was given to her as a present - all of this is referred to as nichsei m'log, for it is all in her possession.

The term ketubah, by contrast, refers only to the fundamental requirement of the marriage contract - i.e., 100 [zuz for a non-virgin] or 200 [zuz for a virgin] and the additional amount that [the husband promised].6

Halacha 3

We have already explained that our Sages established the fundamental requirement of the marriage contract, and that the laws governing the additional amount [promised by the husband] are the same as those governing the fundamental requirement.7

[Our Sages] did not grant a woman the option of collecting [the money due her by virtue of] her ketubah whenever she desired. Instead, it is like a debt, which is not payable until a given date. For a ketubah, the time when payment is due is not until after the woman's husband dies or divorces her.

Similarly, our Sages ordained that if a husband has fields [of varying quality] - good, bad and intermediate - when the woman comes to collect [the money due her by virtue of] her ketubah from this property, she is entitled to collect only from the inferior fields.8 They are referred to as ziboorit.9

Halacha 4

Similarly, our Sages ordained that when a woman comes to collect [the money due her by virtue of] her ketubah after her husband's death, she may not collect [this sum] until she takes an oath while holding a sacred article,10 that her husband did not leave any property in her possession,11 that she had not sold her ketubah to him, nor waived payment of it.12 [Her wardrobe, even] the garments she is wearing should be evaluated and the sum deducted from [the money due her by virtue of] her ketubah.13

If, however, he voluntarily divorces her, she may collect [the money due her] without taking an oath,14 nor should [her wardrobe] be evaluated.15 [The rationale is that] he bought them for her, she acquired them, and it is he who desires to divorce her, and not the reverse.16

Halacha 5

Similarly, [our Sages] ordained that a widow17 should collect [the money due her by virtue of] her ketubah from landed property only.18 [Moreover,] she may not collect [her due] from the increment in the value of that property after the husband died.19 Similarly, after their father's death, [the woman's] daughters do not receive their subsistence20 from the increment in the value of that property after his death.

Similarly, a woman may not collect [the money due her by virtue of] her ketubah from the increment in the value of [landed] property accomplished through the efforts of a purchaser, although other creditors are entitled to collect their due from that increment.21These rulings are among the leniencies [granted with regard to the the payment of the money due a woman by virtue] of her ketubah.

Halacha 6

Similarly, among the leniencies [granted with regard to the payment of the money due a woman by virtue] of her ketubah is that a woman will collect the money due her from the coinage that is of least value.

What is implied? A man married a woman in one country and divorced her in another. If the coinage of the country in which the couple married is more valuable than the coinage of the country in which they divorced, he may pay her with the coinage of the country in which they divorced. If, by contrast, the coinage of the country in which the couple divorced is more valuable than the coinage of the country in which they married, he may pay her with the coinage of the country in which they married.22

When does the above apply? When her ketubah states a sum of coins without specification. If, however, a specific type of coin is explicitly mentioned, whether with regard to the fundamental requirement of the ketubah, or with regard to the extra amount added by the husband, the law is the same as when a person lends a colleague a specific type of coin - he must return the loan in the coinage that he took, as will be explained in Hilchot Halva'ah.23

Halacha 7

The geonim of all the yeshivot ordained that after the death of a man, a woman should be able to collect her [money due her by virtue of her] ketubah from movable property,24 just as they ordained that a creditor can collect the debt owed him from movable property.25 This mandate spread throughout the majority of the Jewish people.26

Similarly, the other conditions of a woman's ketubah are governed by the same rules as [the fundamental requirement of] the ketubah, and they are binding on the movable property of the deceased's estate, as well as on the landed property. There is, however, one exception - the right of the sons to inherit their mother's ketubah. Since the custom of granting them this inheritance was not universally accepted by all the yeshivot,27 I maintain that the law of the Talmud should be applied in this instance, and they should inherit the money due their mother by virtue of her ketubah only from the landed property [within the estate].28

Halacha 8

In all the [Jewish] communities of which I know and have heard reports from, it has already become the custom to write the ketubah so that [its obligations are binding] on both the landed property and the movable property [in the estate].29

[Making] this addition is a great asset; it was ordained by learned men of great stature. For it is a monetary stipulation, and thus a widow is entitled to collect [the money due her] from the movable property [in her husband's] estate by virtue of this stipulation, and not by virtue of the mandate of the later sages.30

Halacha 9

[The following rules apply when] this stipulation was not included in the text of the ketubah, but instead [the couple] married without making an explicit statement [in this regard]. If the husband knew of this ordinance established by the geonim, the woman may collect [the money due her from the movable property in his estate].

If, however, he was not [aware of this ordinance], or we are unsure whether he knew of it, we deliberate at length concerning this matter. For an ordinance of the geonim does not have the power to be applied and to have money expropriated from the heirs because of it, when it was not explicitly stated, as is the law regarding the conditions of the ketubah.31 [The distinction between the two is that the conditions of the ketubah] are ordinances instituted by the Great Sanhedrin.

Halacha 10

Our Sages also ordained that all of a husband's property should be on lien for the woman's ketubah. Even if the woman's ketubah is [only 100 zuz] and [her husband] owns property worth several thousand gold pieces, it is all under lien to her ketubah.

[Her husband] is entitled to sell all his property if he desires, and his sale is binding. Nevertheless, all the property that he sells after his marriage can be expropriated [from the purchaser] by his widow [in lieu of payment for] her ketubah when he divorces her or when he dies, if he does not possess property that has not been sold.32

When a woman expropriates property [from a purchaser], she must take an oath holding a sacred article, as is taken by any of [a person's] creditors [who seek to expropriate property from its purchasers]. This provision was instituted so that he should not view [the obligation of] the ketubah lightly.

Halacha 11

When the court or the heirs require a widow to take an oath when she comes to collect [the money due her by virtue of] her ketubah, the oath should be taken only outside the court.33 For the court would refrain from administering the oath, lest she not be precise with herself when making it.34

If the heirs desired that she make a vow [instead of an oath], she may make a vow linked to any object they desire.35 This vow may be administered in a court. Afterwards, she should collect [the money due her by virtue of] her ketubah.

Halacha 12

If a widow dies before taking this oath, her heirs should not inherit her ketubah at all, for she does not have any rights to her ketubah until she takes an oath.36

If the woman marries [a second time] before taking an oath [with regard to [the money due her by virtue of] her ketubah from her previous husband's estate], she may take an oath after her remarriage and collect her due whenever she desires. She does not, however, have the option of making a vow, lest her [second] husband annul it.37

Halacha 13

If [a woman's husband] designated a plot of land for her in her ketubah, whether he specified [only] one of its borders or all four of its borders, she may collect her ketubah from this plot of land without taking an oath.

Similarly, if he specified movable property [in the ketubah] and this movable property exists, she may take it without taking an oath. [Moreover,] if the [movable property that was specified] was sold and other movable property purchased with the proceeds, it being known that these goods were purchased with the proceeds of [the movable property specified in the ketubah], she may take them without taking an oath.

Halacha 14

A woman who diminishes [the amount of money due her by virtue of] her ketubah may collect her due only after taking an oath.38

What is implied? A woman produces a ketubah that states [that she is due] 1000 zuz. Her husband claims that she received the entire amount, while she claims to have received only a portion of the amount. Even if there are witnesses who testify that she received the amount that she admits to having received,39 and even if she is extremely precise in accounting what she took, mentioning even [the last] half-p'rutah, she may collect the remainder only after taking an oath.40

Halacha 15

[An oath is also required in the following instance.] The husband claims that [his wife] received all [the money due her by virtue of] her ketubah], while the woman claims not to have received the money, and one witness testifies that she received either the entire sum or a portion of it. [The woman] may collect the entire [sum mentioned in] the ketubah, but only after taking an oath.41

Halacha 16

[When a divorcee collects [the money due her by virtue of] her ketubah] outside the presence of her husband, she must take an oath before doing so.

What is implied? A man divorced his wife and departed. After his wife takes an oath, the court should expropriate his property and give [the woman the money due her by virtue of] her ketubah.

The above applies when the husband is in a distant place, where there is difficulty in notifying him. If, however, he is in a nearby place [where it is possible] to notify him, a message should be sent to notify him [of the court's impending action]. If he does not come, the woman should take the oath and collect [her due].

Halacha 17

A woman who reduces the value of her ketubah is not required to take an oath before collecting [her due].42

What is implied? A woman produces a ketubah that states [that she is due] 1000 zuz. Her husband claims that she received the entire amount, while she claims not to have received anything at all, but she admits: "I am owed only 500 zuz. Although he wrote 1000 for me [in the ketubah], there was an understanding between me and him [concerning this]." In this instance, she is not required to take an oath before collecting [her due].

If, however, [in the above situation,] the woman says: "My ketubah states only 500 zuz," she may not collect with this document that says [she is due] 1000 zuz, for she has negated it. It is as if she has admitted that it is false. Therefore, [the husband] may take a rabbinic oath [to support his claim]; he is then freed [of all obligations].

Halacha 18

Whenever we have stated that a woman may not collect [her due] unless she takes an oath, the court tells her: "Take the oath and collect [your due]." Whenever we said that she may collect her due without an oath, [the court] tells the husband: "Give her [what is due her]. Your claim is not acceptable until you bring proof to support it."

Halacha 19

If [in the latter instances], on his own initiative, the husband asks that [the woman] take an oath [denying] his claim, [the court] tells her: "Take the oath and collect [your due]." She must take this oath holding a sacred article.

If, [originally,] she made a stipulation with [her husband] enabling her to collect [the money due her by virtue of] her ketubah without taking an oath, or that her word would be accepted regardless of what she claims, she may collect [her due] from him [in the event of a divorce] without taking any oath at all. [In the event of his death,] however, she must take an oath before collecting [her due] from his heirs.43

Halacha 20

If, [originally,] she made a stipulation with [her husband] enabling her to collect [the money due her by virtue of] her ketubah from his heirs without taking an oath, or that her word would be accepted by his heirs regardless of what she claims, she may collect [her due] from the heirs without taking any oath at all.44

If, however, she comes to collect [her due] from property that has been sold, she must take an oath before collecting. Although her husband was willing to accept her word, the stipulation he made is binding only on himself and [the estate he left to] his heirs. It does not have the power to cause others to incur a financial loss.45

Halacha 21

A widow who is in possession of her [the document recording her] ketubah may collect her due, after taking an oath, even though 100 years have passed since her husband's death.46 This applies regardless of whether she resides in her [deceased] husband's home or in her father's home.47

If, however, she does not have possession of her ketubah, she is not entitled to anything, even if she makes her claim on the day her husband dies.48 Similarly, a divorcee is not entitled even to the fundamental requirement of the ketubah until she produces her ketubah.

Halacha 22

When does the above apply? In a place where it is customary to compose a document [recording] the ketubah. [Different rules apply,] however, in a place where it is not customary to compose a document [recording] the ketubah, and instead, [the couple] rely on the conditions established by the Jewish court.49

[In such a situation, the woman is entitled to] collect the essential requirement of the ketubah50 even when she is not in possession of a document recording the ketubah, regardless of whether she was widowed or divorced, or whether she [continues to] reside in her husband's home or [has returned to] her father's home. She is not, however, given [anything she claims her husband promised her] in addition unless she has definite proof [of such an obligation].51

Halacha 23

Until when is a widow entitled to collect the essential requirement of the ketubah52 in a place where it is not customary to compose a ketubah? If she [continues to reside] in her husband's home, there is no limit on the time she is granted.53 If she [resides] in her father's home,54 [she has this prerogative] for twenty-five years.

If, [however,] she comes to collect [the money due her because of her ketubah] after twenty-five years, she is not entitled to anything. [The rationale is that] had she not foregone [the money due her], she would not have remained silent for this long. Nor is she living together with the heirs, so that she could [excuse her silence,] explaining that she was embarrassed to sue them while she was living together with them in [one] home.

Halacha 24

For this reason, if [one of] the heirs was in the habit of bringing her subsistence while she was residing in her father's home and caring for her needs, she has the prerogative of demanding [her due] even after twenty-five years have passed. The reason why she remained silent and did not present her claim is that she was ashamed [to sue] the heir.

Halacha 25

[The following rules apply when there is a difference between the claims of a husband - or his heirs - and his wife regarding the size of the essential requirement of her ketubah.] She says, "I was a virgin when I married, and the essential requirement of my ketubah is 200 [zuz]." Her husband or his heirs claim, "She was not a virgin, and she is due only 100."

If there are witnesses who saw that the customs that people in that locale carry out when virgins are wed were carried out on her behalf - e.g., there were different types of celebrations, [she wore a] crown or a particular garment [designated for this purpose], or other rites that are performed only for the sake of virgins were performed [for her] - she is entitled to 200 [zuz]. If there are no witnesses to this, she is entitled to only 100 [zuz].

[In the latter instance,] if her husband is alive, she can require him to take an oath required by the Torah,55 for he has acknowledged a portion of a claim.

[In cases of this nature,] testimony is accepted [from a person]56 once he became an adult, who says: "I remember that when I was a child, the rites performed for virgin brides were performed on behalf of such and such."57

As mentioned, all the above applies [only] in places where it is customary not to compose a document recording the ketubah.58

Halacha 26

When a woman tells her husband, "You divorced me," her word is accepted. [The rationale is that if this were not the truth,] she would not speak so boldly to her husband.59

Accordingly, when a woman produces her ketubah, [even] without having a bill of divorce, and tells her husband: "You divorced me. I lost my bill of divorce. Give me [the money due me by virtue of] my ketubah," [her claim is accepted, and her husband] is obligated to pay her the essential requirement of the marriage contract, even though he claims that he never divorced her.60 He is not, however, [obligated to] give her the additional amount he promised,61 unless she brings proof that she has been divorced, or she manifests possession of both the bill of divorce and her ketubah.

Halacha 27

[In the above situation,] if [the woman's] husband said: "This is what happened. I divorced her and paid her all [the money due her by virtue of] her ketubah, both the essential requirement and the additional amount. She wrote me a receipt, but I lost it" [the following rules apply]. He requires her to take an oath while holding a sacred article [that he is liable to pay her] the essential requirement [of the ketubah], and then he must give her [that sum].62

With regard to the additional amount, his word is accepted. [The rationale is that] he could have claimed that he never divorced her, and in such an instance he would not be held liable for the additional amount. [We assume that had he desired to lie, he would have used that alternative.] He is, however, required to take a rabbinic oath with regard to the additional amount.

Halacha 28

[The following rules apply when] a woman produces a bill of divorce, but does not have her ketubah in her possession. If the local custom is not to compose a ketubah, she is entitled to collect the essential requirement of her ketubah by [virtue of] the bill of divorce she is holding. If, however, it is the local custom to compose a ketubah, she is not entitled even to the fundamental requirement of the ketubah until she produces her ketubah, as was explained.63 Her husband must take a rabbinic oath denying her claim, and he is freed of liability.

Halacha 29

[When] a woman produces two bills of divorce and two ketubot, she is entitled to collect the amount due her by virtue of both ketubot.64 If she produces two ketubot and one bill of divorce, she is entitled to collect only [the money due her for] one ketubah.65

Which ketubah should she collect? If they are both for the same amount, the later ketubah negates the earlier one, and she is entitled to collect [property that was sold to others] from the date of the later [ketubah].66 If one of them is for a greater sum than the other, she may collect whichever she desires, and the other one is voided.67

Halacha 30

[When] a woman produces two bills of divorce and one ketubah, she has [the right to collect] only [the amount due her by virtue of] one ketubah.68 For when a man divorces his wife and remarries her without specifying any conditions, [it can be assumed] that he remarried her with the intent that her original ketubah [become binding again].

[The following rules apply when] a woman produces a bill of divorce and a ketubah after the death of her husband: If the bill of divorce is dated prior to the ketubah,69 [in a place where] it is not customary to compose a ketubah, she is entitled to collect the essential requirement of her ketubah by [virtue of this] bill of divorce,70 and she is entitled to collect the entire sum [mentioned] in the second ketubah, for she acquires this sum by virtue of [her husband's] death.

If her ketubah is dated prior to the bill of divorce, she is entitled to collect [the money due her by virtue of] the ketubah only once. [We assume] that when he remarried her, his intent was that her original ketubah [become binding again].

Halacha 31

A woman's word is accepted if she says: "My husband died," so that she [be granted permission to] remarry, as will be explained in Hilchot Gerushin.71 One of the conditions of the ketubah is that if a woman remarries after the death of her husband, she is entitled to collect the entire sum written in her ketubah.

Therefore, if she came to the court and said: "My husband died. Grant me permission to remarry," without mentioning [the collection of the money due her by virtue of] her ketubah at all, she is granted permission to remarry. [Afterwards,] she is required to take an oath,72 and then she is given [the money due her by virtue of] her ketubah.

If she says, "My husband died. Give me the money due me by virtue of my ketubah," [not only is she not granted this money,] she is not even permitted to remarry. [We assume that] she came [only] because of the matter of the ketubah. Our presumption is that her husband has not died. Her intent is not to remarry, but merely to collect [the money due her by virtue of] the ketubah during [her husband's] lifetime.

If she came and said: "My husband died. Grant me permission to remarry and give me [the money due me by virtue of] my ketubah," she is permitted to remarry and is granted [the money due her by virtue of] her ketubah. The rationale is that her primary intent is remarriage. If, however, she comes and says: "My husband died. Give me [the money due me by virtue of] my ketubah, and grant me permission to remarry," she is permitted to remarry, but she is not granted [the money due her by virtue of] her ketubah.73 If, however, she seizes possession [of this sum], the court should not expropriate it from her possession.

FOOTNOTES
1.

I.e., the article or land that the woman brings to the household is evaluated, and the husband takes responsibility for the value of the article. From this time onward, it is as if the article were his, and he is obligated to pay his wife a fixed amount if he divorces her or she is widowed.

2.

This term literally means "property [that is like] iron sheep." The term iron is used to indicate that the husband's obligation is unchanging, like iron. The reference to sheep stems from the fact that during the Talmudic period in Eretz Yisrael, a similar agreement was frequently made with a shepherd with regard to the sheep entrusted to him. He was given a herd that was evaluated at a given price, and he was obligated to return either sheep of that value, or payment for them to their owner. (See the commentary of Rav Ovadiah of Bertinoro, Yevamot 7:1.)

3.

With this statement, the Rambam indicates that - in contrast to the opinion of certain authorities - the property belonging to a woman does not automatically become nichsei tzon barzel. For it to be placed in that category, the husband must explicitly accept responsibility for it (Maggid Mishneh). (See Shulchan Aruch, Even HaEzer 85:3.)

4.

With regard to this type of property as well, the husband has the privilege to manage the use of the property and reap its benefits during the time he remains married to the woman, but the property itself belongs to her.

5.

The term m'log means "to pull out hairs" (Jerusalem Talmud, Yevamot 7:1). Just as a person pulls out the hairs from a head, leaving it uncovered, so too, the husband continues to use his wife's property even though its value depreciates.

6.

By making a distinction between the money due a woman by virtue of her ketubah and her nedunyah, the Rambam is emphasizing that they are governed by different laws. With regard to the money of the ketubah, the husband or his estate is granted certain leniencies. But with regard to the nedunyah, by contrast, the woman is considered the same as any other of her husband's creditors (Maggid Mishneh). The Beit Yosef and the Ramah (Even HaEzer 100:2) quote this explanation.

7.

See Chapter 10, Halachah 7.

8.

Although a creditor has the right to collect his due from the properties of intermediate value, the woman is given this disadvantage. The rationale is that a woman desires to marry and therefore is willing to accept this stipulation (Gittin 50a).

9.

The Aruch HaShalem interprets this term as being derived from an Arab word meaning "a rocky field." The Ramah (Choshen Mishpat 101:5) states that it refers to a bee that stings and is therefore considered one of the lower forms of life.

10.

I.e., a Torah scroll, as mentioned in Hilchot Sh'vuot 11:8. An oath is required because the woman is seeking to collect money from an estate bequeathed to heirs, and whenever payment is to be collected from an estate, an oath is necessary (Ketubot 87a; Hilchot Malveh V'Loveh 14:1).

11.

The Tur (Even HaEzer 96) states that the woman must also take an oath that she did not seize any of her husband's property. The Shulchan Aruch (Even HaEzer 96:2) quotes this view.

12.

In contrast to the opinion of the Tur (loc. cit.) and the Hagahot Maimoniot, the Rambam maintains that even if a woman is in possession of her ketubah, she is required to take these oaths. (See Halachah 21.) The Shulchan Aruch (loc. cit.) mentions the Rambam's view, but appears to favor that of the Tur.

13.

This refers to a trousseau given to the woman by her husband. Although the husband gave his wife these clothes as a gift, he did not give them to her with the intent that she take them and leave his household (Ketubot 54a).

14.

In the first half of this halachah, the oath is instituted by the court to protect the interests of the heirs. In this instance, however, unless the husband himself issues a claim requiring an oath (see Halachah 19), no oath is required.

15.

From Hilchot Malveh V'Loveh 1:5, it appears that this does not apply to a woman's Sabbath and festival clothing, or to her jewelry. Similarly, the Shulchan Aruch (Even HaEzer 99:1) states that those articles should be evaluated and deducted from the sum due her by virtue of her ketubah.

16.

If, however, the husband is compelled to divorce his wife, her wardrobe should be evaluated and deducted from the money due her by virtue of her ketubah (Maggid Mishneh; see Ketubot 77a).

17.

This restriction applies to a widow, but not to a divorcee. The Rashba and other authorities differ and maintain that the same ruling applies to a divorcee. It appears that it is their opinion that is accepted by the Shulchan Aruch (Even HaEzer 100:1).

18.

I.e., and not from movable property. This ruling also applies to other creditors, as stated in Hilchot Nizkei Mammon 8:11. (See, however, Halachah 7 below.)

19.

E.g., a woman was owed 200 zuz by virtue of her ketubah. Her husband's property was worth 150 zuz at the time of his death. Although its value rose afterwards to 200, the woman is entitled to only 150, because that was its value at the time of her husband's death.

20.

This is one of the conditions of a woman's ketubah.

21.

Landed property that was owned by a man at the time of his marriage or acceptance of a financial obligation is considered to be on lien to his wife or to his creditor. Even if it is sold to another person, the debt can be collected from it, if the person or his estate has no other property, as stated in Halachah 10. (See also Hilchot Malveh V'Loveh, Chapter 19.)

As mentioned in Hilchot Malveh V'Loveh 21:1, a creditor is entitled to collect not only the property itself, but also any increment in its value, whether an increment that comes naturally, or even one that results because of effort on the part of the purchaser. A woman is not, however, given this privilege with regard to the money due her by virtue of her ketubah.

22.

I.e., the woman's ketubah mentioned 200 silver coins without specifying the type of coin, and there was a difference between the value of the silver coins used in the country where the ketubah was written and those used in the country where the divorce takes place. If this were a loan contract, we would say that the intent is the coins of the country in which the loan was given. As a leniency to the husband, however, the law is different with regard to a ketubah, and he is obligated to pay only the lesser of the two values.

The Maggid Mishneh and the Shulchan Aruch (Even HaEzer 100:5) state that this law applies only when the value of the money the woman receives is not less than 100 zuz of the Talmudic period for a non-virgin, and 200 zuz for a virgin.

23.

Hilchot Malveh V'Loveh 4:11.

24.

The Maggid Mishneh explains that this ruling reflects a difference in the socio-economic status of the Jewish people. Land was commonly owned in the Talmudic period, and hence a woman would not feel secure unless the obligation of her ketubah were supported by land. In contrast, the ownership of land was less common in the era of the geonim. Movable property, thus, rose in importance, and a woman would feel secure even when an obligation was supported only by movable property.

25.

See Hilchot Nizkei Mammon 8:12.

26.

Since it was accepted by the majority of the Jewish people, it should be adhered to. See, however, the following halachot.

27.

I.e., in certain places this practice was not followed. Although the Rambam maintains that the sons should be granted that privilege, their rights should not be extended beyond their original scope.

28.

The Rambam's opinion is accepted by many authorities. Nevertheless, there are dissenting views. The Shulchan Aruch (Even HaEzer 111:14) mentions both views without appearing to favor either one.

29.

See the Rambam's text of the ketubah, Hilchot Yibbum 4:33.

30.

A person has the license to bind his estate to a particular obligation, although he would not be required to pay it by law. Once he makes such a commitment, his estate is bound by it.

31.

The Kessef Mishneh explains that in the Rambam's era, the observance of this ordinance had not spread throughout the entire Jewish world. Note the introduction to the Mishneh Torah which states that, in contrast to the ordinances of the Sages of the Talmud, an ordinance instituted by the geonim is not binding unless its observance has spread throughout the entire Jewish people.

The Chelkat Mechokek 100:2 and the Beit Shmuel 100:2 emphasize that the observance of this ordinance spread in the subsequent generations, and it is now universal Jewish practice. Therefore, it is binding even when it was not explicitly stated in the ketubah, and the husband's heirs claim that he was unaware of it.

32.

If, however, the husband or his estate possesses property that has not been sold, neither the woman nor another creditor may expropriate property that has already been sold (Gittin 5:2).

33.

Rashi, the Ramban and the Rashba state that when an oath is made outside the court, God's name is not mentioned, and a Torah scroll is not held. The Shulchan Aruch (Even HaEzer 96:19) quotes this view. The Maggid Mishneh states, however, that the fact that the Rambam does not mention such a distinction indicates that he does not accept this concept.

34.

Gittin 35a explains that since a widow carries out certain activities on behalf of the heirs of her deceased husband's estate (who are, in most instances, her children), she feels free to take certain articles belonging to the estate, without taking this into consideration. Hence, she might be ready to take an oath that she did not benefit from the estate, when in fact she did.

Since the sin of - and the punishment for - taking a false oath is very harsh, our Sages wished to reduce this severity by having the oath administered outside the court.

35.

I.e., the woman will vow never to eat bread on the condition that she benefited from property belonging to the estate. Breaking a vow is considered a less severe transgression than taking a false oath.

36.

This principle applies universally: Whenever a person is entitled to property only after taking an oath, that property is not transferred to the person's heirs if the oath had not been taken (Shulchan Aruch, Even HaEzer 96:1).

37.

Since the woman's second husband has the option of annulling any vows made by his wife, it is possible that she will take a false vow, relying on her husband to nullify it (Gittin 35b).

38.

Our Sages required the woman to take an oath because they were not sure that she made a complete account of the money she received. Requiring her to take an oath insures that she will, in fact, be careful regarding this account (Ketubot 87b).

39.

The fact that witnesses were made to observe payment of one portion of the ketubah is no proof that a second payment was not made without being observed by witnesses.

40.

The fact that she appears precise in reporting what she admits to having received is not proof that she has made a totally precise accounting (Ketubot, loc. cit.).

Similar laws apply to a creditor who states that he is actually owed a lesser amount than is stated in the contract of loan (Hilchot Malveh V'Loveh 14:1).

41.

Since the husband has only one witness to support his claim, and the woman's claim is supported by her ketubah, she is entitled to collect her full claim. Nevertheless, because of the witness, an oath is required.

42.

In contrast to a woman who diminishes the amount of money due her by virtue of her ketubah (Halachah 14), this woman does not admit receiving any funds. Hence, there is no need to require an oath so that she will make a careful account (Bayit Chadash, Even HaEzer 96).

43.

Unless a specific statement was made to that effect, the stipulation that her husband accepted at the time of the composition of the ketubah applies only to himself and not to his heirs.

44.

The Rambam's opinion is accepted by the Shulchan Aruch (Even HaEzer 98:6). The Ramah, however, cites the opinion of Rabbenu Asher and other Ashkenazic authorities, who maintain that the husband's stipulation is not binding upon his heirs.

45.

The Ra'avad maintains that the woman's claim should be accepted without an oath. Since the husband made such a stipulation, it would have become public knowledge. Any person who purchased the property knew about the matter and accepted the risk. It is, however, the Rambam's ruling that is accepted by the Shulchan Aruch (loc. cit.).

46.

The fact that she maintained possession of her ketubah indicates that her delay in presenting her claim does not indicate a willingness to forego it.

47.

This distinction is, however, relevant in Halachah 23.

48.

For perhaps she has already received the money due her by virtue of her ketubah, or she has waived payment of this debt.

The Shulchan Aruch (Even HaEzer 100:6) quotes the Rambam's rulings. The Ramah quotes rulings that allow the woman to collect the money due her even in such an instance. Nevertheless, he states that the prevailing custom is not to allow a woman to collect her claim unless she is in possession of her ketubah.

49.

In the Talmudic period, there were places where it was not customary to compose a written document spelling out the marriage contract. Nevertheless, it was understood by both the husband and the wife that the financial dimensions of their marriage would be governed by the rules expressed in our Sages' requirements for the ketubah.

50.

When the husband claims to have paid the woman her due, he must prove his assertion. Otherwise, the woman's claim is accepted (Maggid Mishneh).

51.

This amount is granted the woman voluntarily by her husband and is not required by Jewish law. Therefore, unless the woman has proof that the commitment was made, she is not entitled to collect anything from her husband (Maggid Mishneh).

The Tur (Even HaEzer 100) states that even if a woman can prove that her husband made a commitment for an additional amount to her at the time of the marriage, she must also prove that this commitment was not met.

52.

The Tur (Even HaEzer 101) maintains that the Rambam's wording indicates that even if she remains silent, she foregoes only the essential requirement of the ketubah, but not the additional commitment that her husband made. However, Rav Yosef Karo dismisses this interpretation in the Kessef Mishneh and does not mention it in the Shulchan Aruch (Even HaEzer 101).

53.

As reflected in the conclusion of this halachah, although a widow has the right to continue dwelling in her deceased husband's home, the heirs also have the right to dwell there. Since she is deriving her subsistence from them, she is ashamed to demand payment of her due from them.

54.

Or she remarries (Ramah, Even HaEzer 101:1).

55.

Objections to this statement are raised by the Ra'avad, Rav Moshe HaCohen and others. The claim for which the husband is required to take an oath involves a liability for which landed property is under lien. In such instances, a Torah oath is never administered. The Tur (Even HaEzer 96) and others, therefore, maintain that a rabbinic oath (sh'vuat hesset) is administered.

The Maggid Mishneh explains that the Rambam is referring to an instance in his time, when, as stated in Halachot 8-9, the lien of the ketubah applies to movable as well as landed property. Nevertheless, the Maggid Mishneh's explanation is challenged by other authorities, and even the Maggid Mishneh himself raises questions. The Shulchan Aruch (Even HaEzer 96:16) mentions both opinions.

56.

As in all cases of Torah law, the testimony of two witnesses is required in this instance. The Maggid Mishneh states that according to the Rambam, both of these witnesses may have witnessed the events under consideration when they were minors. In both the Kessef Mishneh and in the Shulchan Aruch (loc. cit.), Rav Yosef Karo differs and states that it is acceptable if one of these witnesses observed the events as a minor, but the other must have been past majority at that time.

57.

Generally, a witness's testimony is not accepted unless he is past majority - not only at the time he testifies in court, but also at the time he sees the event under discussion. In this instance, however, leniency is granted, because we rely on the fact that, by and large, most women are virgins when they marry. Moreover, the obligation of the ketubah is a point of Rabbinic law (Ketubot 28a; Hilchot Edut 14:3).

58.

For if a ketubah was composed, the text of the ketubah will clarify the matter. There is, however, an instance where this ruling would be applicable in a place where it is customary to compose a ketubah: an instance where the woman brings witnesses who testify that her ketubah was lost (Maggid Mishneh).

59.

The simple meaning of the Rambam's words is that if a woman makes such a statement, she is free to marry another person. As in Chapter 4, Halachah 13, the Ra'avad differs, explaining that the woman's statements are accepted only after the fact - i.e., after she has already married another person - and only insomuch as to require that other person to divorce her.

The Shulchan Aruch (Even HaEzer 17:2) quotes the Rambam's view, while the Ra'avad's position is quoted by the Ramah. The Ramah also mentions that in the present age, since brash conduct has become more widespread, this claim is no longer accepted when presented by a woman. The Beit Shmuel 17:4 mentions that, at present, since it is customary for a record of divorces to be kept by the rabbinical court that issues them, this claim is no longer accepted. This is particularly true in the present age, when record-keeping and communication have advanced.

60.

The Ra'avad and the Ramah differ, as above.

61.

The essential requirement of the ketubah is an obligation imposed by our Sages, granted so that she would have the means to marry another person in the case of divorce or widowhood. Hence, since she is granted the opportunity of remarrying in this instance, she is also entitled to the money due her by virtue of the ketubah. The additional amount, by contrast, is not an obligation, but rather a present promised by her husband. It is self-understood that he did not make this promise to enable her to marry another man, when he does not admit that a divorce took place (Maggid Mishneh).

62.

The authorities who free the husband of obligation in the previous halachah also free him of all liability in this instance (Chelkat Mechokek 100:40; Beit Shmuel 100:40).

63.

Halachot 21-22.

64.

We assume that the man divorced his wife and did not pay her the money due her by virtue of her ketubah. Afterwards, the couple remarried, and the husband subsequently divorced her a second time, without paying her the money due her by virtue of her ketubah.

65.

The laws that follow apply when the dates of both the ketubot precede the date of the bill of divorce, and thus it is apparent that the woman was divorced only once.

66.

As mentioned previously, all of a husband's property is under lien to the ketubah. Therefore, if he sells his landed property to others and he does not possess sufficient property after the divorce to give his wife her due, she may collect that money by expropriating property that was sold. In this instance, we say that the woman waived payment of her ketubah originally to free from the lien property that was sold. Afterwards, her husband wrote her a second ketubah for the same amount.

67.

In this instance, we assume that the husband wrote the woman a second ketubah that would preempt the first one. In this instance, the woman has the choice of selecting which ketubah she desires - the one with the greater sum, or the one that is dated first and thus gives her greater power with regard to the expropriation of property that has been sold.

68.

As reflected in the continuation of the Rambam's statements, this refers to a situation in which the man divorced his wife and did not pay her the money due her by virtue of her ketubah. Afterwards, he remarried her without composing a second ketubah.

69.

We assume that her husband divorced her and did not pay her the money due her by virtue of her ketubah. Afterwards, he remarried her and composed a ketubah.

70.

As explained in Halachah 28.

71.

Chapter 12, Halachah 15. (See also Hilchot Nachalot 7:2.)

72.

I.e., the oath made by all widows before collecting the money due them by virtue of their ketubah (Maggid Mishneh; Kessef Mishneh), in contrast to the opinion of the Tur (Even HaEzer 100), who requires the woman to take an oath that her husband died. (See Chelkat Mechokek 17:83.)

73.

This is a question that is left unresolved by the Talmud (Yevamot 117a). The Rambam rules that since the matter is very severe - if the woman remarries, and it is discovered that she lied, she will be prohibited to remain married to both her first or second husbands, and her children from her second husband will be considered illegitimate - and if her first husband is alive, it is likely that the fact will be discovered - in theory, the woman should be allowed to remarry. Because she mentions her ketubah, however, there is a doubt, and because of the doubt, the money in question is allowed to remain in the hands of the party in whose possession it is at the time the question is raised - i.e., the heirs. That doubt, however, applies only to the financial dimension of the relationship, and not to the permission to remarry (Kessef Mishneh).

Rabbenu Asher differs and maintains that the doubt raised by the Talmud also applies with regard to the woman's permission to remarry. Both opinions are mentioned by the Shulchan Aruch (Even HaEzer 17:44), although it appears that the Rambam's approach is favored.

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