Commento su Ketubbot 11:9

אלה ניזונת מנכסי יתומין – whether land or movables, for it is the condition of the Jewish marriage contract: “And you will dwell in my house and be supported from my property.”

Introduction This mishnah and the following mishnah deal with the rights of a widow to continue to live on her husband’s estate.

ואין חייבין בקבורתה – for the husband is liable in her burial in place of her inheritance, and now those who inherit her collect her Ketubah settlement from those who inherit the husband – and they would bury her and of itself, we learn that if she died, and did not take an oath about her Ketubah, for now, her heirs do not collect her Ketubah, and it is placed upon the husband’s heirs to bury her.

A widow is to be maintained out of the estate of [her husband's] orphans [and], her handiwork belongs to them but it is not their obligation to bury her. Her heirs, who inherit her ketubah, are obligated to bury her. In mishnah 4:12 we learned that one of the stipulations written into every woman’s ketubah is that if she becomes a widow she may continue to reside on her husband’s estate and be supported by the inheritance that he left for his children (be they her children or not). Our mishnah adds that since these heirs are supporting her, any handiwork that she produces belongs to them. This is the same arrangement that would have existed while her husband was alive; she received guaranteed support and in return anything she made belonged to him. However, unlike her husband who was obligated to pay for her burial, the heirs who are supporting the widow are not obligated to do so. The difference is that these heirs will not (necessarily) inherit from her, whereas her husband did inherit from her. Her heirs (either her father or her children from another marriage) are responsible for her burial. The underlying reasoning behind this makes some sense; the person who will benefit financially from the estate of the deceased is responsible for the burial.

בין מן האירוסין – for she has no support/food and sells [it] for her Ketubah settlement.

Introduction As we learned yesterday, a widow is entitled to receive maintenance from her husband’s estate. Our mishnah discusses when a widow is allowed to sell her husband’s property in order to obtain money with which to support herself or in order to collect her ketubah.

בין מן הנשואין – which she sells for support/food.

A widow, whether [her husband died] after betrothal or after marriage may sell [her husband's estate] without [permission from] a court. According to the first opinion in the mishnah, a widow may sell her deceased husband’s property whether she was widowed after she had been fully married, in which case she sells the property in order to pay for her maintenance or collect her ketubah, or whether she was widowed after betrothal but before marriage, in which case she sells solely to collect her ketubah. In either case she may sell this property without the sanction of the court.

מוכרת שלא בבית דין – meaning to say, that is not in a Jewish court of specialists/experts, but nonetheless, she needs to sell in the presence of three who would be expert in estimation of the land.

Rabbi Shimon says: [If her husband died] after marriage she may sell without [permission from] a court, but if after betrothal, she may not sell except with [permission from] a court, since she is not entitled to maintenance, and anyone who is not entitled to maintenance may not sell except with [permission from] a court. Rabbi Shimon makes a distinction between a widow who had been married and one who had only been betrothed. The former may sell without the court’s permission, for she cannot wait each time to receive the court’s permission to sell in order to collect her maintenance. However, since the betrothed woman does not receive maintenance payments from her husband, she may not sell her husband’s property without permission from the court. Only those who are selling in order to receive money for maintenance can sell without a court. For a widow to have to wait for the court’s permission every time she wishes to sell something in order to buy food or clothing would indeed be too troublesome. Therefore the widow who is collecting maintenance, i.e. one who was already married, does not need the court’s permission. In contrast, collecting the ketubah is a one time occurrence and it is not such great trouble for the widow to come to the court once to sell property from which to collect her ketubah.

רבי שמעון אומר מן הנשואין – that she sells for food, selling not before a Jewish court for it is impossible to her to be sitting [and suffering] until she they would obligate for her a Jewish court. But from the betrothal, where here sale is not for anything other than the Ketubah, she does not sell it other than in a Jewish court, but the Halakha is not according to Rabbi Shimon.

מכרה כתובתה – a Maneh [out of] two hundred,

Introduction The first section of this mishnah is a continuation of Rabbi Shimon’s statement from yesterday’s mishnah. Rabbi Shimon limited the ability of a woman to sell her husband’s estate without permission from a court. The remainder of the mishnah discusses other situations where a woman might have to sell her husband’s property in order to collect her ketubah or to provide maintenance for herself.

she cannot sell the rest. The supplement [is not sold] other than in a Jewish court, and our Mishnah is according to Rabbi Shimon who said: she does not sell when not in a Jewish court other than for food, and this, since she has collected part of her Ketubah settlement, she lacks food/support.

[A widow who] sold her ketubah or part of it; or pledged her ketubah or part of it; or gave it away to someone else or part of it, may not sell [her husband’s property] in order to receive the remainder of her ketubah except with [the permission of] a court. Rabbi Shimon holds that if in some way a woman has used up part of her ketubah, either by selling or giving it or part of it away, or by using it as collateral for a loan, she may not sell her husband’s property in order to collect the remainder without the permission of a court. This is because Rabbi Shimon holds that a woman who has already sold, given away or pledged even part of her ketubah, no longer receives maintenance from her husband’s estate and anyone who does not receive maintenance from her husband’s estate cannot sell except with the permission of a court.

וחכמים אומרים מוכרת – for the Ketubah even for periods of time and even though this is the case, she sells it in the meanwhile for food/support that she has not lost her support/food and even though she collected part of her Ketubah settlement.

But the Sages say: she may sell [the land pledged for her kethubah] even in four or five installments. And [meanwhile] she may sell [of her husband’s estate to provide] for her maintenance without [the permission of] the court, and she writes, “I sold [the land to provide] for my maintenance”. The Sages hold that a woman can sell her husband’s property even in stages and that this does not cause her to lose her right to collect maintenance. If after she has sold part of the estate to collect her ketubah, she wants to sell part of the estate to provide maintenance for herself, she should write in the document that she sold this to collect maintenance. Then the proceeds of such a sale will not count as part of her ketubah. Note that this gives her a great deal of leeway; she can sell most of the ketubah and still receive maintenance money.

וכותבת – in the document of sale that I sold them for food/support.

A divorced woman must not sell [her husband’s property] except with [the permission of] the court. Although according to the Sages a widow may always sell her husband’s property in order to collect her ketubah, and she never needs the permission of a court, the divorcee always needs the permission of a court. The reason why a widow does not have to appear before the court is that we assume that the husband would not have wanted his widow to have to do so, for it is somewhat embarrassing to have to go to court to get money to pay for basic needs. However, a man who divorces his wife does not care if she is embarrassed to go to court. Therefore, if she wishes to collect her ketubah, she needs the court’s permission.

וגרושה לא תמכור – her Ketubah other than before a Jewish court. What is the reason? The Rabbis stated that a widow whether from betrothal or from marriage sells not in the presence of a Jewish court because no man wants that his wife should be despised in a Jewish court and this is the case since she is a divorcee and he doesn’t care, but the Halakha is according to the Sages that a woman sells whether for her Ketubah settlement or for food/support not in the presence of the Jewish court of specialists and even if she had received part of her Ketubah settlement, she sells for food/support until she receives all of her Ketubah settlement and when she sells, whether for her Ketubah or for food/support, she needs an oath and does not require announcement.

שוה מאתים במנה נתקבלה כתובתה – for we tell her “you have suffered loss/ruin and that which is worth a Maneh [that was sold] for two hundred, even though it gained in value, one cannot say: “I will make a profit for a person who sends his agent to the market to do business and he purchased it cheaply, everything goes to the owner of the money and we don’t hear from here other than regarding a thing that has no limit such as the case of land whose manner is for it to be sold through mere sight/estimate – this one for less and that one for more, but a thing that has a limit and the agent purchased it for less, the law is not made clear to us from this and becomes fit for something remarkable for they argued about it and the conclusion is according to [what] appears to us that the agent and the person sending the agent are arguing about.

Introduction This mishnah deals with a widow who when selling her field either overestimates or underestimates the value of the field. The questions are, 1) is she deemed to have received her ketubah; 2) is the sale valid.

מכרה בטל – that same Denar, she does not have permission to sell, it is found that the entire sale is in error, for it took place at one time.

If a widow whose ketubah was two hundred zuz sold [land] worth a maneh for two hundred zuz or [land] worth two hundred zuz for one maneh, she has received her ketubah. There are two cases mentioned in this section. In both the widow is selling her husband’s land in order to collect her ketubah, which is worth 200 denar. In the first case she sells a field that was worth 100 zuz (a maneh) for 200 denar. Although her husband’s estate only lost land worth 100 zuz, since she received 200 denar, she has received her ketubah and does not receive anymore. In the second case, she sells land worth 200 zuz for 100 zuz. Since her husband’s estate sold off a field worth 200 zuz, it has paid off her ketubah, even though she only received 100. In other words, the husband’s estate always gets the benefit of the doubt.

לעולם מכרה קיים – and she should return the Denar to the inheritors for what loss did she cause them? Until it would be a fraudulent representation in order that if it were no overreaching, the field would remain worth nine Kabim which is the measure of the field,

If her kethubah was one maneh, and she sold [land] worth a maneh and a denar’ for one maneh, her sale is void. Even if she says, “I will return the denar to the heirs”, her sale is void. Rabban Shimon ben Gamaliel says: her sale is always valid unless there was so much land there as to allow her to leave a field of nine kab, and from a garden an area of half a kab, or, according to Rabbi Akiba, a quarter of a kab. If she sells land worth more than her ketubah, the sale is invalid. This land is not hers and she only had permission to sell up to the value of her ketubah. Even if she says that she will pay back the extra denar to her husband’s inheritors, she is not allowed to do, if the inheritors want back their land. Rabbi Shimon disagrees and says that the sale is only nullified if the extra amount sold would have left the inheritors with a field in which nine kab of seed can be planted, about 3750 square amot (a little over 60 x 60 amot). If it was a garden of vegetables, the size is smaller, about 208 square amot or 104 square amot according to Rabbi Akiba. If the size of the extra land sold is smaller than this, the sale is valid.

and in the garden within one-half of Kab which is the measure of a garden. But the Halakha is not according to Rabban Shimon ben Gamaliel.

If her ketubah was four hundred zuz and she sold [land] to [three] persons, to each for one maneh, and to a fourth [she sold] what was worth a maneh and a denar for one maneh, [the sale] to the last person is void but [the sale] to all the others are valid. If her ketubah was 400 zuz, and she sold fields worth 100 to three different people and to the last person she sold a field worth 101, only the last sale is invalid. Each sale is considered on its own merits, and it was only the last sale which went over the limit.

אגרת בקורת – an announcement that through this announcement, people inspect her and in this, the First Tanna/teacher agrees with Rabban Gamaliel and the Halakha is according to the First Tanna.

Introduction This mishnah deals with a case where a court erred in the evaluation of property while selling it to pay for the widow’s ketubah or for her maintenance.

If an assessment of the judges was one sixth less, or one sixth more [than the actual value of the property] their sale is void. Rabban Shimon ben Gamaliel says: their sale is valid for, otherwise, of what advantage is the power of a court? If the assessment was either one sixth less or one sixth more than the real value of the property, the sale sanctioned by the court is nullified. This is similar to the rule of fraud which we learned in Bava Metzia 4:3. In contrast, Rabban Shimon ben Gamaliel rules that there is no rule of “fraud” when a court sells. Unlike individuals who sell, their sale may be invalidated if they over or under priced the object by more than one sixth. This idea of Rabban Shimon ben Gamaliel is an idea that he brings up in several places. Basically, the respect for the court is a more important value than the fact that the court actually sold the field for the wrong price.

But if they made a bill for inspection, their sale is valid even if they sold for two hundred zuz what was worth one maneh or for one maneh what was worth two hundred zuz. If the court made out what is called a “bill for inspection” then even if they over or under sold by more than one sixth, the sale is valid, even according to the opinion in section one. A bill of inspection is a document that announces that a court will be selling a certain piece of land to pay off a debt. This will allow others to come and inspect the land and if the land is still under or over sold, the court at least has gone through the proper process.

השנייה – incest of second degree which is from the enactments of the Soferim.

Introduction The last mishnah of our chapter deals with cases where a marriage was prohibited or was ended by the wife’s refusal of the marriage or by her being found to be an aylonit. To remind ourselves, a girl who is married off by her brothers or mother when she is a minor may refuse the marriage when she becomes of majority age. An aylonit is a woman who never reaches puberty. Categorically she cannot have children (a woman who can have children cannot be called an aylonit). In both of these cases the marriage is annulled.

אין להם כתובה – [worth] a Maneh or two hundred. She refuses because she leaves on her own. The second decree [incest] is fined by the Rabbis because she persuades him to marry her and she doesn’t lose anything in her marriage, for she is not made ritually invalid through them and her offspring is ritually valid. A sterile woman/incapable of conception [does not receive her Ketubah] because it is a business transaction in error.

[A minor] who refused her husband, a secondary incest prohibition, or an aylonit is not entitled to a ketubah or to the usufruct [of her dowry] or to maintenance, or to the worn-out articles [of her dowry]. If from the outset he had married on the understanding that she is an aylonit she is entitled to a ketubah. The rule in all of these cases is that the woman does not receive a ketubah, nor is the husband liable to pay for her maintenance, nor does she receive the usufruct from her dowry which he used while they were married, nor does she receive compensation for things that she brought into her marriage which her husband has used up. In other words she gets no financial benefits from her husband that would accrue to her by being married to him, nor does he does have to return to her any benefits that he received during the marriage. The girl who refused the marriage loses her benefits because by refusing the marriage she is in essence annulling it. The aylonit loses her benefits because her marriage is considered to be mistaken. That is to say, since the man didn’t know that she was an aylonit and had he known he would not have married her, the marriage is annulled. That is why in the next section the mishnah states that had he married her knowing that she was an aylonit, he is obligated to give her a ketubah. The secondary incest prohibitions (see Yevamot 2:4) do not receive a ketubah because the Sages fine them for not having observed the laws of incest. Below we shall see that these fines exist only for those who transgress rabbinic marital prohibitions but not Biblical ones.

ולא פירות – the usufruct that the husband consumed we don’t remove from him.

A widow who was married to a high priest, a divorced woman or a halutzah who was married to a regular priest, a mamzereth or a netinah who was married to an Israelite, or the daughter of an Israelite who was married to a Natin or a mamzer is entitled to a ketubah. The prohibitions in this mishnah are called “prohibitions of holiness” in Yevamoth 2:4. Even though all of these marriages were prohibited, the women still receive their ketuboth, and according to the Talmud they also receive all of the other benefits listed in this mishnah. What is seemingly strange here is that although the prohibitions in this section are from the Torah and those in the previous section of the mishnah are only rabbinic prohibitions, in these latter cases the woman is not fined whereas in the former cases she was. The answer is that the rabbis felt the need to strengthen their own prohibitions with penalties; a woman who marries a man prohibited to her only through rabbinic law does not receive benefits. Hence she will not agree to be married in such a case. In contrast, Biblical prohibitions are sufficiently strong to stand on their own, without additional sanctions. Hence, these women do receive the benefits.

ולא מזונות – an example such as if she borrowed and consumed while still under him (i.e., his domain) and afterwards, refused [to be married to him], the husband is not liable for her support while she is under him (i.e., in his domain), and the second degree [incest] and the woman incapable of conception/sterile have no support while they are under him and all the more so, if they borrowed and consumed for the husband is not obligated to pay.

ולא בלאות – that were lost or worn out completely whether from the usufruct (the wife’s estate of which the husband has the fruition without responsibility for loss or deterioration) or from the wife’s estate held by her husband, which in case of her death or divorce, he must restore in specie, being responsible with all his landed property for loss or deterioration (i.e. mort-main), the woman who refuses to marry her husband cannot remove from them from the hand of her husband but the worn-out garments (or the woman’s right to claim compensation for the wear or ruin of the things which she brought along as her property, whether she refuses him in marriage or is second-degree of incest or is a sterile woman, and even if she ran about as a prostitute, she does not lose her worn-out garments/claim for compensation for the wear or ruin of things which she brought along as her property, but the woman charged with second-degree incest has no claim for compensation for the wear or ruin of things which she brought along as her property of the usufruct, but she does have the compensation for wear or ruin of things of the mort-main.