Babylonian Talmud: Tractate Kethuboth

Folio 52a

but if a bastard or a nethinah¹  was married to an Israelite the latter is under no obligation to ransom her, since one cannot apply to her:²  AND TAKE YOU AGAIN AS MY WIFE.³  Raba ruled: Wherever the captivity causes the woman to be forbidden⁴  [to her husband] it is his duty to ransom her⁵  but where some other circumstance causes her to be forbidden to him⁶  it is not his duty to ransom her.⁷

Must it be assumed [that they⁸  differ on the same principles] as the following Tannaim? [For it was taught:] If a man forbade his wife by a vow [from deriving any benefit from him] and she was taken captive, he must, said R. Eliezer, ransom her⁹  and give her also her kethubah. R. Joshua said: He must give her her kethubah but need not ransom her. Said R. Nathan: I asked Symmachus, 'When R. Joshua said, "He must give her her kethubah but need not ransom her" [did he refer to a case] where her husband first made his vow against her and she was then taken captive or even to a case where she was first taken captive and he made his vow against her subsequently?'¹⁰  And he told me, 'I did not hear [what he exactly said] but it seems [that he referred to] a case where [the husband] made the vow against her first and the woman was taken captive afterwards; for, should you suggest [that the ruling applied also to a woman who] was taken captive first and the man made his vow against her afterwards [the objection could be raised that in such a case] he might make use of a trick'.¹¹  Do not they¹²  then differ¹³  in [the case of one] who made a vow against the wife of a priest,¹⁴  Abaye upholding the view of R. Eliezer¹⁵  while Raba IS maintaining that of R. Joshua?¹⁶  — No;¹⁷  here¹⁸  we are dealing [with the case of a woman] who, for instance, made the vow herself and her husband¹⁹  confirmed it,²⁰  R. Eliezer being of the opinion that it was he²¹  who put his finger between her teeth²²  while R. Joshua maintains that it was she herself who put her finger between her teeth.²³

[But] If she herself put her finger between her teeth what claim can she have to her²⁴  kethubah? And, furthermore, [it was stated]: Said R. Nathan: I asked Symmachus, 'When R. Joshua said, "He must give her her kethubah but need not ransom her" [did he refer to a case] where her husband first made his vow against her and she was then taken captive or even to a case where she was first taken captive and he made his vow against her subsequently?' and he told me: 'I did not hear [what he exactly said]'. Now if [this is a case] where she herself had made the vow, what difference is there [it may be asked] whether he made the vow first against her²⁵  and she was taken captive afterwards or whether she was first taken captive and he then made the vow?²⁶  — The fact is that [here²⁷  it is a case where] the husband made the vow against her, but Abaye explains [the dispute]²⁸  on the lines of his view while Raba explains it on the lines of his view. 'Abaye explains the dispute on the lines of his view', thus: If a widow [was married] to a High Priest no one²⁹  disputes [the ruling] that it is the husband's duty to ransom her;³⁰  if a bastard or a nethinah [was married] to an Israelite no one²⁹  disputes the ruling that it is not his duty to ransom her,³¹  if also one made a vow against the wife of a priest³²  no one²⁹  disputes the ruling that it is his duty to ransom her, since [the principle in this case] is identical with that of a widow [who was married] to a High Priest.³³  They³⁴  differ only in [respect of him who] made a vow against the wife of an Israelite,³⁵  R. Eliezer being guided by the woman's original status³⁶  while R. Joshua is guided by her subsequent status.³⁷  'Raba explains it on the lines of his view', thus: If a widow [was married] to a High Priest, or a bastard or a nethinah to an Israelite no one³⁸  disputes the ruling that it is not the husband's duty to ransom her.³⁹  They⁴⁰  differ only in [the case where one] made a vow against either the wife of a priest or the wife of an Israelite,⁴¹  R. Eliezer being guided by the woman's original status³⁶  while R. Joshua is guided by her subsequent status.³⁷

IF SHE IS TAKEN CAPTIVE IT IS HIS DUTY TO RANSOM HER etc. Our Rabbis taught: If she was taken captive during the lifetime of her husband, and he died afterwards, and her husband was aware of her [captivity],⁴²  it is the duty of his heirs to ransom her, but if her husband was not aware of her captivity it is not the duty of his heirs to ransom her.

Levi proposed to give a practical decision⁴³  in agreement with this Baraitha. Said Rab to him, Thus said my uncle:⁴⁴  The law is not in agreement with that Baraitha but with the following⁴⁵  wherein it was taught: [If a woman] was taken captive after the death of her husband it is not the duty of his orphans to ransom her, and, furthermore,⁴⁶  even if she was taken captive during the lifetime of her husband, but he died subsequently, the orphans are under no obligation to ransom her, since one cannot apply to her [the clause in her kethubah:] AND I WILL TAKE YOU AGAIN AS MY WIFE.⁴⁷

Our Rabbis taught: [If a woman] was taken captive and a demand was made upon her husband for as much as ten times her value, he must ransom her the first time. Subsequently, however, he ransoms her only if he desired to do so but need not ransom her⁴⁸  if he does not wish to do so. R. Simeon b. Gamaliel ruled:

1. Fem. of nathin (v. Glos.).
2. As the Israelite is forbidden to live with her.
3. Which is the appropriate clause entered in a kethubah given to the wife of an Israelite, and which cannot apply (v. supra n. 5) where she is one forbidden to him.
4. Lit., 'the prohibition of captivity causes her'.
5. Contrary to the opinion of Abaye, the clause entered in a kethubah of a priest's wife obliges the priest to ransom his wife though she becomes forbidden to him through her captivity, only if she was permitted to him before she had been taken captive.
6. As, for instance, a widow to a High Priest.
7. Because, in the case of a forbidden marriage, as the clause 'AND TAKE YOU AGAIN AS WIFE' was originally invalid (cf. supra n. 6) the clause 'RESTORE YOU TO YOUR PARENTAL HOME' also has no validity. Thus, contrary to the ruling of Abaye, Raba maintains that a High Priest is under no obligation to ransom a widow whom he married in contravention of the laws of the High Priesthood. In the case of a bastard and a nethinah Raba is, of course, of the same opinion as Abaye.
8. Abaye and Raba.
9. Although, owing to his vow, he would subsequently be compelled to divorce her.
10. Though there is good reason to suspect that the object of his vow was to escape his responsibility of ransoming her.
11. Cf. supra n. 1.
12. R. Eliezer and R. Joshua.
13. Lit., 'what, not?'
14. I. e., the man who made the vow was himself a priest. It is his duty to ransom his wife, though her being prohibited to him is not due to her captivity, because the clause, 'I WILL RESTORE YOU TO YOUR PARENTAL HOME' may well be applied. Their dispute could not refer to an Israelite who made such a vow, since in that case, the clause 'AND TAKE YOU AGAIN AS MY WIFE' being inapplicable. R. Eliezer could not have imposed upon the man the duty of ransoming his wife.
15. Cf. supra n. 5.
16. That the husband is exempt from ransoming his wife because her prohibition to him was not caused by her captivity but by some other circumstance, viz. his vow.
17. R. Eliezer and R. Joshua do not differ on the same principles on which Abaye and Raba differed, both of them agreeing either with Abaye or with Raba.
18. Lit., 'here in what?'
19. An Israelite.
20. Explicitly or implicity.
21. By his confirmation of the vow.
22. Metaph. It is his fault that the vow remained valid. Had he desired to annul it he had the full power to do so (v. Num. XXX, 7ff). As he is thus the cause of the woman's prohibition to him and of rendering the clause in the kethubah inapplicable, he must pay the penalty by retaining the responsibility of ransoming her.
23. She should not have made her vow. Having made it her prohibition to her husband is her own fault. Cf. supra n. 13 mutatis mutandis.
24. Lit., 'what is its doing'.
25. I. e., by confirming it.
26. In either case, since it was she who made the vow, no trick on the part of the husband can be suspected.
27. In the dispute between R. Eliezer and R. Joshua.
28. Between R. Eliezer and R. Joshua.
29. Neither R. Eliezer nor R. Joshua. Lit., 'all the world'.
30. Cf. supra p. 300. n. 3. The fact that she is forbidden to him for come reason other than that of her captivity being of no consequence.
31. Cf. supra p. 300, n. 2, and text.
32. Sc. a Priest against his own wife.
33. In either case the clause, 'I WILL RESTORE YOU TO YOUR PARENTAL HOME' (cf. supra p. 300, n. 3) may well be applied after, as well as before, the woman had been taken captive.
34. St. Eliezer and R. Joshua.
35. Cf. supra note 9 mutatis mutandis. To the wife of an Israelite it was originally possible to apply the clause, 'I WILL TAKE YOU AGAIN AS MY WIFE' but now, owing to the vow, it can no longer be applied.
36. Lit., 'goes after (the status) of the beginning'. When the clause was applicable and therefore the obligation stands.
37. Lit.,'in the end'.
38. V. supra p. 302, n. 6.
39. In the case of the widow to a High Priest, as her prohibition is due to a cause other than captivity, neither the clause relating to 'remarriage' nor that of 'restoring her to her parental home' is valid (cf. supra p. 300. n. 10); and in the case of the last mentioned because the clause, 'I WILL TAKE You AGAIN AS MY WIFE could not be applied originally and cannot be applied now.
40. R. Eliezer and R. Joshua.
41. To either of whom the relevant clauses of her kethubah that were originally applicable now, on account of the vow which is a cause of prohibition 'other than that of captivity'.
42. And thus incurred the liability to ransom her before he died.
43. Lit., 'to do a deed'.
44. R. Hiyya who was Rab's father's brother.
45. Lit., 'as that'.
46. Lit., 'and no more but'.
47. Since her husband is dead. V. Tosef. Keth. IV.
48. At all. It is his duty to ransom her no more than once (Rashi). Aliter: For an exorbitant price (v. R. Han. Tosaf. s.v. [H] a. l.). If, however, the ransom demanded is not higher than her value he must pay it.

Captives must not be ransomed for more than their value, in the interests of the public.¹  [This then implies] that they must be ransomed for their actual value even though the cost of a captive's ransom²  exceeds the amount of her kethubah. Has not, however, the contrary been taught: [If a woman] was taken captive, and a demand was made upon her husband for as much as ten times the amount of her kethubah³  he must ransom her the first time. Subsequently, however, he ransoms her only if he desires to do so but need not ransom her if he does not wish to do so. R. Simeon b. Gamaliel ruled: If the price of her ransom corresponded to the amount of her kethubah, he must ransom her; if not, he⁴  need not ransom her?⁵  — R. Simeon b. Gamaliel upholds two lenient rules.⁶  IF SHE SUSTAINED AN INJURY IT IS HIS DUTY TO PROVIDE FOR HER MEDICAL TREATMENT. Our Rabbis taught: A widow is to be maintained from [her husband's] orphans' estate; and if she requires medical treatment, it is regarded⁷  as maintenance. R. Simeon b. Gamaliel ruled: Medical treatment of a limited liability may be deducted⁸  from her kethubah but one which has no limited liability⁹  is regarded¹⁰  as maintenance. Said R. Johanan: Blood letting in the Land of Israel¹¹  was regarded as medical treatment of no limited liability.¹²  R. Johanan's relatives had [to maintain] their father's wife who required daily medical treatment. When they came to R. Johanan¹³  he told them: Proceed to arrange with a medical man an inclusive fee.¹⁴  [Later, however], R. Johanan remarked: 'We have put ourselves [in the unenviable position] of¹⁵  legal advisers'.¹⁶  What, however, was his opinion at first,¹⁷  and why did he change it in the end!¹⁸  At first he thought [of the Scriptural text,] And that thou hide not thyself from thine own flesh,¹⁹  but ultimately he realized [that the position of] a noted personality is different [from that of the general public].²⁰

MISHNAH. [A HUSBAND WHO] DID NOT GIVE HIS WIFE IN WRITING²¹  [THE FOLLOWING UNDERTAKING:] 'THE MALE CHILDREN THAT WILL BE BORN FROM OUR MARRIAGE²²  SHALL INHERIT THE MONEY OF THY KETHUBAH IN ADDITION TO THEIR SHARES WITH THEIR BROTHERS',²³  IS NEVERTHELESS LIABLE, BECAUSE [THIS CLAUSE] IS A CONDITION LAID DOWN BY BETH DIN. [THOUGH HE DID NOT GIVE HIS WIFE IN WRITING²⁴  THE UNDERTAKING:] 'THE FEMALE CHILDREN THAT WILL BE BORN FROM OUR MARRIAGE²⁵  SHALL DWELL IN MY HOUSE AND BE MAINTAINED OUT OF MY ESTATE UNTIL THEY SHALL BE TAKEN IN MAKRIAGE'²⁶  HE IS NEVERTHELESS LIABLE, BECAUSE [THIS CLAUSE] IS A CONDITION LAID DOWN BY BETH DIN. [SIMILARLY IF HE DID NOT GIVE HIS WIFE THE WRITTEN UNDERTAKING:]²⁷  'YOU SHALL DWELL IN MY HOUSE AND BE MAINTAINED THEREIN OUT OF MY ESTATE THROUGHOUT THE DURATION OF YOUR WIDOWHOOD', HE IS NEVERTHELESS LIABLE, BECAUSE [THIS CLAUSE ALSO] IS A CONDITION LAID DOWN BY BETH DIN. SO DID THE MEN OF JERUSALEM WRITE. THE MEN OF GALILEE WROTE IN THE SAME MANNER AS THE MEN OF JERUSALEM. THE MEN OF JUDAEA, HOWEVER, USED TO WRITE:²⁸  'UNTIL THE HEIRS MAY CONSENT TO PAY YOU YOUR KETHUBAH'. THE HEIRS, CONSEQUENTLY, MAY, IF THEY WISH TO DO IT, PAY HER HER KETHUBAH AND DISMISS HER.

GEMARA. R. Johanan stated in the name of R. Simeon b. Yohai: Why was the kethubah for MALE CHILDREN²⁹  instituted?³⁰  In order that any man might thereby³¹  be encouraged³²  to give³³  to his daughter as much as to his son. But is such a regulation found anywhere else?³⁴  Seeing that the All-Merciful ordained that a son shall be heir; a daughter shall not',³⁵  would the Rabbis proceed to make a provision³⁶  whereby a daughter shall be the heir? — This³⁷  also has Scriptural sanction, for it is written, Take ye wives, and beget sons and daughters,' and take wives far your sans, and give your daughters to husbands;³⁸  [now the advice to take wives for one's] sons is quite intelligible [since such marriages are] within a father's power³⁹  but [as to the giving of] one's daughters [the difficulty arises:] Is [such giving] within his power?³⁹  [Consequently⁴⁰  it must be] this that we were taught: That a father must provide for his daughter clothing and covering and must also give her a dowry⁴¹  so that people may be anxious to woo⁴²  her and so proceed to marry her. And to what extent?⁴³  Both Abaye and Raba ruled: Up to a tenth of his wealth. But might it not be suggested⁴⁴  [that the sons] should inherit [what their mother received] from her father⁴⁵  but not [that which was due to her] from her husband?⁴⁶  — If that were so, a father also would abstain from assigning⁴⁷  [a liberal dowry for his daughter].⁴⁸  May it then be suggested⁴⁴  that where her father had assigned a dowry⁴⁹  her husband must also enter the clause⁵⁰  but where her father did not assign any dowry⁵¹  her husband also need not enter the clause?⁵²  — The Rabbis drew no distinction.⁵³  But should not then⁵⁴  a daughter⁵⁵  among sons⁵⁶  also be heir?⁵⁷  — The Rabbis have treated [the kethubah]⁵⁸  like an inheritance.⁵⁹  But should not then a daughter⁵⁵  among the other daughters⁵⁶  be heir?⁶⁰  — The Rabbis made no distinction.⁶¹  Why then⁶²  is not [the kethubah] recoverable⁶³  from movables also?⁶⁴  — The Rabbis treated it like the [statutory] kethubah.⁶⁵  Why then should not distraint be made on sold or mortgaged property?⁶⁶  — [The expression] we learned [was] SHALL INHERIT.⁶⁷  May it then⁶²  be suggested [that It Is recoverable] even if there was no surplus⁶⁸  of a denar?⁶⁹  — The Rabbis have made no enactment where the Pentateuchal law of inheritance would thereby be uprooted. R. Papa was making arrangements for his son to be married into the house of Abba of Sura.⁷⁰  He went there to write the kethubah for the bride.⁷¹  When Judah b. Meremar heard [of his arrival] he went out to welcome him.⁷²  When, however, they reached the door [of the bride's father's house] he asked leave to depart, when [R. Papa] said to him, 'Will the Master come in with me?'

1. [H] 'for the sake of the social order' (Jast.), lit., 'for the establishment of the world', that captors should not thereby be encouraged to demand exorbitant prices for the ransom of their captive.
2. Lit., 'her ransom'.
3. Sc. did not exceed R.
4. Since one cannot be expected to be liable for a single clause of a kethubah more than for the total amount of the kethubah. [Isaiah Trani: The amount of the kethubah here denotes the extra jointure in addition to the statutory two hundred and one hundred zuz].
5. A ruling which contradicts the implication of the first Baraitha that he must ransom her 'even though the cost of a captive's ransom exceeds the amount of her kethubah'.
6. The price of the ransom need not exceed either (a) the actual value of the woman or (b) the amount of her kethubah, whichever is the less.
7. Lit., 'behold it'.
8. Lit., 'she is healed'.
9. If, for instance, the woman is always ailing.
10. Lit., 'behold it'.
11. Palestine.
12. Tosef. Keth. IV.
13. Seeking advice on how to escape the constant drain on their resources.
14. Lit.,'go fix something for him, for a healer'. Since their liability would thereby become limited they would be entitled to deduct it from the woman's kethubah.
15. Lit., 'as'.
16. [H] lit., 'those who arrange (the pleas) before the judges'. It is forbidden for a judge to act, even indirectly, as legal adviser to one of the litigants, v. Aboth (Sonc. ed.) p. 6, n. 1.
17. When he gave his advice to his relatives.
18. Lit., 'and in the end what did he think?'
19. Isa. LVIII, 7, teaching the obligation of assisting one's relatives.
20. A judge must subject himself to greater restrictions in order to be free from all possible suspicion of partiality.
21. As one of the clauses of her kethubah.
22. Lit., 'that you will have from me'.
23. Who may be born from another wife. The effect of such a clause is that, if the woman predeceases her husband, her sons, on the death of their father (her husband), would inherit her kethubah, and they would recover it from their deceased father's estate, irrespective of the amount or size of the shares to which they are entitled like any of the other sons of the deceased. This clause is designated, as 'kethubath benin dikrin' (kethubah of male children).
24. V. p. 305, n. 13.
25. V. p. 305, n. 14.
26. Lit., 'to men'. This clause is designated as 'kethubath benan nukban' (kethubah of female children).
27. As one of the clauses of her kethubah.
28. Immediately after the last mentioned clause.
29. Cf. supra p. 305, n. is and text.
30. Sc. why should not the kethubah, which on the death of his wife is legally inherited by the husband, be regarded as a part of his general estate and so be equally divided between all his sons?
31. By being assured that whatever dowry he may give to his daughter will remain the property of her own children and will not pass through her husband to the children of his other wives.
32. Lit., 'that a man may leap'.
33. So MS.M. Cur. edd. 'and he will write'.
34. Lit., 'is there a thing?'
35. Cf. Num. XXVII, 8: If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter, from which it follows that if a man has a son his inheritance shall not pass unto his daughter.
36. Encouraging a father (cf. supra p. 306. n. 8) to give his daughter a liberal dowry and thus deprive his sons of property which Pentateuchally should in due course be inherited by them.
37. A father's duty to make liberal provision for his daughter.
38. Jer. XXIX, 6.
39. Lit., 'stand in his hand'. It is the man who approaches the woman, not the woman the man.
40. Since Scripture nevertheless advises fathers to give their daughters to husbands.
41. Lit., 'something'.
42. Lit., 'jump', 'leap'.
43. Must a father go on assigning a dowry for his daughter.
44. Since the kethubah for the male children was instituted in order to encourage a father to provide a liberal dowry for his daughter.
45. Sc. the dowry he gave her, which was included in her kethubah.
46. The statutory kethubah and any additional jointure her husband may have settled upon her.
47. Lit., 'and will not write'.
48. No father would be prepared to give a liberal dowry to a husband of his daughter who does not himself also allow the sons of that daughter to inherit what he had promised their mother.
49. Lit., 'wrote'.
50. Relating to the MALE CHILDREN. Lit., 'should write'.
51. Lit., 'did not write'.
52. Cf. supra p. 307, n. 16 mutatis mutandis.
53. Between the two kinds of kethubahs, since most kethubahs contain records of dowries (Rashi). All kethubahs must consequently include the MALE CHILDREN clause also.
54. V. supra p. 307, n. 10.
55. Of one wife who had no sons'
56. Of another wife.
57. To her mother, as far as her kethubah is concerned. The same reason that applies to male children should equally apply to a daughter in the absence of sons. Why then was a 'male children' and not a similar 'female children' clause instituted?
58. In which the term 'INHERIT' was used (cf. our Mishnah).
59. No daughter may 'inherit' among sons.
60. Though she cannot be heir among sons (v. supra n. 8) she is well entitled, in the case of an ordinary inheritance, to be heir among daughters. Why then should she be deprived of her mother's kethubah (cf. supra n. 6. final clause)?
61. Cf. supra note 2.
62. V. supra p. 307, n. 10.
63. By the sons.
64. As stated supra 50a.
65. Which cannot be recovered from the movables of a deceased husband.
66. Just as the woman can collect her kethubah from mortgaged or sold property, so should the sons be able to recover it from such property, v. infra 55a.
67. And no sold or mortgaged property may be seized for an inheritance.
68. After the two 'male children' kethubahs had been paid (v. Mishnah infra 91a).
69. Whereby the Pentateuchal law of inheritance could be carried out. Why then was it stated (l.c.) that the male children kethubahs are not recoverable in such a case?
70. Who was his father-in-law (cf. supra 39b and Sanh. 14b). R. Papa's son married the sister of his father's wife.
71. Lit., 'for her'. This would include the fixing of the amount for the dowry she was to receive from her father.
72. Lit., 'he came; shewed himself to him'.