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Week 64 - Shabbat - 11 February 2001

KETUBOT: CHAPTER 8: MISHNAH 6

A woman awaiting yibum to whom property fell - Bet Shammai and Bet Hillel agree that she sells and she gives away and it is valid. If she died - what shall they do with her ketubah and with the property which comes in and goes out with her? Bet Shammai say, The heirs of the husband shall divide with the heirs of the father. But Bet Hillel say, Properties remain with their possessors, ketubah in the possession of the heirs of the husband, property which comes in and goes out with her, in the possession of the heirs of the father.

Kehati

Our mishnah, also appears in Tractate Yevamot (4:3), where we explained that the property of a married woman falls into two categories: (1) usufructuary property (nikhsei melog), which she brings with her from her father's house, which is not recorded in the ketubah, or which falls to her as an inheritance or is given to her as a gift after her marriage. We explained in the preceding mishnayot that the principal of this property is hers, and the husband enjoys the usufruct. The term nikhsei melog is derived from the Aramaic word meligah, "the plucking of feathers," i.e., the husband "plucks" this property even as chickens are plucked, and he does not bear responsibility for them; (2) fixed value (1it. iron sheep) property (nikhsei tzon barze1), which the wife brings in to her husband as her dowry, whose value he records in the ketubah. The husband is responsible for this property and may use it as he wishes, and any losses or improvements are his responsibility. They are called "fixed value" property, because the principal endures like iron, and if it deteriorates, the husband has to cover the loss. Our mishnah discusses the usufructuary property and the fixed value property of a woman awaiting yibum, (i.e., the levirate marriage with a childless brother's widow (see Deut. 25:5-10).

A woman - while she is - awaiting yibum - as explained in our introduction - to whom property fell - as an inheritance or as a gift, Bet Shammai and Bet Hillel agree that she sells and she gives away - she is permitted to sell this property or to give it away as a present, and it - her act, is valid - i.e., even though Bet Shammai and Bet Hillel disagree regarding the betrothed woman to whom property fell after her betrothal, (above 8:1), and Bet Hillel rule that she may not sell it, in the case of a woman awaiting yibum to whom property fell, Bet Hillel and Bet Shammai agree that she may legitimately sell or give it away. The commentaries explain that this is so because the bond between a yevamah a childless man's widow and her yavam (brother-in-law) is not as firm as that between a betrothed woman and her betrothed (Hameiri); while the betrothal presumably leads to marriage, the yevamah could receive either halitzah or yibum (Tosafot, Ket. 78a).

If she died - while she was waiting for yibum, what shall they do with her ketubah - i.e., the principal of her ketubah (the two hundred dinars due to a virgin, or the one hundred dinars for a widow) and the supplementary ketubah (added by the husband of his own accord), and the fixed value property which is recorded in the ketubah, and with the property which comes in and goes out with her - the usufructuary property which she brings in upon marriage, and which she may withdraw when she leaves him, i.e., who inherits the property of a woman who dies while liable to yibum? Bet Shammai say, The heirs of the - deceased - husband - i.e., his brothers shall divide with the heirs of the father - i.e., her brothers, if the father is no longer alive, since the father inherits his daughter's property (Hameiri). Most commentators, following the Gemara however, identify the "heirs of the husband" as the yavam, since the yevamah is considered a doubtfully married woman, and a husband inherits his wife's property; therefore, due to the doubt, the yavam is awarded half of her inheritance.

But Bet Hillel say, fixed value properties remain with their possessors - the two heirs; the heirs of the (wife's) father, since the property belongs to the wife and of the heirs of the husband, who bears responsibility for the property; therefore, such property is divided between the heirs of the husband and the heirs of the father (see conclusion of the Gemara, B. B. 158b); ketubah - the principal of the ketubah and the supplementary ketubah, in the possession of the heirs of the husband - who bears responsibility for the ketubah, property which comes in and goes out with her - usufructuary property, in the possession of the heirs of the - wife's - father - since this property belongs to her, and the husband does not bear responsibility for it. According to another interpretation of our mishnah, Bet Hillel first establish the rule: "The property remains with their possessors" - all property remains with whomever happens to be the possessor, and then proceed to elaborate this rule: ketubah entails all the obligations listed therein, i.e., the principal, the supplement, as well as the fixed value property recorded in the ketubah for which the husband bears responsibility (as explained in the first section of the mishnah) are "in the possession of the heirs of the husband" - because the husband was in complete possession of them; "property which comes in and goes out with her" - i.e., usufructuary property, is "in the possession of the heirs of the father" -because it is considered to be substantially in the wife's possession (Tosafot; Hameiri).

KETUBOT: CHAPTER 8: MISHNAH 7

If his brother left money - land should be purchased with it, and he enjoys the usufruct; produce which is detached from the soil - land should be purchased with it, and he enjoys the usufruct. That which is attached to the soil - Rabbi Meir said, They assess how much it is worth with produce and how much it is worth without produce, and the balance - land should be purchased with it, and he enjoys the usufruct. But the Sages say, Produce which is attached to the soil is his, that which is detached from the soil - whoever comes first gains possession of it: if he came first - he gains possession, if she came first - land should be purchased with it, and he enjoys the usufruct. He wed her - then she is considered his wife in all respects, except that her ketubah will be upon the property of her first husband.

Kehati

Our mishnah continues to discuss the laws of a woman liable to yibum, and teaches that the property of her dead husband is surety for her ketubah, and the yavam, his brother, who becomes his heir, may not sell this property.

If his - the yavam's brother - i.e., the deceased husband of the widow who becomes liable to the yavam for yibum (levirate marriage), left - bequeathed, money - to the yavam - land should be purchased with it, and he enjoys the usufruct - since the entire property of the deceased person is rendered surety for the ketubah of the widow, and the yavam may only enjoy its usufruct; he may not spend this money, but must purchase with it land, which is mortgaged to her ketubah, and he enjoys the usufruct. And similarly, if his deceased brother left produce which is detached from the soil - the yavam may not enjoy this produce, but rather land should be purchased with it - so as to preserve the principal as surety for the ketubah, and he enjoys the usufruct - from this land. If his brother left that - produce, which is attached to the soil - i.e., he left land with produce attached to it, Rabbi Meir said, They assess how much it - the land, is worth - now - with - its - produce - on it, and how much it is worth without produce, and the balance - with the monetary difference, land should be purchased with it, and he enjoys the usufruct - because all produce which grew during the lifetime of the deceased brother is surety for her ketubah, and the yavam may only enjoy produce that grows under his authority, i.e., from the time she became liable to him for yibum.

But the Sages say, Produce which is attached to the soil is his - the Gemara amends this text from "is his" to "is hers," i.e., the Sages agree with Rabbi Meir that produce which is attached to the soil is surety for her ketubah, and land is to be purchased with it and mortgaged to the ketubah, and the yavam will enjoy its produce. But that - produce - which is detached from the soil - whoever comes first - and seizes it, gains possession of it - for the Sages hold that movable property is not mortgaged to her ketubah, and therefore, if he - the yavam, came first - and seized it, he gains possession - of it and he may do with it as he wishes, but if she - the yevamah, the wife of the deceased, came first - and seized it, during her husband's lifetime (Rashi; Rambam, Hil. Ishut 18:11), it becomes mortgaged to her ketubah and land should be purchased with it, and he enjoys the usufruct - since she seized it during her husband's lifetime, it is mortgaged to her ketubah. The Sages also disagree in the case of "If his brother left money" (see above) and hold that whoever comes first gains possession. Their opinion was not mentioned, however, because the first part of the mishnah only represents the view of Rabbi Meir, who holds that money and movable property are surety for her ketubah. The halakhah follows the Sages.

He wed her - if the yavam performed yibum (Levirate marriage), then she is considered his wife in all respects - if he decides to divorce her, he must write her a get, and she no longer requires halitzah; he may likewise remarry her after divorce, and she is no longer prohibited as "the wife of his brother," as it is written, "and he shall take her to him for a wife" (Deut. 25:5) - since he wed her, she is considered his wife, except - for the following proviso which distinguishes her from other women - that her ketubah will be - charged - upon the property of her first - deceased - husband - and not on the property of the yavam, since her first husband's property remains mortgaged to her ketubah. The Gemara explains, however, that if her first husband left no property, the Sages enacted that she receive a ketubah from the yavam.

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