Ketuba as a "Tenai Bet-Din"
Translated by David Silverberg
The mishna (51a) writes:
"If he did not write her a ketuba, a betula (virgin bride) [nevertheless] collects two hundred, and a widow one hundred, because it is a 'tenai Bet-Din' [condition stipulated by the court, irrespective of the husband's writing of a ketuba]. If he wrote for her [in the ketuba] a field worth one hundred instead of two hundred zuz, or if he did not write for her, 'All my possessions are meshubad [mortgaged] for your ketuba' – he is [nevertheless] obligated, for it is a tenai Bet-Din."
The Gemara notes that the first line of this mishna follows the view of Rabbi Meir:
"This is the view of Rabbi Meir, who said that whoever writes less than two hundred for a betula or less than one hundred for a widow – his relations are forbidden relations. For if it is Rabbi Yehuda's view, did not Rabbi Yehuda say that if one wishes, he can write for a betula a document of two hundred and she writes, 'I have received from you one hundred,' or for a widow one hundred, and she writes, 'I have received from you fifty zuz'!"
One difficulty, however, arises from this assumption, that our mishna follows the view of Rabbi Meir. Our mishna addresses a case of someone who does not write a ketuba for his wife at all. The debate between Rabbi Meir and Rabbi Yehuda, however, does not relate to such a situation, but deals rather with the wife's ability to forego on part of the ketuba payment. Seemingly, Rabbi Yehuda, who allows the wife to waive part of the ketuba's value, would agree that if she did not express her willingness to forego, she would collect the full two hundred zuz, even if the husband did not write a ketuba, as established in the mishna. Thus, the mishna could follow even Rabbi Yehuda's view. The Gemara indeed raises this distinction towards the end of the sugya, but only as one possible explanation of the mishna: "Alternatively, we can say that [the mishna follows the view of] Rabbi Yehuda: there [in the case addressed by Rabbi Yehuda] she wrote to him, 'I have received'; here [in our mishna], she did not write to him, 'I have received'." The question, though, remains, why was it not perfectly clear to the sugya that our mishna need not contradict Rabbi Yehuda's position?
As he often does, Rashi resolves this difficulty incidentally, over the course of his commentary. He writes, "According to Rabbi Meir, she cannot forego while she is married to him, and our mishna, too, which writes, 'If he did not write her a ketuba she collects her [complete] ketuba' – we assume at this point [that this refers even to a case where] she forewent [on part of the ketuba payment]." Meaning, according to Rashi, Rabbi Meir and Rabbi Yehuda argue as to whether a wife can forego on her ketuba. Initially, our sugya assumed that the fact that the husband did not write his wife a ketuba testifies to the wife's having foregone on the ketuba. Therefore, once the mishna grants the woman a full ketuba payment despite her mechila (forgoing on the payment), it must reflect the position of Rabbi Meir, who disagrees with Rabbi Yehuda and does not allow the wife to forego on the ketuba.
Tosefot, by contrast, understood that Rabbi Meir deals not with mechila, but rather with a case of one who stipulates that he will not pay the full amount of the ketuba. According to Tosefot, Rabbi Meir here simply follows his general opinion that any action performed on a condition that opposes Torah law is null and void – even when dealing with a "davar she-ba-mammon" – a case involving only money. Thus, for example, according to Rabi Meir, if one betroths a woman on condition that he be absolved of his obligations concerning "she'er, kesut ve-ona" (food, clothing and sexual relations), the betrothal is valid and the condition null and void (56a). Similarly, then, if one marries a woman on condition that he need not pay the full ketuba amount, the condition is invalid. Tosefot base their interpretation on the sugya in the following perek (56b), which discusses Rabbi Meir's debate with Rabbi Yehuda:
"'Whoever lowers [the ketuba payment]' – even with a stipulation. He [Rabbi Meir] thus holds that his condition is invalid and she receives [full ketuba payment], but since he said to her, 'You will receive only one hundred' she does not have confidence [in his loyalty to her] and his relations are thus rendered 'be'ilat zenut' [illicit relations]. But is it not the general position of Rabbi Meir that whoever makes a stipulation against that which is written in the Torah, the stipulation is invalid – implying that with regard to a rabbinic enactment the condition is valid? Rabbi Meir holds that ketuba is [mandated] by Torah law."
Accordingly, Tosefot explain that the sugya initially held that Rabbi Yehuda argues with Rabbi Meir on this very point, maintaining that with regard to strictly monetary matters, a condition against a Torah law is valid. And since the Gemara initially reads the mishna as referring to a case of tenai (stipulation), where the husband made such a condition, it concluded (at first) that our mishna must follow the view of Rabbi Meir.
The Rid explains similarly, only with one difference. Like Tosefot, the Rid maintains that the woman receives the full ketuba payment even if the husband made a tenai, only he derives this from the second clause in the mishna: "If he wrote for her a field worth one hundred instead of two hundred." According to the Rid, mortgaging one hundred instead of two hundred qualifies as a tenai on the marriage that the woman will receive only one hundred, and yet, Rabbi Meir holds that the wife still receives her full ketuba payment. The Ra'a, too, follows this approach, only he believes that the mishna does not speak of a situation of tenai. However, we can still infer from the mishna that it accepts Rabbi Meir's view, that a tenai cannot lower the amount of the ketuba. If a tenai would be effective, then when the husband did not write a ketuba at all, the woman would bear the burden of proof that the husband made no tenai in order for her to collect her full amount. Necessarily, then, the Gemara initially reasons, our mishna follows Rabbi Meir's position, that the husband cannot lower the ketuba amount by applying a tenai to the marriage.
The Mishna According to Rabbi Yehuda
Later, the sugya challenges this assertion, that the mishna follows Rabbi Meir's view, from the seifa: "If he wrote for her [in the ketuba] a field worth one hundred instead of two hundred zuz, or if he did not write for her, 'All my possessions are meshubad for your ketuba' – he is [nevertheless] obligated, for it is a tenai Bet-Din." This halakha, the Gemara notes, follows the opinion of Rabbi Yehuda that "achrayut ta'ut sofer hu" – if a contract does not explicitly mention shibud nekhasim (a lien on the obligating party's property), we must consider this an erroneous omission and apply the shibud despite its omission. Rabbi Meir, by contrast, holds "achrayut lav ta'ut sofer," and if no reference to shibud nekhasim appears in the shetar, we do not apply any lien onto the obligating party's property. Thus, the Gemara reasons, our mishna, which applies shibud nekhasim to a ketuba even though no explicit mention to shibud nekhasim appears, follows the view of Rabbi Yehuda, thus contradicting the conclusion reached based on the reisha, that the mishna is in accordance with Rabbi Meir.
This discussion, too, requires elucidation. The mishna establishes de facto shibud nekhasim on the ketuba payment because of the unique status of ketuba as "tenai Bet-Din." This would clearly imply that generally, when dealing with other legal documents, we do not apply shibud nekhasim in the absence of such a clause in the document – in accordance with Rabbi Meir's view, that "achrayut lav ta'ut sofer hu." Indeed, this is the approach taken by the Yerushalmi, which writes explicitly that our mishna follows the view of Rabbi Meir; though in general shibud nekhasim does not apply if it is not mentioned in the document, in the case of ketuba it applies nonetheless. Our Gemara, however, seems difficult to understand. Does not the mishna appear to follow specifically Rabbi Meir's opinion? Why, then, does the Gemara attribute the mishna's ruling to Rabbi Yehuda? After all, according to Rabbi Yehuda, we apply shibud nekhasim despite its omission from the document in all cases, even without the factor of "tenai Bet-Din"!
The Ramban discusses this problem and writes as follows: "Some answer that 'tenai Bet-Din' refers to the ketuba payment itself, and this is what [the Gemara] says: 'Even though he wrote her a field worth one hundred, she has not [thereby] received her ketuba, for it is a tenai Bet-Din that she has two hundred and no less than two hundred… And once he has obligated himself towards her [to pay] two hundred, she has a lien on all his property, because 'achrayut ta'ut sofer hu'." Meaning, the phrase in the mishna, "because it is a tenai Bet-Din" refers not to the lien on the husband's property towards the ketuba, but rather on the ketuba obligation itself. Once the husband takes upon himself the two hundred-zuz ketuba obligation, then a lien automatically takes effect upon all his property even if the ketuba makes no mention of shibud nekhasim, because "achrayut ta'ut sofer." According to this reading of the mishna, this clause must, indeed, as the Gemara concludes, follow the view of Rabbi Yehuda, that "achrayut ta'ut sofer."
The Rambam, however, writes (Hilkhot Ishut 16:10), "The Sages further legislated that all the husband's possessions shall be meshubad and guaranteed towards the ketuba; even if her ketuba is one hundred, and he owns land worth thousands of gold coins, it is all under the lien of the ketuba." The Rambam explicitly writes that it was Bet-Din who established the shibud nekhasim for the ketuba payment, and, therefore, the ketuba differs from ordinary debts. Our question, then, remains: why does the Gemara assume that the seifa of the mishna follows the view of Rabbi Yehuda, if it attributes the shibud nekhasim of ketuba to a unique rabbinic enactment, rather than the standard principle of "achrayut ta'ut sofer"?
Later in the masekhet, the Gemara writes:
"Originally, they would write [in the ketuba] two hundred for a betula, and one hundred for a widow [without any shibud on the husband's property]. But they would grow older and would not marry women [because the women feared that they would have nothing from which to collect their ketuba upon the husband's death]. They instituted that they should place it [money for the ketuba] in her father's house. Still, when he grew angry with her, he would say to her, 'Go take your ketuba.' They instituted that they should place it in the husband's house: the wealthy women made from it silver and gold baskets, and the poor women made from it a urine basin. Still, when he grew angry with her, he would say to her, 'Go take your ketuba,' until Rabbi Shimon Ben Shetach came along and instituted that one writes for her, 'All my property is meshubad for her ketuba'."
The Rid explains this passage as the background to the halakha in our mishna, establishing shibud nekhasim on the ketuba payment even if the ketuba omits any reference to this commitment. It thus clearly emerges that, as the Rambam maintains, the de facto shibud nekhasim on the ketuba payment originates in a specific enactment of Chazal. (See the Ramban's comments for his refutation of this proof.)
"Mohar" and "Ketuba"
In order to explain this sugya, we must analyze the aforementioned beraita at the end of the eighth perek describing the development of the ketuba obligation. One might suggest that the ketuba did not undergo a revolutionary change; the process outlined in the mishna relates only to the issue of shibud, the lien on the husband's property. The ketuba always served as the husband's commitment to compensate his wife in the case of death or divorce, only originally, this commitment did not include a lien on the husband's property, but rather collateral given to the wife. When the rabbis observed that divorce became widespread due to the fact that the husband incurred no substantial loss in divorcing his wife, they decided to keep the collateral in the husband's home. Seeing that husbands still did not hesitate to divorce, they instituted that the ketuba obligation would be expressed not through collateral, but rather in the form of a lien on the husband's entire estate.
It would seem, however, that we may understand the ketuba's development differently. The view that maintains "ketuba de-orayta," that the ketuba requirement originates in Torah law, derives this obligation from the verse, "mohar ha-betulot" (Shemot 22:16). The Ramban, in his commentary to the Chumash, rejects the interpretation of this phrase as a reference to the ketuba, and claims that it refers instead to "sivlonot" – the gifts given by the groom to his fiancée or her father for the wedding expenses. (See also the Ramban's comments to Bereishit 34:12). Compelling proof for the Ramban's view may be drawn from Parashat Vayishlach (Bereishit ibid.), where Shekhem tells Yaakov and his sons, "Ask of me a mohar ever so high" ("Harbu alai… mohar u-matan"). How, then, can the one who holds "ketuba de-orayta" derive the ketuba payment from the phrase "mohar ha-betulot"?
It would seem that before Matan Torah, the practice of "mohar" involved giving a gift to the bride or her father, with the purpose of demonstrating the groom's commitment to the bond of marriage. This declaration of commitment gave no assurance that the husband would not change his mind; he could still very easily violate the agreement and divorce his wife. After Matan Torah, however (according to the view that ketuba constitutes a Torah obligation), instead of giving a gift before the wedding, the groom writes a ketuba – thereby promising a gift that he will give only in a situation of divorce. The ketuba thus not only serves as the groom's declaration of commitment at the time of marriage, but also helped actualize this commitment, as he agrees to incur financial loss should he violate it.
The transition from "mohar" to ketuba, from the situation before Matan Torah to the halakha introduced with the giving of the Torah, is a transition from a gift serving as a one-time expression of commitment, to a factor impacting upon the fulfillment of this commitment throughout the marriage. The aforementioned beraita that records the enactment of Rabbi Shimon Ben Shetach mentions that at first the ketuba money was left in the wife's father's home, then in the husband's home. According to the approach suggested here, we would explain that we deal here not with a collateral for the ketuba's payment, but rather with a gift intended for her in such a situation. Only once they discovered that husbands still did not hesitate to divorce did the rabbis establish shibud nekhasim for the ketuba payment. (This may very well apply even according to the view that the ketuba was enacted by Chazal; the transition from "mohar" to ketuba would thus occur on the level of de-rabbanan.)
If so, then we must understand this final stage of the ketuba's development, the enactment of Rabbi Shimon Ben Shetach rendering all the husband's possessions meshubad for the ketuba payment. If we view ketuba as merely a "gift," then we would find it difficult to justify such a measure; nowhere do we ever find shibud nekhasim regarding a gift. It would therefore seem that at this stage, Rabbi Shimon Ben Shetach instituted a fundamental change in the nature of ketuba – from a gift given at the termination of the marriage, to a debt. As a natural consequence, all the husband's possessions become meshubad for the ketuba. Accordingly, we readily understand why the Gemara concluded that our mishna must follow the view of Rabbi Yehuda, that "achrayut ta'ut sofer," for the essence of this takana was not the shibud nekhasim itself, but rather the ketuba's evolution from a gift to a debt. Therefore, the mishna, which applies shibud nekhasim even in the absence of an explicit provision to this effect, corresponds to Rabbi Yehuda's view, that "achrayut ta'ut sofer."
It turns out, then, that the ketuba is meant to bring about the marriage's stability. We therefore find in halakha that a wife without a ketuba is forbidden to her husband like a nidda; for without this assurance, nothing will prevent the husband from violating his commitment. The Gemara in Sanhedrin (21a, according to some versions) reads: "What are wives, and what are pilagshim? Rav Yehuda said in the name of Rav, wives [are married] with a ketuba and with kiddushin, whereas pilagshim [are married] without a ketuba and without kiddushin." Ketuba constitutes one of the defining characteristics of marriage in halakha because it lends stability to the marriage, and it is stability that distinguishes between zenut (illicit, unbinding relationships) and marriage. Moreover, even if a woman has a ketuba but she does not know about it, her relations with her husband are deemed "be'ilat zenut": "Once he tells her, 'You have only one hundred,' she has no confidence [in his loyalty] and his relations are considered be'ilat zenut" (Ketubot 56b).
We may now arrive at a new understanding of the Gemara's assertion that our mishna follows the position of Rabbi Meir. Until now we suggested that the mishna is referring to a case of mechila (Rashi) or tenai (other Rishonim). However, neither is mentioned in the mishna. Perhaps, Rabbi Meir's view, that a ketuba worth less than two hundred renders the couple's relations be'ilat zenut, reflects the perspective that sees the ketuba as the marriage contract, without which we have zenut, rather than marriage. A woman may therefore not forego on the ketuba payment, because without it, there can be no marriage at all. A ketuba is indispensable for marriage, and when the wife foregoes on even part of the amount, then despite the fact that the husband remains obligated in a lesser amount, we see this obligation as just a subjective commitment, rather than a formal ketuba. Rabbi Meir likewise holds that one cannot stipulate to lower the amount of the ketuba, just as one cannot stipulate that he is exempt from the obligations of "she'er kesut ve-ona," for the ketuba, like these obligations, constitutes an essential component of the marriage. Rabbi Yehuda, however, argues, and maintains that a bride and groom can themselves determine the ketuba's amount, and if they decide to lower it, then the commitment nevertheless attains the formal status of ketuba. The Yerushalmi clarifies that Rabbi Yehuda allows a lowering of only up to 50% of the ketuba payment; a beutla's ketuba must amount to at least one hundred, and that of a widow must be set at no less than fifty. Even Rabbi Yehuda, then, demands a ketuba as an essential part of the marriage, only in his view, half the prescribed amount also qualifies as a halakhic ketuba. The Ramban writes: "It seems to me that we think at this point that this person who married without a ketuba – we can legally coerce him only at the lowest amount within the law of ketuba; to whatever extent we can allow him with that ketuba, we do not extract from him any more." Meaning, according to Rabbi Yehuda, a ketuba of one hundred qualifies as a formal ketuba because it is corresponds to the lowest amount within the institution of ketuba. Our mishna, which does not allow for a ketuba lower than two hundred – even if the husband wrote nothing at all, follows the view of Rabbi Meir, that a commitment of less than two hundred cannot be considered a ketuba at all.
In this same vein we can interpret the comments of the Rambam in this context:
"If he stipulated with her that he would lower the main ketuba payment, or if he wrote for her two hundred or one hundred as the main ketuba payment and she wrote to him that she has received such-and-such amount of the payment, the condition is null and void, for whoever commits to less than two hundred for a betula, or less than hundred for a widow – this is a be'ilat zenut." (Hilkhot Ishut 12:8)
According to the Rambam, we do not accept a tenai or mechila to lower the amount of the ketuba not because of the consideration of tenai Bet-Din, because Bet-Din established the ironclad obligation of two/one hundred, but because committing less than this amount renders the relations be'ilat zenut. Meaning, the ketuba is to be seen as an integral component of the marriage, and without it, we have not a relationship of marriage, but rather a relationship of zenut, as we have explained. Even if the husband writes a ketuba but commits to a lesser amount, we do not consider this commitment a ketuba, and hence we cannot consider this relationship as one of formal ishut.