Disputing a Ketubah Payment

Ketubot (9:9) | Yisrael Bankier | 7 years ago

The Mishnah (9:9) discusses a case where a woman comes to Beit Din with her ketubah claiming that she was divorced. She however does not have a get (divorce document) and explains she lost it. The husband admits that they are divorced, but claims the ketubah was paid and he lost his shovar (receipt). The Mishnah rules that in this case the ketubah need not be paid; the husband is believed. We shall try to understand this ruling.

The Gemara (89a) explains that in this case there were no witnesses to the divorce. Since the husband could claim that he never divorced her thereby exempting himself from any payment, he is believed when he says that he divorced her and paid her ketubah. This reasoning constitutes a migo – since he could have made a stronger argument, his claim is believed.

The Tosfot (89b, s.v. yachol) however ask that this case does not appear to constitute a migo. Had the husband claimed that they were still married, he would have obligated himself to provide her with food and clothing (mezonot), an obligation that he exempts himself from by admitting to the divorce. Consequently, this other possible claim is not a better one and we no longer have a migo.

The Tosfot answers, that since the wife claimed she was divorced, had he claimed that they were married, he would still not have been obligated to provide food and clothing. The reason is that this case would parallel the case, where one person claimed that he was owed wheat while the defendant admitted to owing him barley. In that case since the admission is different to the claim, the defendant is exempt from paying anything. Consequently, in our case, had the husband claimed they were still married, since the woman is claiming her ketubah, and the husband would be admitting the obligation of supporting her, something else, he would be exempt. That claim then would indeed be a better one, and the migo is preserved.

The Chidushei Mahariach however finds the Tosfot difficult. He notes that there are two ways of understanding why in the case where one claimed he was owed wheat and the other admitted to barley that he is exempt. Either it is because when the claiming wheat, the claimant is implicitly either admitting that he is not owed barley or that he is forgoing his claim to barley. Neither logic appears to apply in this case as the claims for the ketubah and mezonot are reciprocally dependant on one another. If we do not believe that she is divorced she is due mezonot. Both financial obligations are simply dependent on the get. Consequently, by claiming that she was divorced and her ketubah unpaid she cannot be considered actively admitting or forgoing the claim to mezonot. The Tifferet Yisrael similarly asks that if we understand, the claimant waived his claim to barley because he claimed only wheat, that logic does not hold true in this case. In this case she cannot claim both the ketubah and mezonot and therefore cannot be considered as forfeiting the mezonot.¹

The Chidushei Mahariach comments that were it not for the Tosfot's explanation, he would have thought that in this case, if the husband claimed they were still married, he would still be obligated to pay mezonot. What then of our migo? The Tifferet Yisrael answers that the migo is preserved since exempting himself from mezonot is almost insignificant, especially since part of that obligation has the benefit of him enjoying maaseh yadeiha (anything she produces). Furthermore, it is paid gradually. Exempting himself from the payment of the ketubah, a significant financial obligation, is a much better position. Consequently, by admitting to having divorced her, the migo stands as he could have claimed that they were still married which would have been a much better position.²

¹ The Tifferet Yisrael continues at length arguing that this case should not be considered like one where the claim is for wheat and the admission for barley. The Tifferet Yaakov, commenting on the Tifferet Yisrael, argues that ordinarily the Ramah does not maintain that the claimant is forgoing his right since he should not be penalised for not claiming both debts at the same time. Instead the defendant is simply considered as if he is denying the entire claim. In our case however, by claiming she is divorced, there is more of a reason to say she forgoes her claim on mezonot which is part and parcel of being divorced. See also the Netivot.

² The Tifferet Yisrael continues, considering the claim he could have made that they were still married, this would not have been considered a partial admission requiring a shevuah. The admission to mezonot if they continued to be married for a long time, may in fact exceed the value of the ketubah. More importantly since the admission is not a fixed amount, it does not constitute a partial admission.

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