Pogemet Ketubatah - Complications

Ketubot (9:7) | Yisrael Bankier | a year ago

The Mishnah (9:7) teaches that if a woman is pogemet her ketubah then she must make a shevuah (oath) before she can collect the remainder. The next Mishnah explains that this case is where the woman admits that she has received a partial payment for her ketubah. We shall try to understand this law.

The Bartenura explains, citing the Gemara, that the obligation to make the shevua is rabbinic and also applies to partially paid loans. A sign of this is that one who makes a biblically required shevua usually does so to exempt themselves from payment. In this case however the woman would be collecting money after making the shevua. The Bartenura explains that the reason from the shevua is that a creditor is less aware of the amount paid than the borrower. It is possible that the entire sum was already paid. The requirement to make a shevuah will ensure that the creditor is more certain with his claim before demanding the remaining funds.

The Pnei Yehoshua notes, that from the language of our Mishnah it would seem that if she is unable to make a shevua, then she would not be able to collect the remainder of the ketubah. An example of this is if there are grounds to suspect she makes false shevuot (chashud). He cites Rashi (Gittin 34b, s.v. nimneu) that this indeed the case.

The Pnei Yehoshua however explains that the Tosfot disagree. Another similar case in the Mishnah is where there is only one witness that can testify that the ketubah has been paid. The Gemara understands that since she still has her ketubah in hand, she would really be able to collect her ketubah without a shevuah. The Chachamim however require a shevuah to set the husband's mind at ease (considering that he has one witness). The Gemara continues that the husband could engineer a situation such that it would require her to make a shevuah required on a biblical level (see the Gemara for more details). Rashi explains that a biblically required shevuah is more severe in that it is made using Hashem's name while hold a kadosh object.

The Tosfot however explain that the difference is that in a case of a biblical shevua, where the shevua is exempting payment, and the person is not able to make the shevua, then the other party demanding the funds can instead make a shevua to collect the funds. If however, the other party is also not able to, then the payment would need to be made. In the case of a rabbinic shevua, as in our case, even if she cannot make a shevua she would still be able to collect the ketubah.

This appears to be also debated between the Rambam and Raavad. The Rambam (Toen veNitan 2:5) rules that in a case where the person required to make the shevuah is a chashud, the other party can simply make a shevuah instead and exempt themselves from payment. The Raavad however argues that on a biblical level the person is not required to make a shevuah and should be able to collect the funds. How can this rabbinic requirement to make the shevua invalidate the contract that is in their hand? The Magid Mishnah explains that the Raavad understands that the Chachamim only instituted the extra requirement where it was possible for them to make a shevuah, thereby preserving the biblical law. The strange result however is that a chashud is in a better position than one that is not chashud. The Rambam however would maintain that the requirement to make the shevua takes away from the legal force of the contract.

Interesting the Derisha (82:11) notes that when it comes to partially paid contracts the Tur rules like the position of the Raavad, yet when it comes to our case he rules like the Rambam. The Derisha therefore differentiates between these two cases. The Tur is stricter in the case of the wife. Given that she was present and dealing with household matters, there is a concern that she may have retained some of the property. Consequently a shevua is required to ensure the full value of the ketubah was not collected. Such a concern however is not present in a case of a partially paid loan.

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