Eitzah Tova

Ketubot (8:8) | Yisrael Bankier | 2 months ago

The Mishnah (8:8) teaches that neither a yabam or husband can designate funds from which the ketubah will be paid. Instead, the ketubah can be collected from all his property.

Recall that if a man passes away without having any children, his surviving brother must perform either yibum or chalitzah. By performing yibum he effectively marries her, the difference however being that the ketubah is collected from the late brother's estate. The yabam in this Mishnah would like to designate some of the estate for the ketubah so he can make use of the rest. The Mishnah does not allow him to do so. With respect to case of a regular marriage, there is no restriction on what the husband can do with his own property. Why then can the husband not designate some of the funds for the ketubah?

The Gemara (81b) provides two explanations. The first is that the Gemara is providing "good advice". In other words, it appears that one could technically do so, but the possible consequences would be negative.

Rashi explains that we are concerned that that which was set aside might get lost. In that case he would be required to write a new ketubah.

The Tosfot however asks that the urgency to write a new ketubah is only according to opinion of R' Meir who forbids a husband to be with his wife without a ketubah. The "good advice" is only relevant according to the that opinion.

The Tosfot cites the Ri who explains that if the funds are set aside, then it would be quick and easy for the husband to divorce her. Recall that according to the opinion that a ketubah was rabbinic and instituted so that marriage would not be treated flippantly, setting aside money for a quick exit runs counter to the motivation for a ketubah. That said, it would appear to be more than just "good advice" but undermine the institution of the ketubah.

The Tosfot however also cite the Rashba that who maintains that it is beneficial to the husband not to set aside property for the ketubah. Normally, there is a lien on all his property for the ketubah. This however does not prevent him from using are selling any of his possessions. If he indeed runs out of money, then the ketubah would be collected from the land he sold. If, however he set aside property for the ketubah then he would not be able to sell it. Consequently, it is beneficial to the husband to not allocate funds for the ketubah.

The Shita Mekubetzet explains that this is the reason why the Mishnah writes, "so too, a man should not say to his wife, your ketubah is resting on the table, rather all his property is responsible for the ketubah." Considering that the Mishnah is normally concise, it should have simply added, "so too a husband." According to Rashba the verbosity is because the "good advice" is different for the husband then it is for the yabam.

The Tosfot however notes that the Gemara concluded with a different explanation -- eivah. In other words, it would create a feeling that the husband was anticipating divorce. It is this reason that is relevant to both cases in the Mishnah; the yabam and husband.

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