Taking Care of her Daughter (12:2)

Ketubot (12:2) | Yisrael Bankier | 9 years ago

The twelfth perek opens by discussing a case where the groom commits to support his bride’s daughter from a previous marriage for five years. The Mishnayotdiscuss the nature of this commitment as the family situation may change over that five-year period. The second Mishnah teaches that if the husband dies, even though his own daughters are only supported by the property held by the estate (nechasim bnei chorin), his wife’s daughter whom he committed to support can be funded even by land that was sold after the commitment. This land is call nechasim meshubadim and can be reclaimed in the even that the funds in the estate have been exhausted.

The Mishnah explains that greater flexibility in claiming from nechasim meshubadim is because this commitment is like a contractual debt that can be collected in this manner. We shall investigate this law.

The Ritva notes that there are some who maintain that this commitment is equivalent to a debt; if the daughter passes away the husband must continue providing the maintenance payments to her heirs. The Ritva however disagrees. While it may share many similarities with debt it is not equivalent to one. It is true that the Mishnah teaches that the payments continue even if the daughter does not need them, e.g. the daughter marries or the mother remarries and arranges a similar commitment from the next husband. The Ritva however argues that the commitment was to provide her with food (or funds for food) which is no longer relevant if she dies.

A difficulty raised on our Mishnah is that a Beraitamentioned earlier (51b) lists five cases where money due is only collect from bnei chorin. Included in that list is a husband that commits to supporting his wife’s daughter. This appears to contradict our Mishnah that teaches that the commitment can be collected from nechasim meshubadim. Rashi there explains that it must be collected from bnei chorin since the commitment does not have a fixed limit. The Ritva explains that this is because future purchasers of his property will not be able to accurately assess the credit rating of the person they are purchasing from in order to consider the risk. Rashi continues explaining that our case however, is where the commitment was formalised with a kinyan (acquisition). The Bartenurahere explains that the case in our Mishnah is where that commitment has been formalised with a contract.

The Tosfot however explain since the commitment was for five years it has a fixed figure and can be collected from nechasim meshubadim. The earlier Beraita was where the husband’s commitment did not have a defined time limit. The Tosfot (Gittin 51a) adds that in our case it does not need to be documented in a contract. Even though for loans to be collected from nechasim meshubadim they must be in a contract, it is because people usually borrow privately.

The Tosfot R’ Akiva Eiger notes that the Mishnah ends that the more astute husband would qualify the obligation to only apply as long as he was married to his wife. According to this explanation of the Tosfot it is possible that in this case the funds would not be able to be collected from nechasim meshubadim as it might be considered like not have a fixed time limit as there a many possibilities that the obligation could end.

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