Commentary for Bava Metzia 14:4
והתניא מצא שטר כתובה בשוק בזמן שהבעל מודה יחזיר לאשה אין הבעל מודה לא יחזיר לא לזה ולא לזה
And [thus we learn that a found bill] must not be returned [to the claimant] not only when it bears no legal endorsement, so that it can be assumed that it was written for the purpose of securing a loan but the loan did not take place, but even when it bears a legal endorsement, as when it has been verified [in Court], because we apprehend that payment may have been made.<span class="x" onmousemove="('comment',' I.e. if the debtor pleads that the debt has been paid, we take this plea into consideration. ');"><sup>4</sup></span>
Tosafot on Bava Metzia
If the husband concedes [that he has not yet paid the Kesubah, the finder] should return [the Kesubah document] to the wife. Why is it necessary for the Baraisa to teach us that when the husband admits that he has not yet paid the Kesubah, the Kesubah document is returned to his wife? It seems unnecessary, since he is telling us he is still obligated to pay the Kesubah. Tosfos will explain the possible concerns that we may have about the validity of the document even when the husband admits that he still owes the Kesubah.
We must keep in mind that we should be very concerned about the loss of a document. It raises questions in our minds.1See Rashi (12b) ד'ה הנה ריעי. If in fact it was a valid document, how did it happen that the wife lost it? Most people are extremely careful about caring for their documents, especially those that represent a considerable sum. The loss causes us to think of possible reasons for the careless treatment of the document. Tosfos will examine each possible reason that would render the document invalid and thus explain why the wife was not as careful with it as she should have been.
a) קנוניא - conspiracy. There is a possibility that the husband already paid the Kesubah. After paying the Kesubah, the husband then conspired with his wife and returned the document to her so that she would attempt to collect with the document a second time. The husband would then claim that he has no money with which to pay and she would then proceed to collect from properties that he sold. After collecting from the purchasers of his sold properties, the couple would then divide the illegally collected funds.
b) שמא כתב בניסן ולא נשא עד תשרי - perhaps the document was written in Nissan with the intention of marrying then. However, the wedding did not take place until the following Tishrei. According to the document, any property sold between Nissan and Tishrei is collateral for the Kesubah, but actually the marriage took place the following Tishrei and those properties may not be subject to the lien.
c) קודם אירוסין - Perhaps the document was written even before the betrothal. The lien on properties sold by the husband is in effect only for such property he owned at the time of the betrothal. According to the written document even such properties sold before the betrothal are illegally subject to the lien of the Kesubah.
d) תוספות - the voluntary addition to the Kesubah by the husband may differ from the initial Kesubah instituted by the Rabanan.
Tosfos explains: By teaching us that when the husband admits that he did not yet pay the Kesubah, the Kesubah document is returned to the wife, the Baraisa is informing us that:
We are not concerned about a) conspiracy between husband and wife to defraud the purchasers of his sold properties. There is also no concern that b) perhaps he wrote the Kesubah in Nissan but did not marry until the following Tishrei, which would render the properties sold between Nissan and Tishrei illegally subject to the Kesubah lien, for the one hundred zuz of a widow’s Kesubah and the two hundred zuz of a virgin's Kesubah are actually mortgaged to the lien from the time of betrothal, even when a Kesubah document was not written, because betrothal generates publicity and the purchasers of the husband’s property are aware of the Chassan’s potential liability for the Kesubah payment even though the wedding did not take place for many months afterward. Since they are aware of his liability, the lien on his property sold between Nissan and the following Tishrei is legal and they are obligated to pay when the husband has no funds with which to pay the Kesubah.
But what about possibility c) that the Kesubah may have been written even before betrothal? There is no concern that the Kesubah document may have been written before betrothal, which would then establish an illegal lien on property that the husband sold before betrothal.
We have explained that the lien of a Kesubah is accomplished by the betrothal even though a Kesubah document was not written. The reason for this is quite simple. As Tosfos explained earlier, betrothal is public information. Whenever one betroths his Kallah, everyone knows that the Chassan now has a Kesubah obligation. Thus they know to be careful when purchasing property from him. When they do purchase from him they are fully aware of the possible Kesubah liability and they have chosen that it is worth their while to take the risk.
This logic is quite applicable to the amount that the Chassan is required to give his Kallah by Rabbinic edict. Everyone is aware that the Chassan has an obligation to pay the one hundred or two hundred zuz the Rabanan mandated. However, very often (in today’s Kesubos this is universal) the Chassan voluntarily adds to the amount obligated by the Rabanan. This additional amount is not common knowledge, for not everybody knows if and how much the Chassan voluntarily added to the Kesubah. Thus, the lien automatically established by betrothal is effective only insofar as the required one or two hundred zuz is concerned. There is no automatic lien as far as the additional amount is concerned. If so, we are now faced with a problem: Tosfos explained earlier that we are not concerned about whether the Kesubah may have been written in Nissan and the actual wedding took place in Tishrei, for in any case the lien of Kesubah is established at the time of betrothal. But this is only true of the mandated amount, not for the additional voluntary sum. We should then be concerned that perhaps the Kesubah was written in Nissan and they first married the following Tishrei and the lien on properties sold before Tishrei is illegal?
The Gemara later (12b) discusses a similar problem. But that which we learned in a Mishna: We may write a loan document for the borrower even though the lender is not present. We assume that the borrower who stands to lose if the document reaches the lender before the loan occurs will not allow this to happen.
The Gemara asks: Why are we initially allowed to write [this loan document]? We should be concerned that [the borrower] wrote the document with the intention of borrowing in Nissan, but the actual loan may not happen till later in Tishrei, and [the lender] will come to collect from the purchasers of property sold between Nissan and Tishrei illegally? Since the loan did not happen till Tishrei, property sold by the lender before Tishrei should not be subject to the lien. However, the document does include those properties in the lien. This can lead to an illegal collection by the lender from the purchaser of these properties.
Rav Assi said: We are speaking of documents of acquisition where the borrower specifically states that he is giving the lender a lien as of the date of the document even if there will never be a loan. This is effective in establishing a lien, for [the borrower] has accepted this obligation upon himself.
Abaye disagrees: Abaye says: the witnesses of the document, by signing it, establish a lien for the benefit [of the lender]. Even if it is not a document of acquisition.
Abaye maintains that the very act of witnesses signing a loan document establishes a lien on the borrower’s property even if the loan never took place. Thus according to Abaye as long as a Kesubah document is signed, a lien is established even for the voluntary additional amount added to the Kesubah by the Chassan. According to Abaye, who says that when witnesses sign a document they establish a lien for the benefit of the [lender], it comes out well that even insofar as the additional amount as well, that we need not be concerned there may be an illegal lien established by the Kesubah if it was written in Nissan and the wedding did not take place till Tishrei, because the effective date of the lien is the date it was signed, not the date when the loan or the wedding took place.
Rav Assi who disagrees with Abaye and does not hold that the signing of the document automatically establishes a lien on the [property of the borrower will interpret our Baraisa as speaking of when the husband specifically wrote the Kesubah as a document of acquisition. It is only then that we would not be concerned that there is an illegal lien established for the additional amount by the document.
We must keep in mind that we should be very concerned about the loss of a document. It raises questions in our minds.1See Rashi (12b) ד'ה הנה ריעי. If in fact it was a valid document, how did it happen that the wife lost it? Most people are extremely careful about caring for their documents, especially those that represent a considerable sum. The loss causes us to think of possible reasons for the careless treatment of the document. Tosfos will examine each possible reason that would render the document invalid and thus explain why the wife was not as careful with it as she should have been.
a) קנוניא - conspiracy. There is a possibility that the husband already paid the Kesubah. After paying the Kesubah, the husband then conspired with his wife and returned the document to her so that she would attempt to collect with the document a second time. The husband would then claim that he has no money with which to pay and she would then proceed to collect from properties that he sold. After collecting from the purchasers of his sold properties, the couple would then divide the illegally collected funds.
b) שמא כתב בניסן ולא נשא עד תשרי - perhaps the document was written in Nissan with the intention of marrying then. However, the wedding did not take place until the following Tishrei. According to the document, any property sold between Nissan and Tishrei is collateral for the Kesubah, but actually the marriage took place the following Tishrei and those properties may not be subject to the lien.
c) קודם אירוסין - Perhaps the document was written even before the betrothal. The lien on properties sold by the husband is in effect only for such property he owned at the time of the betrothal. According to the written document even such properties sold before the betrothal are illegally subject to the lien of the Kesubah.
d) תוספות - the voluntary addition to the Kesubah by the husband may differ from the initial Kesubah instituted by the Rabanan.
Tosfos explains: By teaching us that when the husband admits that he did not yet pay the Kesubah, the Kesubah document is returned to the wife, the Baraisa is informing us that:
We are not concerned about a) conspiracy between husband and wife to defraud the purchasers of his sold properties. There is also no concern that b) perhaps he wrote the Kesubah in Nissan but did not marry until the following Tishrei, which would render the properties sold between Nissan and Tishrei illegally subject to the Kesubah lien, for the one hundred zuz of a widow’s Kesubah and the two hundred zuz of a virgin's Kesubah are actually mortgaged to the lien from the time of betrothal, even when a Kesubah document was not written, because betrothal generates publicity and the purchasers of the husband’s property are aware of the Chassan’s potential liability for the Kesubah payment even though the wedding did not take place for many months afterward. Since they are aware of his liability, the lien on his property sold between Nissan and the following Tishrei is legal and they are obligated to pay when the husband has no funds with which to pay the Kesubah.
But what about possibility c) that the Kesubah may have been written even before betrothal? There is no concern that the Kesubah document may have been written before betrothal, which would then establish an illegal lien on property that the husband sold before betrothal.
We have explained that the lien of a Kesubah is accomplished by the betrothal even though a Kesubah document was not written. The reason for this is quite simple. As Tosfos explained earlier, betrothal is public information. Whenever one betroths his Kallah, everyone knows that the Chassan now has a Kesubah obligation. Thus they know to be careful when purchasing property from him. When they do purchase from him they are fully aware of the possible Kesubah liability and they have chosen that it is worth their while to take the risk.
This logic is quite applicable to the amount that the Chassan is required to give his Kallah by Rabbinic edict. Everyone is aware that the Chassan has an obligation to pay the one hundred or two hundred zuz the Rabanan mandated. However, very often (in today’s Kesubos this is universal) the Chassan voluntarily adds to the amount obligated by the Rabanan. This additional amount is not common knowledge, for not everybody knows if and how much the Chassan voluntarily added to the Kesubah. Thus, the lien automatically established by betrothal is effective only insofar as the required one or two hundred zuz is concerned. There is no automatic lien as far as the additional amount is concerned. If so, we are now faced with a problem: Tosfos explained earlier that we are not concerned about whether the Kesubah may have been written in Nissan and the actual wedding took place in Tishrei, for in any case the lien of Kesubah is established at the time of betrothal. But this is only true of the mandated amount, not for the additional voluntary sum. We should then be concerned that perhaps the Kesubah was written in Nissan and they first married the following Tishrei and the lien on properties sold before Tishrei is illegal?
The Gemara later (12b) discusses a similar problem. But that which we learned in a Mishna: We may write a loan document for the borrower even though the lender is not present. We assume that the borrower who stands to lose if the document reaches the lender before the loan occurs will not allow this to happen.
The Gemara asks: Why are we initially allowed to write [this loan document]? We should be concerned that [the borrower] wrote the document with the intention of borrowing in Nissan, but the actual loan may not happen till later in Tishrei, and [the lender] will come to collect from the purchasers of property sold between Nissan and Tishrei illegally? Since the loan did not happen till Tishrei, property sold by the lender before Tishrei should not be subject to the lien. However, the document does include those properties in the lien. This can lead to an illegal collection by the lender from the purchaser of these properties.
Rav Assi said: We are speaking of documents of acquisition where the borrower specifically states that he is giving the lender a lien as of the date of the document even if there will never be a loan. This is effective in establishing a lien, for [the borrower] has accepted this obligation upon himself.
Abaye disagrees: Abaye says: the witnesses of the document, by signing it, establish a lien for the benefit [of the lender]. Even if it is not a document of acquisition.
Abaye maintains that the very act of witnesses signing a loan document establishes a lien on the borrower’s property even if the loan never took place. Thus according to Abaye as long as a Kesubah document is signed, a lien is established even for the voluntary additional amount added to the Kesubah by the Chassan. According to Abaye, who says that when witnesses sign a document they establish a lien for the benefit of the [lender], it comes out well that even insofar as the additional amount as well, that we need not be concerned there may be an illegal lien established by the Kesubah if it was written in Nissan and the wedding did not take place till Tishrei, because the effective date of the lien is the date it was signed, not the date when the loan or the wedding took place.
Rav Assi who disagrees with Abaye and does not hold that the signing of the document automatically establishes a lien on the [property of the borrower will interpret our Baraisa as speaking of when the husband specifically wrote the Kesubah as a document of acquisition. It is only then that we would not be concerned that there is an illegal lien established for the additional amount by the document.
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