Responsa for Ketubot 169:22

Q. A married a widow, B, and lived with her for eight years till her death. B had not taken the customary widow's oath regarding her ketubah due her from her former husband. When she married A she was not considered very rich and no one suspected that she owned more than the value of her ketubah. But, after her death, when A declared, under oath, to the community (leaders, probably for purposes of taxation) the value of his assets, it was discovered that he had inherited from B more than the value of her ketubah from her former husband. The heirs of the latter, therefore, demand that A return the excess to them.
A. If the valuables B brought to A were undistinguishable and no one recognized them as having belonged to B's former husband, A is free from obligation for five reasons. a) Even if the valuables B brought to A were worth more than the value of her ketubah, such valuables may not all necessarily have come from the estate of her former husband, for she might have received some gifts or found a treasure. b) Were B still alive she would have been obliged to take an oath [to the effect that she did not take from her former husband more than the value of her ketubah], but now that she is dead, A is free from the obligation of taking an oath, since he is not supposed to know his wife's affairs. c) A is not even required to take the oath of an heir — that B never told him, and that he did not know that she had received from the estate of her former husband more than the value of her ketubah — since the heirs of B's former husband are not positive in their claim. The heirs, however, may pronounce the ban (herem) in the synagogue against anyone who does possess such knowledge and does not reveal it. Such ban would include A. d) Whatever a person would have retained, had he taken an oath, his heirs may retain without the necessity of taking an oath. e) Some authorities require A to take the oath of an heir; but since many great authorities absolve him from such oath, and since A is in possession of the aforesaid valuables, the burden of proof is upon the plaintiff. For similar reasons A would be free from the obligation of taking an oath, even if some of the valuables brought to him by B were distinguishable and were recognized as having belonged to B's former husband, if the valuables thus recognized were in themselves not worth more than the value of B's ketubah. But, if the distinguishable valuables are in themselves worth more than the value of B's ketubah, A must return the difference to the heirs of B's first husband.
Q. Witnesses have testified to the effect that B and her former husband, C, had made a binding agreement that in the event of the death of one party, the surviving party would share the property with the heirs. After C's death, B settled with all of C's heirs, except the youngest, D, who was born after the drawing up of the agreement. D, therefore, is now pressing his claim.
A. D was entitled to his share even though he was born after the agreement was made, for in it B did not bestow benefits on anybody; she merely relinquished her rights to C's property up to a certain extent, and D later became heir to the relinquished property. However, A may claim that B brought him nothing from C's estate, or he may contend that B had already settled with D, and be free from obligation for the reasons enumerated above.
SOURCES: Am II, 17; cf. Hayyim Or Zarua, Responsa 86; ibid. 165; ibid. 191.

Q. May the sons of A's second wife plead that A's first wife, at A's request, has waived her children's right to her ketubah? Thus, while a person may not claim to have repaid a debt before it fell due because the presumption is that people generally do not repay a debt before it falls due, no such presumption exists in regard to waiving a right or an obligation.
A. The claim that an olbigation has been waived in one's favor is weak and is valid only when the legal presumption of Miggo exists; as in the case where the person could have successfully denied the very existence of the obligation, or could have claimed to have already discharged such obligation. Therefore, the claim in our case is invalid. Moreover, had A's first wife actually waived such obligation in the presence of witnesses, her act would have been invalid since she had no right directly to waive the monetary rights of her children, while retaining her own rights.
Q. Since the court does not attend to claims against young orphans except when interest is accumulating on their obligations, or when the widow's ketubah is demanded, in which latter case the court attends only because of hinnah (in order to enhance happy marriages); and since in our case (where A's sons by his first wife demand the ketubat benin dichrin) the element of hinnah is absent, must these sons wait (with the collection of their mother's ketubah) until A's youngest sons grow up?
A. A's sons by his first wife do not have to collect the ketubah of their mother; for it fell to them as an inheritance and is theirs already. All of A's sons are partners in the estate, which must be divided among them to give each of them his due share. Therefore, if A left money, the sons of his first wife may take their share of the money without the supervision of a court since the dividing of money between heirs needs no such supervision. But, if A's estate consists of real property, the sons of his first wife will have to wait until A's youngest sons grow up, as R. Tam is of the opinion that a court should not attend to the division of such an estate unless the young orphans agree to the division.
SOURCES: Am II, 65.

Q. A says that B's mother before her death instructed B to give A one Mina out of her possessions, since she had owed money to A's mother and did not remember whether or not she had repaid the entire sum. B denies having received such instructions from his mother, and further claims that A's mother owed him more than one Mina. But A has witnesses who testify that after his mother's death B admitted having received these instructions.
A. Since B's mother did not take the required oath regarding her ketubah, she had no property of her own; even the clothes she wore on week-days belonged to the estate. Consequently B is unable to carry out his mother's instructions. B is under no moral obligation to repay his mother's debt since the mother herself had not been pressed for payment.
SOURCES: Cr. 76.

Q. A's widow and son, through their representative, summoned B, A's brother, before us. The representative claimed that A had given wine to B for the purpose of transporting it to Magdeburg and selling it there, and that B bartered this wine for a horse. He demanded, therefore, that B return the horse either to the widow, in payment of her ketubah, or to the orphan who was the rightful heir. B claimed that he had become surety to a Gentile for a loan of five and one quarter marks, contracted by A, that A's wife had vowed to repay this debt and release him from his suretyship; that A had given him the wine for the purpose of selling it and buying his release with that money; that the horse was worth only three marks, and that the widow, therefore, still owed him two and one quarter marks. The representative, however, claimed that A had effected B's release from his suretyship. We decided, temporarily, that B should take an oath to the effect that he has as yet not been released from his suretyship and that he had received the wine for the purpose of buying such release; in which case he should be entitled to retain the horse. However, before B took the prescribed oath, he sold the horse for six pounds, which now had a value of four and one-quarter marks, and he made a settlement with the Gentile (A's creditor for the 5¼ marks) to pay him one mark per year for six years. B wanted to give the six pounds to his mother-in-law for investment purposes, she promising to pay the one mark per year for six years to the Gentile. The representative, however, claimed that B was in possession of an amount equal to the value of the horse only and that B must pay out of his own pocket the difference between this amount and the amount due the Gentile. He demanded that B return the six pounds to the widow and her son, who were willing to provide sureties to the Gentile guaranteeing the payment of one mark per year for six years. B, on the other hand, claimed that he was entitled to benefit from the advantageous settlement he negotiated with A's creditor; that being able to release himself completely from his suretyship by his shrewdness in the use of the four and one-quarter marks, he was entitled to do so; and that he was taking a risk since (the coins comprising) the six pounds were almost certain to be invalidated and be worth less than four and one quarter marks. Moreover, B claimed that A had promised to pay him for his efforts in selling the wine, and that he had guaranteed another debt of A which had not been paid. We shall follow your decision in this matter. Furthermore, please inform us whether or not B may exact an oath from the widow to the effect that she did not vow to release him from his suretyship.
A. B has no claim on the money he received for the horse if his complete release from his suretyship is effected in other ways, especially since he had as yet not taken the required oath. Since the widow and her son are willing to guarantee such a release, B must return that money to them. However, if B take an oath to the effect that A owed him a certain amount of money, either for his effort in selling the wine or for becoming surety for another debt, he will be entitled to retain such an amount. B may exact an oath from the widow (to the effect that she did not vow to pay the above debt of five and one-quarter marks) under the following conditions only: a) If it is an established fact that A did not effect the release of B from his suretyship; b) if B claims that the widow had made the vow mentioned above before he became surety for A. If the former condition is lacking, the widow is not required to take an oath when the claim against her is based on a doubtful premise; and if the latter condition is lacking, the widow never became responsible for that debt. If she made the vow referred to above, she is still under solemn obligation to keep her vow, but is not required to take an oath. However, the representative's claim that B was in possession of an amount equal to the value of the horse only, is baseless.
SOURCES: L. 218, 219; cf. Hag. Maim., Shebuoth 11, 3.

Q. R. Moses, the plaintiff, was not present when the defendants, the Jewish inhabitants of Quedlinburg, took an oath in order to nullify the testimony of R. Moses' single supporting witness; must they take the oath again in the presence of R. Moses?
A. If the oath has been legally administered by a proper person (who is related neither to R. Moses nor to the inhabitants of Quedlinburg) there is no need for another oath.
This Responsum is addressed to R. Shemariah, and is the second communication regarding this case.
SOURCES: Pr. 231; L. 382; Tesh. Maim. to Haflaah, 1. Cf. P. 514; Mord. Ket. 296–7.

Q. A claims to have pawned with B, for thirty schillings, objects worth ten pounds. He is now willing to repay the thirty schillings and demands that B return the pawned objects. B, on the other hand, claims to have followed A's instructions and to have pawned the objects with the Cahorsin. To A's charge that the objects are still in B's possession, B retorts that he subsequently bought them from the Cahorsin. A also claims that B gave false testimony against him and caused him a loss of eleven pounds. B denies this charge. A further claims that he has provided B's Pentateuch with punctuation marks, that he was not paid for his labor, and that he can prove through witnesses that B owes him three pounds. B, however, claims to have already paid his obligations to A.
A. Regarding B's claim that he had paid his obligations to A, if he will take an oath to this effect, he will be free from obligation to A. Regarding A's first claim, however, the following distinction must be made: If B admits that A had originally pawned the objects with him for thirty schillings, even though subsequently thereto A told him to pawn them with the Gentile, he must return the objects to A upon the receipt of thirty schillings; but, if both A and B admit that originally A merely sent B to pawn the objects with the Gentile, B must state under oath the amount he paid to the Gentile for the return of the objects, and must return them to A upon the receipt of such amount.
SOURCES: B. p. 292, no. 370.

Q. A Gentile casually remarked that A was killed while he was on the road. Part of A's money was kept by his mother. A's son, therefore, demanded that she give it to him. The mother replied that since A owed her money she intended to retain A's deposit in payment of the debt. She admitted, however, that A gave her the money for safe-keeping and not in payment of his debt to her.
A. Since A's mother did not take possession of the money in payment of the debt while he was alive, A's son inherited this money. A creditor cannot appropriate chattels inherited by the orphans of the debtor as repayment of a verbal loan. Therefore, A's mother must return the money to A's son.
SOURCES: L. 479.

Q. A claimed that he gave B a coat of mail and thigh plates as security for a loan. He repaid that loan, and therefore demands back his security. B answered that he received from A only a coat of mail which he was ready to return upon the latter's payment of money still due B. Upon hearing B's reply, A said to the judges that he knew that the law required them to charge B with an oath, but that B was not qualified to take an oath since he was a notorious thief and was suspected of swearing falsely. A made a public announcement that whoever knew anything that might disqualify B from taking an oath, should appear and testify before the court and the community leaders, in accordance with the Biblical injunction (Leviticus, 5, 1). Many witnesses appeared, but the testimony of only three persons was valid. One of these testified that B had stolen one pound from him; the second said that B had testified against him in a Gentile court and thus had caused him to suffer damages; and the third testified that B had bound himself by a herem to redeem his pledged horse, and had failed to do so. Since these misdemeanors had happened long ago and B might have repented since then, was the testimony of these witnesses sufficient to disqualify B from taking an oath?
A. B should be disqualified from taking an oath because of the testimony of the first and third witnesses. The Talmud (B. K. 62a) came to no conclusion regarding the trustworthiness of an informer; therefore, the testimony of the second witness is of no consequence.
SOURCES: Pr. 978.