Talmud - Ketubot 51b כתובות נ״א ב׳

they include a property guarantee he may not return them to the lender, as he does not know who lost them. It is possible that the debt has already been paid and the documents were returned to the borrower, and he lost them. He may not give them back to the lender even if the borrower admits that he still owes the money, as the court collects the debt from purchasers of the borrower’s property. There is a concern that the borrower has repaid the loan and he is saying that he did not yet repay it because he has conspired with the lender to convince the court to confiscate liened property that the borrower sold, and the lender and borrower will divide the proceeds.

If, however, the documents were of the kind that do not include a property guarantee he returns them, as in this case the court does not collect from purchasers of the borrower’s property. This is the statement of Rabbi Meir. And the Rabbis say: In both this case and that one, he may not return the promissory notes, as the court collects from purchasers of the borrower’s property regardless, as it is assumed that the omission of the property guarantee from a document is merely a scribal error.

If so, the first clause of the mishna here is in accordance with the opinion of Rabbi Meir, and the latter clause is in accordance with the opinion of Rabbi Yehuda. And if you would say that the entire mishna is in accordance with the opinion of Rabbi Meir, and there is a difference for Rabbi Meir between a marriage contract and other documents, i.e., the guarantee of a marriage contract applies even if it is omitted but the property guarantee in other contracts does not, is there really a difference for him between the two types of documents?

Isn’t it taught in a baraita: Five claims may be collected only from free assets, and they are as follows: Produce, and enhancement to the produce. And likewise, in the case of one who accepts upon himself the duty to sustain his wife’s son or his wife’s daughter and then dies, they receive their support only from the estate’s free assets. And other claims that may be collected only from free assets are a document of debt that does not include the clause of property guarantee, and the marriage contract of a wife that does not include the clause of property guarantee.

The Gemara reasons: Whom have you heard say that omission of the property guarantee from a document is not a scribal error? Rabbi Meir, and yet the baraita teaches that the same applies to the marriage contract of a wife. This proves that according to Rabbi Meir, there is no difference between a marriage contract and other documents.

The Gemara answers: If you wish, say that the mishna here is in accordance with the opinion of Rabbi Meir, and if you wish, say that it is in accordance with the opinion of Rabbi Yehuda. The Gemara elaborates: If you wish, say that the mishna is in accordance with the opinion of Rabbi Yehuda, and there, in the other mishna (54b), the case is where she wrote to him: I have received it, thereby waiving her right to part of the marriage contract. In contrast, here, she did not write to him: I have received it, and therefore she collects the entire sum from him even if he did not write a marriage contract.

Conversely, if you wish, say that the mishna is in accordance with the opinion of Rabbi Meir. According to this interpretation, what is the meaning of the phrase: He is obligated, which is taught in the latter clause of the mishna with regard to the case where the marriage contract did not specify that the husband’s property will serve as a guarantee of his obligations toward his wife? It means that the wife’s claims may be collected only from the husband’s free assets, i.e., she does not have a lien on his property.

§ The mishna taught that if the husband did not write for her that he would redeem her from captivity and restore her to him, he is nevertheless obligated to do so, as this is a stipulation of the court. Shmuel’s father said: The wife of an Israelite who was raped is forbidden to her husband, as we are concerned that perhaps her ordeal started as rape and ended willingly, i.e., during the act she may have acquiesced, and a married woman who willingly had relations with another man is forbidden to her husband.

Rav raised an objection to the opinion of Shmuel’s father from the mishna, which states that one of the stipulations of the marriage contract reads: If you are taken captive I will redeem you and restore you to me as a wife. This indicates that despite the possibility that she might have been raped during captivity, she remains permitted to her husband if he is not a priest, and there is no concern that she might have ultimately agreed to the act. Shmuel’s father was silent and did not respond.

Rav recited the following verse about Shmuel’s father: “The princes refrained from talking and laid a hand upon their mouths” (Job 29:9). The Gemara comments: The application of this verse to Shmuel’s father indicates that he refrained from responding despite the fact that an answer was available. But what is there for him to say in reply? The Gemara answers: He could have said that in the case of a captive woman they were lenient. Since it is uncertain whether she was in fact raped during her captivity, the Sages were lenient. However, it is possible that they were more stringent in the case of a woman who was definitely raped.

The Gemara further asks: According to Shmuel’s father, how can you find a case of rape where the Merciful One permits the victim to remain married to her husband? It is always possible that she might have ultimately acquiesced. The Gemara answers: For example, where witnesses say that she screamed continuously from beginning to end.

The Gemara comments: And Shmuel’s father disagrees with the opinion of Rava. As Rava said: With regard to any case that starts as rape and ends willingly, even if she ultimately says: Leave him, and she further states that if he had not forcibly initiated intercourse with her, she would have hired him for intercourse, she is nevertheless permitted to her husband. What is the reason for this? The evil inclination took hold of her during the act, and therefore she is still considered to have engaged in intercourse against her will.

It is taught in a baraita in accordance with the opinion of Rava: The verse states with regard to a sota: “And a man lies with her…and she was not taken” (Numbers 5:13). This is referring to a woman who had intercourse but was not taken forcefully, i.e., raped, and therefore she is forbidden to her husband. It may be inferred from this that if she was taken forcefully, she is permitted to him. And the word “she” teaches that you have a case of another woman, where even though she was not taken forcefully she is permitted. And which case is this? This is any case that starts as rape and ends willingly. Although at the conclusion of the act she was not taken forcefully, she is nevertheless permitted to her husband, as stated by Rava.

A different inference from the same verse is taught in another baraita: “And she was not taken”; in this case, the woman is forbidden to her husband. It may be inferred that if she was taken forcefully, she is permitted to her husband. And you have another case where, even though she was taken forcefully, she is forbidden to her husband. And which case is this? This is the case of the wife of a priest, who is forbidden to her husband even if she is the victim of a rape.

Rav Yehuda said another exposition of this same verse that Shmuel said in the name of Rabbi Yishmael: “And she was not taken”; in this case she is forbidden to her husband. It may be inferred that if she was taken forcefully she is permitted to her husband. And there is a case of another woman where, even though she was not taken forcefully, she nevertheless remains permitted. And which case is this? This is referring to one whose betrothal was a mistaken betrothal, as, even if her son from this marriage is riding on her shoulders she may refuse to remain with her husband and go off as pleases her. Since she was not really married to begin with, an act of intercourse with another man does not render her forbidden to the man with whom she performed a mistaken betrothal.

Rav Yehuda said: Those women stolen by kidnappers are permitted to their husbands, as, even if they had intercourse with their captors it is considered rape. The Rabbis said to Rav Yehuda: But while they are captives they bring their kidnappers bread. This indicates that they are not acting under duress. He replied: They do so due to fear. The Rabbis further inquired: But they send them arrows. Rav Yehuda again replied: This too is due to fear. However, I certainly agree that if the kidnappers leave them alone, and they go back to them of their own accord, they are forbidden to their husbands, as it is clear that they are no longer acting out of fear.

The Sages taught: With regard to women captured by the monarchy for the purpose of having intercourse with the king, they are considered to be like captives, i.e., they are assumed to have been raped but not to have consented to intercourse. However, those stolen by bandits are not considered to be like captives, as there is a concern that they might have consented to their captors, thinking that they will marry them. The Gemara raises a difficulty: But isn’t it taught in a baraita that the reverse is the case, i.e., women taken by the monarchy are not classified as captives, whereas this status does apply to those abducted by bandits?

The Gemara answers: The apparent contradiction between the ruling of one baraita with regard to those captured by the monarchy and the ruling of the other baraita with regard to those captured by the monarchy is not difficult: This first baraita is referring to the monarchy of Ahasuerus, i.e., a powerful king, as the woman is aware that he is merely using her to satisfy his lust and will certainly not marry her, whereas that other baraita is dealing with the monarchy of ben Netzer, a man who established for himself a minor kingdom through robbery and small-scale conquests. It is possible for a woman to suppose that a king like ben Netzer will eventually marry her.

Similarly, the apparent contradiction between the ruling of one baraita with regard to those kidnapped by bandits and the ruling of the other baraita with regard to those kidnapped by bandits is not difficult: This first baraita is referring to the banditry of ben Netzer, as she might agree to his advances, hoping to become the wife of a king. Conversely, that other baraita is dealing with regular bandits [listim], as it can be assumed that the woman did not acquiesce to having intercourse, as, even if he wanted to marry her she would not agree. The Gemara asks: And this ben Netzer, how can it be that there he is called a king and here he is called a bandit? The Gemara answers: Yes, when considered alongside Ahasuerus he is merely a bandit, but when considered alongside a regular bandit he is deemed a king.

§ The mishna taught: And in the case of a priestess, i.e., the wife of a priest, even if her husband did not write: If you are taken captive I will redeem you and return you to your native province, he is obligated to do so. Abaye said: In the case of a widow who was married to a High Priest, although the marriage is prohibited by Torah law, if she is taken captive he is obligated to redeem her, as I apply to her the clause: And in the case of a priestess: I will return you to your native province. Her husband can, and therefore must, fulfill this clause just as he could if he had married a woman who is permitted to him.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Ketuvot 51b examines returning found promissory notes and debates whether property liens apply by default or require explicit mention.