Talmud - Ketubot 81b כתובות פ״א ב׳

And if it enters our mind that a marriage contract can be collected during his lifetime, why is all this necessary? Let him set aside for her part of the property that corresponds to the amount of the marriage contract, and the rest let him sell. Abaye replied: And according to your reasoning, rather than asking this question based on a baraita, let him raise this difficulty from the mishna, which teaches that he may not say to her: Your marriage contract is placed on the table for you. Rather, all his property is mortgaged for her marriage contract. Why can’t he designate property equivalent to the sum of her marriage contract and sell the rest?

The Gemara answers: The tanna in the mishna there teaches us good advice, i.e., that one should not do so ab initio, so as to ensure that the amount set aside for her marriage contract is not lost, which would necessitate writing a new marriage contract. However, it should not be inferred from the mishna that it is prohibited to do so. As, if you do not say so, that it is merely good advice, consider the latter clause of the mishna, which teaches: And similarly, a man may not say to his wife: Your marriage contract is placed on the table. Rather, all his property is mortgaged for her marriage contract. If he wants to sell, here too, may he not sell? Rather, in that case the tanna teaches us good advice, and therefore here too, with regard to a yevama, he teaches us good advice.

The Gemara asks: But if so, the question is raised once again, as the statement of Rabbi Abba said in the name of Sumakhos is difficult. Why is it necessary for the husband to divorce his wife when he can set aside the sum of her marriage contract? The Gemara answers: That teaching of Rabbi Abba is also not difficult, as the reason one may not do so is not that he cannot designate a sum as her marriage contract but due to enmity. If he were to set aside a certain portion for her marriage contract, she would perceive this as a sign that he desires to be rid of her. If he divorces and remarries her, she would realize it is only a ploy to allow him to sell the property and does not indicate his desire to divorce her.

The Gemara relates: A certain man had a yevama who happened before him for levirate marriage in the city of Pumbedita. His brother wanted to disqualify her from him by means of a bill of divorce, as the halakha is that if one of the potential yevamin gives the yevama a bill of divorce she may no longer enter into levirate marriage with the others.

The brother who wished to perform levirate marriage said to him: What is your opinion? Why are you doing this? Is it due to the property, as you are jealous that his property will belong to me, in accordance with the halakha that the brother who performs levirate marriage inherits the late brother’s property, whereas if the yevama receives ḥalitza or a bill of divorce all the brothers share the inheritance equally? I will divide the property with you. Upon hearing this, the brother consented to him performing levirate marriage. However, when he married the woman, the husband refused to give his brother anything, and the case came before the court.

Rav Yosef said: Since the Sages have said that one may not sell the property of a widow waiting for her yavam before marrying her, although he sold it, his sale is not a valid sale. So too, his promise to give half the property to his brother, which is equivalent to a sale in this case, is of no consequence. As it is taught in a baraita: With regard to one who died and left a widow waiting for her yavam and also left behind property worth the value of one hundred maneh, equivalent to ten thousand dinars, although her marriage contract is worth only one maneh, or one hundred dinars, the yavam may not sell any part of his possessions, as all of his property is mortgaged for her marriage contract. The Sages prohibited him from selling it. Therefore, if he did so the transaction is void.

Abaye said to Rav Yosef: And anywhere that the Sages said that one may not sell, is it the halakha that although he sold, his sale is no sale? But didn’t we learn in the mishna (78a) with regard to a betrothed woman selling property: Beit Shammai say: She may sell, and Beit Hillel say: She may not sell; both these, Beit Shammai, and those, Beit Hillel, agree that if she sold it or gave it away, the transaction is valid? Evidently, even Beit Hillel agree that despite the violation of the Sages’ injunction, the sale is valid. Abaye therefore rejects Rav Yosef’s ruling. They sent this problem before Rabbi Ḥanina bar Pappi, who sent back the following reply: The halakha is in accordance with the opinion of Rav Yosef.

Abaye said in response: Is that to say that Rabbi Ḥanina bar Pappi has hung jewelry upon it, i.e., this ruling? His blunt declaration that the halakha is in accordance with Rav Yosef’s opinion without a logical explanation adds nothing to the discussion, and his decision should be rejected. They sent this inquiry before Rav Minyumi, son of Rav Naḥumi, who sent back the following written reply: The halakha is in accordance with the opinion of Abaye, but if Rav Yosef states a different reason for it, send his reasoning to me and I will reconsider the matter.

Rav Yosef went, examined the mishnayot carefully, and found the following source for his opinion. As it is taught in a baraita: If one claimed money from his brother that he had previously lent him, and then the lender died and left behind a widow waiting for her yavam, then the yavam who borrowed money may not say: Since I inherit my brother’s property by means of the yevama, I may also take possession of the debt, and I do not have to restore it to the other brothers. Rather, one appropriates the sum of the debt from the yavam, and he purchases land with it for the woman’s marriage contract, and he eats the produce. This serves as proof for Rav Yosef’s opinion that a yavam may not sell his brother’s property or take possession of a debt he owed his brother.

Abaye said to him: Perhaps they did for him that which is good for him. In other words, the baraita that states that one should purchase land and eat the produce is merely good advice to prevent the money from being lost. Rav Yosef said to him: The tanna teaches: One appropriates, i.e., against his will, and you say that they did for him that which is good for him? The language indicates that this is an obligation, not a matter of advice.

They once again sent this question before Rav Minyumi, son of Rav Naḥumi. He said to them: So said Rav Yosef bar Minyumi that Rav Naḥman said: This baraita is not a mishna and therefore is not authoritative. Consequently, no proof may be adduced from it.

The Gemara inquires: What is the reason that this baraita is rejected? If we say it is because the money he owes is considered movable property, as it is not present, and movable property is not mortgaged to a marriage contract, as only land can be mortgaged for this purpose, such an argument does not negate the baraita. Perhaps it is in accordance with the opinion of Rabbi Meir, who said that movable property is mortgaged to a marriage contract.

Rather, the reason for doubting the reliability of the baraita is because he says to her: You are not my litigant. There is no legal dispute between the man and the yevama. He claims that she is not a party to this suit, as he owes money to his late brother. Therefore, she cannot claim the money from him by arguing that it is mortgaged for her marriage contract.

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

Ketuvot 81b explores whether a husband can set aside property for a wife's marriage contract during his lifetime instead of selling everything.