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Kesuvos, 96

1) THE HEIRS' RESPONSIBILITY TO SUPPORT THEIR FATHER'S WIDOW

QUESTION: The Mishnah states that a widow who is supported by the Yesomim (the heirs of her deceased husband) must give her Ma'aseh Yadayim (earnings) to the Yesomim. The Gemara asks whether the Mishnah is relating the practice of Anshei Galil, the people of Galil who require that the Yesomim must support the widow until she asks for her Kesuvah, or whether it is relating the practice of Anshei Yehudah, the people of Yehudah who say that the Yesomim have the option of giving the widow her Kesuvah and sending her away without receiving any more Mezonos.

The Gemara attempts to prove from a statement of Shmuel that the Mishnah is discussing the practice of Anshei Yehudah. Shmuel says that a widow who finds a lost object ("Metzi'ah") may keep it for herself, even though, normally, when a married woman finds a Metzi'ah she must give it to her husband.

The Gemara says that it is not logical that Shmuel is making a statement about Anshei Galil, because there is no reason -- according to their practice that the Yesomim have the same obligation to support the widow as the husband had -- that the Yesomim should be different from the husband and not receive the Metzi'ah. Rather, Shmuel must be making a statement about Anshei Yehudah, and that is why he says that the Yesomim do not receive the Metzi'ah even though her husband would have received it -- according to Anshei Yehudah, the Yesomim do not have the same obligation as the husband to feed her.

How is the Gemara proving that the Mishnah is discussing Anshei Yehudah? Just because Shmuel is making a statement about Anshei Yehudah does not mean the Mishnah is! The Mishnah might be discussing Anshei Galil!

It is possible that the proof of the Gemara is based on the assumption that Shmuel is adding information to the Halachah in our Mishnah. Hence, he is discussing the same case as our Mishnah. If this is true, though, how can the Gemara then explain that Shmuel's statement can be referring even to Anshei Yehudah? As Rashi (DH Shapir) explains, since Shmuel is saying that the widow is not required to give her Metzi'ah to the Yesomim, Shmuel must be referring to a widow who is *not* receiving Mezonos from the Yesomim (an option which the Yesomim are entitled to choose in Yehudah, where they may give her the Kesuvah and send her away), because if she is receiving Mezonos, her Metzi'ah should go to the Yesomim just like her Ma'aseh Yadayim. The Mishnah, though, is discussing a widow who *is* receiving Mezonos in Yehudah.

If the Gemara considers Shmuel's case to be similar enough to the Mishnah's case so that Shmuel could be adding to the Mishnah even though he is discussing a slightly different case, the same could be said if Shmuel is discussing Anshei Galil, just like the Mishnah; the Mishnah is discussing a widow who is receiving Mezonos from the Yesomim, and Shmuel is discussing a widow who asked to receive her Kesuvah and received it and thus is no longer receiving Mezonos from the Yesomim.

ANSWERS:

(a) TOSFOS (DH Nizones and DH Ta Shema) explains the Gemara in an entirely different manner than Rashi because of these questions. Tosfos explains that the Gemara's question is not whether the Mishnah was written in Yehudah or in Galil. The question is whether according to Anshei Yehudah the Yesomim receive her Ma'aseh Yadayim even while they are giving the widow Mezonos. Perhaps they should *not* receive her Ma'aseh Yadayim, since they have the option of not feeding her and therefore they are not like the husband.

If the Mishnah is discussing Anshei Yehudah, then we could prove from the Mishnah that the Yesomim do receive her Ma'aseh Yadayim while they are feeding her. But if the Mishnah is discussing Anshei Galil, it is possible that according to Anshei Yehudah, the Yesomim do *not* receive her Ma'aseh Yadayim even when they are feeding her. The Gemara proves from Shmuel that in Yehudah the Yesomim do receive her Ma'aseh Yadayim when they feed her. The Gemara proves this from the fact that Shmuel says that the Yesomim who feed the widow do not receive her Metzi'ah, implying that they *do* receive her Ma'aseh Yadayim (for we find that the husband has a stronger right to receive her Ma'aseh Yadayim than to receive her Metzi'ah). The Gemara assumes that Shmuel cannot be discussing Anshei Galil, since the Yesomim in Galil have the same obligation as the husband, because they are obligated to feed her, so it is obvious that they receive her Metzi'ah. Shmuel must be saying that in *Yehudah*, the Yesomim receive the Mezonos while they feed her but they do not receive her Metzi'ah, since they are not *exactly* like the husband, since they have the option of not feeding her.

Rashi, though, clearly does not learn like Tosfos. Rather, Rashi explains that when Shmuel says that the Yesomim do not receive her Metzi'ah he is discussing Yesomim who are *not* feeding the widow. How, then, does Rashi answer our questions?

(b) The PNEI YEHOSHUA and TIFERES L'MOSHE explain that when Rashi says that the Yesomim are not feeding the widow and that is why they do not receive her Metzi'ah, he does not mean that the Yesomim already gave her the Kesuvah, because if they did, then it is obvious that they do not receive her Metzi'ah, nor do they receive even her Ma'aseh Yadayim (as Tosfos points out). Rather, Rashi means that the widow is not receiving the Mezonos because she said, "Eini Nizones v'Eini Osah" -- "I decline the right to receive the Mezonos [from the Yesomim], in order not to have to give them my Ma'aseh Yadayim." Some Rishonim (see ROSH 6:1) write that when a woman says that to her husband, the husband still receives any Metzi'ah that she finds. Nevertheless, Shmuel is saying that the Yesomim do *not* receive her Metzi'ah if she says "Eini Nizones v'Eini Osah." Shmuel must be discussing Anshei Yehudah, because in Galil the Yesomim should have the same rights as the husband and they should receive her Metzi'ah even when she exempts them from giving her Mezonos.

How does the Gemara know that Shmuel is referring to the same case as our Mishnah? The RAMBAN explains that we find earlier (54a) that Shmuel rules like Anshei Galil. If Shmuel is issuing a ruling here regarding Anshei Yehudah, it means one of two things: either Shmuel changed his mind from his earlier ruling, or that he merely is explaining the Mishnah even though he does not rule like it. According to the second possibility, it is clear that Shmuel understands the Mishnah to be discussing Anshei Yehudah. According to the first possibility, also, Shmuel would not have changed his mind unless he had found an anonymous Mishnah discussing Anshei Yehudah.

Although it is clear that Rashi is learning like the Ramban, that Shmuel is explaining the Mishnah, nevertheless the Pnei Yehoshua's explanation that the woman is exempting the Yesomim from giving her Mezonos -- and not that they decided to give her the Kesuvah and are exempting themselves from giving her Mezonos -- is not entirely consistent with Rashi's words (in DH Ela Iy Amrit) as the Pnei Yehoshua himself points out.

(c) The SHITAH MEKUBETZES suggests that Shmuel means that the widow's Metzi'ah, and not her Ma'aseh Yadayim, goes to the Yesomim (like Tosfos and the Pnei Yehoshua explain). However, the Shitah learns that we might have thought that in Yehudah, even *after* the Yesomim choose to give her the Kesuvah and stop supporting her, they still keep her Metzi'ah, since she herself has not asked for her Kesuvah and has not shown signs of wanting to remarry. It is still considered as if she is in their home with the status of their father's widow, and thus they receive her Metzi'ah. (The logic behind this needs further elucidation.)

In Galil, on the other hand, after the woman asks for her Kesuvah, we assume that she is planning on getting remarried, and therefore she no longer has the status of a widow entitled to support and the Yesomim do not receive even her Metzi'ah.

(See also HAFLA'AH for a different explanation of Rashi.)

(d) Perhaps Rashi means to explain that Shmuel is referring to a case in Yehudah where the Yesomim say that they are going to give her the Kesuvah (and thereby exempt themselves from giving her Mezonos and no longer receive her Ma'aseh Yadayim), but they did *not yet* give it to her. Since they still might change their minds before the end of the day, or year, for which they have already paid for her Mezonos -- see next Insight), we might have thought that the Yesomim receive her Metzi'ah. They do not get the Ma'aseh Yadayim because she may use it to feed herself, since she is not sure that she will be fed by the Yesomim (i.e. they might reclaim the money they gave her for that purpose, and give her the Kesuvah). Shmuel teaches that the Metzi'ah of a widow is not given to the Yesomim from the moment that they *say* they are going to give her the Kesuvah.

In Galil, though, if she asked for her Kesuvah (or she received the Kesuvah, according to those who say that she receives Mezonos if she only *asks* for the Kesuvah outside of Beis Din; see 54a), then it is obvious that the Yesomim have no right to the Metzi'ah, because there is no reason to think that she will change her mind about the Kesuvah since it is up to her and not up to the Yesomim, and she is the one who found the Metzi'ah (and she knows that if she changes her mind she will have to give it to the Yesomim). Hence, with regard to Yesomim in Galil, Shmuel would not have to teach us that the widow keeps her Metzi'ah. (M. Kornfeld)

QUESTIONS: Rebbi Yochanan asks who is believed in a case where the widow claims that she did not receive Mezonos from the Yesomim, and the Yesomim claim that they gave it to her. Do we consider the Yesomim to be in possession ("Muchzak") of the property from which Mezonos is given, because the property is presently in their hands, or do we consider the widow to be in possession of the property because of the Tenai Beis Din giving her the right to collect Mezonos? The Gemara cites a Beraisa of Levi in which Levi says that as long as the widow has not yet remarried, she is considered in possession of the property, and thus the burden of proof is on the Yesomim to prove that they already gave her the Mezonos.

RASHI (end of 96a, DH Nasanenu) explains that the case in question involves a case where the Yesomim say that they paid Mezonos for the *coming* year, and the widow says that she did not receive any Mezonos for the coming year. Rebbi Yochanan is asking whether the Yesomim are believed and are exempt from giving her Mezonos, or the widow is believed and the Yesomim must give her Mezonos.

There are a number of problems with Rashi's explanation.

(a) How could the Gemara propose that we believe the Yesomim when they say that they gave her Mezonos for the coming year? The Rabanan instituted an obligation upon the Yesomim to give Mezonos to their father's widow. If the Yesomim can claim that they gave her Mezonos and thereby exempt themselves, what, then, did the Rabanan accomplish by making such a Tenai Beis Din of paying Mezonos? Whenever the widow comes to ask for Mezonos the Yesomim will say that they already gave it to her; they will be believed, and she will not be able to prove that they did not give it to her! (TOSFOS, DH Yesomim)

(b) It is clear from the Beraisa of Levi that the if the widow is considered to be in possession of the property and is believed, then even if she submits a claim for Mezonos from previous years, she is also believed, because Levi himself is discussing a claim for previous years and says that as long as she has not remarried she is believed (Rashi 96b, DH Nises)! Rashi (96b, DH Mai Lav) indeed implies that the question of Rebbi Yochanan applies to *past* Mezonos as well. If so, what forces Rashi to explain that Rebbi Yochanan's question involves Mezonos for the coming year? Why does Rashi not explain like all of the other Rishonim, that Rebbi Yochanan is asking about a dispute for the Mezonos of *previous* years, and that with regard to Mezonos of the coming year it is obvious that the widow is believed (for the reason mentioned above in question (a))?

(c) If the question of Rebbi Yochanan applies to Mezonos of coming years, then when a widow sells the Nechasim of the Yesomim in order to receive Mezonos, how does she protect her rights (as the Gemara says later on 96b) to collect the Kesuvah by writing in the Shtar that she is selling the property only for Mezonos and not for the Kesuvah? At any later date the Yesomim can say that they already paid her Mezonos and she had no right to sell their property, and they can reclaim the money from her!

According to the other Rishonim, who say that she is believed when she claims that she has not received the Mezonos for the coming weeks, we can understand how it helps to write in the Shtar that she is selling the land for Mezonos; had she not written it in the Shtar, the Yesomim would be believed to claim, after a few weeks have passed, that they already gave her the Mezonos (for those past weeks) and that the sale must have been for her Kesuvah. Now that it is written in the Shtar, she has claimed the *coming* Mezonos and not past Mezonos, so she is believed (TOSFOS 96b, DH d'Rebbi Yehudah). According to Rashi, though, it should not help to write in the Shtar that she is selling the property for her Mezonos!

ANSWERS:

(a) The PNEI YEHOSHUA explains that it was customary for the Yesomim to sell property at the beginning of the year in order to supply the widow with Mezonos for the year (or for six months), as the Gemara says later (beginning of 97a). The Yesomim are believed when they say that they sold the property in order to raise money to give to the widow as her Mezonos only when the widow submits a claim for the Mezonos *after* the beginning of the new year, because we assume (i.e. there is a Chazakah) that the Yesomim, at the beginning of the year, sold enough property for the Mezonos of the entire year. However, if, *immediately* at the beginning of the new year, the widow claims that she did not receive the Mezonos for the coming year, then she *is* believed since the Yesomim did not have time to sell the property yet. This explains how the enactment of the Rabanan obligating the Yesomim to give Mezonos to the widow will be upheld -- whenever she submits her claim at the beginning of the new year, she is believed, since she is able to avoid the deceit of the Yesomim (who might claim that they paid her already when they really did not).

(The CHASAM SOFER and TIFERES L'MOSHE suggest that Rashi might mean to explain like Tosfos and the other Rishonim. Rashi is not saying that the Yesomim claim that they paid for the coming year, but rather that they claim *at the end of the year* that they gave her the Mezonos at the beginning of the *past* year for the entire year.

Tosfos explains that the only reason we believe the Yesomim is since she delayed claiming her Mezonos for so long, we have strong reason to believe the Yesomim that she really did receive Mezonos. Rashi is saying that she is claiming Mezonos for the entire past year for the same reason. Since such a long period of time passed and she did not claim her Mezonos, there is a Chazakah that the Yesomim are telling the truth.

This explanation answers all of the questions, since it is saying that Rashi holds just like Tosfos. However, it does not fit well with the words of Rashi. All of the Rishonim understand that Rashi is explaining that the Almanah's claim, indeed, is referring to the coming year.)

(b) Regarding why Rashi explains that the dispute involves the coming year and not the past year, the SHITAH MEKUBETZES points out that this might be inferred from the sequence of the claims as the Gemara records them: "the Yesomim say, 'We gave [the Mezonos],' and she says, 'I did not receive it.'" This implies that the Yesomim initiated the dispute with their claim. If the dispute was over the Mezonos for the previous year, then *she* would have been the one to complain first and they would be responding to her claim. Why are the Yesomim speaking first? If the dispute involves whether the Yesomim already paid the Mezonos for the coming year, that explains why the Yesomim are speaking up first.

We might add that Rashi seems to understand that this Gemara is a continuation of the previous one. In the previous Gemara, Rebbi Yochanan said that if a widow waits two or three years without claiming her Mezonos, she may no longer claim them. The Gemara explains that she is only restricted from claiming the Mezonos for the previous years; she may claim, however, the Mezonos for the coming years.

Rebbi Yochanan now continues to ask about such a case what happens if, after two years, she claims her Mezonos and the Yesomim say that they gave her Mezonos. If Rebbi Yochanan is discussing a case where the woman did not claim her Mezonos for two years, his question now *must* be referring to where she claims for the *coming* year, since she has already forfeited her claim to the previous years.

If this is true, then we can answer the first question on Rashi as well. Certainly, in a case where the widow did not forfeit her right to the Mezonos, if she says that the Yesomim did not give her Mezonos for the coming year she is believed, for otherwise the enactment to give her Mezonos does not accomplish anything, as explained above, since the Yesomim can always avoid paying her Mezonos by claiming that they paid already. However, when she demonstrates that she does not view the Mezonos to be important to her because she did not claim them for two years, perhaps in such a situation the Rabanan did *not* institute to trust her in order to uphold to their enactment of Mezonos, and indeed the Yesomim are believed (since the money is presently in their hands). Although the Yesomim might actually owe her Mezonos because it is promised to her in the Kesuvah, she does not have the special assistance of the enactment that gives her trustworthiness, because she shows that the Mezonos are not so important to her. In this sense, Rebbi Yochanan's question about believing the Yesomim for the coming year after the Almanah forfeited her Mezonos of past years is identical to the question of whether the Yesomim will be believed over payments for past years of Mezonos when the widow never forfeited them.

Tosfos (96b, DH d'Rebbi Yehudah) explains that the reasoning to believe the Yesomim in the latter case is because we always believe the borrower (who owes money) when he says that he paid it back in a case of a "Milveh Al Peh," a loan conducted verbally and not recorded in a written contract. Only when the lender is in possession of a Shtar is the borrower not believed to say that he paid it back (unless, of course, he has witnesses). The only reason the Rabanan gave the woman trustworthiness to say that she did not receive Mezonos is because, otherwise, their enactment that the Yesomim give her Mezonos would not accomplish anything since the Yesomim can circumvent the enactment by claiming that they paid. Once the Rabanan instituted to believe the woman when she claims the Mezonos *before* the time has come to pay them, the Almanah's rights are protected. If she lets time pass before claiming the Mezonos and later claims that she was not paid for *past* Mezonos, it is not necessary to trust her.

Similarly, it may be suggested that when an extended period of time has passed without her receiving Mezonos, and the Almanah thereby foregoes her Mezonos of the past years, the Rabanan no longer felt a need to give her the exclusive trustworthiness, even for *future* Mezonos, since she it was the Almanah's own choice (or mistake) to forego the past Mezonos. Consequently, the Yesomim are believed like any borrower who owes money in a case of a "Milveh Al Peh." (M. Kornfeld)

(c) We asked that according to Rashi when the woman sells property for her Mezonos, why is she believed more when she writes in the Shtar that she is selling the property for her Mezonos. The Yesomim can still claim that she received her Mezonos from them and had no right to sell the land for her Mezonos. According to what we have said -- that Rashi agrees that, normally, when the widow says that they did not pay her Mezonos for the coming year she is believed -- the Gemara is easily understood, since we are not discussing a widow who forfeited her Mezonos for the past two or three years.

If we accept the Pnei Yehoshua's explanation (see (a), above), that according to Rashi a widow is only believed when she claims immediately, at the beginning of the year, that she was not paid her Mezonos, perhaps her deed of sale of the land was written *at the beginning of the year*. Alternatively, if she writes in the Shtar that she is selling the land for her Mezonos and she thereby publicizes that she sold it for Mezonos, and the Yesomim do not submit complaints at the time, then it is as if they are agreeing that they owe her the Mezonos and they may no longer claim afterwards that they paid her already.

96b

QUESTION: The Gemara cites a Beraisa that discusses a woman who sells property of the Yesomim in order to collect from the proceeds both her Mezonos and her Kesuvah. Rebbi Yosi in the Beraisa says that it is advantageous for her *not* to specify which property she is selling for her Mezonos and which for her Kesuvah. By not specifying, she will be able, later, to claim that what she sold was for Mezonos, and thus she will be able to collect the Kesuvah from the property in the possession of the buyers.

Why should we advise the woman not to announce why she is selling the property? Let her announce outright that she is selling the property for her Mezonos, since that way she will still be able to collect her Kesuvah. Even if the Mezonos that the Yesomim owe her is worth *less* than the sum of the property that she is selling, she still has nothing to lose by announcing that she is selling the property for the Mezonos and the surplus is towards the payment of her Kesuvah. She stands to lose nothing, for she is still able to collect the remainder of the Kesuvah from the property in the hands of the buyers. What, then, does she gain by not disclosing her intentions? If anything, she loses by making herself look like a gluttonous woman, since people will think that she is selling *all* of the property for her Mezonos!

True, by not disclosing why she sold the property, she can claim later that she sold it for her *Kesuvah* and not for her Mezonos. What will she gain, though, by such a claim?

ANSWER: There are several advantages to having the Yesomim owe her the Mezonos rather than the Kesuvah, and thus she might want to reserve for herself the ability to say that what she collected was the Kesuvah rather than the Mezonos, for the following reasons:

(a) The Gemara earlier (96a) says that a woman who forcefully takes possession (without permission) of Metaltelin from the Yesomim for her Mezonos may keep it. If, on the other hand, she forcefully takes possession of Metaltelin for her Kesuvah, Beis Din forces her to give it back.

(b) The Yerushalmi, cited by the RE'AH and Rishonim, explains that an advantage to selling the property for the Kesuvah (and thus having the Yesomim owe her Mezonos rather than the Kesuvah) exists where another creditor of the deceased husband comes to collect a "Milveh Al Peh" (a loan made with a verbal, and not written, agreement) which preceded the marriage.

The debt of the Yesomim to give the widow her Mezonos is also considered a "Milveh Al Peh," since she is not entitled to collect it from Nechasim Meshubadim, property purchased by buyers from the husband or from his estate. The Halachah is that when two creditors make a claim to collect the land of the person who owes money to both of them, the one with the earlier debt gets the land. Therefore, in our case, the husband's earlier creditor is able to take the money that the widow made from the sale of the land away from the widow. However, the Yerushalmi says that a "Milveh b'Shtar," a loan made with a *Shtar*, has precedence over a "Milveh Al Peh" even if the "Milveh b'Shtar" occurred at a later date.

Hence, if the widow is collecting her *Kesuvah* by selling this property, she may keep the money from the sale even when confronted by an earlier creditor who has an earlier "Milveh Al Peh." The creditor cannot take it away from her, because the Kesuvah has the status of a "Milveh b'Shtar," which precedes any "Milveh Al Peh." That is an advantage in being able to say that the sale was made for the Kesuvah, and not for the Mezonos.

(c) Tosfos (DH v'Rebbi Yosi) explains that even if it is always better for her to claim that the property was sold for Mezonos, if the profits from the sale are *greater* than the value of the Mezonos owed to her, and thus part of the profits are paying for part of the Kesuvah, it is advantageous to her to hide the fact that some of it is going towards her Kesuvah and to leave herself the option of claiming that it was all for Mezonos, even though they did not owe her that much for the Mezonos.

The reason for this is because perhaps later she will decide to delay collecting the rest of her Kesuvah and she will need more money for Mezonos to support herself. When she wants to collect those Mezonos later, if she already announced at the time of the previous sale that part of the sale was towards the payment of the Kesuvah, then when she collects her Mezonos she may only collect from "Nechasim B'nei Chorin," property that is not in the hands of any buyers, and not from "Nechasim Meshubadim."

If, on the other hand, she did not say that she was collecting any money from the sale for her Kesuvah, then the buyers -- who do not know how much money she was owed for the Mezonos -- think that perhaps she sold the previous field only for her Mezonos, and thus they think that she still has her full Kesuvah to collect. Hence, it is the buyers' responsibility to be wary that she might one day reclaim the land from them for the full amount of her Kesuvah. She will be able to collect from them the *entire* value of the Kesuvah, because the Chachamim established that whenever the buyer knows to beware, then one is permitted to collect from him (see end of Bava Basra). Therefore, even though she really did collect part of the money for her Kesuvah (for example, 50 Zuz out of 200) from the previous sale, and she knows that when she takes the full 200 Zuz from the buyers at a later date, 50 of those 200 Zuz are for a new debt of Mezonos that accrued, nevertheless she is able to collect it all from the buyers, since it was their responsibility to be careful.