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Kesuvos, 89


QUESTION: The Mishnah states that if a woman brings her Kesuvah to Beis Din and claims that her husband did not yet pay her, and the husband claims that he already paid the Kesuvah but that he lost the receipt, he is not obligated to pay her (until she proves her claim).

In the Gemara, Rav explains that whenever a woman presents her Get without the Kesuvah, she is entitled to receive the principle of the Kesuvah (100 Zuz for an Almanah, 200 Zuz for a Besulah), and when she presents the Kesuvah itself she is entitled to receive the Tosefes (the extra amount that the husband added to the Kesuvah at the time of the marriage). Hence, when she comes with a Kesuvah but without her Get, she does not get the principle amount of the Kesuvah (but only the Tosefes), since she might have collected it already with the Get.

The Gemara questions Rav's ruling from the Mishnah. The Mishnah states that if she comes with only her Kesuvah, the husband does not have to pay her anything. According to Rav, he should have to give her the Tosefes, since there is no way for her to collect the Tosefes on the basis of the Get!

The Gemara answers that the Mishnah is referring to a case where she has no proof that she is divorced. Since the husband would be believed to say he did not divorce her and thus does not owe her anything, he is believed now when he admits that he divorced her but says that he already paid her the Kesuvah.

The answer of the Gemara is based on the assumption that if a woman says that she is divorced and the husband denies it, we believe the husband. This seems to contradict the Gemara earlier (22b) that says that if a woman says in her husband's presence that he divorced her, she is believed! How are these two Gemaras to be reconciled?


(a) TOSFOS (DH Migu) answers that the reason the woman is not believed to say that she is divorced in the case of our Gemara is because she is accompanying the claim that she is divorced with a demand for payment. When she demands money, she is not believed to say that she is divorced because we are concerned that she is saying that she is divorced only in order to collect the money. In the Gemara earlier (22b), though, she is not making a claim for money when she says that she is divorced, and therefore she is believed.

(b) The RAMBAM (Hilchos Ishus 16:26) writes that a woman is believed to say that she is divorced even if she comes to collect her Kesuvah. The Rambam continues and says that although she is believed and collects her Kesuvah, she can only collect the principle Kesuvah (100 or 200) but not the Tosefes.

According to this ruling of the Rambam, we can answer our question as follows. Our Gemara is dealing with whether or not the woman is believed with regard to collecting the *Tosefes*, and the Gemara concludes that the husband is believed to say that he did not divorce her. According to the Rambam, our Gemara does not contradict the earlier Gemara that states that the woman is believed, since the woman is believed only with regard to the principle Kesuvah and not with regard to the Tosefes!

The obvious question, though, is why is the woman believed to say that she is divorced only with regard to the principle Kesuvah, and not with regard to the Tosefes? Why should she be believed with regard for one and not the other?

The MAGID MISHNAH (ad loc.) writes that the Rambam is of the opinion that the concept of "Midrash Kesuvah" (basing the laws and guidelines for the collection of the Kesuvah on the words with which the Kesuvah is written) applies only to the principle Kesuvah and not to the Tosefes.

The explanation of this is as follows. The logic to believe a woman who says that she is divorced (in her husband's presence) is that she would not have the audacity to lie in front of her husband. We permit her to remarry on the basis of this logic when she makes such a claim. Although we rely on this logic for matters of Isurim (permitting a woman to marry someone else), it is not sufficient to enable her to collect money, because monetary law requires a clear proof and not just strong logic (see Rambam, Hilchos Gitin 7:24, and Hilchos Avadim 7:2).

The words in the Kesuvah state, "Whenever you will be permitted to remarry, you may collect the Kesuvah." Based on this, it is not necessary to have a *clear proof* of divorce in order to collect the Kesuvah, since the fact that the Beis Din permits her to remarry fulfills this condition of the Kesuvah! (See Yevamos 117a.) The Rambam is of the opinion that this condition was written only with regard to the main Kesuvah and not the Tosefes. In order to collect the Tosefes, the woman must have clear proof of divorce, like any other monetary matter. Therefore, she may collect only the main Kesuvah based on her claim that she is divorced, but not the Tosefes! (E. Kornfeld)


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