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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 88



(a) We just concluded that the Shevu'ah in our Mishnah of 'Eid Echad Me'idah she'Hi Peru'ah' is mi'de'Rabbanan. Rav Papa advises an astute husband to turn it into a Shevu'ah d'Oraysa - by paying her Kesuvah in front of one witness, and then by combining the two witnesses to testify that she had received her Kesuvah, rendering the first payment a loan, which he is now reclaiming.

(b) (Some of) the advantages of a Shevu'ah d'Oraysa over a Shevu'ah de'Rabbanan are - that with regard to the former, one swears using the Name of Hashem and holds an object of Mitzvah in one's hand whist swearing (see also Tosfos DH 'Maysi Lah').

(c) Rav Shisha Brei de'Rav Idi rejects Rav Papa's advice - on the basis of the fact that, seeing as each witness testifies on a different transaction, how can the two possibly combine to make a pair of witnesses, to testify that she received her Kesuvah.

(d) So Rav Shisha advises him to present her with her Kesuvah in front of the one witness together with a new witness, and then to reclaim the first payment as a loan. Rav Ashi rejects Rav Shisha Brei de'Rav Idi's advice - because she could then counter that she had two Kesuvos, and that her first claim was a Kesuvah too (a fact which is borne out by the first witness).

(a) So in order to transform the Shevu'ah from a Shevu'ah de'Rabanan to a d'Oraysa - Rav Ashi advises the husband to follow Rav Shisha Brei de'Rav Idi's advice - but before paying his wife her second Kesuvah, to inform the two witnesses that he has already paid her Kesuvah and that he is only paying her again in order to reclaim the first payment. Consequently, she will not be able to claim that the first payment was to repay a loan.

(b) The fact that she no longer has the support of the first witness - prevents us from believing her should she claim that she had two Kesuvos, seeing as that it is uncommon for a woman to have two Kesuvos.

(a) We learned in a Mishnah in Shevu'os that orphans may only claim with a Shevu'ah. That cannot be referring to orphans claiming from their father's debtor - because if their father could have claimed from him without a Shevu'ah, why should the orphans not be permitted to do likewise?

(b) It refers to - orphans claiming from orphans.

(c) Rav Z'rika Amar Rav Yehudah establishes that Mishnah when the defending orphans claim that their father borrowed and paid, but if they quote their father as saying that he did not even borrow the money, they cannot even claim *with* a Shevu'ah. Rava objects to that statement - on the grounds that claiming that one did not borrow is tantamount to admitting that he has not repayed the loan. So what will they do with the Sh'tar that proves beyond doubt that the loan took place, to which they have now added that the loan has not yet been repaid?

(d) So what Rav Z'rika Amar Rav Yehudah really said was - that in the event that the orphans quote their father as saying that he did not even borrow the money - then they will have to pay at once without the other orphans needing to swear.

(a) Rebbi Yitzchak Nafcha ruled that the Din in our Mishnah, authorizing the woman to claim her Kesuvah with a Shevu'ah is exclusive, and does not extend to a creditor who is claiming his debt in the absence of the debtor - because Chazal only permitted a woman to do so due to 'China' (to encourage her to marry, by reinforcing her claim to the Kesuvah).

(b) According to Rava Amar Rav Nachman - the Din extends to creditors, to prevent debtors from avoiding paying their debts by running away (which in turn, would cause potential creditors to desist from lending money to honest people - 'Ne'ilas Deles').




(a) Rebbi Yirmiyah assumes that Rebbi Shimon (who differentiates between whether the woman is claiming her Kesuvah or not) is referring to the case that immediately preceded his statement (a woman who claims her Kesuvah in her ex-husband's absence) - in which case, the Rabbanan hold that the woman may claim both her Kesuvah and Mezonos (with a Shevu'ah) in her husband's absence; whereas Rebbi Shimon holds that she can only claim her Kesuvah, but not Mezonos.

(b) He tries to connect their Machlokes to that of Chanan and the B'nei Kohanim Gedolim (in Perek Sh'nei Dayni). When Chanan says that if a man goes overseas and the woman claims Mezonos, she swears at the end but not at the beginning - he means that she may only claim her Kesuvah with a Shevu'ah, but not Mezonos.

(c) The B'nei Kohanim Gedolim hold - that either way, she swears and claims.

(d) According to Rebbi Yirmiyah, Rebbi Shimon holds like Chanan, the Rabbanan, like the B'nei Kohanim Gedolim. Rav Sheishes objects to Rebbi Yirmiyah's interpretation from the Lashon of Rebbi Shimon's statement 'ha'Yorshin Mashbi'in Osah' - implying that her ex-husband *is no longer alive*, whilst 'Nifra'as she'Lo Befanav' clearly speaks when he *is*.

(a) According to Rav Sheishes - Rebbi Shimon's statement refers to the (previous) case of 'Halchah mi'Kever Ba'alah le'Beis Avihah ... ve'Im Na'asis Apotropus, Yorshin Mashbi'in Osah al he'Asid'. They are arguing about the Shevu'ah of Apotropsus.

(b) He connects the Machlokes with that of Aba Shaul and the Rabbanan in the Mishnah in Gitin, where the Rabbanan obligate an administrator whom the father of the orphans appointed, to swear, but not one who is appointed by the Beis-Din - because in the latter case, if he is made to swear, he will not volunteer his services in the first place; whereas in the former case, the father would not have appointed him, if he had not received a favor from him in his lifetime (so their friendship will encourage him to accept the offer in spite of the fact that he will later have to swear).

(c) Aba Shaul maintains however - that if it is the father who appointed him, he does not swear, because then he would decline the appointment in the first place; whereas if the Beis-Din appointed him, he will accept in any event, due to the prestige of being considered trustworthy.

(d) Rebbi Shimon, who says that, if the woman (who was appointed an administrator by her husband) is not claiming her Kesuvah, she does not need to swear, will now hold like Aba Shaul, the Rabbanan, like the Rabbanan of Aba Shaul.

(a) Abaye has a problem with Rav Sheishes' explanation - because according to him, Rebbi Shimon comes to be more lenient than the Rabbanan, whereas the Lashon 'Kol Z'man she'Tova'as K'suvasah ... Yorshin Mashbi'im Osah' implies that he is coming to be stringent.

(b) Abaye therefore concludes that Rebbi Shimon refers to the Reisha of our Mishnah 'Kasav Lah Neder u'Shevu'ah Ein Li ve'Lo le'Yorshai ... Ein Yachol Lehashbi'ah Lo Hu ve'Lo Yorshav ... ' - Rebbi Shimon maintains that as long as she claims her Kesuvah, she has to swear, like Aba Shaul.

(c) Rav Papa has a problem with Abaye's explanation. Abaye has clarified the *first* half of his statement, but what is the point of the *second* half 'Einah Tova'as K'suvasah, Ein Yorshin Mashbi'in Osah'? What is he coming to teach us?

(d) Rav Papa therefore agrees with Abaye with regard to the first half of Rebbi Shimon's statement. Regarding the second half, he comes to preclude from the opinion of both Rebbi Eliezer and the Rabbanan in the Mishnah on 86b. - 'ha'Moshiv es Ishto Chenvanis ... Harei Zeh Mashbi'ah. Rebbi Eliezer Omer Afilu al Pilchah ve'al Isasah'. Rebbi Shimon now comes to teach us that, in his opinion, a woman who does not claim her Kesuvah, does not need to swear (The first half of his statement comes to be strict, the second half comes to be lenient).

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