|Tractate Peah, Chapter 1
Tosefta 151[A person who is either dangerously ill or healthy,2] writes away [in a contract all of] his [movable and non-movable]3 property to his sons and [also] writes away [in the same contract] to his wife land4 of any size5 – [the wife] loses6 [the right to claim the value of] her Ketubah (marriage contract)7 [upon the husband’s death or divorce]. Rebbi Yossi said, “When do we say this [that the wife loses the right to claim the value of her Ketubah upon the husband’s death or divorce]? At the time when she accepted upon herself [to receive this land] as a part of her Ketubah. But if she did not accept upon herself [to receive this land] as a part of her Ketubah, whatever [the husband] gave her [is considered to be] given [to her as a regular gift] and she [can still] claim her Ketubah [upon his death or divorce] from [his] other property [that he gave away to his sons in the above mentioned contract].”8
מסכת פאה פרק א
הכותב נכסיו לבניו וכתב לאשתו קרקע כל שהו – איבדה כתובתה. אמר רבי יוסי במה דברים אמורים? בזמן שקיבלה עליה לשם כתובתה, אבל לא קיבלה לשם כתובתה, מה שנתן נתן וגובה כתובתה משאר נכסים.
- Mishna Peah 3:7 mentions the case of the husband who is dangerously ill giving away all of his property while he is still alive to his sons and to his wife. The Mishna mentions an argument between the Tanna Kama and Rebbi Yossi regarding the wife’s eligibility of claiming the value of her Ketubah upon the husband’s death from the property that was given away to his sons if she received any land in this transaction. This Tosefta expands on this law and changes some of the details of the case itself and of Rebbi Yossi’s opinion. The reason that this law is mentioned here in Peah is because the previous Mishna (Peah 3:6) discussed a law regarding Peah that applied to a minuscule amount of land. Mishnayot Peah 3:7 and 3:8 discuss additional laws that have to do something with a miniscule amount of land even though they have nothing to do with Peah. The Tosefta does not comment on Mishna Peah 3:6, however it does comment on Mishnayot Peah 3:7 and 3:8, so it appears as if this and the next Tosefta are out of context, but really they are not. From this particular structure of the Tosefta it is clear that the Tosefta was written after the Mishna as an addition to it and not like some scholars claim that it was written before the Mishna.
- The Mishna (Peah 3:7) implies that it is only talking about a person who writes this contract is dangerously ill, however if he is healthy then this law would not necessarily apply and his wife would still be able to claim her Ketubah if later on he dies or divorces her. For an explanation of what the Ketubah is see note 7 below. The reason is because if the husband is dangerously ill then the wife assumes that this act of him giving away his property is his final act and she will not have any other rights to receiving anything from his possessions later on and so therefore if she does not explicitly say that she is still holding on to her right to claim the value of the Ketubah after his death she forfeits that right, because she implies that she is satisfied with this gift of land to her as his final will. However if the husband is healthy then the wife assumes that he is simply giving away a gift both to her and to his sons and this is not his final will then she does not forfeit her right to claim the Ketubah later if he dies or divorces her. In fact some commentators explain this Mishna in this way. See the commentary of the Rambam and Rav Ovadyah Mibartenura on the Mishna (Mishna Peah 3:7) and Pnei Moshe on Talmud Yerushalmi (Peah 3:9, Daf 18a, Avdah Ketubata). However the Tosefta does not mention whether the husband is dangerously ill or not, so it implies that this law applies in both cases, whether he is healthy or dangerously ill. The reason would be that since the husband is giving away all of his property and leaves nothing to himself the wife assumes that this is his final will and this is all she is ever going to get out of him in case of his later death or divorce, and therefore she does not have any future claims to the property that his sons received from him. The Rambam rules (Hilchot Zechiyah Umatana 6:9) that this law applies in both cases, whether the husband is healthy or dangerously ill. Since the Rambam himself wrote in his commentary on the Mishna that the Mishna is talking about only someone who is dangerously ill and not who is healthy it would make sense to conclude that the Tosefta argues on the Mishna and the Rambam rules according to the implication of the Tosefta and not according to the implication of the Mishna.
- In order for this case to make sense the husband has to give away all of his property, both movable and non-movable, and not just non-movable property (i.e. land), because theoretically the wife can claim the value of her Ketubah upon the husband’s death or divorce out of any type of property (see the next note) and since in this case he gave everything to his sons except for that miniscule piece of land that he gave to his wife, there is nothing of his property left in his possession for her to claim the value of her Ketubah in the future except to take it out of the property that was already given away to his sons. Talmud Yerushalmi (Peah 3:9, Daf 18a) explicitly makes this point in the conclusion of the discussion of this case.
- It is not clear from either the Tosefta or the Mishna if land is meant here literally or it is just an example and the same law would apply if the husband gave her some movable property instead. For a discussion of various opinions see Shaul Lieberman’s Tosefta Kepshuta on this Tosefta (Karka Kol Shehu, p. 141). Based on the premise that according to the basic law which existed at the time of the Mishna and the Tosefta the Ketubah can be collected from either movable or non-movable property the land in this case is just an example and the same would apply even to movable property. For a detailed discussion of the law regarding from what type of property the Ketubah could be paid from see Tosafot (Ketubot 51a, Memikarkai Velo Memitaltelei). Based on that Tosafot the statement of Rava in Talmud Bavli (Ketubot 51a) that the Ketubah could only be collected from land and not from movable property was a later Babylonian enactment of Rava himself and was not the accepted opinion in the Land of Israel at the time of the Mishna and the Tosefta, just like it is not the accepted opinion today. Daniel Sperber (See Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978. p. 180-182.) points out that this particular law if the Ketubah can be claimed from movable property or not actually changed back and forth depending on the economic situation of the location, as can be seen from Talmud Yerushalmi (Ketubot 10:3, Daf 59a).
- Any size means literally “any size”, even if it is so small that a person cannot even stand on it.
- The word “loses” is spelled in all Tosefta manuscripts איבדה (Ibda), with the letter Yud, meaning “she loses” referring to the wife and not אבדה (Avda), without the letter Yud, meaning “it is lost” referring to the Ketubah, as it is written in some editions of the Mishna. The Rambam in his commentary on the Mishna (Peah 3:7) points out the correct spelling is איבדה (Ibda), with the letter Yud, because it is specifically referring to the wife’s ability to speak up that this gift of land is just a gift and she still keeps her right at a later time to claim the value of her Ketubah from the property given to the sons. And since the wife was quiet and did not explicitly say that this is just a gift she loses her Ketubah by her inaction.
- The accepted opinion is that according to Torah law when a man marries a woman he does not have to write any marriage contract that promises money to his wife in the case of his death or divorce. However the Rabbis have decreed that the husband is obligated to write a marriage contract called Ketubah in which he promises that in the case of his death or divorce his wife can collect out of his property 200 silver Denarii if this was her first marriage (i.e. she was a virgin when he married her) and 100 silver Denarii if this was her second or more marriage (i.e. she was a widow when he married her). See Mishna Ketubot 1:2 and Talmud Bavli (Ketubot 39b). Denarius (plural: Denarii) was the most common Roman silver coin in circulation at the time of the Mishna (up to the year 220 CE) and the amount of 200 silver Denarii was roughly equal to an average salary of an unskilled worker for half a year, based on the daily wages of 1-2 Denarii. See Avot Derebbi Natan (Schechter ed. Vienna 1887, page 27b, Nuscha 2, Chapter 26, Maaseh Behillel Hazaken), Talmud Bavli (Avodah Zarah 62a), and Tosefta (Bava Metzia 6:5). So this was a very significant sum of money that protected the woman financially from the husband’s sudden death or most importantly from a rash decision to divorce her, since by both Torah and Rabbinical law the husband can divorce his wife against her will. See Talmud Bavli (Gittin 21a). The remaining property after the wife collects the value of her Ketubah is inherited by his sons, regardless if they are also her sons or only his sons from another marriage, since by default inheritance by Torah law passes only from the father to the sons and not to the wife or the daughters. There are various exceptions to this rule if the husband does not have any sons; however the Tosefta is discussing a standard case where the husband has sons. The sons do not have any power of the wife’s claim to the Ketubah, so if their father gave all of his property to them during his lifetime, and later on when he died or divorced his wife he did no own anything, as long as the wife is still eligible to receive the value of her Ketubah, she can claim it out of the property of his sons, even though it belonged to them before his death or divorce. The Tosefta is discussing precisely this situation and the question is not whether she can or cannot collect it out of the sons’ property, because that is a given, but rather whether she is still eligible to the right to collect her Ketubah or not.
- Rebbi Yossi argues on the Tanna Kama and says that it is not enough for the wife to simply be quiet when she receives this gift of land from her husband and not speak up. Rebbi Yossi holds that she must speak up and explicitly say that this gift of land counts as the payment of her Ketubah, in which case she would be able to claim it later upon her husband’s death or divorce from the property that he has already given away to his sons. However if she was simply quiet and did not say anything it is not enough of an indication that this gift is intended to be her Ketubah payment and therefore she retains her right to claim it later. This clarification of the Tosefta is critical in Rebbi Yossi’s opinion, because from the way it is stated in the Mishna it is understood completely differently. The Mishna quotes Rebbi Yossi saying that if she accepted upon herself that this land is her Ketubah payment, even if the husband never wrote this gift of land to her in the contract, but only mentioned it verbally she still loses her future ability to claim the value of the Ketubah, because she intended to be given this land from the property received by the sons. According to the Mishna Rebbi Yossi is not arguing with the Tanna Kama in any way, but rather is adding a separate case to his statement. However, from the Tosefta it is clear that he is arguing, and if the land has not been explicitly written in the contract then for sure she does not lose her later ability to claim the value of the Ketubah, because then it is obvious that the husband is simply giving her a gift and not intending in any way for this to be his final will to his wife since he did not write it down. The way the Mishna presents Rebbi Yossi’s opinion is very peculiar, because he essentially says that it is possible to somehow nullify a written contract (i.e. Ketubah) with a verbal proclamation (i.e. the husbands unwritten promise to give her land). However from the Tosefta no such claim is made and Rebbi Yossi’s opinion is a lot more balanced, since according to the Tosefta, it is a written contract that nullifies the Ketubah and not simply a verbal proclamation.