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The Lost Or Relinquished Kesubah
‘A Couple May Not Live Even One Moment Without A Kesubah’
(Bava Kamma 89a)

 

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Upon marriage, a man is required to give his wife a kesubah (a marriage contract) obligating him to pay his wife a specific sum of money payable to her either upon his death or their divorce. Our sages (Kesuboth 10b) fixed the amount of this indebtedness as 200 zuz for a maiden and 100 zuz for a widow. Our Gemara explains that this sum will deter a person from divorcing his wife in haste.

The halacha follows R. Meir on our daf that it is forbidden for a man to live with his wife if she does not have a kesubah in her possession. This prohibition applies even if the wife forgoes her husband’s kesubah obligation (e.g., she is an independently wealthy woman).

 

Watch Out

The Mishnah (87a) states that it is a misfortune for one to be injured by a married woman because the aggrieved party is unable to collect timely payment. He must wait until she is either widowed or divorced and then collect the damages from the proceeds of her kesubah.

 

When He’s The Victim

The Gemara (89b) cites a tosefta (Bava Kamma 9:8), which states that if the injured party is her husband, he, too, can only collect if the marriage ends in divorce. If the damages do not exceed the amount owed to her in the kesubah, he may withhold that sum from the kesubah obligation as his recompense.

 

Catch-22

The Meiri (ad loc.) cites authorities who maintain that if a woman injured her own husband, resulting in 200 zuz worth of damage (or 100 zuz if that is the value of her kesubah), they are no longer allowed to remain together. The reasoning of these authorities is that since the husband may keep the money of the kesubah, the kesubah’s deterrent value against divorce in haste is no longer in effect.

 

Not So Simple

The Meiri (ad loc.) cites other authorities who disagree. They maintain that 1) since he can only collect his damages in the event they divorce and 2) since beis din will first obligate him to pay the kesubah before ruling on her obligation to him, he will always question whether he will receive a favorable ruling and receive his money. This doubt will serve as a sufficient deterrent for him not to divorce her in haste.

 

Rabbenu Gershom’s Stringency Serves As A Leniency

The Rema (Even HaEzer 66:3) says we are lenient in this matter nowadays because of the cherem (ban) of Rabbeinu Gershom forbidding a man from divorcing his wife against her will. Thus, even if the kesubah is lost, the couple may remain together. Nevertheless, he writes that since the custom is to rewrite the kesubah, we demand that this be done without delay, even nowadays.

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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.