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Babylonian Talmud: Tractate Kethuboth
— The fact, however, is that both1 follow [the rule of] assumption; and he who stated that the halachah [was so]2 was well justified, [while in respect of] him who stated that the halachah was not [so],3 [it may be explained that] here4 also [the ruling is based on] an assumption, that the man's object5 [it is assumed] was the formation of a mutual attachment,6 and such attachment has indeed been formed.7
R. Hanina8 once sat in the presence of R. Jannai when he stated: The halachah is in agreement with R. Eleazar b. Azariah. [The Master] said to him, 'Go Out' read your Biblical verses outside;9 the halachah is not in agreement with R. Eleazar b. Azariah'.
R. Isaac b. Abdimi stated in the name of our Master:10 The halachah is in agreement with R. Eleazar b. Azariah. R. Nahman stated in the name of Samuel: The halachah is in agreement with R. Eleazar b. Azariah.
R. Nahman in his own name, however, stated that the halachah was not in agreement with R. Eleazar b. Azariah, while the Nehardeans stated in the name of R. Nahman that the halachah was in agreement with R. Eleazar b. Azariah. And though R. Nahman uttered a curse, proclaiming, 'Such and such a fate shall befall every judge who gives a ruling in agreement with the opinion of R. Eleazar b. Azariah', the halachah is nevertheless in agreement with R. Eleazar b. Azariah.
And the halachah in practice is in accordance with the Opinion of R. Eleazar b. Azariah.
effected by the affectionate attachment in the bridal chamber13 or is the kinyan effected by the affectionate attachment of the intercourse?14 — Come and hear what R. Joseph learnt: 'Because he assigned15 it to her only on account of the affectionate attachment of the first night'. Now, if you grant that it is the affectionate attachment in the bridal chamber that effects the kinyan it was correct for him to state 'the first night'. If, however, you contend that it is the affectionate attachment of the intercourse that effects the kinyan, does this [it may be objected, first] take place on the first night only and not subsequently? — What then [do you suggest]? The [affectionate attachment in the] bridal chamber? Is the bridal chamber [it may be retorted] entered16 in the night only and not in the day time!17 — But according to your argument does intercourse take place at night and not in the day time? Surely Raba stated: If one was in a dark room [intercourse] is permitted!18 — This is no difficulty. He19 may have taught us that it is proper conduct20 that intercourse should be at night; but [if it is maintained that it is the affectionate attachment in the] bridal chamber [that effects the kinyan] the difficulty arises!21 — [The assumption that kinyan is effected in the] bridal chamber also presents no difficulty. Since, usually, the bridal chamber is a prelude to22 intercourse he taught us that it was proper that [it should be entered] at night.
R. Ashi enquired: What is the law23 where [a bride] entering the bridal chamber became menstruous?24 If you should find [some reason] for saying that it is the affectionate attachment in the bridal chamber that effects the kinyan25 [the question still remains whether this applies only to] a bridal chamber that is a prelude26 to intercourse but not to a bridal chamber that is no prelude to intercourse,27 or is there perhaps no difference?28 — This remains unanswered.
R. JUDAH SAID: IF [A HUSBAND] WISHES HE MAY WRITE OUT FOR A VIRGIN etc. Does R. Judah hold the opinion that a quittance is written?29 Surely we learned: If a person repaid part of his debt, R. Judah said, he30 must exchange [the bond for another].31 R. Jose said: He32 must write a quittance for him!33 — R. Jeremiah replied: [Here it is a case] where the quittance is [written] within.34 Abaye replied: You may even say [that here it is a case] where the quittance is not written within.35 There36 it is quite correct37 [to disallow the use of a quittance, since the debtor] had undoubtedly repaid him38 and it is possible that the quittance might be lost and that he38 would produce the bond and thus collect [the paid portion of the debt] a second time. Here,39 however, did he indeed give her anything?40 It is a mere statement that she addressed to him.41 If, then, he preserved [the quittance] well and good;42 and if he did not preserve it, well, it is he himself who is the cause of his own loss. One can well understand why Abaye did not give the explanation as R. Jeremiah, since it was not stated43 that the quittance was entered within,44 but why did not R. Jeremiah give the same explanation as Abaye? — The quittance here45 is forbidden as a preventive measure against the [erroneous permitting of] a quittance elsewhere.46
The reason [for the husband's exemption47 is apparently] because she gave him a quittance in writing.48 If, however, [she had surrendered a portion of her kethubah] by word of mouth only [he would] not [have been exempt];49 but why? This,45 surely, is a monetary matter, and R. Judah was heard to rule that in a monetary matter one's stipulation50 is valid. For was it not taught: If a man said to a woman, 'Behold thou art consecrated unto me51 on condition that thou shalt have no [claim] upon me [for] food, raiment or conjugal rights', she is consecrated,52 but the stipulation is null;53 so R. Meir. R. Judah, however, said: In respect of monetary matters his stipulation is valid?54 — R. Judah is of the opinion that the kethubah is a Rabbinical enactment,55 and the Sages56 have applied to their enactments57 higher restrictions than to those of the Torah.58 But what of the case of usufruct59 which is a Rabbinical law and the Rabbis nevertheless did not apply any restriction to it;60 for we learned: R. Judah said, He61 may for all time eat the fruit of the fruit62 unless he wrote out for her [the undertaking], 'I have no claim whatsoever63 upon your estates and their produce and the produce of their produce for ever';64
and it had been established that by 'writing'1 only saying was meant!2 — Abaye replied: All [married women] have a kethubah; not all, however, have fruit. In respect of what is usual the Rabbis have applied restrictions. In respect of what is not usual, however, the Rabbis have made no restrictions.
But what of the case of ass-drivers3 which is a common occurrence and the Rabbis have nevertheless applied no restrictions to it; for we learned: Where ass-drivers entered a town and one of them declared, 'My [produce] is new and that of my fellow is old' or 'Mine is not fit for use4 but that of my fellow is fit', they are not believed; but R. Judah said, They are believed!5 — Abaye replied: To any Rabbinical enactment of an absolute character6 the Rabbis have applied further restrictions, but to any Rabbinical enactment of uncertain origin7 the Rabbis have added no further restrictions. Raba replied: They8 relaxed the law in respect of demai.9
R. MEIR RULED … ANY MAN WHO … GIVE … LESS etc. The expression, 'WHO … GIVE … LESS' [implies]10 even [if the assignment remained a mere] stipulation.11 Thus it follows that he12 is of the opinion that the man's stipulation is void and that the woman receives [her full kethubah];13 yet since14 the man had said to her15 'You will have but a maneh',16 her mind is not at ease17 and his intercourse is regarded as an act of prostitution.18 But, surely, R. Meir was heard to rule that any stipulation19 which is contrary to what is written in the Torah is20 null and void, [from which it may be inferred,21 may it not, that if it is] but against a law of the Rabbis it is20 valid?22 — R. Meir holds the view that the kethubah is a Pentateuchal institution.
It was taught: R. Meir ruled, If any man assigns to a virgin23 a sum less than two hundred zuz or to a widow less than a maneh his marriage is regarded as24 an act of prostitution. R. Jose ruled: One is permitted [to contract such a marriage].25 R. Judah ruled: If the man wished he may write out for a virgin a bond for two hundred zuz while she writes26 for him, 'I have received from you a maneh'; and [he may write a bond] for a widow for a maneh while she writes26 for him, 'I have received from you fifty zuz'.27
Is R. Jose then of the opinion that 'one is permitted [to contract such a marriage]'?28 This surely is contrary [to the following:] A woman's kethubah may not be made [a charge on] movable property as a social measure.29 Said R. Jose: What social measure is this?30 Their31 price, surely, is not fixed and they deteriorate in value.32 Now, did not the first Tanna also say that [a kethubah] may not be made [a charge on movable property]?33 Must he34 not, consequently, have meant to say: This35 applies only where he36 accepted no responsibility;37 but where he accepted responsibility37 [the kethubah] may be made [a charge upon them].38 Thereupon came R. Jose to question: Even If he36 did accept responsibility how [could the kethubah be] made [a charge upon them]39 when their price, surely, is not fixed and they deteriorate in value.40 Now, if there,41 where the diminution in value [of the movables] is only a possibility,42 R. Jose provides against it, would he not even more so [adopt a similar course] here43 where the diminution [of the kethubah] is a certainty? — How now! There44 she did not know it45 to think of surrendering her rights;46 but here she was well aware [of the fact]47 and has definitely surrendered her rights.
The sister of Rami b. Hama was married to R. Iwia
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