Shiur #12: "Muchzakut" With Regard to the Ketuba Payment

  • Rav Yair Kahn

Translated by David Silverberg

             In every case of monetary dispute brought to a "din Torah," we must determine who has the status of "tovei'a" (plaintiff) and who is the "nitba" (defendant).  Many times, this itself will determine the final ruling, given the fundamental principle in halakhic jurisprudence, "ha-motzi mei-chaveiro alav ha-re'aya" - the one seeking to extract money bears the burden of proof.  Without clear-cut evidence to the contrary, we rule in favor of the "muchzak" - the one who has the disputed assets in his possession.  It behooves us, then, to determine who enjoys the status of "muchzakut" in a case concerning ketuba payment.  When a dispute arises concerning this payment, do we view the woman as attempting the extract money from the husband, who we would thus consider the muchzak, and hence she would bear the burden of proof?  Or, since the woman holds the ketuba document, does she enjoy muchzakut status vis-א-vis the ketuba payment, and thus the husband, who seeks to deny her of the payment written in the document, must supply proof to his side?


            The Rishonim debate this issue.  Tosefot in several places consider the husband the muchzak and the wife the one who seeks to extract money from its currently presumed owner.  We cite here their comments regarding the husband's ability to deny her the ketuba payment by claiming "petach patu'ach" (9b, s.v. i): "It appears that if he would come to Bet Din, he would be believed to deny her the ketuba, even though he is not believed to render her forbidden to him, for we could claim that perhaps he lacks the proficiency with regard to [the claim of] petach patu'ach, and we therefore leave her at her status quo, that she is permitted. However, she loses her ketuba even though we could claim that he is mistaken in [his claim of] petach patu'ach, for we could argue that the money should remain in the possession of its [currently presumed] owner."  Meaning, although a claim of petach patu'ach does not have the strength to render the wife forbidden, it suffices for the wife to lose her ketuba, since we view the husband as the muchzak with respect to this payment.  Tosefot repeat this same argument in the context of a sugya later in the masekhet (36a).  The Gemara there addresses a situation of a ta'anat betulim (a claim that one's bride was not a virgin on their wedding night) by a husband of a chareshet (deaf-mute) or shota (mentally disabled woman).  The Gemara writes that the efficacy of this claim is subject to a dispute between Rabban Gamliel and Rabbi Yehoshua.  Rashi explains that according to Rabban Gamliel (see 12b), we believe a wife's claim that she was raped after their betrothal or lost her betulim as a result of an accident ("mukat etz").  Therefore, a chareshet and shota also retain their ketuba rights despite the husband's claim; even though they themselves lack the ability to advance a claim of rape or mukat etz, the court makes this claim on their behalf.  Tosefot (s.v. ha-chareshet) cite the Ri who rejects this position because we cannot launch a possible claim against a chezkat mamon - to extract money from the currently presumed owner: "The Ri asks, how can we make this questionable claim on her behalf to extract money, if she herself did not make this claim?"


            Rashi argues and explains that Bet Din can indeed advance this claim on the chareshet's behalf against the husband.  One might contend that in Rashi's view, the husband is not considered the muchzak.  In truth, however, one cannot prove from Rashi's commentary on that sugya that he adopts such a position.  The Ri assumed that we must consider a claim advanced by Bet Din on behalf of a litigant incapable of defending himself as a "ta'anat safek" - a questionable claim.  Tosefot apparently felt that this concept of "ta'aninan," by which the court puts a claim in the mouth of a disadvantaged litigant, is based on the concern for a fair balance of legal strength between the two litigants.  In this framework, Bet Din should raise certain possibilities so as to prevent a perversion of justice.  One could, however, view this halakha differently.  The concept of ta'aninan, which Chazal derive from a verse in Sefer Mishlei (31:8) - "Speak up for the dumb," may involve more than the raising of various possibilities by the Bet Din working as a neutral party.  Rather, ta'aninan resembles the concept of "apotropus" - the court-appointed guardian of young orphans, who is responsible for the proper handling of their inheritance.  In the case of the deaf-mute, Bet Din bears the responsibility of ensuring that his side is represented.  Accordingly, they argue on his behalf as his attorneys, not as an objective third-party raising possible arguments to defend him.  The nature of this claim would depend on these different perspectives on the halakha of ta'aninan.  As mentioned, Tosefot work under the assumption that Bet Din's claim is seen as a questionable claim, insufficient to extract money from a muchzak.  This assumption is undoubtedly correct if we perceive ta'aninan as the raising of possibilities by an objective third party.  If, however, the court acts as a "guardian" advancing claims on behalf of the deaf-mute, we may consider their claim a "ta'anat vadai" (definite claim), since the deaf mute could have raised this argument in definitive terms.  This can, according to Rabban Gamliel, extract money from the husband, whom we view as the muchzak.


            Elsewhere we find yet another expression of Tosefot's position viewing the husband as the muchzak.  The Gemara (9b) brings the opinion of Shemuel that we believe a husband's claim of petach patu'ach with respect to the ketuba payment.  Tosefot (s.v. lo) question this ruling in light of Rabban Gamliel's view (12b) that a wife's "migu" (meaning, proof of her honesty based on the fact that she could have launched a better claim) is effective against the husband's presumed ownership.  In this case, in response to a claim of petach patu'ach, the wife could have claimed to have been raped at some point after their betrothal.  Therefore, if she instead disputes her husband and claims that she in fact was a betula, she should be believed.  Towards the end of their discussion, Tosefot comment that we may resolve this question if we assume that a migu does not have the legal strength to extract money from its presumed owner.  Quite clearly, then, Tosefot consider the wife the plaintiff who seeks to extract money from the husband, whom they view as the muchzak.  She therefore cannot earn rights to her ketuba payment through a migu, according to those who hold that a migu is insufficient to extract money from a muchzak.


            We would like, however, to make two points.  If, indeed, Tosefot maintain that migu does not have the power to extract money from a muchzak, then why do we believe a wife because she could have claimed that she had been raped after her betrothal (see 12b)?  We must explain that there the woman can make her claim with certainty ("bari") whereas the husband can advance no more than a speculative claim ("shema").  Therefore, the woman's migu in this instance has the strength to extract money from the husband, whom we consider the muchzak.  We could perhaps explain that the uncertainty of the muchzak (the husband) against the definitive claim of the plaintiff (the wife) weakens the husband's chezkat mammon (presumption of ownership).  Meaning, one could claim that in general, a chezkat mammon is not established only by the physical presence of the contested assets in the muchzak's possession; rather, we look view muchzak as the rightful owner.  Compelling evidence is thus necessary to change one's status with respect to these assets and deprive him of his title as owner.  When, however, the husband advances an uncertain claim against the definitive claim of the wife, he has the money under his possession but cannot be presumed the owner.  The woman can then win rights to the ketuba payment through a migu.


            Secondly, Tosefot, in several places in the Talmud, maintain that a migu does not have the capacity to extract money (see Bava Batra 32b s.v. amai; Bava Batra 52b s.v. devarim).  Why, then, do Tosefot here express ambivalence regarding this point?  (Recall that they write here that we can resolve the difficulty if we assume that migu lacks the legal strength to extract money.)  Perhaps Tosefot felt that the husband does not have a clear chezkat mammon since the wife presents a ketuba, which undermines his presumption of ownership over the contested money.  The Ketzot (in Shev Shemateta 1:24) suggests this idea in explaining Tosefot's comment that we make the husband pay the ketuba if there exists a sefeik-sefeika on the woman's side (see shiur #11b).


            In contrast to Tosefot, some Rishonim indicate that the burden of proof rests on the husband.  The Tosefot Rid (12b) writes: "Rabban Gamliel follows her chezkat ha-guf [= her physical status quo, that she was a virgin] and extracts money [on this basis] only with regard to a wife and husband, where the husband has a standing obligation with regard to the wife's ketuba, and the ketuba document hangs over him, and he attempts to exempt himself from this standing obligation with an uncertain claim.  In such a case, certainly Rabban Gamliel says that we presume the maintenance of the wife's status quo and extract money from the husband, as mandated by the fact that from outset he owes it to her."  At first glance, we may perhaps refute this position based on the Gemara itself.  The Gemara cites the view of Rav Nachman that "bari ve-shema lav bari adif" - one cannot extract money from a muchzak even though he presents a definitive claim and the defendant makes only a speculative claim.  The Gemara calls this view into question in light of Rabban Gamliel's position, that we award the ketuba payment to the wife because of her confident claim that is opposed by the husband's uncertain claim.  According to the Rid, this question never even gets off the ground; after all, in his view, the husband does not have the status of muchzak, and thus this case bears no resemblance to the situation addressed by Rav Nachman.  The Rid was fully aware of this Gemara, and he adds, "In truth, Rav Nachman could have responded that Rabban Gamliel holds this position only there, because the husband from the outset owes her the ketuba and now seeks to exempt himself… But it [the Gemara] adopted one of two possible explanations."


            The Shita Mekubetzet at the end of the first perek cites the position of the Ri Migash that essentially, we believe the wife when she holds a ketuba and claims her payment.  "When he advances a claim against her in a matter that does not involve zenut [improper sexual relations], and he seeks to exempt himself from her ketuba, but she holds a ketuba in her hand, she is believed."  In his view, the husband has the right to deny her of her ketuba payment only with a claim involving zenut.  The Ri Migash explains, "A claim that the husband makes at the time of the wedding - he is believed, for we assume that a person does not exert himself to prepare a feast only to ruin it."  The straightforward reading of our sugya (10a) supports his position: "The Chakhamim instituted [the value of the ketuba payment] for the daughters of Israel... and they believed him, that if he claims that he found a petach patu'ach, he is believed."  According to the Ri Migash (and the Rid), we can adopt the straightforward reading of this passage.  Strictly speaking, the husband bears the burden to prove the invalidity of his wife's ketuba.  Nevertheless, the Chakhamim, who instituted the ketuba payment to begin with, believed the husband who makes a claim of petach patu'ach.  According to Tosefot, even without any special provision the husband, as the muchzak, is believed.  Why, then, does the Gemara attribute our acceptance of his claim to the fact that Chazal initially instituted the ketuba?  We may explain that if the husband had advanced a definitive claim, then we would certainly believe him, at the basic level, and rabbinic intervention would have been unnecessary.  However, since we deal here with the claim of petach patu'ach, where the possibility exists that the husband lacks experience and therefore cannot assert his claim definitively, Chazal established a special provision that we believe that he indeed found a petach patu'ach. 


            This issue must also be assessed in light of a sugya in the seventh perek (75a-b).  The mishna records the following position of Rabbi Meir: "If she had defects while still in her father's home, the father must bring proof that these defects surfaced after her betrothal… Once she entered the husband's domain, the husband must bring proof that these defects surfaced before betrothal, and his acquisition was made on error."  The Gemara interprets the mishna as dealing with the ketuba payment and notes that seemingly, Rabbi Meir's position must accept the view of Rabbi Yehoshua, that where a woman claims that she had been raped only after betrothal, we do not believe her claim against the husband.  Her chezkat ha-guf (by which we assume she remained a virgin until we know definitively otherwise) is not effective against the husband's chezkat mammon.  Here, too, when the defects appeared in her father's home, before marriage, the father's claim supported by her chezkat ha-guf is not believed to extract the ketuba payment.  In the mishna's second case, however, the husband bears the burden of proof; this, apparently, follows the view of Rabban Gamliel, who argues with Rabbi Yehoshua and maintains that we accept the woman's claim which is supported by her chezkat ha-guf.  Rava then notes that Rabbi Yehoshua sides with the husband only when he enjoys a chezkat mammon; only then is the wife's chezkat ha-guf ineffective.  When, however, the husband does not have a chezkat mammon, we accept the woman's claim on the basis of her chezkat ha-guf. 


            At first glance, this sugya appears to explicitly confirm Tosefot's view, by which we consider the husband as the muchzak with regard to the ketuba payment.  Rabbi Yehoshua therefore does not rely on the wife's chezkat ha-guf to extract payment from the husband.  In truth, however, one could argue that this applies only according to Rabbi Yehoshua.  Rabban Gamliel, who disputes his position, and maintains that we do indeed rely on the chezkat ha-guf, may have believed that the husband is not considered the muchzak in the ketuba payment, since he obligated himself in this regard at the wedding.  Since halakhic ruling follows Rabban Gamliel, defining the muchzak in our case remains unresolved.


            From another sugya it may appear that this question hinges on a debate between Bet Shammai and Bet Hillel.  The mishna in Masekhet Sota (24a) deals with a situation of a sota whose husband died before she underwent the sota ritual.  According to Bet Shammai, in such a case the woman receives her ketuba payment from the husband's estate and never undergoes the ritual, whereas Bet Hillel hold that since she does not undergo the ritual, she does not receive her ketuba payment (see Rashi).  The Gemara (25a) explains that this debate revolves around the principle of "shetar ha-omed li-gvot ke-gavuy dami": Bet Shammai holds that a debt written in a legal document is as good as collected; Bet Hillel, by contrast, maintain that we do not consider payment to have been rendered until this has in fact occurred.  On the surface, this implies that according to Bet Shammai, we view the wife as the muchzak in her ketuba.  Thus, now that the husband has died before she drank the sota waters to determine whether or not she was unfaithful to him, and we consequently cannot ascertain whether or not she deserves ketuba payment, she, as the muchzak, does indeed receive the payment.  Bet Hillel argue and maintain that a husband (or his inheritors) are considered the muchzak; therefore, the woman, who seeks to extract money from his estate, must prove her case.  If so, then it would emerge that the Rishonim engage in an ancient debate between Bet Hillel and Bet Shammai.  We must then ask why some Rishonim accepted Bet Shammai's opinion, viewing the wife as the muchzak, over the accepted ruling of Bet Hillel?  What more, Bet Hillel considers the husband the muchzak with respect to the ketuba even though no question exists as to his initial acceptance of the ketuba obligations; the doubt arose later, when he suspected his wife of infidelity.  In our case, however, the husband claims that he entered the marriage under a mistaken presumption, thus retroactively invalidating all obligations he accepted at the wedding.  As such, the initial validity of the ketuba obligation is now in question, and even Bet Shammai can agree that the husband is considered muchzak.  Nevertheless we saw that some Rishonim view the wife as the muchzak with regard to this obligation!


            In order to resolve this difficulty, we must briefly examine the fundamental difference between a standard shetar chov (document confirming a payment obligation) and the ketuba.  Although the husband obligates himself in the ketuba to pay his wife under certain circumstances, this obligation does not represent the primary significance of the ketuba.  The ketuba serves as an expression of the groom's commitment to the marriage; without this commitment, the couple may not live together, for then the husband "looks upon her as easy to divorce" ("kala be-einav le-hotzi'a").  The different levels of ketuba payment - two hundred for a betula, one hundred for a widow - reflect varying degrees of commitment.  [Obviously, we speak here in categorical terms; we need not ponder subjective deviations from this principle in reality.]  When a person marries a previously unmarried woman, he enters a unique and exclusive covenant with his beloved.  This agreement finds expression in the two-hundred zuz ketuba obligation.  When marrying a widow or divorcee, however, this exclusive dimension is missing.  Although the husband fully commits himself to this marriage, it lacks the depth of the unique covenant that characterizes the marriage to a betula.  This distinction finds expression in the one-hundred zuz ketuba obligation to a widow or divorcee.  This idea has various ramifications and will be readdressed iy"H in coming shiurim.


            In light of this, we may distinguish between a standard shetar chov and a ketuba with regard to muchzakut.  In a normal shetar chov, the question of muchzakut is a purely monetary one; do we grant this status to the one who physically holds the contested money, or to the one holding the shetar, by virtue of the fact that he "possesses" the contested money in document form?  When it comes to the ketuba, we deal with not only the question of the monetary obligation, but the level of commitment to the marriage as expressed by the ketuba.  In our sugya, the husband enters the chupa with the understanding that he marries a betula; accordingly, he takes upon himself a commitment of a two-hundred zuz ketuba.  But then questions arise as to whether this assumption was correct, and he therefore seeks to lower the amount in the ketuba - and hence the level of commitment to the marriage.  What's at stake is more than just the monetary payment, for the ketuba is not a document waiting to be paid, so-to-speak.  This question extends beyond the financial issue, and we therefore cannot exempt the husband merely because of the principle demanding definitive proof to extract money from a muchzak.


            But the dispute between Bet Shammai and Bet Hillel involves not the level of commitment to the marriage created at the chupa, but rather the question of actual ketuba payment after the husband's death.  A question arises concerning this payment, whether or not the ketuba has been invalidated by the wife's infidelity.  This is a purely monetary question, regarding which we apply the rule of "ha-motzi mei-chaveiro alav ha-re'aya."  Here Bet Hillel and Bet Shammai argue as to whether a document of debt waiting to be collected is considered as having already been collected.  Regarding this issue, halakha accepts the position of Bet Hillel, whereby the one holding the money retains his status as muchzak even against a shetar, and the one holding the shetar must supply evidence.




            In any monetary court case in Torah law, we must determine who claims money and who is being claimed.  Generally, the two are easily identifiable: one person claims money or an item currently in his fellow's possession.  There is room for discussion, however, in cases where the one making the claim holds a shetar testifying that he deserves payment.  We addressed this question from the local issue of the ketuba, whereby the wife holds a ketuba and claims money from the husband.  We saw that this debate may be traced as far back to such giants as Bet Hillel and Bet Shammai, or Rabban Gamliel and Rabbi Yehoshua.  We showed that the Rishonim explicitly debated this question, and we suggested a possible distinction between the specific issue concerning the ketuba, raised in our sugya, and the question as it applies to shetarot generally.



Sources for the next shiur:


1.     Ketubot 11a: "Ha-giyoret ve-ha'shevuya ve-ha'shifcha… kala be-einav le-hotzia."

2.     Tosafot s.v. matbilin; Tosafot, Sanhedrin 68b s.v. katan - "U-mihu kasheh… "

3.     Ritva, Ketubot, s.v. Gemara amar Rav Huna.

4.     Meiri, Ketubot, s.v. goy katan.




1.     Who executes the act of conversion when a gentile minor undergoes geirut?

2.     Why does this conversion require the institution of "zakhin le-adam she-lo be-fanav"?

3.     What difficulty is involved in applying the halakha of zakhin in this case according to Tosafot?

4.     How can a minor convert, given that he cannot accept upon himself the obligation of mitzvot?