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100 [1] The law of the Gemara is that the marriage contract--that is, the essence of the marriage contract and the additions--can only be collected from land. By decree of the Geonim, they can be collected even from movable property. This is also true for all of the conditions of the marriage, other than the document of the male sons [a document stating that a woman's sons from prior marriages will inherit from her current husband]. Therefore, therefore, if the inheritors collected money while in their father's debt, [the wife] may collect from them. However, the inheritors may remove her [from the movable property] by giving her land (R' Alfas). This applies only to free movable property [i.e. movable property in his possession], but if the husband sold them or gave them as a gift while healthy, she may not collect from them.
Rem"a: There are those who say that this applies only if the husband gave them to others, but if he gave them to his inheritors as a gift while healthy, his wife may collect her marriage contract from them (Hagahot Maimoni 16, Mahara"i 96, Mahari"v 156), as anything he gave to the inheritors was given only as an inheritance, and his wife may collect her marriage contract from there (Mordekhai citing Mohara"m). Someone who commanded that his belongings be given to another after his death, even though he gave the command while healthy, his wife may collect her marriage contract from there, for it is considered to be the gift of one who is deathly ill, from which a wife may collect her marriage contract (viz. Choshen HaMishpat 251, 252, and 257).
If the inheritors sold them after his death, she may collect from them. Nowadays our custom is to write in all marriage contracts that she has a lien on all his property--land, movable objects, and movable objects acquired via land--which he has and will acquire. Nonetheless, our custom is not to collect from movable property sold by the inheritors due to the decree of the market. See Choshen Mishpat 113. See below, 118, whether a wife is obligated to bury her husband before collecting the marriage contract. [2] Neither the main part nor the added part of her dower is collected from anything but the poorest quality land. They are not collected from the betterments made to the property after his death, regardless of whether the betterments were made by the inheritors or by the buyers who she comes to repossess. They are only collected from the possessions [of the late husband], not from potential assets. Rem"a: If a father willed a gift to be given to his son after two or three years, or willed that he not be given his portion of the inheritance for two or three years, the property is considered "potential," not "possessed," and the son's wife may not collect her dower from it (Mahar"i Weil no. 40). Some say that if Jacob dies while his son Reuben is alive, and he left a widow who is supported by his estate, Reuben's widow does not collect her dower from those assets, since they are subordinated to his father's widow upon Reuben's death (Mordechai). This is only if the inheritors have no right to clear the widow's alimony [with a lump sum payment], but if they can pay off the widow, Reuben's widow may collect from there (ibid.). Work wages that never reached his hands are called "potential" (Mordechai on Bava Batra). If an object of his was stolen, then he died, and the stolen object was then recovered, it is considered "possessed" (Responsa Maharam).
A loan due to the husband is considered "possessed," and she may collect from it, even if the debtor is a Samaritan. Rem"a: All of this only applies to the main and added parts of her dower. But her dowry and other tzon barzel assets have the status of any debt (Magid Mishneh on ch. 16 and Beit Yosef in the name of Nimukei Yosef, Ran, and Rabbenu Yeruham).
Some say that nevertheless they are only collected from poor-quality land (Ran on Gittin). [3] If there is land with no attachments , she collects from it. If not, she collects from land that the husband sold or gave away, whether as a healthy gift of as a gift causa mortis. Even if she acquiesced to his sale or gift, it makes no difference, unless they effected a transaction with her beforehand. If he sold land to one person, and she did not acquiesce, and then he sold the same land to another, or different land, and she acquiesced and signed on it for him, she may not collect from it. From the first: some say she may collect, and some say she may not. Rem"a: see above 90:17. [4] If one was married to two women and sold his field, and the buyers first transacted with the first wife and then with him: the second wife may repossess it from the buyer, the first wife from the second wife, and the buyer from the first wife. This continues round and round until they reach a compromise. [5] If he denominates in the main and added parts of her dower an unspecified currency, she collects from the least valuable of currencies. How so? If he marries a woman in one place and divorces her elsewhere - Rem"a: and the wife is there with him; however, if he sent her a get at the place where they wed, the place of their wedding is followed (Beit Yosef citing Responsa Rashba) - if the currency of the place where they wed was more valuable than the currency of the place they divorced, he gives her the currency of the place they divorced. If the currency of the place where they divorced was more valuable than the currency of the place they wed, he gives her the currency of the place they wed. This is specifically if the value of the money he makes available for her collection is two hundred and one hundred. But less than that, he may not. If he denominated in her dower contract a specific currency, whether in the main part or added part of the dower, she collects from that, as was written in the dower. Rem"a: Tzon barzel assets always follow the locale where they were subordinated, like any debt (Magid Mishneh ch. 16, Rashba). Where an extra third is added to what she gives him, as explained above in section 66, it has the status of tzon barzel assets and not of additional dower (Maharik no. 81). [6] A widow, if she does not have her dower contract, does not even collect the main part of her dower. Similarly, a divorcee, if the husband claims: "I paid it" or "She forgave it," she does not even collect the main part of her dower until she produces her dower contract. When does this apply? Where it is normal to write a dower contract, but where they do not normally write a dower contract and rather rely on court stipulation, she collects the main part of her dower even though she does not have her dower contract, whether she was widowed or divorced. Rem"a: If there are witnesses that her dower contract was lost or incinerated, even a place where they normally write a contract is akin to a place where they do not write a contract (Hagahot Alfasi on Ketubot). Some say that even where they normally write a dower contract she collects her dower without a contract, and they have no credibility to claim that they paid it off (Tur, citing R"i). This is not only for the main part of the dower, but even the part that it is customary to add in all places (Mordechai and Responsa Maymuni, end of Laws of Marriage). This seems to be the rationale of later authorities as well (Maharik nos. 18 and 114; Mahara"i no. 229). But in our countries it is not customary to collect without a dower contract, and according to all if there is no clear custom, even if she has her dower contract but it is not court-validated, she cannot collect anything (Mahara"i ibid, Mahar"i Weil no. 113, Mahari"k no. 18). However, if the widow seized it and she has a strong claim based on the fact that she could have denied the assets, she is believed when she says that he added to her dower (Mahar"i Weil no. 232). See above section 66. Some say that if she already married another, she no longer has credibility to collect without her dower contract (Mordechai). In any case where she has credibility, she must swear that she was not already paid. In cases where she has no credibility, if the husband is alive he must swear that he paid her [dower]. If he is not alive, the orphans are exempt [from paying her] even without an oath (Divrei Harav, also implied by Tur). If she has her dower contract but it was cut by a knife, she cannot collect, even if it was not cut both horizontally and vertically (Rivash no. 383). [7] If a woman comes to court and says, "My husband has died; permit me to remarry," and she does not mention her dower at all, we permit her to remarry, and we have her swear, and she is given her dower. If she comes and says, "My husband died; give me my dower," we do not even permit her to remarry. [8] If she came and said: "My husband died; permit me to remarry and give me my dower," we permit her to remarry and grant her the dower. But if she came and said: "My husband died; give me my dower and permit me to remarry," we permit her but do not grant her the dower. However, if she seized it, we do not take it away from her. One authority says that in either case we do not permit her, since she mentioned the dower. [9] In a place where they do not [customarily] write a dower contract, and they bring witnesses that he wrote her a dower contract, one authority says that this has the status of a place where they write a dower contract, and she cannot collect without it. But one authority says that she collects without a dower contract. [10] A woman who presents a marriage contract but does not have a bill of divorce with her and says to her husband, "You divorced me and I lost the bill of divorce. Give me my marriage contract," and he says, "I did not divorce you," he is obligated to give her the essence of her marriage contract but does not give her the additions, until she brings proof that he divorced her or the bill of divorce is presented. There are those who say that if she does not bring proof of the divorce, he does not give her even the essence of the marriage contract, because after she demands her marriage contract, she is not believes regarding the divorce, as was explained above, 17:2, and therefore she does not take her marriage contract (Tur), and this is the essence of the matter. [11] If her husband said to her, "This is how it was: I divorced and gave her the entire marriage contract--the essence and the additions--and she wrote me a receipt and my receipt was lost," because he could have said, "I did not divorce her," and he would not be obligated to pay the additions, he is believed, and she is forced to take a Rabbinic oath and he gives her the essence, and he takes a Rabbinic oath regarding the additions. [12] If she presents a bill of divorce but does not have a marriage contract with it, if it is the custom of that place not to write a marriage contract, she collects the essence of the marriage contract with the bill of divorce that she has on hand. If the custom is to write a marriage contract, she is not even entitled to the essence of the marriage contract until she presents a marriage contract, and her husband may take a Rabbinic oath against her claim and be exempted [from paying]. [13] If she presented two bills of divorce and two marriage contracts, and the first marriage contract predates the first bill of divorce, and the second marriage contract predates the second bill of divorce, she collects two marriage contracts. [14] If she produced two dower contracts and one get, she only collects one dower. Which does she collect? If they are of equal value, the later one cancels the earlier one, and she can only repossess [properties sold] after the later date. If one of the two was for a larger sum than the other, and he did not stipulate to her "And I add such and such over the first one," if she wishes to collect from the first one, she may repossess from the earlier date, or she may collect the later one from the later date. If he stipulated to her "And I add such and such over the first one," she collects the earlier one from the earlier date, and the added value from the later date. When does this apply? When both are from [the time of] betrothal or both from marriage. However, if one was from betrothal and the second from marriage, she may only collect using the one from marriage. [15] With 2 divorces and one marriage contract, [the divorcee] only has one marriage contract; One who divorced his wife and returned nothing to her, according to the first marriage contract he should return to her: [16] If she produced a dower contract and a get after the death of the husband: if the get is dated earlier than the contract, she uses the get to collect the main part of the dower, if it is not usual to write a dower contract, (and with the dower contract) she may collect everything included in this dower, since she becomes entitled to it upon his death. If the dower contract is dated earlier than the get, she only collects one dower, since he remarried her under the terms of the first dower contract.
Version: Sefaria Community Translation
Source: https://www.sefaria.org
License: CC0