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102 [1] If a man died and his widow (Rem"a: or his divorcee) comes to collect her Ketubah, and there is a creditor on his property, if the date of one of them is earlier, and there is only enough land left to pay one of them, the one with the earlier date collects, and the other is deferred, whether it be the widow or the creditor. Even if the one with the later date seized the property, the court reclaims it. Rem"a: If the Ketubah is earlier she cannot say, "I will not collect the Ketubah now. I would rather be sustained in my husband's house and collect the Ketubah later." Instead, we give her the Ketubah immmediately, and the remainder goes to the creditor. See (Shulchan Arukh, Chosen Mishpat 97). [2] If the estate only contains movable property that are not subject to 'first rights', such as property that was not acquired in conjuction with land, they are given to the creditor, even if he is the later on, and the wife is deferred from collecting both the primary [Ketubah] and any excess obligation. Nevertheless, if she seized the property, even outside of the court, we do not reclaim it from her. Rem"a: Some authorities say that we do reclaim it if she seized property. This was the position of the Maharil and Mahari Veil. There is not distinction in these matters between a loan that was recorded in a contract and a verbal loan that is well known. In the case of an unknown verbal loan she can say, "perhaps he does not owe you." All authorities agree that if she seized an object that her husband was watching for another person she must return it. Some authorities say that we do not explicitly mention movable properties that are acquired through acquisition of land in the Ketubah, and this is the standard practice. Even if was included, in the present time we are not concerned for it, as is explained earlier (Shulchan Arukh, Even HaEzer 100). [3] If the time of both is equal, or if he married and borrowed, and later acquired property, or he borrowed and married and then acquired, such that both of their liens took effect when he acquired, whether he left [in his estate] land or movable property, they are given to the creditor and the wife is deferred from collecting the primary [Ketubah] and any excess. If the wife seized the land, if she did so in the court, such as the court collected it for her before they knew about the presence of the creditor, we do not reclaim it. If she seized it on her own, however, even with a professional appraisal, we remove it from her. If she seized movable property, even without the court, we do not remove it form her. Rem"a: If a widow that comes to collect her Ketubah and the orphans demand that she provide a guarantor so that in the event that higher priority creditors are found she will return what she collected, we do not listen to them and she may collect without a guarantor. [4] If [the estate] is large enough to pay both of them with land and currency, if the time [of their liens] is equal we give the currency to the creditor and the land to the wife (Rem"a: Even if she has a dowry with the Ketubah). If she went forward and collected currency, some authorities say that we reclaim it from her and give it to the creditor. (Rem"a: Nevertheless, if the creditor prefers land, we give him the land). If the timing is not equal, the earlier claimant receives the currency. If the later claimant seized the currency, some authorities say that we reclaim it form him. [5] *Nichsei tzon ubarzel* were written in the *ketubah*, and she claims that they were destroyed or the husband took them, her relationship to the *nichsei tzon ubarzel* is like any other lender, and she swears that she did not take them, nor did she give them away or forgive them, and she divides them with other lenders. Rem"a: If the lender collects the dowry of the woman that's substantial, see C"M siman 97 seif 26. [6] A guarantor to the women with respect to the basic ketuba monies or the additional ketuba monies, is not required to pay even if he made a "kinyan" (barter acquisition protocol, typically picking up a handkerchief or other utensil to show that he acquired the handkerchief in return for agreeing to possibly pay off the ketuba; he then returns the handkerchief). This applies to an unrelated woman, but if he guaranteed his daughter-in-law's ketuba, he is required to pay if he made a kinyan. If he was a "receiving" [guarantor] ("arev kablan"; there are different explanations, but Rashi Gittin 49b, loc cit b'Kablan in reference to a loan guarantor explains that the monies passed thru his hands on the way to the borrower, indicating a higher level of guarantee), that he told her, "Marry this man and I will give you [the ketuba]," then he mortgages himself even without making a kinyan, even to an unrelated woman. Rama: Some authorities say that all guarantors may mortgage themselves with a kinyan (Tur in the name of Ra'avad), and to his daughter-in-law [he may mortgage himself] even without a kinyan (thus writes Tur according to the opinion of Ra'avad). Some say that a guarantor to the groom with respect to the dowry is like a guarantor to the woman with respect to the ketuba (i.e. is NOT required to pay; Mordechai, chapter Get Pashut, and Hagahot of Gittin). Others argue and say that a guarantor of a dowry is required to pay like other guarantors (R. Eliezer ben Samuel of Metz, and Ba'al haTeruma). However, as long as he has not yet married her, he [the guarantor] can repeal his guarantee (so writes Beit Yosef in Choshen Mishpat chapter 129). [7] [In the case of] a guarantor to a woman with respect to her ketuba, [whose guarantee was made] in a manner that requires him to pay, and her husband divorced her and did not have property to pay the ketuba, the woman may not collect from the guarantor until the husband vows "al da'at rabim" (on the volition of the public; a non-reversible vow) to have no benefit from his wife, so that they may not conspire against the guarantor (i.e. the guarantor would pay the ketuba, and the husband would then remarry her, thereby cheating the guarantor out of the ketuba money). And it is forbidden for anyone to advise the husband that he should divorce his wife so that she may collect the ketuba from the guarantor, and then remarry her, for maybe he will not actually vow to have no benefit from her. Nevertheless, if his father guaranteed his daughter-in-law's ketuba for his son, and the son is a penurious Torah scholar, and his father is not supporting him, it is permitted to offer this advice. Rama: A guarantor to a woman with respect to her dowry, and he wrote in a document that whenever both of them (i.e. husband and wife) will claim the money from him that he will pay them, and the husband died, even so the woman may collect the amount guaranteed (lit. written) (Rivash, chapter 481). [8] Similarly, if he (the husband) consecrated all his belongings and then divorced his wife, she may not collect the ketuba [from the guarantor] until the husband vows to have not benefit from her. [9] But from purchasers [of his land] she may extract payment of her ketuba (because her lien precedes their purchase) even without the husband vowing to abstain from her benefit, and if he so desires, he may remarry her.
Version: Sefaria Community Translation
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