Siman 53

The sages taught [Ketubot 66a]: One who pledges money to his son-in-law, and his son-in-law died and his brother wishes to perform yibbum with her, and she also consents to yibbum, nevertheless, he may say: "To your brother I was willing to give, but to you I am not willing to give." And even if the first was an am ha'aretz and the second is a talmid chacham, he may say so. And even though the pledge was made in a manner that it was acquired according to the law, such as through a kinyan or by "they stood and betrothed" where they are acquired through speech, nevertheless, he may say so. And the reason is—that anyone who pledges at the time of the conditions or at the time of kiddushin, his intention is on the condition that he enters into marriage with her, and they do not acquire until the marriage. And since he died before the marriage and she is married to another, even if she is married to the brother of this deceased through yibbum, nevertheless, we do not have the power to compel the father to fulfill it, because he can say that he did not obligate himself for this marriage.

The Tur wrote in the name of the Gaon that this applies specifically when one promises to his son-in-law, but if he promised to his daughter, such as if he said at the time of the kiddushin, "Behold, I am giving such and such to my daughter," the daughter has acquired it even though the groom died, for he cannot say, "I only promised to my daughter on the condition that she enters into marriage with this groom," since in any event he promised to his daughter and his daughter acquired it. Thus far his words. The explanation of his words is that certainly the daughter also does not acquire it before her marriage, and if she died and has a son or a daughter, they do not inherit this money, for it is obvious that the promise was only on the condition that she marries; rather, the practical difference between his promise to his son-in-law and his promise to her is regarding this: that when she is taken in yibum by the brother of the betrothed, the father cannot say, "I wanted to give to your brother and not to you," for he promised to his daughter and the kiddushin were not annulled [the Rosh]. And from this wording it is implied specifically when she is taken in yibum by his brother, for he comes by virtue of the kiddushin of his deceased brother, and he had promised to his daughter at the time of the kiddushin for when she marries, and behold the kiddushin are extant and there is also marriage; but if the groom died and she was betrothed and married to another, the father does not need to fulfill it, for he promised at the time of the first kiddushin and those kiddushin were nullified [Beit Shmuel], and so it is explained from the wording of our teacher, the Beit Yosef, in section 2 [and that which the Beit Shmuel wrote that from the Ran it is not implied so is not compelling, for he employs the wording of the Gaon, see there].

This distinction that we wrote between one who stipulates for his son-in-law and one who stipulates for his daughter is not implied as such from the Rambam in chapter 23 of Ishut, who wrote: A father who stipulated on behalf of his daughter, the daughter does not acquire that gift until her husband enters her into marriage, and similarly the son does not acquire until he enters into marriage, for anyone who stipulates only stipulates on the condition of marriage; therefore, one who stipulates money for his son-in-law and he dies before he enters into marriage and she falls before his brother for yibbum, the father can say to the yabam: "To your brother I wanted to give, but to you I do not want to give," and even if the first was an ignoramus and the second a sage, and even though the daughter desires him. Thus far his words. Behold, he wrote this law—that one need not give to the yabam—regarding one who stipulates for his daughter. Our teacher, the Beit Yosef, transcribed the wording of the Rambam in section 1, and therefore wrote in section 2 the distinction between one who stipulates for his son-in-law and one who stipulates for his daughter in the name of "there is one who says," because the Rambam does not hold accordingly [see Shita Mekubetzet in the name of the Ritva that the Gaon's distinction between his son-in-law and his daughter is according to his explanation in the Yerushalmi which the Rif rejected, see there; and it is necessary according to our words, and even though in the Tur it is impossible to say so, see Bach and delve into it].

And the great Acharonim want to equate the opinion of the Rambam with the opinion of the Gaon, and they wrote that what the Rambam wrote, "the father who stipulated by means of his daughter," his intention was that he stipulated to his son-in-law to give to him when he marries his daughter, but regarding a stipulation to his daughter, he agrees with the opinion of the Gaon [Chelkat Mechokek and Beit Shmuel]. But it does not imply so, for if so, why did he change the wording that he himself wrote in that same halacha? Furthermore, behold he wrote "and so too one who stipulates to his son," and it implies that his daughter is similar to his son. Furthermore, if the intention of the Rambam was that he stipulated to his son-in-law to give to him when he marries his daughter, why did he say "for anyone who stipulates only stipulates on the condition of marriage"? It is obvious, since he said so explicitly according to their explanation. And even if one could say that their intention was that he did not say so explicitly, but rather we say that such was his intention—if so, what wording did the father say explicitly? If we say that he said, "Behold I stipulate to my son-in-law by means of my daughter"—this is not a standard wording at all. And if he said only "Behold I stipulate to my son-in-law," if so, why did he write "by means of his daughter"? Rather, it is certain that he said "Behold I stipulate to my daughter," and the intention of the Rambam regarding this is that there is no difference between one who stipulates to his son-in-law and one who stipulates to his daughter. And that which he wrote "by means of his daughter," such is his wording also in the preceding laws, see there. [See Mikneh, who also pressed himself very much in this].

From the words of the Rambam, who equates the commitment to a son with the commitment to a daughter, we learn that just as one who commits to his daughter at the time of kiddushin is only obligated if she marries this groom, so too one who commits to his son at the time of kiddushin is not obligated unless the son marries this bride; and if she died and he took another, even one better than her, the father is not obligated in his commitment [and so wrote the Beit Meir]. And such is the law regarding the commitment at the time of the tena'im according to our custom, and logic dictates this, for the intention was for this couple and not when he pairs with another or she pairs with another, and such is the primary ruling in law.

One who pledges money to his son-in-law and the daughter died, even if the father handed over the money to his son-in-law before the chuppah, since he did not bring her into the chuppah for she died beforehand – the father extracts the money from the son-in-law even if he already performed kiddushin, and all the more so if he had not yet performed kiddushin. And not only does he extract it from the son-in-law, but even if his daughter left over offspring, they do not inherit from her. The reason is as I have written, that anyone who pledges only pledges on the condition of entering the chuppah, and it is a strong legal assessment.

Our teacher, the Beit Yosef, wrote in section 3 that there is one who says that these words apply to one who stipulates for his son-in-law, but one who gives to his daughter without specification so that she may marry with it, and did not mention that she should marry a specific person—she has acquired that gift, and since she became betrothed, even if the betrothal was annulled when the fiancé died, the father cannot retract. Thus far his words. The explanation of his words is that he does not stipulate for his daughter at the time of the betrothal, but rather gives to her or obligates himself according to the law of obligation for such and such an amount of money, for there is no difference between stipulating and giving, if he gave or stipulated for her without specification and did not mention that she should marry with it, it belongs to her entirely, and if she died and left offspring, they inherit from her. However, since he mentioned that she should marry with it, certainly if she did not merit marriage because she died beforehand, an heir does not inherit from her and the money returns to the father. Yet in this case her power is greater than the stipulation at the time of the betrothal, where it was explained that the father is not obligated to give except when she married this groom and not another, whereas in this stipulation the father is obligated even if she married another. And even if he gave or stipulated for her when she was betrothed or engaged to one person, we do not say that his intention was only if she marries this one; we do not say so since he did not specify and also the stipulation was not at the time of the betrothal or at the time of the tena'im.

In Yoreh Deah siman 253, it was explained that if one vowed money to an orphan girl to marry her off and she died, her heirs did not acquire them, see there. And it is a fortiori from his own daughter, where it was explained that in such a case her heirs did not acquire, and all the more so regarding another. However, in Choshen Mishpat siman 253, it was explained regarding a shekhiv mera who commanded to give two hundred zuz for her dowry, that if she died before she married, her heirs acquired them. Our teacher, the Rema, wrote there that there are those who disagree and hold that her heirs did not acquire them, see there. And in Yoreh Deah there, he wrote that there are those who disagree, and this is the first opinion in Choshen Mishpat there. And in truth, it can be said that in Yoreh Deah everyone agrees, for specifically regarding a shekhiv mera who distributes after his death, his intention is for a complete gift to the one he gives to, but one who himself vows for the marriage of a certain woman, certainly his intention is only for the marriage, and if not, he did not vow. However, for the halacha there is no practical difference in this, since our teacher, the Rema, ruled there even regarding a shekhiv mera that the primary halacha is that the heirs did not acquire them, see there [and in the Mordechai, chapter "Af Al Pi," it is implied like the Rema, see there].

However, it was explained in Yoreh Deah there that as long as the orphan is alive they are hers and one must give to her immediately, and we do not wait until her marriage; see there. According to this, it would appear all the more so regarding one who pledges to his daughter that he must give to her immediately. Yet it is possible that this is specifically regarding one who vows to an orphan, for presumably she is poor and needs to prepare garments and other things for the marriage, and if he does not give until after the marriage, with what will she be married? Therefore, he must give to her immediately. This is not the case regarding one who pledges to his daughter, for this is to bring cash into her husband's home; why should he give to her immediately? And so it appears primary. And so it is explained from what was written in siman 51, that they must give before he brings her in, and the father cannot say, "bring her in and afterwards I will give"; see there. And it implies explicitly that immediately after the pledge he is not obligated to give, and it is not similar to an orphan for the reason we explained.

All the laws that have been explained are only after erusin, but after nisuin, it is the opinion of the Rambam and Rashi and other great Rishonim that even if the father did not pay the dowry and all that he pledged for his daughter before the nisuin, he is obligated to pay after the nisuin. Even if his daughter died, he must pay them to the husband according to Torah law, for the husband inherits from his wife, and since he performed nisuin with her, the money is his, and when his wife died – he shall inherit from her. And this is simple: specifically when he became obligated according to the law, such as when they are acquired through verbal agreement or through a kinyan and obligation; but if he did not become obligated according to the law but only promised, or even if he became obligated through a fine and not through the primary obligation as in siman 50, and he did not give before the nisuin and she married and died – he is exempt even from the fine [it appears to me, and that which is in Ketubot 47a refers to after erusin, see there in Tosafot]. According to this, there is a great difference between after erusin and after nisuin: for after erusin, even if the dowry is in the hand of the arus, if she dies, he returns it to the father; and after nisuin, even if the dowry is in the hand of the father, it is extracted from the father and given over to the husband even if she died according to Torah law, if not for the takkanah as will be explained. And even before the chuppah, when the father delivered her to the messengers of the husband and she died – the husband inherits from her, as the Rambam wrote in chapter 22, and even if the dowry is in the hand of the father, as is written in siman 57, see there. And similarly, regarding what was explained that one need not give to the yavam – this is all when she was widowed from erusin, but from nisuin, the yavam has acquired it and extracts from the father all that he pledged, as has been written [see in the Mordechai, chapter 6 of Ketubot, what he wrote in the name of Rav Nissim Gaon, and see there that what depends on the writing of the ketubah is not understood, and see the HaMakneh, and it is difficult].

But our teacher Tam disagreed with them and holds that even after marriage, when the father has not yet paid the dowry and the daughter died, the husband does not merit [it] even by Torah law, for the reason that it is a strong assessment that this which the father pledged to his daughter or to his son-in-law is only so that his daughter should benefit from this, which is when the money comes into his hand and there is household profit; but as long as it has not come into the husband's hand, the husband does not merit them, for with this intent he did not obligate himself [and he explains that which is in Ketubot 47 regarding after marriage]. And since there is a dispute of the poskim in this—one does not extract from the father even if many years passed from the time of the wedding; since he has not yet paid the dowry, the husband does not inherit her. And even if he has children from her, and even if the husband died, the children do not inherit, for as long as the money has not come into the son-in-law's hand, he does not yet acquire [it] according to the opinion of Rabbeinu Tam, for we follow the assessment as I have written, and one does not extract from the possessor in a case of doubt.

According to the opinion of Rabbeinu Tam, even if the money was placed in the hand of a third party by the authority of both of them—meaning they were deposited according to both of them—nevertheless, in this there are distinctions: If they deposited it so that he should not give it to the husband until a certain time, and the daughter died within that time, the husband did not merit it. But if they made him a third party for the benefit of the couple, namely that he should profit for their benefit, even if they set a time and she died within that time, the husband merited it, for this is considered as if it came into his hand, since the daughter benefits from the profit [Beit Shmuel, subsection 7]. And even if the third party is not permitted to hand it over to the couple without the knowledge of the parties, nevertheless it is considered as collected [Chelkat Mechokek]. And even if he has not yet profited, since we consider this as being in the hand of the husband, we are not responsible for the profiting, for the assessment has been removed, as this is like his daughter benefiting [it appears to me]. And if they deposited it plainly in the hand of the third party and not for a set time and not for profiting, and the husband, if he had wanted, could have extracted it from the hand of the third party and did not extract it until the daughter died—they shall divide it. For it is a doubt whether in this manner it is considered as if the husband collected it, since the father delivered them into the hand of a third party without any condition, or perhaps since in any event they have not yet come into the hand of the husband, he did not merit them; therefore they shall divide it [Beit Shmuel; and what the Chelkat Mechokek wrote in subsection 9, that the husband shall take a quarter, from the Beit Shmuel it does not appear so, see there]. And some say further that even if they agreed that his father-in-law should trade with the money for the benefit of the couple, even though they are still in the hand of the father and she died—the husband merited it for the reason we explained.

Even if the father drew up a document for him regarding the money and established it against himself as a loan, as long as he has not released it from his hand, he has not acquired it according to the opinion of Rabbeinu Tam due to the reasoning of the assessment that we wrote. Therefore, even though with every obligation in a document it is as if the money reached the hand of the one to whom they were obligated, here it is different due to the reasoning of the assessment. And there is one who says that with the establishment of a loan the husband has acquired it, and it is a legal doubt, and therefore we do not extract from the possession of the one who holds it. And some say that we do extract based on the reasoning of a double doubt: perhaps the halacha follows the first opinion, and if you say it follows Rabbeinu Tam, perhaps in such a case even Rabbeinu Tam admits; however, one should not extract money based on the reasoning of a double doubt, for it is no better than a majority, and we do not extract from the possession of the one who holds it even with a majority, for we do not follow the majority in matters of money. And some say that with a document of "to whoever presents this writing," if the father gave it to his son-in-law, the husband has certainly acquired it, for he can transfer the debt document to another and the other will claim from him; and if he returns to claim from his son-in-law based on the reasoning of assessment, nevertheless, in any event, the son-in-law is considered as the one who holds it.

And if the father provided a guarantee for the dowry to his son-in-law, the son-in-law has acquired it even while it is still in the possession of the father, for in such a case the father fully intends and transfers ownership even before his daughter benefits, as this is as if it left his hand into the hand of the son-in-law; and all the more so if he placed collateral in the hand of his son-in-law for the dowry. And some say that even with a guarantee he has not acquired it, for the guarantor only becomes obligated in a case where he can sue the borrower himself, but here, where he is unable to sue the father due to the legal assessment, how can we extract it from his guarantor? And since it is a legal doubt, we do not extract from the possessor. And do not wonder why we said regarding all doubts not to extract from the possessor, yet in the doubt regarding a third party they shall divide it, for certainly it is so: when we need to extract from the hand of the father, we do not extract due to doubt, but when they are in the hand of a third party, both are considered like possessors and they shall divide it [it appears to me].

Regarding the essence of this law that we stated, that we do not extract from the possession of the holder due to the opinion of Rabbeinu Tam, if the groom seized [the property], we do not extract it from him. And even according to the opinions of the poskim that seizing is not effective in a case of legal doubt, it is different here, for the groom can say "kim li" (I am certain) according to the first opinion. And even though one cannot claim "kim li" in every place, for if so there would be no end to the matter, and if the one seizing finds a solitary opinion he would say "kim li" like that opinion—it is different here, for the first opinion is the opinion of Rashi and the Rambam and the rest of the great ones among our teachers, and certainly he can say "kim li" according to their opinion. Our teacher, the Rema, ruled accordingly [see Be'er Sheva, subsection 10]. And some say that seizing is only effective before the doubt was born, which is to say before his wife died and he seized against their will because they did not want to give to him; but after her death, seizing is not effective [Darkhei Moshe and Taz]. However, some say that seizing is effective, and thus the great Acharonim ruled as a practical halachic matter that even after her death seizing is effective [see Be'er Sheva].

In what did the husband not acquire according to the opinion of Rabbeinu Tam? The dowry that the father wrote to give to him, and also if the father designated money or movables and lands for his daughter that she should not bring to the husband absolutely, but rather that the property should be hers and the husband shall consume the fruits, and this is nichsei melog; and if they have not yet come into her hand under the domain of both of them, the husband has not acquired them. However, gifts that are given in honor of the groom and bride and have not come into the hand of the groom—he has acquired them. Yet the gifts that the father gives are similar to a dowry due to the legal assessment that he only gave so that his daughter would benefit from them. The general principle of the matter: everything that the father gives returns to the father as long as the husband has not yet acquired them, for it is a great legal assessment that he only gave so that his daughter would benefit from them, and when they have not come into his hand, she has not yet benefited. But gifts that others gave to her or an inheritance that fell to her from another source, it is simple that the husband inherits from her even according to the opinion of Rabbeinu Tam immediately after the chuppah, for there is no legal assessment in this. And all these matters that were explained according to the opinion of Rabbeinu Tam are only when the money and the objects did not come even once into the hand of the groom; but if they came once into his hand, even though he returned them to the hand of the father, he has acquired everything, for since they came into his hand even for one day, they are exactly like his and he inherits from his wife according to Rabbeinu Tam.

All these laws that have been explained are according to the principles of the Torah's laws regarding the husband's inheritance. However, the giants of the generations from the time of our early teachers, who saw the pain and the distress of the fathers of the women when they died after their wedding and the husband inherited her—and they lost both lives and money—made enactments regarding this. Anyone who marries a woman marries based on the custom, for in monetary matters it is within a person's power to waive his money, and since there is an enactment that he shall not inherit her, it is as if he explicitly stipulated at the time of the kiddushin that everything the father gave shall be returned to him. Our teachers based these enactments on what the sages of blessed memory expounded in Torat Kohanim: "And your strength shall be spent in vain" (Leviticus 26:20)—this refers to one who marries off his daughter and she dies during the seven days of the feast, such that he lost his daughter and lost his money. Therefore, they enacted so that they should not remain under such a curse. There were many enactments in this matter until they enacted and returned and enacted, as will be explained before us with the help of Heaven.

The first enactment was in the days of the French sages, headed by Rabbeinu Tam, and the sages of Narbonne and the greats of Lombardy agreed to this: regarding anyone who marries a woman and she dies within her first year without a viable child, he must return the entire dowry and the woman's jewelry to those who gave it to her or to her heirs—all that remains in his hand from the dowry that has not worn out. He may not act with deception to consume it, except for the expenses of her burial according to her honor and not according to his will, even if the husband is in possession of his wife's dowry and also benefited from it. He must return it within the time of the beit din, which is within thirty days [Hagahot Ashri and Mordechai, chapter 4 of Ketubot].

The second enactment is called the "Enactment of Shum," named after three great communities in Ashkenaz—Speyer, Worms, and Mainz. All the communities then made an enactment regarding every man and woman who enters into marriage, that if one of them should depart to their eternal home without offspring within two years after the marriage, half of the dowry shall return to the heirs of the deceased [ibid.]. Our teacher, the Rema, cited these two enactments, and this is what is written in the conditions: "and in the event of death, it shall stand according to the Enactment of Shum." Even if it was not written, it is as if it were written, since this is the widespread custom; and even regarding an orphaned woman who marries, the custom is so [Chelkat Mechokek, subsection 17]. Specifically, that which is extant returns, but what he spent or what was lost—he is exempt, provided that he did not squander it after her death except for the needs of her burial. What he spent on medicines and on the needs of her burial is deducted for him. If he had a loss in business dealings from her money, it is also deducted for him; and if he also had money of his own, they calculate the loss against both of them [Beit Shmuel, subsection 17] according to the ratio of the money, for it is not similar to two who placed money into a pouch as was explained in Choshen Mishpat siman 176 [it appears to me]. If he set aside ma'aser from the sum of the dowry, it is also deducted for him [ibid.].

Our teacher, the Rema, wrote that there are those who say that if the groom wishes to sell her property within two years, the heirs may protest; and even if she also consents to the sale, nevertheless the heirs may protest for this reason: perhaps she will die within this time and it will be returned to them. This law is very astonishing: because she might die and he will inherit from her, shall we prevent them from selling? If so, anyone destined to inherit could prevent his benefactor from selling his property. It is possible that this refers only to the givers of the dowry and their heirs, such as the father of the daughter and his sons, and so it is implied in the source of the law. However, even this we have never heard that people should practice, or that we should concern ourselves with the possibility of death and prevent the couple from doing what they wish with their property; and it requires further study.

And this was approximately one hundred and twenty years ago, that in a gathering of the sages of the state and the leaders of the lands, they enacted that until three years, everything shall be returned, even the garments of his wife, to the givers of the dowry and to his heirs, and until today the custom is fixed in our state without any doubt at all; and they added to the Takkanat Shum. However, in our phrasing, this enactment is included in the Takkanat Shum that we write in the tena'im, for such was the wording of the enactment. And one must not deviate from this custom, for from the great to the small they accepted this in the entire state, until many of the masses believe it is an absolute law. And it is also common in everyone's mouth that until three years it shall be returned to the givers of the dowry when she did not leave viable offspring, meaning that it lived thirty days and lived a little after her death [Beit Shmuel, subsection 14]. And if the son of thirty days or the daughter of thirty days existed even one day after her death, the husband takes everything, for the child inherited her, and afterward the father inherits his son or his daughter; and they did not differentiate in the enactment between whether it lived a long time or died immediately after her death. And we have already written the manners of the return: that gifts that were not on account of the father, the husband inherits them, and the gifts of the father he takes back. And even though in siman 118 it will be explained that there are those who disagree on this, see there, nevertheless, since in the wording of this enactment it is clarified that even her garments return, all the more so the gifts and all her jewelry; and he shall only deduct what he incurred in expenses and loss, as I have written.

Regarding the property and the money that return by virtue of the takkanah, some say that they return to the givers of the nedunya; that is to say, it is beyond question that a father who gave a nedunya to his daughter and she died within three years, the nedunya returns to him, and if the father died, it returns to his heirs. However, if the givers of the nedunya were relatives or strangers who do not inherit from her—on this the poskim disagreed as to whom it returns: whether to the givers of the nedunya or to the heirs. Some say they shall return to the givers of the nedunya, and some say to the heirs, and from the language of the takkanot it is implied like the first opinion. And there is one who decided that if the giver of the nedunya was a relative, even though she has a closer relative as an heir, nevertheless it returns to the giver of the nedunya; but if the giver is a stranger, for in this the verse "And your strength shall be spent in vain" is not applicable—they return it to her heirs. However, when the women themselves bring in the nedunya, they did not enact this takkanah, as is written there, and the husband inherits from her, for "And your strength shall be spent in vain" is not applicable in this case, as this only applies when others give. And the Acharonim wrote that this is the widespread custom regarding an orphan girl who has inheritance money from her father by virtue of a tenth of the property or because she is an heir, and they write in the conditions "on account of death or quarrel it shall stand according to the takkanah of Shum," and consequently one must fulfill this takkanah.

Our teacher, the Rema, wrote that regarding the enactments, there is no difference between one who pledges for his daughter or for his son and dies; thus far his words. He means that even an father who pledges a dowry for his son, and the son dies within the time of the enactment without viable offspring, the dowry returns to the father, and the widow does not collect her ketubah from these funds. And some say that regarding him, there was no enactment to cause her to lose her ketubah. And some say that even according to the enactment, it is only regarding the maneh and two hundred of the Torah ketubah, but regarding the addition of a third upon her dowry, they did not enact, and she always collects the addition of a third upon her dowry. And from the language of the enactment of ShUM that we brought in section 19, it implies that the enactment was regarding both of them. And it appears to me that even according to our customs where the enactment is for three years as I have written, nevertheless, regarding her ketubah when he dies, even for those who practice it, one should not practice more than the enactment of ShUM, for regarding this matter it appears that the enactment was not renewed [see Chelkat Mechokek subsection 14 and Beit Shmuel subsection 11]. And it is a simple matter that the intercalated month is included in the year [see Beit Shmuel subsection 13].

The great authorities have further various opinions regarding these regulations, but because these do not have firm foundations, one should not elaborate on this. A great principle must be known: when there is any doubt regarding these regulations, one must establish it upon Torah law or compromise according to the will of the parties. May Hashem bless His people with peace, life, and blessing, that they should not have need for these regulations, Amen and Amen. In siman 118, more will be explained regarding this with the help of Heaven.