1)

HOW TO FORCE HER TO TAKE AN OATH OF THE TORAH

(a)

(Rav Papa): If he is clever, he will force her to take an oath mid'Oraisa.

1.

He pays the Kesuvah again in front of a different witness. He joins the two witnesses (so she cannot deny receiving her Kesuvah), and claims that the first payment was a loan. (Since she contradicts the witness who saw the first payment, she must swear mid'Oraisa.)

(b)

Objection (Rav Shisha brei d'Rav Idi): The two witnesses cannot be joined (since they saw different matters. She could contradict both of them and collect a third time!)

(c)

(Rav Shisha): Rather, the second time, he pays her in front of the original witness and another witness. Now, he can prove that he paid once, and he claims that the first payment was a loan.

(d)

Objection (Rav Ashi): She can claim that she had two Kesuvos, and this is what he paid her! (The first witness supports her!)

(e)

(Rav Ashi): Rather, he must tell the witnesses why he is doing this, and that there was only one Kesuvah. (She is not believed to say that she had two Kesuvos, for this is unusual.)

2)

GETTING PAID FROM OTHERS

(a)

(Mishnah): (When she collects) from buyers...

(b)

(Mishnah): Also orphans collect only with an oath.

(c)

Question: From whom do they collect?

1.

Suggestion: It is from the borrower.

2.

Rejection: Their father would have collected without an oath. Must they make an oath?!

(d)

Answer: Orphans who collect from orphans must swear.

(e)

(Rav Zrika): This is only when the borrower's children say 'our father said that he borrowed and paid.' If they say 'our father said that he never borrowed', they do not pay.

(f)

Objection (Rava): Just the opposite! Denying the loan is admission that it was not paid! (And a document says that there was a loan!)

(g)

Correction (Rav Zrika): Orphans who collect from orphans must swear, only when the borrower's children say 'our father said that he borrowed and paid.' If they say 'our father said that he never borrowed', they pay, and no oath is needed;

1.

Denying a loan is like admitting that it was not paid.

(h)

(Mishnah): One who is paid up in her husband's absence must swear.

(i)

(Rav Acha): A case occurred, and R. Yitzchak said that only a Kesuvah is paid up in the husband's absence to encourage marriage, but a loan is not paid in the borrower's absence.

(j)

(Rava): Also a loan is not paid in the borrower's absence, lest borrowers take the money and go abroad. If Beis Din would not collect in such a case, people would be hesitant to lend.

3)

R. SHIMON'S OPINION

(a)

(Mishnah - R. Shimon): (The heirs can make her swear only) when she demands payment of her Kesuvah...

(b)

Question: Which case does R. Shimon discuss?

(c)

Answer #1 (R. Yirmiyah): Chachamim (86a) taught that one who is paid in her husband's absence must swear, whether she demands food or her Kesuvah;

1.

R. Shimon argues and says that the heirs can make her swear only when she demands her Kesuvah.

88b----------------------------------------88b

2.

R. Shimon and Chachamim argue as Chanan and Bnei Kohanim Gedolim do:

i.

(Mishnah #1 - Chanan): If a man went overseas and his wife demands food, she does not swear now, only when she will collect her Kesuvah;

ii.

Bnei Kohanim Gedolim say, she swears also now.

iii.

R. Shimon holds like Chanan; Chachamim hold like Bnei Kohanim Gedolim.

(d)

Objection (Rav Sheshes): Our Mishnah says that the heirs make her swear. If the case is like in Mishnah #1, it should say that Beis Din makes her swear!

(e)

Answer #2 (Rav Sheshes): Chachamim (86b) taught 'if she went from burying her husband to her father's house, or returned to her father-in-law's house, and did not become an overseer, the heirs cannot make her swear. If she became an overseer, the heirs can make her swear about the future, but not about the past.

1.

R. Shimon teaches that they can make her swear only if she claims her Kesuvah (but not for being an overseer).

2.

They argue as Aba Sha'ul and Chachamim do:

i.

(Mishnah): An overseer appointed by the father must swear to the orphans. One appointed by Beis Din does not swear;

ii.

Aba Sha'ul says oppositely. An overseer appointed by Beis Din must swear. One appointed by the father does not swear.

iii.

R. Shimon holds like Aba Sha'ul, and Chachamim hold like Chachamim.

(f)

Objection (Abaye): R. Shimon says 'whenever she demands her Kesuvah...' (implying that he holds that they can make her swear in more cases than Chachamim). According to you, it should say if she demands her Kesuvah!

(g)

Answer #3 (Abaye): Chachamim (86b) taught 'if he wrote 'I, my heirs, or those who come in my stead have no vow or oath on you, your heirs, or those who come in your stead', then he, his heirs, or those who come in his stead cannot impose an oath on them';

1.

R. Shimon teaches that whenever she claims her Kesuvah, they can make her swear.

2.

They argue as Aba Sha'ul ben Eima Miryam and Chachamim do. (On 87a, Aba Sha'ul ben Eima Miryam said 'whether he wrote 'not an oath', 'clean oath'... 'from my property', or 'from these properties', neither he nor his heirs can make her swear. But what can I do? We learned that one can collect from orphans' property only if he swears!' We may infer that Chachamim argue with him (and exempt), for Rav Nachman said that the Halachah follows Aba Sha'ul.)

3.

R. Shimon holds like Aba Sha'ul ben Eima Miryam, Chachamim hold like Chachamim.

(h)

Objection (Rav Papa): This explains why R. Shimon said 'whenever she claims her Kesuvah, they can make her swear.' It does not explain why he concluded, 'if she does not claim her Kesuvah, they cannot make her swear'!

(i)

Answer #4 (Rav Papa): His concluding words come to argue with R. Eliezer and the Chachamim who argue with him. (On 86b, R. Eliezer and Chachamim hold that they can make her swear if she was an overseer, even if she does not claim her Kesuvah.)

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