Yerushalmi Ketubot 10:1 ירושלמי כתובות י׳:א׳

MISHNAH: If somebody was married to two women when he died, the first one¹The wife whose ketubah is dated earlier. precedes the second²Since a ketubah is a mortgage lien, the holder of the earlier mortgage has the right to foreclose any real estate before the holder of the later mortgage may foreclose. The rules of this Chapter are in essence rules of privileged creditors in bankruptcy proceedings since they become irrelevant if the estate is large enough to satisfy everybody., and the heirs of the first precede the heirs of the second³If the wives die before they have collected their respective ketubot, the heirs collect these from the estate (Mishnah 4:10).. If the first one he had married died⁴The husband then inherits his deceased wife’s property; only after his death can the first wife’s children claim her ketubah as inheritance., then he married the second one and he himself died, the second and her heirs⁵The widow is a mortgage holder, a creditor of the estate; the first wife’s children are heirs. The heirs can lay their hands on the estate only after all outstanding obligations are paid. If the widow dies before she is paid, her claim passes to her heirs. precede the heirs of the first.

HALAKHAH: “If somebody was married to two women,” etc. The Mishnah refers to ketubah, but for sustenance both are equal⁶If both widows prefer not to receive their ketubah but to be sustained by the estate, they have to be treated equally. The statement is also in Tosephta 10:1.. Between ketubah and burial, what has precedence⁷The estate is only sufficient either for the expenses of the man’s burial or his widow’s ketubah. The question is not answered, maybe because it never arose in practice. Since the deceased has to be buried before questions about payment are asked, it seems that the burial is charged to public welfare.? Between ketubah and a loan attested to by witnesses, what has precedence⁸For R. Tarphon in Mishnaiot 9:2–3, the creditor has precedence since he depends on the testimony of witnesses who might die but the widow depends on the written ketubah.? Between ketubah and daughters’ dowry, what has precedence? For him who says⁹R. Ḥanina in Halakhah 6:6, against R. Joḥanan (Notes 93, 96–97). The disagreement is also quoted in 13:3 (36a 1. 15)., one collects for dowry from mortgaged property, daughters’ dowry has precedence. But for him who says, one does not collect for dowry from mortgaged property, daughters’ dowry does not have precedence.

It says only, “she died”. Therefore, if she was divorced, her status is that of a creditor¹⁰If the first one was divorced, her claim has preference over the claims of the second and her heirs.. As it was stated¹¹Tosephta 10:1.: “He married a woman and wrote her a ketubah. He divorced her but did not pay the ketubah. He married another woman and wrote her a ketubah. He took back the first one and wrote her a ketubah in addition to the first ketubah¹²Then the husband died and his estate is not sufficient to satisfy all three ketubot.. The [second ketubah] of the first [wife] has precedence over that of the second [wife] and her heirs, and the second [wife] and her heirs have precedence over the heirs of the first.¹³That text is elliptic but its meaning is clear; it is not necessary to assume that the original text was that of the Tosephta and was shortened in transmission. The Tosephta reads: “The first ketubah of the first [wife] has precedence over the second and her heirs; the second and her heirs have precedence over the second ketubah of the first.” Any prior document has precedence over any later one.”

Ben Azay¹⁴Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5. says¹⁵This refers to the second case in the Mishnah, where the first wife died and the second becomes a widow. In that case, the husband inherited the first wife’s property; the first wife’s children have claim to inherit their mother’s ketubah only by rabbinic institution, cf. Mishnah 4:10, whereas the widow (or her children in her stead) has a contractual claim on the estate. If the estate is larger than the sum of the two ketubot by at least “one excess denar”, there is no problem. All children can inherit their mother’s ketubah and part of the remainder. But if the estate is not sufficient and payment of the “ketubah of male children” instituted in 4:10 would eliminate biblical inheritance rules, the question is whether rabbinic inheritance can or cannot supersede biblical inheritance (which would treat all children equally except that a male firstborn counts for two.), the heirs of the first say to the heirs of the second: If you are creditors, take what is yours and leave¹⁶The rabbinic institution of “ketubah of male children” eliminates the biblical laws of inheritance. The sons of the second wife take their mother’s ketubah as inheritance from their mother, not their father; what remains of the estate is taken by the sons of the first wife as “ketubah of male children”. In Tosephta 10:1, this is presented as anonymous rule: “If there is an excess denar, both parties take their mothers’ ketubot and the remainder is split evenly; if there is no excess denar, the second wife or her heirs take her ketubah and the remainder is divided evenly.; otherwise let us split evenly between yourselves and us¹⁷If the sons of the second wife want to deprive the sons of the first of their “ketubah of male children”, they lose their own ketubah and everybody becomes an heir in biblical law. Since this would be to the detriment of the sons of the second wife, the first alternative is operative.. Rebbi Aqiba said to him: Biblical inheritance “jumped” on the sons of the second; they take their mother’s ketubah and come back to split¹⁸The sons of the second wife take their mother’s ketubah under the rules of creditors and the remainder is biblical inheritance split among all sons since rabbinic inheritance decrees cannot eliminate biblical rules if the estate is too small.. Rebbi Mana¹⁹R. Mana II, contemporary of R. Yose ben R. Abun. said, they disagree if there is an excess denar²⁰It is very difficult to accept that the second marriage invalidates the “ketubah of male children” of the first marriage.. But if there is no excess denar, even Rebbi Aqiba will agree with Ben Nanas¹⁴Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5. that both parties split evenly²¹It is equally difficult to accept that the ketubah of the second has the status of a creditor’s claim only for the widow but not for their heirs. Since the argument of R. Yose ben R. Abun is reasonable, there seems to be no possibility to claim a copyist’s corruption.. Rebbi Yose ben Rebbi Abun said to him, a situation which was stated without disagreement you turn into a disagreement. They must disagree if there is no excess denar. But if there is an excess denar even Ben Nanas¹⁴Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5. agrees with Rebbi Aqiba that biblical inheritance “jumped” on the sons of the second; they take their mother’s ketubah and come back to split¹⁸The sons of the second wife take their mother’s ketubah under the rules of creditors and the remainder is biblical inheritance split among all sons since rabbinic inheritance decrees cannot eliminate biblical rules if the estate is too small..

Debts diminish and, equally, debts add²²In determining whether an estate is larger than the sum of the ketubot due, one deducts debts payable by the estate and adds debts due to it. The Babli agrees, 90b.. How is this? If there was a field which in the future would return in the jubilee year, you consider it virtual²³The example is purely theoretical since the institution of the jubilee disappeared under the Israelite monarchy; cf. Introduction to Tractate Ševi‘it. The practical implication is that the “ketubah of male children” is due even if the estate reaches the required size only by counting contracts far into the future. [property].

How is that²⁴This sentence does not refer to anything; it seems to be a copyist’s error.? If he preliminarily married Rachel, definitively married Leah²⁵By combining preliminary and definitive marriage (cf. Chapter 1, Note 24)., and only then definitively married Rachel. In the opinion of the rabbis, Rachel has precedence; in the opinion of Rebbi Eleazar ben Azariah she does not have precedence²⁶In Mishnah 5:1, R. Eleazar ben Azariah holds that a ketubah becomes executable only after definitive marriage; therefore, Leah’s ketubah in effect should predate Rachel’s even though Rachel’s was executed earlier, at the time of her preliminary wedding. For the rabbis, the date of the contract is the determining factor.. They say, even Rebbi Eleazar will agree that since in the end he definitively married Rachel, Rachel has precedence²⁷R. Eleazar ben Azariah agrees that if both contracts are executable, the dates of the contracts determine precedence. He only holds that before definitive marriage the contract is not executable.. To what can this be compared? To one who took out a loan from another person and said to him, if I have not paid it back by twelve months, all my properties shall be mortgaged to you. If the twelfth month arrived and he has not paid back, his properties become mortgaged from that moment on²⁸The moment of the loan. If the debtor had sold any real estate in the meantime, the creditor can have regress on it since the contract predates the sale even if it becomes executable only later.. But if he said, all my properties shall be mortgaged to you only after twelve months, they become mortgaged only after twelve months. The status of the days in between²⁹The days between the signing of the contract and the end of 12 months when the contract becomes executable. is in dispute between Rebbi Meïr and the rabbis³⁰There are many disputes between R. Meïr and the other rabbis and it is a matter of conjecture to which dispute this refers. R. Moses Margalit points to a baraita quoted in the Babli Baba meṣi‘a 13b, in which R. Meïr states that a loan contract allows regress on alienated property only if this was stated in the contract; but the rabbis hold that such regress is a matter of law and does not have to be stated explicitly.. In Rebbi Meïr’s opinion, the properties became pledged by the document³¹The alienation clause becomes activated only after 12 months; it cannot apply to properties sold during these months.. In the rabbis’ opinion, the properties became pledged by the money³²The moment the loan money changed hands, the alienation clause became executable whether written or not..