Resources for Kesubos 81
1. The גמרא tries to prove that בית שמאי holds שטר העומד לגבות כגבוי דמי from the fact that a woman who is a סוטה whose husband dies and can’t and consequently can’t drink the סוטה water is still entitled to her כתובה. The גמרא asks why this should be since the יורשים are ואדי inheritors and she is only a ספק if they owe her the כתובה since she may be a מזנה תחתיו. If so, why should ספק be מוציא מידי ואדי? The גמרא answers that this must prove that it is as if she is already מוחזק and not him since שטר העומד לגבות כגבוי דמי. The הפלאה and other אחרונים here ask a basic question: the husband had an established חיוב to pay the כתובה and now there is a ספק whether the חיוב stopped since she might have been a זונה--this should be similar to the case of הלויתני ואיני יודע עם פּרעתיו where a person admits they owed money but may no longer owe the money where we say the burden of proof is on the borrower. Here too, we should say the burden of proof is on the husband since he had an established חיוב to pay and isn’t sure if the חיוב has been removed! He answers with a big יסוד: that it must be that the husband never had any חיוב whatsoever until his wife died and by that point she had already been a סוטה so no established חיוב ever existed. The הפלאה subsequently rejects this reasoning and thinks it is more likely that the husband is חייב immediately and has another answer. Nonetheless, there are many ﭏחרונים that discuss this יסוד in various contexts and with varying conclusions. First, there is a famous ר׳ חיים ז"ל who said the husband’s חיוב כתובה is simply a חיוב להתחייב in the future but not in effect now. Similarly, the תומים in הלכות טוען ונטען סימן ע"ה says that while there is an immediate שיעבוד, the חיוב is not מבורר until death since if the wife predeceases him he doesn’t pay the כתובה. Also, earlier on דף נ"ד, תוספות and the רא"ש in סימן א there explained that the custom was that when a person wrote their כתובה they would write down much more money than they even owned at that point as a תוספת כתובה. תוספות and the רא"ש asked how can you be מחייב yourself more than you owe? However, they worded their questions slightly differently. תוספות said how can you be מחייב yourself if you don’t own the money now? The רא"ש said how can you be מחייב yourself if you don’t owe anything now? The ספר אבן ישראל in הלכות אישות פּרק י׳ הל׳ י"א says that תוספות and the רא"ש argue about exactly this point! תוספות holds the חיוב כתובה is owed immediately but there is no חיוב to pay until death whereas the רא"ש holds the חיוב doesn’t exist at all until death or divorce. One final example is the ר"ן here. The ר"ן asks why can’t the כתובה be paid by the יבם or husband in advance like any לוה who is allowed to pay תוך זמנו? He answers that paying early is done לטובת both the borrower and lender but here it is not לטובת האשה since it will be קל בעיניו להוציאה. The אילת השחר says that we see from the ר"ן that he held the חיוב must have started already from the time of marriage or else he could not have compared it to a loan which would have been established already.
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