Resources for Kesubos 96

1.     The גמרא says that if an אלמנה isn’t תובע her מזונות for two or three years then she must have been מוחלת the מזונות and she can no longer collect for those years. We know from the מסקנא of the next גמרא that the אלמנה is considered מוחזקת in the מזונות. That should mean that if there was any ספק as to whether she was really מוחל then she would still be able to collect. It must be that we consider her not collecting as a ואדי מחילה. The ב"ש in סימן צ"ג ס"ק כ"ג even says that we would not listen to a lady who said she wasn’t מוחל even if she was תופס the money and she had a מיגו to be believed on her side. It is interesting that we are so sure she was מוחל the מזונות of the past but not on the מזונות of the future. However, the fact that if she asks for the מזונות one day before three years she gets it but one day after three years she doesn’t seems to indicate that this is just how they made the תקנה.

2.     The גמרא says that if the יתומים say they paid the widow מזונות and she says she didn’t take any, the burden of proof is on them until she gets remarried. Interestingly, the רמב"ם in  הלכות אישות פּרק י"ח הל כ"ז paskens that the widow would still need to swear a שבועת היסת before collecting. The מגיד משנה points out that even though שבועת היסת is always to keep your money and not to take money, here the מזונות is considered בחזקתה so it’s like its hers! As to what the woman andיתומים  are arguing about, רש"י says they are arguing over future מזונות. תוספות says they must be arguing over past מזונות because if not then there is no הוה אמינא that the יתומים would be believed about future מזונות since they would always claim they paid and never pay. If so, the purpose of the תקנה would be lost. The ר"ן adds that it must be talking about previously owed מזונות since a person is certainly not believed to say they paid future מזונות since we have a rule called אין אדם פּורע חובו תוך זמנו. To answer the ר"ן’s question on רש"י, the הפלאה quotes the ש"ך in סימן ע"ח ס"ק י"ב that in a case where something is meant to be paid each day like מזונות then we don’t say that a person would never pay in advance. The reason is simple—it’s a huge annoyance to have to pay every day. It’s much easier to make a lump sum payment. As to the תוספות’s question, the פּני יהושע answers that not only is it not weird to pay early by מזונות, it is the norm and what is expected because its not fair to her to make her come beg every day. Therefore, it was always paid in one year payments at the beginning of the year. As such, everyone would agree that the יתומים aren’t believed on day one of the year that they paid already. The הוה אמינא was that a week later they would be believed. 

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