Good advice for whom? TB Ketubot 80-81

When a husband dies childless, his widow (her technical status term is a yevama), must marry her deceased brother and fulfill the mitzvah of yibbum, levirate marriage, or break this tie through the halitza ceremony. If the brother chooses to marry her, he just replaces his brother. This is not considered a brand-new marriage. He does not give his yevama a new ketubah, but takes responsibility for her original ketubah agreed to by his brother. Although he inherits his brother’s property, he may not sell it because the properties are used as a lien to guarantee the ketubah. The Mishnah on daf TB Ketubot 80 teaches that a man cannot give his yevama the worth of the ketubah in movable goods like a gold necklace in order to remove the lien and sell the property as he wishes.

“After the yavam has married her, her legal status is that of his wife in every sense, except that the responsibility for payment of her marriage contract is carried out through mortgaging the property of her first husband, not that of the yavam.

“Therefore, the yavam may not say to her: Your marriage contract is placed on the table. He may not set aside a designated sum of money for this payment. Rather, all of the first husband’s property is mortgaged for her marriage contract as long as he has not divorced her. And similarly, in general a man may not say to his wife: Your marriage contract is placed on the table. Rather, all his property is mortgaged for her marriage contract.” (Sefaria.org translation)

At least that’s what we thought until we studied today’s daf TB Ketubot 81. What the Mishnah describes isn’t the halakha, but only good advice. To better understand the true meaning of the Mishnah, I’m sharing the entire discussion in the Gemara.

“Rava sent Abaye the following related difficulty by way of Rav Shemaya bar Zeira: And can the marriage contract of a yevama be collected during his lifetime?

“But isn’t it taught in a baraita: Rabbi Abba says: I asked Sumakhos: With regard to a yavam who wants to sell his brother’s property but is unable to do so because all his brother’s possessions are mortgaged to the yevama, how can he proceed? He replied: If he is a priest, who is prohibited from remarrying his divorced wife, he should prepare a feast for his wife after yibbum has been performed, and during the feast he should persuade her to allow him to sell the late brother’s property. If he is a regular Israelite, who may remarry his divorced wife, he can divorce her with a bill of divorce, at which point he is obligated to pay her only the sum of her marriage contract, and the rest of the property is then no longer mortgaged for it. While they are divorced he may sell the property and subsequently remarry her.

“And if it enters our mind that a marriage contract can be collected during his lifetime, why is all this necessary? Let him set aside for her part of the property that corresponds to the amount of the marriage contract, and the rest let him sell. Abaye replied: And according to your reasoning, rather than asking this question based on a baraita, let him raise this difficulty from the mishna, which teaches that he may not say to her: Your marriage contract is placed on the table for you. Rather, all his property is mortgaged for her marriage contract. Why can’t he designate property equivalent to the sum of her marriage contract and sell the rest?

“The Gemara answers: The tanna in the mishna there teaches us good advice, i.e., that one should not do so ab initio, so as to ensure that the amount set aside for her marriage contract is not lost, which would necessitate writing a new marriage contract. However, it should not be inferred from the mishna that it is prohibited to do so. As, if you do not say so, that it is merely good advice, consider the latter clause of the mishna, which teaches: And similarly, a man may not say to his wife: Your marriage contract is placed on the table. Rather, all his property is mortgaged for her marriage contract. If he wants to sell, here too, may he not sell? Rather, in that case the tanna teaches us good advice, and therefore here too, with regard to a yevama, he teaches us good advice.” (Sefaria.org translation)

What is this good advice? Rashi says it is good advice for the yavam, the deceased’s brother. The movable goods over time could get lost and the he would have to make good the ketubah out of his own pocket. Rashi’s son-in-law Rabbi Yehuda bar Natan explains that this is good advice for the yevama. The yavam would not quickly divorce his yevama. The Shita Mekubetzet explains this is good advice for the yevama. The woman prefers that all of deceased husband’s property be a lien against her ketubah as opposed to just some of them because that would give her a greater security and peace of mine lest what was set aside get lost.