The Heiress?
‘Determining The Daughter’s Status’
(Kesubos 68b-69a)
From Jeremiah 29:6 – “…take wives for your sons and give your daughters to husbands…” – we learn that a man has an obligation to marry off his children. The Gemara (Ketubot 52b) explains that it is his duty to search for a suitable bride for his son and to provide his daughter with nice clothes and property so that she, too, can find a suitable mate. In fact, the Gemara states that a father should be ready to give his daughter up to one tenth of his assets for this purpose.
An Orphan’s Dowry
The Gemara (68a) discusses the size of the dowry that should be allocated from a father’s estate to his orphaned girl. The Sages maintain that, as a rule, an orphaned girl should receive one tenth of her father’s assets for her marriage needs. (Shmuel rules that the court assesses the father’s properties and assets and allocates her dowry accordingly. If such a determination cannot be made, Shmuel agrees that the daughter is given one tenth of the assets in the estate.)
The Gemara (69a) ponders whether the dowry that the sons are obligated to give their sister (from their father’s estate if the father has already died) is considered their personal debt or an inherited debt.
Is An Oath Required?
If it is considered their father’s debt, the brothers could demand that their sister swear that she did not collect her dowry from their father before his death. They are entitled to demand such an oath because, as a rule, a creditor who wants to collect a debt from a deceased’s heirs must swear that he did not receive payment from the deceased since heirs are not necessarily knowledgeable of the deceased’s affairs and have no idea whether the debt was paid.
On the other hand, if the sister’s dowry is considered the brothers’ personal debt, they cannot demand that their sister take an oath because they do not have a definite claim that the dowry was paid.
Paying A Debt Before The Due Date
Resh Lakish (Bava Bathra 5a) points out that there is a chazaka (legal presumption) that a debt is not paid before it is due. Based on this presumption, if a debtor dies before his loan is due, the creditor can collect payment from his heirs even without taking an oath because the presumption is that the debt was not paid before its due date.
In light of this halacha, the Beit Meir (cited by Pis’chei Teshuva, Even HaEzer 11b s.k.9) asks why a daughter has to swear that she did not receive her dowry from her father. Since the time to pay the dowry is her engagement – and since she was not engaged when her father died – shouldn’t we assume that her father didn’t yet give her dowry to her?
Daddy’s Girl
The Beit Meir answers that, as a rule, a father feels particularly protective of a daughter and therefore there are grounds to assume that he advanced the dowry while he was alive even though his daughter was not yet engaged.
The Shevut Yaakov (3:126) suggests that it is common for a father to give a dowry to his daughter when she becomes of marriageable age – regardless of whether she is engaged yet. The heirs could also claim that she might have been about to become engaged and the father, at that time, gave her the dowry. Therefore, if the dowry obligation is considered a debt that they inherited from their father, they can demand that their sister take an oath that she has not yet received her dowry.