Her Children, Her Whim
“Kesubas Bnin Dichrin”
(Kesubos 52b)
Our Gemara discusses the “kesubas bnin dichrin” clause, which our Sages incorporated into every kesuba. This clause stipulates that if a wife dies first, and her husband inherits her estate, then, after he dies, her children alone will inherit her money, and not his children from other wife or wives.
The Gemara (52b) explains that this clause was enacted as a result of the common reluctance of fathers to give their daughters sizable dowries, for fear that their money might be inherited by children other than his own grandchildren. The Gemara proceeds to explain why all the money of the kesuba, not only the dowry, is included in this clause.
Inheritance or Debt
There are two aspects of the kesubas bnin dichrin. On one hand, it is a form of inheritance law. Instead of the father’s estate being divided equally among all his sons, each group of children inherit their mother’s kesuba, and the remaining money is divided equally. On the other hand, kesubas bnin dichrin is a kind of debt in which the husband obligates himself to pay money to his wife if he dies first, or to her children if she dies first.
The Gemara states that a woman may absolve her husband of his kesubas bnin dichrin obligation, thus allowing him to divide his inheritance equally amongst all of his children, including those of another wife or wives. We will now examine two possible ways of understanding how she relieves him of this obligation.
Obligations to a Third Party
If Reuven accepts upon himself a monetary obligation to Shimon, he must pay as he has promised. However, what is the law in a case where Reuven promises Shimon to give money to Levi? The Rashba (Teshuvos HaRashba 1:1) rules that Beis Din cannot force him to pay. Beis Din can only enforce monetary obligations between two parties. If a person promises to do any other favor and then reneges on his promise, Beis Din cannot intervene.
In this case, Reuven promised Shimon to give money to Levi. Is this considered a monetary obligation to Levi? Levi was not involved in the commitment at all. Rather, it is a commitment to Shimon that Reuven will do a favor to him (Shimon), by giving money to Levi. Beis Din cannot force him to keep this promise, since it is not considered a monetary obligation between two parties. The Tosefos Rid argues that Beis Din can force him to honor this commitment.
Obligations to Wife and Children
As we noted above, a wife can absolve her husband of his kesubas bnin dichrin obligation. What right does she have to intervene in the father’s obligation to his children?
The Tosefos Rid explains that it is not an obligation between a father and his children, but between a husband and his wife, to give money to her children. Therefore, she has the authority to relieve him of his obligation. This follows the Tosefos Rid’s opinion that Beis Din recognizes an obligation Reuven made to Shimon to pay money to Levi. Accordingly, Beis Din recognizes an obligation a husband made to his wife to pay money to his children. The woman is the debtor, not the children. Therefore, she can absolve the debt. Similarly, in the case above, Shimon can absolve the debt, thus rendering Reuven exempt from paying Levi.
The Rashba could offer a different explanation to the sugya. According to his opinion, a husband’s commitment to his wife to pay his children is not binding in court. Rather, it is an obligation directly to the children. How then can the wife absolve the debt owed to the children? The Rashba could explain that this debt was originally incurred towards his wife as part of the kesuba she would claim if he died first. Therefore, if she absolves the kesuba debt, there remains nothing to give to them.
