Talmudic pages

Ketubot 102

The marketplace strangler.

Let’s start with part of the mishnah from the bottom of yesterday’s page:

One who marries a woman, and she stipulated with him that he would sustain her daughter for five years, is obligated to sustain her daughter for five years. If the woman married another man, and she stipulated with him that he would sustain her daughter for five years, he (the first husband) is still obligated to sustain her for five years; he may not say: “When she comes to me, I will sustain her.” Rather, he brings her sustenance to her, to the place where her mother lives … If the daughter was married, her husband provides her with sustenance, and they (the two men married in sequence to her mother) provide her with the monetary value of the sustenance. If they (the two husbands) died, their daughters are sustained from unsold property, and she (their wife’s daughter) is sustained even from liened property that was sold. This is due to the fact that her legal status is like that of a creditor.

A woman marries a man on the condition that he will feed her daughter (let’s call her Sarah) for five years. That agreement, the mishnah amply demonstrates, is now a contractual obligation completely independent of the marriage or anything else. If the mother divorces him, he’s still obligated to feed Sarah for five years — even if the mother makes the same agreement with a new husband (and now Sarah is being sustained twice over). If Sarah marries and is sustained by her own husband, her mother’s husband is still obligated to make payments. Even if the husband dies, Sarah is still owed money from his estate and can collect even from liened property (something his own daughters can’t do).

Knowing the strength of this contractual obligation, the mishnah records, some men wised up and had limits written into the contract so that they only had to sustain Sarah as long as they were married to her mother.

This mishnah sets the stage for a wide-ranging discussion in the Gemara about contractual law, much of it imported from a later tractate we’ve yet to study, so consider this a taste of things to come. Here is one problem from today’s daf: Suppose two parties make an agreement that is signed and witnessed. Later, a guarantor for the creditor signs below all the other signatures — suggesting (Rashi explains) that his promise to back up the creditor is not witnessed. Is he on the hook if the creditor defaults?

Ben Nannas says no: The guarantor who signs below all the other signatures after the contract has already been written owes nothing and shouldn’t have to pay a dime. Or a shekel. He illustrates his point with a striking scenario: 

If someone was strangling another in the marketplace (in an effort to recover a debt), and a friend of the victim found him and said to the strangler: Leave him alone and I will give you (payment), he is exempt. This is because the creditor did not lend the money based on his trust.

A man in the marketplace, says Ben Nannas, who owes money to a thug who is strangling him in an effort to extract the debt is saved by a friend who comes by and promises to pay on his behalf. Ben Nannas says that the friend is not actually obligated to cough up the money — not because strangling is an inappropriate way to collect a debt, but because the mafioso did not consider the friend as a guarantor when the contract was signed. Likewise, the guarantor who signed below everyone else is not on the hook for payment if the creditor defaults.

Ben Nannas’ scenario is compelling as far as it goes. Promise money to a murderous debtor to keep your friend alive? Don’t worry; the rabbis have your back. But is it a good analogy for contracts? Whether the rabbis agree on that is less clear. But they do admire the way his mind works. This same story is told on Bava Batra 175b where Rabbi Yishmael, who is locked in disagreement with Ben Nannas, wraps up the discussion with the following homage to his colleague:

And Rabbi Yishmael thereupon said: One who wants to become wise should engage in the study of monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring. And, one who wants to engage in the study of monetary law should attend to Shimon ben Nannas.

Read all of Ketubot 102 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 17th, 2022. If you are interested in receiving the newsletter, sign up here.

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