Bots, Bureaucrats, Interface administrators, Suppressors, Administrators, wiki-admin, wiki-controller, wiki-editor, wiki-reader
1,839
edits
Introduction to Kesuba: Difference between revisions
From Halachipedia
→What happens if the Kesuba is Misplaced?
| (13 intermediate revisions by the same user not shown) | |||
| Line 55: | Line 55: | ||
#If the person's first name consists of two parts (e.g. Reuven Yaakov), both parts of the name should appear on the same line each time it is written. | #If the person's first name consists of two parts (e.g. Reuven Yaakov), both parts of the name should appear on the same line each time it is written. | ||
#If the person's name is the same as a that of protagonist in Tanach, if the name is consistently spelled the same exact way throughout Tanach, that spelling should be used as the person's name, even if the person is used to spelling it differently.<ref>If there is variation (maleh or chaser) in Tanach, the person may spell his/her name the way to which he/she is accustomed if it is one of these spellings. </ref> | #If the person's name is the same as a that of protagonist in Tanach, if the name is consistently spelled the same exact way throughout Tanach, that spelling should be used as the person's name, even if the person is used to spelling it differently.<ref>If there is variation (maleh or chaser) in Tanach, the person may spell his/her name the way to which he/she is accustomed if it is one of these spellings. </ref> | ||
#In the first and last relevant places in the ketubah, the names of the Chatan and Kallah should be written as "__(Chatan/Kallah's hebrew name) ben/bat ___(father's hebrew name) L'mishpachat ___ (person's last name)" (e.g. Reuven Yaakov ben Shimon L'Mishpachat Goldberg)<ref>It is better to use this formulation instead of "Ploni ben Ploni Goldberg", as it implies that "Goldberg" is also part of the person's first name. </ref> | #In the first and last relevant places in the ketubah, the names of the Chatan and Kallah should be written as "__(Chatan/Kallah's hebrew name) ben/bat ___(father's hebrew name) L'mishpachat ___ (person's last name)" (e.g. Reuven Yaakov ben Shimon L'Mishpachat Goldberg).<ref>It is better to use this formulation instead of "Ploni ben Ploni Goldberg", as it implies that "Goldberg" is also part of the person's first name. Ketuba Khilchata p. 31 writes that those who put in the last names into a ketuba should add the word Lmishpachat before the last name. </ref> | ||
#In all other places in the middle of the ketubah where either of their names is required, only the Chatan/Kallah's full first name is used (e.g. Reuven Yaakov). | #In all other places in the middle of the ketubah where either of their names is required, only the Chatan/Kallah's full first name is used (e.g. Reuven Yaakov). | ||
#If the Chatan is a Kohen or a Levi, at the first and last mentioning of his name, the title should be added after writing in his father's name (e.g. Reuven Yaakov ben Shimon HaKohen). In the other locations, it should be mentioned after his first name (e.g. Reuven Yaakov HaKohen) <ref>Rav Moshe Feinstein (Igrot Moshe Even HaEzer 3:26) discussed a question where the father of a Kallah claimed at the time of the wedding that he was a Levi, but upon further research, discovered that his Levi status was actually more questionable that initially thought. Rav Moshe ruled that if it turns out that the father was indeed not a Levi, the Ketubah is still kosher M'ikkar HaDin, but it is recommended that a new ketubah be written and signed. </ref><ref>If the Chatan is a Chalal (the son of a Kohen who married a woman that was halachically prohibited for him to marry (e.g. a divorcee)), some of have the practice to write Reuven Shimon HaChalal ben Shimon HaKohen, or, as is recommended, to just leave out the Kohen title entirely (e.g. "Reuven Yaakov" with no title at all.</ref> | #If the Chatan is a Kohen or a Levi, at the first and last mentioning of his name, the title should be added after writing in his father's name (e.g. Reuven Yaakov ben Shimon HaKohen). In the other locations, it should be mentioned after his first name (e.g. Reuven Yaakov HaKohen).<ref>Rav Moshe Feinstein (Igrot Moshe Even HaEzer 3:26) discussed a question where the father of a Kallah claimed at the time of the wedding that he was a Levi, but upon further research, discovered that his Levi status was actually more questionable that initially thought. Rav Moshe ruled that if it turns out that the father was indeed not a Levi, the Ketubah is still kosher M'ikkar HaDin, but it is recommended that a new ketubah be written and signed. </ref><ref>If the Chatan is a Chalal (the son of a Kohen who married a woman that was halachically prohibited for him to marry (e.g. a divorcee)), some of have the practice to write Reuven Shimon HaChalal ben Shimon HaKohen, or, as is recommended, to just leave out the Kohen title entirely (e.g. "Reuven Yaakov" with no title at all.</ref> | ||
# | #The edim should sign the kesuba with their last name as well without the word Lmishpachat.<ref>Maadeni Shlomo p. 339 quoting Rav Shlomo Zalman Auerbach, Siddur Kiddushin (R' Adler) p. 29</ref> | ||
===Uncertain or Unknown Lineage=== | ===Uncertain or Unknown Lineage=== | ||
| Line 77: | Line 76: | ||
#If there is space left of any blank in the kesuba, a line should be drawn through the middle of the empty space so that no one can write anything in the space and falsify the kesuba. | #If there is space left of any blank in the kesuba, a line should be drawn through the middle of the empty space so that no one can write anything in the space and falsify the kesuba. | ||
=== Mistakes === | |||
# If there is a mistake it is advisable to get a new kesuba and fill it out again. If that is not possible, sometimes it is possible to correct it at a certain point.<ref>Seder Kiddushin Vnesuin p. 37</ref> | |||
# If a word or letter is missing from the kesuba it can be fixed by writing it in the empty space between the lines right above where the word or letter belongs.<ref>Seder Kiddushin Vnesuin p. 38</ref> This solution does not work for a printed kesuba.<ref>Seder Kiddushin Vnesuin p. 39 quoting Pitchei Choshen (v. 8, Kuntres Binyanei Ketuba, fnt. 32)</ref> | |||
# There are any mistakes in the kesuba, such as with an extra word, the word can be scratched out or painted over with whiteout. If it is a mistake and a new word needs to be written on top of the where the mistaken word was erased.<ref>Seder Kiddushin Unesuin p. 38</ref> | |||
# If the kesuba text is corrected before the words הכל שריר וקיים are filled in and the edim sign it needs to have a line added that states that the certain word or letter was added or was written on top of a place that was erased and then הכל שריר וקיים is filled in and the edim sign.<ref>Seder Kiddushin Vnesuin p. 38 based on Shulchan Aruch C.M. 44:5</ref> | |||
# If the kesuba text is corrected after the words הכל שריר וקיים was written, as is the case for all printed kesuba's, then the correction can be made and an extra line stating that the word or letter was added or that the word was written on top of something that was erased below the kesuba that statement concludes with the words הכל שריר וקיים. The edim sign the kesuba and sign again below this statement of the correction.<ref>Seder Kiddushin Vnesuin p. 38</ref> | |||
=== Lost === | |||
# If a kesuba is lost it must be replaced with a kesuba d'irkasa.<ref>Seder Kiddushin Vnesuin p. 40</ref> | |||
# If after a replacement kesuba was written the old kesuba was found the old kesuba should be ripped up.<ref>Seder Kiddushin Vnesuin p. 41 quoting Shulchan Aruch E.H. 100:14</ref> | |||
==Making the Kinyan== | ==Making the Kinyan== | ||
# The minhag is to make a ''kinyan chalipin'' for the obligations in a ''kesubah''.<ref>Chomat Mishpat v. 1 p. 77</ref> | |||
# This is done by having one of the witnesses<ref>Chomat Mishpat v. 1 p. 77 writes that the minhag is to have one of the witnesses make the kinyan.</ref> or someone else who is acting on behalf of the ''kallah'', such as the ''mesader kiddushin'', give a ''kli'' (utensil) that is fit to be used, such as a handkerchiefs, to the ''chatan'' who then raises it up. This act causes the ''chatan'' to become obligated to fulfill his obligations as outlined in the ''kesuba''.<ref>Chomat Mishpat v. 1 p. 77</ref> | |||
# The ''chatan'' should be aware that his act of ''chalipin'' obligates him in his obligations of the ''kesubah''.<ref>Chomat Mishpat p. 80</ref> | |||
=== How high should the chatan raise the kli === | |||
# The ''chatan'' should raise up the ''kli'' 3 [[Tefachim|''tefachim'']].<ref>Shulchan Aruch C.M. 198:2 quotes a dispute between Rashi and Tosfot whether it is necessary to pick up the kli 1 or 3 tefachim. He quotes the opinion of 1 tefach second. Chomat Mishpat p. 79 writes that the chatan should pick it up 3 tefachim to be sure.</ref> | |||
# If he's doing a ''chalipin'' above a table, some say that it needs to be raised up 3 ''[[tefachim]]'' above the table, while others hold that it is sufficient to raise it 3 ''tefachim'' from the ground, even if it is within 3 ''[[tefachim]]'' of the table. Initially a person should try to avoid this by having the chatan raise the ''kli'' 3 ''tefachim'' above the table.<ref>Chomat Mishpat p. 79</ref> | |||
# The chatan should take grasp of a significant part of the kli. Some say that it is sufficient if he takes hold of part of the kli such that if he wanted he could pull the rest of it to him, while others argue that he must hold a significant part of the kli.<ref>Pitchei Choshen (Kinyanim 7:8)</ref> | |||
# For a handkerchief it is sufficient for the ''chatan'' to take grasp of 3x3 ''[[etzbaot]]'' of the handkerchief, even if the ''mesader kiddushin'' is still holding onto the other part of the handkerchief.<ref>Shulchan Aruch C.M. 195:4</ref> It is simpler for the ''mesader kiddushin'' to just give the entire handkerchief to the chatan and not hold onto part of it, but if he does it is still effective.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16]) </ref> If someone does a ''kinyan chalipin'' with a ballpoint pen the ''chatan'' must hold the entire pen and it is ineffective if the ''mesader kiddushin'' is holding one part of it and the ''chatan'' the other half.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 10]) </ref> | |||
=== In whose presence === | |||
# The kinyan does not have to be done in the presence of the ''kallah''<ref>Shulchan Aruch C.M. 195:3, Pitchei Choshen (Kinyanim 7:9)</ref> and does not need to be done with the kallah.<ref>Chomat Mishpat p. 78. This is different from the tenayim which requiring kinyanim to be done both with the chatan as well as with the kallah, or their representatives. The reason is that in tenayim both sides have mutual obligations, as opposed to a ketubah, which is really an obligation upon the chatan. </ref> | |||
# The kinyan must be done in the presence of the ''edim'' who sign the ''kesubah''.<ref>Chomat Mishpat p. 78</ref> | |||
=== Ownership of the kli for ''chalipin'' === | |||
# The kli used for the chalipin does not have to belong to the one doing the ''kinyan'' on behalf of the kallah. However, he may not use the kli for chalipin without permission from the owner of the kli. Similarly, it is fine if the ''mesader kiddushin'' borrows a kli from someone in order to do the kinyan.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:9)</ref> It is best not for the one doing the ''kinyan chalipin'' to own the kli.<ref>Chomat Mishpat p. 78 writes that it is advisable not to get involved with the dispute surrounding a borrowed kli for the chalipin.</ref> | |||
# Once the kli used for ''chalipin'' is transferred the transaction is finished, the chatan should return the kli to the ''mesader kiddushin''.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:10), Chomat Mishpat p. 78. Rama explains that it is understood that the kinyan is done with the intention of symbolically enacting the transaction but the recipient of the kli will return the kli.</ref> | |||
=== Details of the kli for chalipin === | |||
# The minhag is to use a handkerchief for ''kinyan chalipin'', but really it is perfectly acceptable to use any utensil. If a cloth or handkerchief is being used, it must be at least 3 by 3 ''[[etzbaot]]''. It is not necessary for it to be 3 x 3 ''tefachim'', irrelevant of the material it is made out of.<ref>Shulchan Aruch C.M. 195:4. Rav Yitzchak Elchanan Spector (Bear Yitzchak CM 5:2) raises an issue that perhaps this measure of 3x3 etzbaot is only sufficient if the garment is made out of wool or linen, but other materials must be 3x3 tefachim since those are the measurements that are found regarding tumah for the cloth to be considered a kli (Rambam Hilchot Kelim 22:1). However, Rav Yitzchak Elchanan concludes that it is a kli for the purposes of chalipin even though it is not a kli for the purposes of tumah, as long as it is of requisite size of 3x3 etzbaot. Pitchei Teshuva 195:3 quotes this. Aruch Hashulchan 195:5 and Pitchei Choshen (Kinyanim 7:4 fnt. 13) agree. The Radziner ([https://www.hebrewbooks.org/pdfpager.aspx?req=20463&st=&pgnum=507 Sidrei Taharot Kelim 248b]) has another approach to this question but with the same practical conclusion. He argues that the rules of chalipin and tumah are equated, but nonetheless 3x3 etzbaot suffices since a person can make a garment accept tumah once he actively uses it. Since doing a ''chalipin'' is a function of the garment, using it for the symbol transaction it thereby demonstrates that it indeed is a kli. Mishpat Hakinyan (Rav Ovadia Yosef Toledano 2:7 p. 192) concludes that 3x3 etzbaot is sufficient for all materials. Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 4-12]) explains the view of Rav Yitzchak Elchanan. He adds that many rabbonim did not want to follow the lenient view of Rav Yitzchak Elchanon to allow a kinyan chalipin with 3x3 etzbaot of a cloth that wasn't wool or linen, so they used the corner of their wool jacket (''kapota''). </ref> Other non-cloth utensils do not have this requirement to be 3x3 ''etzbaot''. | |||
# For this reason a standard handkerchief is acceptable but a ''gartel'' is not acceptable for ''chalipin'' since it is too thin.<ref>Chomat Mishpat v. 1 p. 77. Chomat Mishpat writes that certain gedolim would specifically use a handkerchief and not a gartel because a gartel is not always 3 etzbaot wide, and wouldn't be considered a kli for purposes of tumah or chalipin. Interestingly, Pitchei Choshen (Kinyanim 7:4 fnt. 13) would allow using a gartel since he writes that a whole garment is automatically considered a kli even if it isn't the requisite measure of 3x3 etzbaot. He even writes that a certain gadol was careful not to use a garment that was thinner than 3 etzbaot, but he doesn't understand why there is any reason to be stringent. However, Morasha v. 3 p. 256 notes that this is a great nuance of the Pitchei Choshen, and Chomat Mishpat disagrees with Pitchei Choshen and disqualifies a gartel for chalipin. </ref> Some ''poskim'' allow using a ''gartel'' for a ''kinyan'' even though it is thinner than 3x3 ''etzbaot''.<ref>Pitchei Choshen (Kinyanim 7:4 fnt. 13) writes that it is obvious that a whole garment is considered significant and counts as a kli, even though it is thinner than 3 tefachim. He notes that even though he saw one gadol disqualify such a garment, he doesn't understand why this is the case. Mishpat Hakinyan (2:7 v. 2 p. 192) agrees with Pitchei Choshen. He quotes the Divrei Yatziv CM 55 that the minhag is to use a gartel for the kinyan chalipin. He also quotes the Shevet Halevi 9:307 who technically agrees that a gartel is acceptable for chalipin but not use it in practice because he wants to demonstrate that this transaction is important and not a game. </ref> | |||
# Some ''gedolim'' have a practice to use a pen (which isn't broken) for the ''kinyan chalipin''.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16-7]) mentions that he saw that the practice in the bet din of Tel Aviv was to use a pen for the kinyan chalipin. Sh"t Baruch Omer CM 161 agrees that pen is fine for a kinyan chalipin. Rav Ovadia Yosef Toledano (Mishpat Hamechira p. 614) writes that his teacher, Rav Asher Weiss, usually does kinyan chalipin with a pen. He quotes that one gadol thought that a pen may not be used for chalipin since it runs out of ink at some point and is similar to fruit which become depleted. Rav Ovadia Toledano rejects this logic since many kelim become depleted after being used many times but are still considered a kli. </ref> | |||
# A ''kli'' can be used for ''chalipin'' even though it isn't even worth a ''[[prutah]]''.<ref>Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:7:4), Mishpat Hakinyan (v. 2 p. 186)</ref> | |||
# A disposable ''kli'' could technically be used for a ''kinyan chalipin''.<ref>Mishpat Hakinyan v. 2 p. 191 argues that a disposable utensil is a kli for chalipin even if it isn't susceptible to tumah. </ref> | |||
# A kli that is forbidden to benefit from may not be used for ''chalipin''.<ref>Bava Metsia 47b, Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:7), Mishpat Hakinyan (v. 2 p. 188)</ref> | |||
# Fruit cannot be used for the ''chalipin''.<ref>Shulchan Aruch C.M. 195:2, Pitchei Teshuva (Kinyanim 7:5), Mishpat Hakinyan (v. 2 p. 195)</ref> | |||
# There is a major dispute if an animal can be used for ''chalipin''.<ref>Rama C.M. 195:2 writes that it is acceptable to use an animal for chalipin as it is similar to a kli, however, Mishpat Hakinyan (v. 2 p. 195) notes that Shulchan Aruch seems to disagree and treats an animal like fruit. Pitchei Choshen (Kinyanim 7:5) also writes that animals are not acceptable but some allow using them for chalipin.</ref> | |||
# A coin cannot be used for ''chalipin''.<ref>Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:6), Mishpat Hakinyan (v. 2 p. 197)</ref> A coin that was disqualified as currency can be used for ''chalipin''.<ref>Rama C.M. 195:2 based on Tur, Pitchei Choshen (Kinyanim 7:6)</ref> Some ''poskim'' do not allow using a coin even if it isn't currency.<ref>Mishpat Hakinyan (v. 2 p. 199) based on Rambam</ref> | |||
==Eidei Kesubah (Witnesses)== | ==Eidei Kesubah (Witnesses)== | ||
| Line 87: | Line 128: | ||
==What happens if the Kesuba is Misplaced?== | ==What happens if the Kesuba is Misplaced?== | ||
#If a couple happens to misplace their Kesuba (and has no idea where it could be) <ref>Rav Chaim Kanievsky and Rav Wosner pasken that if the couple knows it is in the house, but unsure where in the house it is located, it is not considered halachically lost. </ref> | #If a couple happens to misplace their Kesuba (and has no idea where it could be),<ref>Rav Chaim Kanievsky and Rav Wosner pasken that if the couple knows it is in the house, but unsure where in the house it is located, it is not considered halachically lost. </ref> it is prohibited for them to live together until another one (a Kesuba D'irkasa) is completed and signed. | ||
==Further Reading== | ==Further Reading== | ||
