(based on Shut Noda B’Yehuda II, Choshen Mishpat 32)


Case: Sarah relinquished her rights (mechila) to her ketuba in order to encourage her husband, Reuven, to give her a get. Now she wants to back out of this step. Perhaps we should say that simple oral mechila without akinyan is not effective when the creditor (i.e., the wife) still has a document (i.e., the ketuba) that states that the debtor owes her money.

Ruling: It is not possible to extract money from Reuven when the Rama (Choshen Mishpat 241:2) says that mechila is valid even orally even when the creditor (here, Sarah) has a document. It is true that the Tur (CM 12) cites the opinion of Rabbeinu Yeshaya who distinguishes between cases in which there is a document and cases in which there is not. The Bach explained that the rationale is based on the idea that in a case of a document that is set to cause the payment of money, it is considered as if the money was already paid. The Shach (12:17) asks simply that we do not accept the opinion (Beit Shammai) who adopts that position.

P'ninat Mishpat (658)

Various Rabbis

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385 - When Is The Debtor Rich Enough to Pay?

386 - A Woman who Relinquished Rights to her Ketuba

387 - Responsibility of a Guardian

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The answer to this question is that it depends on the type of obligation that is involved. The reason that we do not always consider the payment of aketuba as if it already occurred is that it is not clear that the conditions for payment will ever crystalize. In one case discussed, a question arose whether the wife lost her ketuba due to infidelity and then she died before the matter was resolved. Another such case in which Beit Hillel argued with Beit Shammai is when the debtor died, after which the creditor has to swear before receiving payment, and it is not clear he will do so. In such cases, Beit Shammai and Beit Hillel argue whether payment is still considered a definite thing that is viewed as if it was already received, which may impact on whether simple mechila will work. In all of these cases, the original parties are not all present. However, regarding a debt about which there is a document and the parties are all alive, all can agree that the creditor’s hold on the money is strong, explaining Rabbeinu Yeshaya’s opinion that simple oralmechila will not cause the debt to be relinquished.
On the other hand, the definite nature of payment of such a debt is only true when the debtor has resources from which he can pay. However, if all the creditor has to rely on to receive payment is the personal obligation of the debtor, then it is the type of debt for which mechila works. It would also seem that the language used makes a difference. If Sarah had said that she relinquished rights, one cannot relinquish rights of that which is already in her hands. However, since she used language of giving a present to Reuven of the value of the ketuba, it could work even though she has a ketuba.
In this case, though, Sarah does not lose her ketuba. Since I ruled that her get is invalid (the Noda B’Yehuda’s son claims that the case was discussed in Noda B’Yehuda II, Even Haezer 105), the mechila that was done in order to get Reuven to give a get is not valid, as it is based on a false pretense when the get written is invalid.