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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 (832)
Various Rabbis
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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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.
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part III
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part II
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
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