Shabbat Parashat Acharei Mot-Kedoshim | 5769

P’ninat Mishpat: Mechila As Part of a Broken Agreement

(based on Halacha Psuka 56- A Condensation of Mishp’tei Shaul 28

Case: A separated husband (=def) and wife (=pl) drew up a divorce agreement, including monetary arrangements. Pl was mochelet (relinquished rights to) her ketuba and related rights. Subsequently pl decided not to accept divorce and is suing for spousal support (mezonot) in beit din. She says that her mechila applies only when the agreement is intact. Def says that the mechila on the ketuba stands and includes the related obligation of support.

Ruling: Does mechila on a ketuba impact mezonot? The Shulchan Aruch (Even Ha’ezer 93:9) brings one opinion that a woman’s mechila of her ketuba erases mezonot after his death, but not during his lifetime, and another opinion that it applies even during his lifetime. The Beit Shmuel says that the first opinion holds that mezonot is an independent obligation, irrespective of the ketuba. The Nachal Yitzchak (EH I, 77:2) says that mezonot stems from two things: part of the ketuba obligation; because the husband makes it impossible for her to marry someone else who could support her. When the wife both was mochelet her ketuba and she is the one who backed out of the divorce, neither reason applies. The Shulchan Aruch’s second opinion (Rambam) holds that although a wife who sells her ketuba maintains mezonot during his lifetime, one who is mochelet is assumed to lose it. The difference is that one who sells probably does so due to financial need, in which case, she probably gives up only what she needs to. In contrast, one who is mochelet of her own free will, presumably does so broadly. In this case, since she was mochelet as part of negotiations, it is like one who sold, and there is no reason to assume she was mochelet support, which was not specified in the agreement.

The Rambam (Mechira 11:4) says that mechila is not governed by the laws of asmachta (an obligation whose conditions one does not expect to occur). Yet, the Rambam spells out, in a formula to obviate the problems of asmachta (ibid.:18), that mechila should take hold mei’achshav (effective immediately), implying that without this, asmachta would be a problem. The Machane Ephrayim (Asmachta 6) explains that mei’achshav is needed only to prevent someone from backing out before the condition is completed.

The agreement says pl is mochelet “bazeh (hereby).” This could mean as of the time of signing (like mei’achshav) or as part of the agreement, in which case, mechila depends on the agreement’s completion. Regarding a doubt of mechila of a ketuba, the Radvaz (I, 364) says that the woman can extract money because the obligation was once certain. Accordingly, pl should not lose mezonot. Another dayan felt that, anyway, there is a clear assumption that no part of a divorce agreement is binding if the divorce itself, which is at its heart, does not go through. Thus, pl receives mezonot.

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