Question
I live in Israel and my former husband is a Sefardi. He wrote in my kesubo that in the event he divorces me I will receive fifty-two thousand dollars. We were divorced a little over a year ago in the Rabbinate and the beis din told my ex then that he must pay the kesubo. There were several outstanding issues concerning how to divide our joint apartment and other items but beis din told him that since there was no issue concerning the kesubo he must pay the fifty-two thousand dollars right away and in the future they will decide the outstanding issues. Beis din did not resolve the outstanding issues until recently and he did not pay the kesubo. Now that everything is resolved he agrees to pay the kesubo but he wants to pay in shekels according to the present rate which is nearly twenty-five percent less than what it was a year ago. Must I accept that or can I demand to be paid according to the rate when beis din told him to pay, or on the day we were divorced?
Answer
At first glance it appears that you don't have a case. If an obligation is denominated in dollars, it remains a dollar obligation until it is paid. Even if nothing is stipulated, when one lends dollars the Chavos Da'as (161, 1) proves that the borrower is obligated to return dollars. In your situation, even though your ex's obligation to pay you did not result from his having borrowed money from you but because he obligated himself at the time of your marriage to pay you your kesubo when and if he divorces you, nevertheless, your ex's obligation to pay you remains a dollar obligation until it is paid. Thus it would seem that you are not entitled to anything more than the shekel value of his dollar obligation on the day that he actually pays you.
However, there is a case which seems to contradict this rule. The Yerushalmi (Kesubos 12, 1) discusses the laws concerning a person who obligated himself to sustain his wife's daughter from a previous marriage for the first five years of their marriage. The Yerushalmi considers the case in which the husband did not pay for the daughter's sustenance for the first five years, and by the time he agreed to pay, the price of food dropped. The Yerushalmi, whose ruling is cited by the Rosh (Kesubos 12, 1) and ruled by SA (EH 114, 1), rules that if the daughter is the cause of the delay, the husband can fulfill his obligation by paying the current cost of food. However, if the husband caused the delay, he must pay the amount that food cost during the first five years.
The Machane Efraim (Ribbis 40) attempted to explain this ruling. He first considers the possibility that the husband's original obligation is not for the food to sustain the daughter but for the monetary cost of sustaining the daughter for the first five years. Since the obligation was to pay an amount of money (i.e., the cost of food for the first five years of his marriage), the subsequent decline in the cost of food has no effect on his obligation since his obligation is an amount of money and not pegged to the current cost of food.
However, the Machane Efraim backed away from this explanation because the Yerushalmi rules that if the price rises the husband can pay the amount that food cost for the first five years and the Rosh explains that the reason is because the law is that the amount a thief is obligated to pay for his theft is determined by its value at the time of the theft and not at the time of payment.
The Machane Efraim understands that the intent of the Yerushalmi is that when one delays payment, he is a thief. If one follows this explanation, the husband's obligation must be for the food that was needed for the daughter and not for the cost of the daughter's sustenance. The reason is because the latter is a fixed monetary amount and bears no relation to a thief's obligation to pay for the goods that he stole which is an obligation to return the goods he stole. The Machane Efrain deduced from this that a person who borrowed wheat and refused to repay the wheat on time and subsequently the price declined, is obligated to pay the value of the wheat at the time of his refusal and not the value at the time of payment.
There are others (Beis Shmuel EH 114, 3: Avnei Meluim (114, 1) who agree with the Machane Efraim that the Rosh intends to say that one who delays payment is classified as a thief even though he did not take anything. Following this approach when your ex refused to pay you the fifty-two thousand dollars that he owed you, he stole from you fifty-two thousand dollars. Since you live in Eretz Yisroeil where dollars are not legal currency, he owes you the value of fifty-two thousand dollars at the time he refused to pay and not the value today since dollars in Eretz Yisroeil and food are similar since both are goods.
However, many (e.g., Ketsos 294, 1: Mishpat Sholom 200, 12: Tumim 74, 12) maintain that one who delays payment is not a thief since he did not take anything. The Imrei Binah (Halvo'o 49, 3) as well argues that one cannot consider delaying payment of wheat as theft since there was no wheat that belonged to the lender that was taken. He maintains that the reason to obligate the one who delayed payment is because he damaged the lender and the Rosh maintains that one who damages is obligated to pay the value of the damaged object at the time of the damages.
However, he cites the Machane Efraim himself who writes in a different place (Nizkei Momon 1) that while the Rosh maintains that when one damages he is obligated to pay the value at the time of the damage, Rashi and Tosafos maintain that one pays for damages based on their value at the time of payment. Therefore, they cannot explain the Yerushalmi as the Rosh did. They must understand the Yerushalmi as the Machane Efraim initially understood the Yerushalmi, namely, that the husband's obligation is to pay the daughter the monetary value of the food needed to sustain her for the five years.
Thus, the Imrei Binah maintains that if one delays paying wheat, the consensus is not like the Machane Efraim and if the value of the wheat declines the borrower is not obligated to pay more than the price at the time of payment. Thus, the Imrei Binah would maintain that you are not entitled to more money than the current value of the dollars.
This issue is also discussed in the context of a loan. SA (CM 74, 7) rules that if a person lends money to be repaid with a specific coin and that coin is taken out of circulation by the government in the interim, the borrower can repay with that coin even though it is now worthless. The Shach (74, 27) cites the Maharshal as ruling that if the lender demanded repayment from the borrower when the coins were in circulation and because the borrower refused to repay when repayment was demanded the loan eventually became worthless, the borrower must repay the loan with currency that is legal tender at the time of payment. The Maharshal deduced his ruling from a ruling of the Maharam of Rottenberg. The Shach however, argues that the Maharshal misunderstood the Maharam and the Maharam actually ruled that the borrower is not obligated to repay with legal currency.
The Tumim (74, 12) agrees with the ruling of the Shach because he argues that refusal to repay does not constitute theft. Refusal to repay, he says, is an act of damage and since the damage was done in a causative manner the borrower is not liable.
The Avnei Choshen (end of 74) agrees with the Tumim that the damages are causative but rules based on a ruling of the Ramo (292, 7) that if A causes B a loss of profit by refusing to return B's object when it was demanded and A benefited from B's object because of his failure to return B's object, A must compensate B for his loss. He argues that when the borrower refused to repay the loan with the coins before they were invalidated, his own money was thereby saved from becoming invalidated. Therefore, he is obligated to pay his lender new coins as compensation for having caused him a loss from which he benefitted.
We note that the rationale of the Avnei Choshen could apply in your case since your ex’s refusal to pay when the dollar was worth more shekels perhaps enabled him to benefit from his own shekels.
In conclusion: There are poskim like the Machane Efraim, Maharshal, Avnei Choshen and the Avnei Meluim (114, 1) who maintain that you are entitled to the shekel value of your kesubo at last year's rate. However, it is difficult to obligate your ex to actually pay that rate since many, including the Tumim, Imrei Bina, and probably the Shach, maintain that he can pay at today's rate. Since the case is in beis din it is proper for the beis din to reach a compromise.
