[By Rabbi Yair Hoffman for the Five Towns Jewish Times]

It has happened numerous times, over thousands of years. Precious documents have been lost, causing serious repercussions. Passports, titles to vehicles, the wife’s kesubah. The repercussion of losing a passport is not being able to leave the country. If one loses the title certificate for a vehicle, one cannot sell that vehicle. And if a woman’s kesubah is lost, then yichud of husband and wife (remaining alone with each other) is prohibited (see Shulchan Aruch, Even HaEzer 66:1)—that is, until a replacement kesubah, called a kesubah d’irkasa, is obtained.

What? Is that really the case? What if you just cannot get to a rabbi in time? Does the Chaverim organization carry an emergency kesubah d’irkasa?

Before we call Chaverim, let’s realize that the Rema (E.H. 66) cites views that offer a more lenient opinion regarding yichud, but not in regard to other matters. The Bach explains that when the Tur forbade yichud, he was only referring to a bride, but a woman who is already in a marriage and lost her kesubah may remain alone with her husband until a replacement kesubah can be obtained. The Sma and Chelkas Mechokek cite this Bach, but the Vilna Gaon disagrees with this reading and rules that it is forbidden. The Chazon Ish (66:20) as well was stringent. The Levush (65:1) is also stringent. The Mishnah Berurah 545:27 seems to cite the Rema’s leniency, but it is not clear.

Two Reasons For Leniency

There are two reasons for the leniency cited in the poskim. First, the prohibition is only rabbinic, and that being the case, perhaps one can rely on the Bach that it only refers to a bride but not to an established marriage. Second, the wife is aware that she needs to be legally protected and will ensure that the new kesubah will be made.

What To Do In The Meantime

Nonetheless, the new kesubah must be written as soon as possible, since the leniency is only to permit yichud on a temporary basis.
Some contemporary poskim have advised that one can even write his wife a check for the fair-market value of the kesubah and remain with her until the kesubah d’irkasa is written. But what about on Shabbos? On Shabbos a check cannot be written.

The solution for Shabbos, according to the Shulchan Aruch, is to give the wife ownership of portable property worth that amount. Even though it is forbidden to perform a kinyan on Shabbos (see Eiruvin 71a), in order to avoid the prohibition of yichud, the Rishonim have different ways to understand how and why it is permitted.

Keeping Tabs On The Kesubah

It is related that Rav Isser Zalman Meltzer, zt’l, father-in-law of Rav Aharon Kotler, zt’l, used to occasionally ask his wife if she knew where her kesubah was located. Once, when she could not locate it, Rav Isser Zalman ran out of the house so as not to violate this halachah. This brings us to the next question.

What happens if after one has written the kesubah d’irkasa, the original kesubah is found? Now the woman has two documents. What should be done?

It is a clear halachah (see Shulchan Aruch, Choshen Mishpat 41; see also E.H. 100:14) that one is not permitted to have two documents that can be used for collecting the same debt. Rav Elyashiv, zt’l, ruled that when one makes a photocopy of the kesubah for registration purposes, the witnesses are not permitted to sign the photocopy, because of this halachah.
So which one should be destroyed and which one should be kept?

Rav Vosner, zt’l, in his Shevet HaLevi volume VIII #288, rules that the woman may keep whichever one she wishes, but she must destroy the other one.

Surprisingly, other poskim rule that she may only use the kesubah d’irkasa, because the original document was invalidated when it got lost. It is clear, however, that Rav Vosner rejects this rationale. Generally speaking, the woman places more sentimental value in the original kesubah than in the kesubah d’irkasa that was just arranged, so it would be better to use the original kesubah.
If you report that your passport has been lost, the State Department will not allow you to travel with it if found. It is entered into the Consular “Lost and Stolen” database and flagged. This is not the case, however, with a kesubah.

Recalling Faulty Documents

As an interesting aside, a number of years ago a major posek in Eretz Yisrael came to the realization that he had been writing the wrong name of the city on all the kesubos he wrote for close to two decades. Apparently, he had written Ramat Gan when he should have written Tel-Aviv. What did he do? Believe it or not, he issued a recall of over 20 years’ worth of kesubos.

Is A Copy OK?

What if someone took a picture of the kesubah or made a copy of the kesubah and gave it to a beis din? Would this help avoid the issur of yichud if the kesubah is ever lost?
Here, too, the answer is no. The picture is not enough to collect a debt with, and therefore, while it may be sufficient to deny a claim of “this never happened,” it is not sufficient to lay a claim with and collect upon it. Rav Elyashiv thus ruled that yichud is still forbidden even if there is a copy of the kesubah that is extant.
So, if you lose a passport, contact the State Department or a local embassy. And if you lose a kesubah, contact a rav who can replace it right away. 

The author can be reached at [email protected].