The Babylonian Talmud
Kethuboth

Talmud - Mas. Kethuboth 71a
[a repetition of] the incident of Beth Horon.1
R.JUDAH SAID: IF HE WAS AN ISRAELITE HE MAY KEEP HER [AS HIS WIFE, IF THE PROHIBITION WAS FOR] ONE MONTH etc. Is not this the same ruling as that of the first Tanna?2 - Abaye replied: He3 came to teach us [the law concerning] a priest's wife.4 Raba replied: The difference between them is a full month5 and a defective month.6
Rab stated: This7 was taught only in the case of a man who specified [the period of the prohibition], but where he did not specify, he8 must divorce her immediately and give her the kethubah. Samuel, however, stated: Even where the period was not specified [the husband] need not divorce her, since it is possible that he might discover some reason9 for [the remission of] his vow.10 But surely they11 had once been in dispute upon this principle; for have we not learned, 'If a man forbade his wife by vow to have intercourse, Beth Shammai ruled: [She must consent to the deprivation for] two weeks; Beth Hillel ruled: [Only for] one week';12 and Rab stated, 'They13 differ only in the case of a man who specified [the period of abstention] but where he did not specify the period he14 must divorce her forthwith and give her the kethubah', and Samuel stated, 'Even where the period had not been specified the husband need not divorce her, since it might be possible for him to discover some reason15 for [the annulment of] his16 vow'?17 - [Both disputes were] necessary. For if [their views] had been expressed in the former case18 it might have been assumed that only in that case did Rab maintain his view, since [the appointment] of a steward is not possible, but that in the latter case19 where [the appointment] of a steward is possible, he agrees with Samuel. And if [their views] had been stated in the latter case19 it might have been assumed that only in that case did Samuel maintain his view, since the appointment of a steward is possible. but that in the former case18 he agrees with Rab. [Hence both statements were] necessary.
We learned: IF A MAN FORBADE HIS WIFE BY VOW THAT SHE SHOULD NOT TASTE A CERTAIN FRUIT, HE MUST DIVORCE HER20 AND GIVE HER THE KETHUBAH. Now according to Rab21 [there is no contradiction22 since] the latter23 may apply to a man who did not specify [the period of the prohibition] and the former23 to a man who did specify [the period]. According to Samuel,24 however, a contradiction arises!22 - Here we are dealing with a case, for instance, where the woman made the vow and he confirmed it;25 R. Meir26 holding the opinion that [the husband]27 had himself put his finger between her teeth. But does R. Meir hold the principle, 'He has himself put his finger between her teeth'? Surely it was taught: If a woman made the vow of a nazirite28 and her husband heard of it and did not annul it, she, said R. Meir and R. Judah, has thereby put her own finger between her teeth. Therefore, if the husband wishes to annul her vow, he may do so. But if he29 said, 'I do not want a wife who is in the habit of vowing'. she may be divorced without [receiving] her kethubah. R. Jose and R. Eleazar said: He30 has put his finger between her teeth. Therefore, if the husband wishes to annul her vow, he may do so. But if he31 said, 'I do not want a wife who is in the habit of vowing', he may divorce her but must give her the kethubah!32 - Reverse [the views]: R. Meir and R. Judah said: 'He has put'33 and R. Jose and R. Eleazar said: 'She has put'.34 But is R. Jose of the opinion that it is she who put?34 Have we not learned: R. Jose ruled: [THIS35 APPLIES] TO POOR WOMEN IF NO TIME LIMIT IS GIVEN?36 - Read: R. Meir and R. Jose said, 'He has put';33 R. Judah and R. Eleazar said, 'She has put'.34 But does R. Judah uphold the principle of 'She put'?34 Have we not learned: R. JUDAH RULED: IF HE WAS AN ISRAELITE HE MAY KEEP HER [AS HIS WIFE, IF THE VOW WAS FOR] ONE DAY?37 - Read: R. Meir and R. Judah and R. Jose said, 'He put'.33 and R. Eleazar said, 'She put'.34 And should you find [some ground] for insisting that the names must appear in pairs,38 then read: R. Meir and R.Eleazar said, 'She put',39 and R. Judah and R. Jose said, 'He put';40 and this anonymous Mishnah41 is not in agreement with R. Meir.
Is R. Jose, however, of the opinion that [THIS42 APPLIES] TO POOR WOMEN IF NO TIME LIMIT IS GIVEN; from which43 it is evident that a husband has the right to annul43 [such vows]?44 This, surely, is incongruous [with the following]. These are the vows45 which a husband may annul: Vows which involve an affliction of soul46 [as, for instance, if a woman said, 'I vow not to enjoy the pleasure of bathing] should I bathe'47 [or] 'I swear that48 I shall not bathe', [or again, 'I vow not to make use of adornments] should I make use of an adornment',47 [or] 'I swear that48 I shall not make use of any adornments'. R. Jose said: These are not regarded as vows involving an affliction of soul;49 and the following are vows that involve an affliction of soul: '[I swear] that I shall not eat meat' or 'that I shall not drink wine' or 'that I shall not adorn myself

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(1) V. Ned. Sonc. ed. p. 148f and notes.
(2) Who also allowed a period of THIRTY DAYS.
(3) R. Judah.
(4) of which the first Tanna does not speak.
(5) Consisting of thirty days.
(6) Of twenty-nine days. According to R. Judah ONE MONTH is allowed irrespective of whether it is a full or a defective one. According to the first Tanna THIRTY DAYS are invariably allowed.
(7) That for a period of thirty days a steward may be appointed.
(8) Though his vow might be annulled by a competent authority by the end of the thirty days.
(9) Lit., ' a door'.
(10) V. supra p. 370. nn. 10-11.
(11) Rab and Samuel.
(12) Supra 61b.
(13) Beth Shammai and Beth Hillel.
(14) According to the opinion of both.
(15) V. supra note 10.
(16) V. supra. p. 370, n. 11
(17) Why then should Rab and Samuel be in dispute upon the same principle here also?
(18) The prohibition of intercourse.
(19) The vow forbidding other benefits.
(20) Forthwith.
(21) Who draws a distinction between a specified and an unspecified period.
(22) Between this ruling (immediate divorce) and the earlier Mishnah (allowing a certain period to pass).
(23) Lit., 'here'.
(24) Who, contrary to the view of Rab (v. supra n. 4), draws no distinction.
(25) Since if she is willing to accept her kethubah and leave him, she would not try to obtain the annulment of her vow. There is no advantage, therefore, in postponing the divorce. Where, however, he himself made the vow, the divorce is delayed in order to afford him an opportunity of discovering some ground for the remission of his vow.
(26) Who is generally the author of an anonymous Mishnah.
(27) By confirming her vow though he had the right to annul it.
(28) V. Num. VI, 2ff.
(29) Having once confirmed the vow.
(30) V. supra p. 440, n. 10.
(31) Having once confirmed the vow.
(32) Which shews that R. Meir's view is that she and not he has put the finger between the teeth, where she makes the vow and he confirms it.
(33) His finger between her teeth.
(34) Her finger between her teeth.
(35) That the husband must divorce her and give her the kethubah.
(36) This referring (as has been explained supra) to a vow the woman had made, it follows that according to R. Jose it is the husband who puts his finger between her teeth.
(37) But if for more than ONE DAY be must divorce her and give her the kethubah. This referring to a vow the woman has made, it follows that according to R. Judah also it is the husband who put his finger etc. (v. supra n. 7).
(38) Lit., 'to say: He taught in pairs'.
(39) Her finger between her teeth.
(40) V. supra note 3.
(41) Which follows the principle that it is the husband who 'put his finger between her teeth'.
(42) That a husband must divorce his wife and also give her the kethubah if he has not annulled a vow she has made against the use of a certain adornment.
(43) Since the husband is penalized (v. supra n. 13) for not annulling the vow.
(44) I.e., those relating to a woman's adornments.
(45) So MS.M. and separate edd. of the Mishnah. Cur. edd., 'things'.
(46) V. Num. XXX, 14.
(47) 'Up to a certain time'.
(48) Lit., 'if'.
(49) Hence they may not be annulled by a husband. V. Ned. Mishnah 79a; cf. however next note. [The passage that follows does not occur in the Mishnah Ned. 79a and the source of the whole citation is consequently, according to some commentators, said to be a Baraitha (v. Shittah Mekubbezeth). Tosaf. however (s.v. הכי) on the basis of an entirely different text, omits this passage.]
Talmud - Mas. Kethuboth 71b
with coloured garments'!1 - Here2 we are dealing with matters affecting their intimate relations.3 This explanation is satisfactory according to him who maintains that a husband may annul [vows on] matters affecting their intimate relations. - What, however, can be said [in explanation] according to him who maintains that a husband may not annul [such vows]? For it was stated:4 [As to vows on] matters affecting their intimate relations, R. Huna ruled: A husband may annul them; R. Adda b. Ahabah ruled: A husband may not annul them, for we do not find that a fox should die of the dust of his den!5 - The fact, however, is that we are here2 dealing with a case, for instance, where she made her marital intercourse dependent upon her use of adornments, by saying. 'The enjoyment of your intercourse shall be forbidden to me should I ever make use of any adornment.'6 [This explanation] is in agreement with a ruling of R. Kahana. For R. Kahana ruled, [If a woman said to her husband]. 'The enjoyment of my intercourse [shall be forbidden]7 to you', he may compel her to such intercourse;8 [if, however, she vowed,] 'The enjoyment of your intercourse [shall be forbidden]9 to me'10 he must annul [her vow]11 because no person is to be fed with a thing that is forbidden to him.12 But let her13 not adorn herself and consequently not be forbidden to him!14 - If so,15 she would be called, 'The ugly woman'.16 But then let her adorn herself and be forbidden [intercourse] either for two weeks, according to Beth Shammai17 or for one week according to Beth Hillel!'18 - These19 apply only to a case where he [the husband] has forbidden her by a vow [to have intercourse with him], because [in such circumstances] she thinks 'He may have been angry with me20 and will later21 calm down'.22 Here, however, since she has made the vow and he remained silent,23 she comes to the conclusion: 'Since he remained silent23 he must indeed hate me'.24
R. JOSE RULED: [THIS APPLIES] TO POOR WOMEN IF NO TIME LIMIT IS GIVEN. What is the TIME LIMIT?25 - Rab Judah citing Samuel replied: Twelve months.26 Rabbah b. Bar Hana citing R. Johanan replied: Ten years.26 R. Hisda citing Abimi replied: A festival;27 for28 the daughters of Israel adorn themselves on a festival.
AND TO RICH WOMEN [IF THE TIME LIMIT IS] THIRTY DAYS. Why just29 THIRTY DAYS? - Abaye replied: Because28 a prominent woman enjoys the scent of her cosmetics for thirty days.30
MISHNAH. IF A MAN FORBADE HIS WIFE31 BY VOW THAT SHE SHALL NOT GO TO HER FATHER'S HOUSE, AND HE32 LIVES WITH HER IN THE SAME TOWN, HE MAY KEEP [HER AS HIS WIFE, IF THE PROHIBITION WAS FOR] ONE MONTH; BUT IF FOR TWO MONTHS HE MUST DIVORCE HER AND GIVE HER ALSO THE KETHUBAH. WHERE HE, HOWEVER, LIVES IN ANOTHER TOWN, HE MAY KEEP [HER AS HIS WIFE, IF THE PROHIBITION WAS FOR] ONE FESTIVAL,33 [BUT IF FOR] THREE34 FESTIVALS, HE MUST DIVORCE HER AND GIVE HER ALSO HER KETHUBAH. IF A MAN FORBADE HIS WIFE BY VOW35 THAT SHE SHALL NOT VISIT A HOUSE OF MOURNING OR A HOUSE OF FEASTING, HE MUST DIVORCE HER AND GIVE HER ALSO HER KETHUBAH, BECAUSE THEREBY HE HAS CLOSED [PEOPLE'S DOORS] AGAINST HER. IF HE PLEADS, HOWEVER, [THAT HIS ACTION] WAS DUE TO SOME OTHER CAUSE36 HE IS PERMITTED [TO FORBID HER]. IF HE SAID TO HER: '[THERE SHALL BE NO VOW] PROVIDED THAT YOU TELL36 SO-AND-SO WHAT YOU HAVE TOLD ME' OR 'WHAT I HAVE TOLD YOU' OR 'THAT YOU SHALL FILL36 AND POUR OUT ON THE RUBBISH HEAP', HE MUST DIVORCE HER AND GIVE HER ALSO HER KETHUBAH.
GEMARA. This, surely, is self-contradictory. You said, HE MAY KEEP [HER AS HIS WIFE, IF THE PROHIBITION WAS FOR] ONE FESTIVAL, which implies that if it was for two festivals he must divorce her and give her also her kethubah. But read the concluding clause, [IF FOR] THREE FESTIVALS HE MUST DIVORCE HER AND GIVE HER ALSO HER KETHUBAH, from which it follows, does it not, that if it was for two only he may keep [her as his wife]?37 Abaye replied: The concluding clause refers to a priest's wife, and it represents the view of R. Judah.38 Rabbah b. 'Ulla said: There is no contradiction, for one39 refers to a woman who was anxious [to visit her parents home]40 and the other applies to one who was not anxious.41
Then42 was I in his eyes as one that found peace,43 R.44 Johanan45 interpreted: like a bride46 who was found faultless47 in the house of her father-in-law48 and she is anxious to go and tell of her success49 at her paternal home.50
And it shall be at that day, saith the Lord, that thou shalt call me Ishi,51 and shalt not call me Ba'ali,52 R. Johanan interpreted: Like a bride in the house of her father-in-law53 and not like a bride in her paternal home.54
IF A MAN FORBADE HIS WIFE BY VOW etc. One can well understand that in respect [of her prohibition to enter] A HOUSE OF FEASTING
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(1) Such vows only may be annulled by a husband. Now, in view of this ruling of R. Jose (v. supra n. 5), how could it be said that according to his opinion a husband may annul vows against the use of any adornments?
(2) In the case of adornments referred to by R. Jose in our Mishnah.
(3) Lit., 'things between him and her' (sc. husband and wife): a powder, for instance, for the removal of superfluous hair from unexposed parts of the body. A woman's abstention from the use of such kinds of cosmetics or adornments are regarded as things affecting their intimate relations and such vows may well be annulled by a husband, v. Ned. 79b.
(4) Ned. 81a.
(5) Proverb: i.e., one is not injured by an element to which one is accustomed. The husband being accustomed to his wife, cannot be harmed by her refusal to look after her body (as defined n. 8); 'pit' (Rashi) or 'rubble', 'loose ground' (Jast.). Since the intimate relations of husband and wife are not affected by such a vow, the husband has no right to invalidate them. How, then, can be be penalized in the case of the adornments spoken of in our Mishnah?
(6) The annulment of such a vow is within the right of a husband.
(7) By a vow.
(8) Because it is not within her power to make a vow against a duty that is incumbent upon her as a married woman.
(9) By a vow.
(10) Such a vow is within her power to make, since it relates to her own gratification.
(11) Though he is under no obligation to respect it.
(12) Cf. supra note 1.
(13) If according to R. Jose the only reason why a husband has the right to annul his wife's vows in connection with adornments (v. our Mishnah) is because she has made her marital intercourse dependent upon them.
(14) Why then is a husband entitled to annul such vows?
(15) If she were to dispense with her adornments.
(16) An insult which she would not be able to bear, and in consequence of which she would resume the use of adornments and thus affect her marital relationship. Cf. supra note 1.
(17) As in the case where a man forbade his wife by a vow to have intercourse with him (supra 61b).
(18) Why then has it been stated that HE MUST DIVORCE HER AND GIVE HER THE KETHUBAH forthwith?
(19) The respective rulings of Beth Shammai and Beth Hillel, which allow a certain period before a divorce can be enforced.
(20) When he made his vow.
(21) Lit., 'now'.
(22) And seek the help of an authority in obtaining its disallowance.
(23) And so confirmed it.
(24) She is, therefore, anxious to leave him at once. Hence the ruling in our Mishnah (cf. p. 443, n. 13).
(25) During which a wife must put up with the deprivation of her adornments, and be unable to demand a divorce.
(26) Only where the prohibition has been extended to a longer period can the husband be compelled to divorce his wife and to give her also her kethubah.
(27) I.e., until the major festival next to the day on which the vow was made. The major festivals are Passover, Pentecost and Tabernacles.
(28) Lit., 'for so'.
(29) Lit., 'what is the difference?'
(30) If, therefore, the prohibition imposed upon her by the vow is for less than that period, she does not suffer much by the deprivation of her cosmetics.
(31) He confirmed a vow she bad made to that effect. Though a husband has no right to impose such a vow upon his wife, be may confirm it by remaining silent when he hears that she has imposed such a vow upon herself; v. Num. XXX, 7ff; or, he vowed to abstain from his wife should she go to her father's house; cf. supra p. 433, n. 7.
(32) Her father. [Var. lec. 'IF THEY', v. Rashi].
(33) It was customary for daughters to visit their parents living in another town on the occasion of each major festival (v. p. 444. n. 7), and it was laid down that no hardship was involved if one such visit was omitted.
(34) The question of two is discussed infra.
(35) V. p. 444, n. 11.
(36) This is explained in the Gemara.
(37) How then are the two clauses to be reconciled?
(38) In the Mishnah supra 70a.
(39) Lit., 'here', the first clause which implies that if the prohibition is to last for two festivals the woman must be divorced and is to receive her kethubah.
(40) רדופה, pass. particip. Kal of רדף, 'to pursue', v. next note. In the first year of her married life a woman is anxious, as soon as the first festival after her marriage approaches, to pay a visit to her paternal home where she looks forward to the enjoyment of recounting her novel experi ences in her husband's home. If she is prevented by a vow from paying the visit at the first festival she must be given the opportunity of paying a visit not later than at the second festival. Hence if the vow is for the first two festivals, she is entitled to a divorce and to her kethubah also. (41) Where she is homesick and always longing to visit her parents, two festivals are considered a hardship. If she shews no such signs of homesickness there is no hardship involved unless the inhibition is for at least three festivals (Rashi). Tosaf. s.v. כאן explains differently: A woman who failed to visit her paternal home on the occasion of the first festival after her marriage is presumed to be fairly indifferent to such visits, and to be suffering no undue hardship by postponing her visit for another two festivals.
(42) Var. lec., according to Tosaf. 'for it is written, l'hen'.
(43) Cant. VIII, 10.
(44) Var. lec., according to Tosaf. 'and R.' etc.
(45) Var. lec 'Jonathan'.
(46) Sc. a woman in the first year of her married life.
(47) שלמה (lit.. 'whole', 'perfect') is of the same root as שלום (peace) in the text cited.
(48) Where she lives with her husband.
(49) Lit., 'her praise'
(50) Cf. supra p. 445, n. 8.
(51) אישי, 'my husband', analogous to אישות 'matrimony', the term implying that the marital union between the parties is complete.
(52) Hosea II, 18. בעלי signifies 'my master', or 'my husband' in the sense that the man is lord over his wife.
(53) I.e after her marriage when her union with her husband is complete. (V. supra n. 10).
(54) When her future husband is still her ba'al (master) and not her Ish (husband). Israel's relation to God, the prophet assures the people, will be intimate like that of the first mentioned bride and not cautious, reserved and uncertain like that of the latter.
Talmud - Mas. Kethuboth 72a
the reason, HE HAS CLOSED [PEOPLE'S DOORS] AGAINST HER, is applicable;1 what [point, however,] is there [in the reason,] HE HAS CLOSED [PEOPLE'S DOORS] AGAINST HER, in the case of A HOUSE OF MOURNING? - A Tanna taught: To-morrow she might die and no creature would mourn for her.2 Others read: And no creature would bury her.3
It was taught: R. Meir used to say: What is meant by the Scriptural text, it is better to go to the house of mourning than to go to the house of feasting. for that is the end of all men, and the living will lay it to his heart,4 what, [I say, is meant by] And the living will lay it5 to his heart? The matters relating to death. [Let him realize] that if a man mourns for other people others will also mourn for him; if he buries other people others will also bury him; if he lifts up [his voice to lament] for others, others will [lift up their voices to lament] for him; if he escorts others [to the grave] others will also escort him; if he carries others [to their last resting place] others will also carry him.
IF, HOWEVER, HE PLEADS [THAT HIS ACTION] WAS DUE TO SOME OTHER CAUSE HE IS PERMITTED. What is meant by SOME OTHER CAUSE? - Rab Judah citing Samuel replied: On account of dissolute men who frequent that place. Said R. Ashi: This applies only where [the place] has gained such a reputation; where, however, it has not gained such reputation it is not within the power of the husband [to veto it].6
IF HE SAID TO HER: '[THERE SHALL BE NO VOW] PROVIDED THAT YOU TELL [etc.].' [Why indeed] should she [not] tell it? - Rab Judah citing Samuel replied: [This refers to] abusive language.7
OR 'THAT YOU SHALL FILL AND POUR OUT ON THE RUBBISH HEAP'. [Why indeed] should she [not] do it? - Rab Judah citing Samuel replied: [Because the meaning of his request is] that she shall allow herself to be filled and then scatter it.8 In a Baraitha it was taught: [The man's request is] that she shall fill ten jars of water and empty them on to the rubbish heap. Now according to [the explanation] of Samuel one can well see the reason why HE MUST DIVORCE HER AND GIVE HER ALSO HER KETHUBAH; according to the Baraitha, however, [the difficulty arises] what matters it to her if she does it?9 - Rabbah b. Bar Hana citing R. Johanan replied: [She cannot be expected to do it] because she would appear like an imbecile.
R. Kahana stated: If a man placed his wife under a vow that she shall neither borrow nor lend a winnow, a sieve, a mill or an oven, he must divorce her and give her also her kethubah, because [should she fulfil the vow] he would give her a bad name among her neighbours. So it was also taught in a Baraitha: If a man placed his wife under a vow that she shall neither borrow nor lend a winnow, a sieve, a mill or an oven, he must divorce her and give her also her kethubah, because [should she comply with his desire] he would give her a bad name among her neighbours. Similarly if she vowed that she shall neither borrow nor lend a winnow, a sieve, a mill or an oven, or that she shall not weave beautiful garments for his children, she may be divorced without a kethubah, because [by acting on her wishes] she gives him a bad name among his neighbours.
MISHNAH. THESE ARE TO BE DIVORCED WITHOUT RECEIVING THEIR KETHUBAH: A WIFE WHO TRANSGRESSES THE LAW OF MOSES OR [ONE WHO TRANSGRESSES] JEWISH PRACTICE. AND WHAT IS [REGARDED AS A WIFE'S TRANSGRESSION AGAINST] THE LAW OF MOSES? FEEDING HER HUSBAND WITH UNTITHED FOOD,10 HAVING INTERCOURSE WITH HIM DURING THE PERIOD OF HER MENSTRUATION,11 NOT SETTING APART HER DOUGH OFFERING,12 OR MAKING VOWS AND NOT FULFILLING THEM.13 AND WHAT [IS DEEMED TO BE A WIFE'S TRANSGRESSION AGAINST] JEWISH PRACTICE? GOING OUT WITH UNCOVERED HEAD,14 SPINNING IN THE STREET15 OR CONVERSING WITH EVERY MAN. ABBA SAUL SAID: [SUCH TRANSGRESSIONS INCLUDE] ALSO THAT OF A WIFE WHO CURSES HER HUSBAND'S PARENTS IN HIS PRESENCE. R. TARFON SAID: ALSO ONE WHO SCREAMS. AND WHO IS REGARDED A SCREAMER? A WOMAN WHOSE VOICE CAN BE HEARD BY HER NEIGHBOURS WHEN SHE SPEAKS INSIDE HER HOUSE.16
GEMARA. FEEDING HER HUSBAND WITH UNTITHED FOOD. How are we to understand this? If the husband knows [the fact],17 let him abstain; if he does not know [it],17 how did he discover it? - [This ruling was] required in the case only where she told him, 'So-and-so the priest has ritually prepared for me the pile of grain',18 and he went and asked him and her statement was found to be untrue.
HAVING INTERCOURSE WITH HIM DURING THE PERIOD OF HER MENSTRUATION. How are we to understand this? If he was aware of her [condition] he could have abstained, if he was not aware [of it]19 he should still rely upon her, for R. Hinena b. Kahana stated in the name of Samuel: Whence is it deduced that the menstruant herself may [be relied upon to] count [correctly]?20 From the Scriptural statement, Then she shall number to herself21 seven days,22 'Lah means to herself.'23 - It was required in the case only where she said to her husband, 'So-and-so the sage told me that the blood was clean',24 and when her husband went and asked him it was found that her statement was untrue. If you prefer I might reply on the lines of a ruling of Rab Judah who said: If a woman was known25 among her neighbours to be a menstruant her husband26 is flogged on her account for [having intercourse with] a menstruant.27
NOT SETTING APART THE DOUGH OFFERING. How is this to be understood? If the husband was aware [of the fact] he should have abstained [from the food]; if he was not aware [of it at the time] how does he know it now? - [The ruling is to be understood as] required in the case only where she said to him. 'So-and-so the baker28 has ritually prepared the dough29 for me' and when the husband went and asked him her statement was found to be untrue.
OR MAKING VOWS AND NOT FULFILLING THEM; for the Master stated: One's children die on account of the sin of making vows,30 as it is said in Scripture. Suffer not thy mouth to cause thy flesh to sin etc. [wherefore should God be angry at thy voice, and destroy the work of thine hands];31 and what is the work of a man's hands? You must say: His sons and his daughters. R. Nahman32 said, [It33 may be inferred] from the following: In vain have I smitten your children;'34 'In vain' implies, on account of vain utterances.35
It was taught: R. Meir said, Any man who knows that his wife makes vows and does not fulfil them should impose vows upon her again. [You say] 'Should impose vows upon her [again]'? Whereby would he reform her?36 - But [say] he should provoke her again in order that she should make her vow in his presence37 and he would [thus be able to] annul it.38 They, however, said to him: No one can live with a serpent in the same basket.39
It was taught: R. Judah said. Any husband who knows that his wife does not [properly] set apart for him the dough offering should set it apart again after her. They, however, said to him: No one can live with a serpent in the same basket.40 He who taught it41 in connection with this case42 [would apply it] with even greater force to the other case;43 he, however, who taught it in connection with the other case [applies it to that case only]44 but [not to this one,42 because]45 it might sometimes happen that he would eat.46
AND WHAT [IS DEEMED TO BE A WIFE'S TRANSGRESSION AGAINST] JEWISH PRACTICE? GOING OUT WITH UNCOVERED HEAD. [Is not the prohibition against going out with] an uncovered head Pentateuchal;47 for it is written, And he shall uncover the woman's head,48 and this, it was taught at the school of R. Ishmael, was a warning to the daughters of Israel that they should not go out with uncovered49 head?50 - Pentateuchally
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(1) By the confirmation of such a vow he deprives her of social enjoyments and relaxation.
(2) As she had not participated in the mourning for others.
(3) סופדה v. Tosef. Keth. VII and cf. supra n. 1 mutatis mutandis. Aliter: 'And none will care for her' (Jast.) סופנה (rt. ספן 'to hide', or 'to care for').
(4) Eccl. VII, 2.
(5) Emphasis on it.
(6) Lit. 'not as if all (the power) is from him'.
(7) Lit., 'words of shame'.
(8) Euphemism for vigorous exercise after intercourse in order to prevent conception.
(9) Lit., 'let her do it'.
(10) V. Num. XVIII, 21ff.
(11) V. Lev. XVIII, 19.
(12) V. Num. XV, 19ff.
(13) V. Deut. XXIII, 22.
(14) Aliter: With hair loose or unbound.
(15) This is explained in the Gemara.
(16) This is explained in the Gemara.
(17) When the food is given to him.
(18) Sc. be has received his priestly dues. Asheri, Tur and Shulhan 'Aruk omit 'priest'. Any person, by setting apart the priestly and Levitical dues, might ritually prepare the grain.
(19) At the time.
(20) The prescribed number of the days of her uncleanness.
(21) לה.
(22) Lev. XV, 28.
(23) I.e., she may be implicitly trusted to count correctly. What need was there for the ruling in our Mishnah?
(24) That it was not menstrual.
(25) By her habit or the like.
(26) If he had intercourse with her after he had been duly cautioned.
(27) Kid. 80a. Our Mishnah would thus refer to a case where the neighbours informed the husband of the facts after the event.
(28) Lit., 'kneader'.
(29) I.e., he has duly set apart the dough offering.
(30) And not fulfilling them nor applying for their disallowance.
(31) Eccl. V, 5.
(32) Var., 'R. Nahman b. Isaac' (Shab. 32b).
(33) The penalty for the sin of vows.
(34) Jer. II, 30.
(35) Vows made but not fulfilled.
(36) The imposition of an additional vow would hardly induce her to fulfil her former vows or change her habits.
(37) ידירנה (Hif. of נדר) may bear this meaning, 'he shall cause her (by his provocation) to vow', as also the previously assumed meaning, 'he shall cause her to be under (sc. impose upon her) a vow'.
(38) And so avoid the necessity of divorcing her.
(39) Proverb; if it is the woman's habit to make vows and to break them it is practically impossible for her husband to be always on the look out to invalidate them. She would, despite all vigilance, manage to make vows of which he would remain ignorant. He is entitled, therefore, to insist on divorcing her.
(40) Cf. p. 450, n. 12 mutatis mutandis.
(41) R. Judah's ruling which aims at avoiding a divorce.
(42) The dough offering.
(43) Vows. A transgression in connection with these (which are not common) is much less likely than in connection with the dough offering which has to be given from every dough that is made. If, according to R. Judah, divorce should be avoided in the latter case how much more so in the former.
(44) Cf. supra n. 4.
(45) Owing to the frequency of bread baking.
(46) Bread, the dough offering from which had not been set apart. As one is more likely to commit a transgression in this case R. Judah would not seek to avoid a divorce.
(47) Why then is it here described as one of mere Jewish practice?
(48) Num. V. 18 (v. A.V.) R.V. and A.J.V. render 'And let the hair of the woman's head go loose'.
(49) Cf. supra n. 9.
(50) Why then was this described as traditional Jewish practice?
Talmud - Mas. Kethuboth 72b
it is quite satisfactory [if her head is covered by] her work-basket;1 according to traditional Jewish practice, however, she is forbidden [to go out uncovered] even with her basket [on her head].
R. Assi stated in the name of R. Johanan: With a basket [on her head a woman] is not guilty of2 [going about with] an uncovered head. In considering this statement, R. Zera pointed out this difficulty: Where [is the woman assumed to be]?3 If it be suggested, 'In the street', [it may be objected that this is already forbidden by] Jewish practice;4 but [if she is] in a court-yard3 [the objection may be made that] if that were so5 you will not leave our father Abraham a [single] daughter who could remain with her husband!6 - Abaye, or it might be said, R. Kahana, replied: [The statement refers to one who walks] from one courtyard into another by way of an alley.7
SPINNING IN THE STREET. Rab Judah stated in the name of Samuel: [The prohibition applies only] where she exposed her arms to the public. R. Hisda stated in the name of Abimi: [This applies only] where she spins rose [coloured materials, and holds them up] to her face.8
CONVERSING WITH EVERY MAN. Rab Judah stated in the name of Samuel: [This refers only to one] who jests with young men.
Rabbah b. Bar Hana related: I was once walking behind R. 'Ukba when I observed an Arab woman who was sitting, casting her spindle and spinning a rose [coloured material which she held up] to her face.9 When she saw us she detached the spindle [from the thread], threw it down and said to me, 'Young man, hand me my10 spindle'. Referring to her11 R. 'Ukba made a statement. What was that statement? - Rabina replied: He spoke of her as a woman SPINNING IN THE STREET. The Rabbis said: He spoke of her as one CONVERSING WITH EVERY MAN.
ABBA SAUL SAID: [SUCH TRANSGRESSIONS INCLUDE] ALSO THAT OF A WIFE WHO CURSES HER HUSBAND'S PARENTS IN HIS PRESENCE. Rab Judah said in the name of Samuel: [This9 includes also] one who curses his parents in the presence of his offspring;12 and your mnemonic sign13 is, Ephraim and Manasseh,14 even as Reuben and Simeon,15 shall be mine.16 Rabbah17 explained:18 When she said19 in the presence of her husband's son, 'May a lion devour your grandfather'.20
R. TARFON SAID: ALSO ONE WHO SCREAMS. What is meant by a screamer? - Rab Judah replied in the name of Samuel: One who speaks aloud21 on marital matters. In a Baraitha it was taught: [By screams was meant a wife] whose voice22 during her intercourse in one court can be heard in another court. But should not this, then,23 have been taught in the Mishnah24 among defects?25 - Clearly we must revert to the original explanation.26
MISHNAH. IF A MAN BETROTHED A WOMAN ON CONDITION THAT SHE WAS NOT SUBJECT TO ANY VOWS AND SHE WAS FOUND TO BE UNDER A VOW,27 HER BETROTHAL IS INVALID. IF HE MARRIED HER28 WITHOUT MAKING ANY CONDITIONS AND SHE WAS FOUND TO BE UNDER A VOW,27 SHE MAY BE DIVORCED WITHOUT RECEIVING HER KETHUBAH.
[IF A WOMAN WAS BETROTHED] ON CONDITION THAT SHE HAS NO BODILY DEFECTS, AND SHE WAS FOUND TO HAVE SUCH DEFECTS, HER BETROTHAL IS INVALID. IF HE MARRIED HER WITHOUT MAKING ANY CONDITIONS AND SHE WAS FOUND TO HAVE BODILY DEFECTS, SHE MAY BE DIVORCED WITH OUT A KETHUBAH. ALL DEFECTS WHICH DISQUALIFY PRIESTS29 DISQUALIFY WOMEN ALSO.30
GEMARA. We have [in fact] learned [the same Mishnah] also in [the Tractate] Kiddushin.31 [But] here32 [the laws]33 were required [in respect of] kethuboth,34 and the laws concerning betrothal35 were stated on account Of those of the kethubah; there36 the laws in respect of betrothal were required, and those concerning kethuboth33 were stated on account of those of betrothal.
R. Johanan said in the name of R. Simeon b. Jehozadak: They37 spoke only of the following vows. That she would not eat meat, that she would not drink wine or that she would not adorn herself with coloured garments. So it was also taught elsewhere: They spoke of such vows as involve an affliction of the soul, [namely,] that she would not eat meat, that she would not drink wine or that she would not adorn herself with coloured garments.
In dealing with this subject R. Papa raised this difficulty: What does it38 refer to? If it be suggested [that it refers] to the first clause39 [it might be retorted that] since the husband objects [to vows] even other kinds of vows40 Should also be included! - [It refers] only to the final clause.41 R. Ashi said: It may in fact refer to the first clause,39 but in respect of the vows to which people usually take exception42 his objection is valid;43 respect of vows to which people do not as a rule take exception his objection has no validity.
It was stated: If a man betrothed a woman on condition [that she was under no vow] and married her without attaching any conditions, it is necessary, Rab ruled, that she44 shall obtain from him a letter of divorce; and Samuel ruled: It is not necessary for her to obtain a letter of divorce from him.45 Said Abaye:
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(1) קלתה or קלת calathus, 'a woven vase-shaped basket'.
(2) Lit., 'there is not in her'.
(3) When her head is covered by her basket only.
(4) Spoken of in our Mishnah. What need then was there for R. Johanan's statement?
(5) That otherwise the law of 'uncovered head' applies also in a court-yard.
(6) Since all married women go about in their court-yards with uncovered heads.
(7) Into which the two courts open out. An alley, since fewer people frequent it, would not have been included in the restrictions spoken of in our Mishnah in respect of a public street, yet it is not considered sufficiently private to allow the woman to go about there with 'uncovered head'. Hence the necessity for the specific ruling of R. Johanan.
(8) That it might reflect the rose colour. ורד 'rose'. (V. Tosaf s.v. בטװה). Aliter: 'Spins with a rose in her hair', reading װרד 'and a rose' (Maim.). Aliter: 'Spins with the thread lowered in front of her face' (euphemism), reading ורד rt. רדד, 'to flatten', 'lower' (Rashi). Var. lec. ויורד (rt. ירד) 'to go down', 'descend' (cf. Jast. and Golds.).
(9) Cf. supra n. 4.
(10) Reading פלכאי (Aruch). Cur. edd., פלך.
(11) Lit., 'on her' or 'it'. (8) The expression המקללת...בפניו, WHO CURSES. . . . IN HIS PRESENCE.
(12) MS.M. יולדיו בפני מולדיו; Cur. edd. יולידיו בפני מולידיו.
(13) To aid in the recollection that one's offspring is like oneself.
(14) Jacob's grandchildren.
(15) His own children.
(16) Gen. XLVIII, 5.
(17) Var., 'Raba'.
(18) The cursing of which Samuel spoke.
(19) [V. Tosaf. s.v. יולידיו; cur. edd. add 'to him'].
(20) V. Rashi, and Tosaf. loc. cit.
(21) Lit., 'makes her voice heard'.
(22) Her screams of pain caused by the copulation.
(23) Since her screaming is due to a bodily defect.
(24) Infra 77a.
(25) Of course it should. Such a case in our Mishnah is out of place.
(26) That given in the name of Samuel.
(27) Lit., and vows were found upon her'.
(28) Lit., 'he took her, in (his house)'. It will be explained infra whether this does or does not refer to the preceding case.
(29) From the Temple service (cf. Lev. XXI, 17ff).
(30) From marriage. If such a woman married she may be divorced without a kethubah.
(31) In Kid. 50a.
(32) Since our tractate is dealing with the laws of kethubah.
(33) DIVORCED WITHOUT A KETHUBAH (bis).
(34) Plural of kethubah.
(35) HER BETROTHAL IS INVALID.
(36) In the tractate of Kid. 50a.
(37) The Rabbis in our Mishnah.
(38) The definition of vows given in the name of R. Simeon b. Jehozadak.
(39) Where the husband explicitly expressed his objection to betroth a woman who was under a vow.
(40) Lit., 'all words', 'things'.
(41) Where the husband had made no conditions.
(42) Such as those mentioned in R. Simeon b. Jehozadak's definition.
(43) And the betrothal, therefore, is invalid.
(44) If it was found that she was under a vow, and the man consequently refuses to live with her.
(45) Cf. Yeb. 110a.
Talmud - Mas. Kethuboth 73a
It must not be suggested that Rab's reason1 is that, because the man has married her without attaching any conditions, he has entirely dispensed with his former condition.2 Rab's reason rather is that no man treats his intercourse as a mere act of prostitution.3
Surely they4 once disputed on such a principle.5 For it was stated: Where [an orphan] minor6 who did not7 exercise her right of mi'un8 and who, when she came of age, left9 [her husband]10 and married [another man], Rab ruled: She requires no letter of divorce from her second husband,11 and Samuel ruled: She requires a letter of divorce from her second husband!12 - [Both disputes were] necessary. For if the latter13 only had been stated, it might have been assumed that Rab adhered to his opinion14 in that case only because no condition was attached [to the betrothal],15 but that in the former case,16 where a condition was attached [to the betrothal],17 he agrees with Samuel.18 And if the former case16 only had been stated, it might have been assumed that in that case only19 did Samuel maintain his view20 but that in the latter13 he agrees with Rab.21 [Hence both were] required.
We have learned: IF HE MARRIED HER WITHOUT MAKING ANY CONDITION AND SHE WAS FOUND TO BE UNDER A VOW, SHE MAY BE DIVORCED WITHOUT RECEIVING HER KETHUBAH [which22 implies that] it is only her kethubah that she cannot claim but that she nevertheless requires a letter of divorce. Now does not this23 refer to one who has betrothed a woman on condition [that she was under no vow]24 and married her without making any condition?25 This then26 represents an objection against Samuel!27 [
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(1) For regarding the marriage as valid.
(2) And consequently he must not only divorce her but must give her her kethubah also.
(3) The consummation of the marriage was, therefore, a legal act necessitating a divorce for its annulment. In respect of the monetary obligation, however, the man still adheres to his original condition which she did not fulfil, and be cannot consequently be expected to give her also her kethubah.
(4) Rab and Samuel.
(5) I.e., whether intercourse after a conditional betrothal (the case spoken of supra 72b), or a legally imperfect marriage or betrothal (the case cited infra from Yeb. 109b) has the force of a valid and proper marriage to require the divorce for its annulment.
(6) Who was given in marriage by her mother or brothers.
(7) While she was still in her minority.
(8) V. Glos.
(9) Lit., 'stood up'.
(10) With whom she had intercourse after she had come of age.
(11) Because, according to Rab, her second marriage was null and void owing to the kinyan (v. Glos.) effected by the intercourse of the first husband when she came of age. (V. supra n. 12). Being well aware that the original marriage which took place during the woman's minority had no legal force, the man is presumed to have intended his intercourse after she had attained her majority to effect the required legal kinyan of marriage.
(12) Yeb. 109b; because any act of intercourse on the part of the first husband, even after the woman had attained her majority, was carried out in reliance on the original betrothal which, having taken place while she was a minor, had no validity. Her betrothal to the second is, therefore, valid and must be annulled by a proper divorce. Though it may be added, Samuel admits that she is prohibited to the second husband, having regard to the fact that she did not exercise her right until she reached her majority (v. Nid. 52a). This prohibition is nevertheless only Rabbinical and consequently has no bearing on the question of the divorce, the purpose of which is to sever a union which is Pentateuchally binding. According to Rab, however, (v. supra p. 455, n. 13) the prohibition of the woman to her second husband is not merely Rabbinical but is, in fact, Pentateuchal. Why then should Rab and Samuel dispute on the same principle twice?
(13) Lit., 'that', the dispute in the case of the minor, cited from Yeb. 109b.
(14) That the intercourse of the first husband is regarded as a kinyan.
(15) And the husband may, therefore, be presumed to be anxious to give to the union all the necessary validity of a proper marriage (cf. supra p. 455, n. 13).
(16) That stated supra 72b.
(17) And the husband naturally believes that the woman, since she consented to the marriage, was in a position to fulfil it.
(18) That, as it never occurred to the husband (v. supra n. 5) that his original betrothal was in any way invalid, and as he did not, therefore, betroth her by subsequent cohabitation, no divorce is required.
(19) Since a condition was attached to the original betrothal.
(20) That the marriage, owing to its dependence on the original condition, is invalid.
(21) That, since no conditions were made, the intercourse of the first husband after her attaining majority has the validity of a kinyan, and no divorce from the second is required.
(22) Since the kethubah was excluded and not the letter of divorce.
(23) The second clause of our Mishnah.
(24) I.e., the case spoken of in the first and previous clause, the second clause of the Mishnah being dependent on the first.
(25) Which is the case in dispute between Rab and Samuel.
(26) The answer being apparently in the affirmative, and the implication being that a divorce is required.
(27) Who ruled (supra 72b ad. fin.) that no divorce is necessary.
Talmud - Mas. Kethuboth 73b
- No; [this1 refers to one who] betrothed her without attaching a condition and also married her without attaching a condition.2 If, however, one betrothed a woman on a certain condition and subsequently married her without attaching a condition would she, [according to our Mishnah], indeed3 require no divorce?4 If so, then, instead of stating, IF A MAN BETROTHED A WOMAN ON THE CONDITION THAT SHE WAS NOT SUBJECT TO ANY VOWS AND SHE WAS FOUND TO BE UNDER A VOW, HER BETROTHAL IS INVALID,5 it should rather have been stated: If a man married a woman without attaching a condition and she was found to be under a vow, her betrothal is invalid, and [it would be evident, would it not, that this6 applies] even more so to the former?7 - It is really this reading that was meant:8 IF A MAN BETROTHED A WOMAN ON THE CONDITION THAT SHE WAS NOT SUBJECT TO ANY VOWS, and then he married her without making any conditions, AND SHE WAS FOUND TO BE UNDER A VOW, HER BETROTHAL IS INVALID; if, however, he betrothed her without making any conditions and also MARRIED HER WITHOUT MAKING ANY CONDITIONS, SHE MAY BE DIVORCED WITHOUT RECEIVING HER KETHUBAH; it is only her kethubah that she cannot claim but it is necessary for her to obtain a divorce. But why has she no claim to her kethubah? Because, [apparently], he9 could plead, 'I do not want a wife that is in the habit of making vows',10 but if that is the case there should be no need for her to obtain a divorce either!11 - Rabbah replied: It is only according to Rabbinical law that she requires a divorce. So also said R. Hisda: It is only in accordance with the Rabbinical law that she requires a divorce. Raba replied: The Tanna12 was really in doubt.13 [Hence he adopted] the lenient view in monetary matters14 and the stricter one15 in the case of prohibitions.16
Rabbah stated: They17 differ only in the case of an error18 [affecting] two women,19 but where an error [affects] one woman20 all agree21 that she requires no divorce from him.22 Said Abaye:23 But our Mishnah, surely, is one which [has been assumed24 to refer to] an error [affecting] one woman but was nevertheless adduced as an objection!25 If, however, such a statement was made at all it must have been made in this form: Rabbah stated: They26 differ only in the case of an error [affecting] a woman [who is in a position] similar [to that of one of] two women,27 but in the case of an error [affecting] merely one woman28 all agree29 that she requires no divorce from him.30
Abaye raised an objection against him:31 If a man betrothed a woman in error32 or [with something worth] less than a perutah,33 and, similarly, if a minor betrothed a woman, even if any [of them] has subsequently sent presents34 [to the woman], her betrothal is invalid,35 because he has sent these gifts on account of the original betrothal.36 If, however, they37 had intercourse they have thereby effected legal kinyan. R. Simeon b. Judah in the name of R. Ishmael said: Even if they had intercourse they effect no kinyan.38 Now here, surely, it is an error [affecting] only one woman and they39 nevertheless differ. Would you not [admit that by 'error' is meant] an error in respect of vows?40 - No; [what was meant is] an error in respect of that which was worth less than a perutah.41 - But was not 'less than than a perutah' explicitly mentioned: 'If a man betrothed a woman in error or [with something worth] less than a perutah'?42 - [The latter part is] really an explanation [of the former:] What is meant by 'If a man betrothed a woman in error'? If, for instance, he betrothed her with 'something worth less than 'a perutah'.
On what principle do they43 differ?44 - One Master45 holds the view that everyone is aware that with less than the value of a perutah no betrothal can be effected, and consequently any man having intercourse [after such an invalid act] determines [to do so] for the purpose of betrothal. The other Master,46 however, holds the view that not everyone is aware that with less than the value of a perutah no betrothal can be effected, and when a man has intercourse [after such an act47 he does so] in reliance on his first betrothal.48
He raised [another] objection against him:49 [If a man said to a woman,] 'I am having intercourse with you on the condition that my father will consent',50 she is betrothed to him even if his father did not consent. R. Simeon b. Judah, however, stated in the name of R. Simeon, If his father consented she is betrothed but if his father did not consent she is not betrothed.51 Now here, surely, it is a case similar to that of an error affecting one woman52 and they53 nevertheless differ!54 - They differ in this case55 on the following points.56 One Master57 holds the opinion that [the expression] 'On the condition that my father consents' implies, 'On condition that my father will remain silent', and [the betrothal is valid] because, surely, his father remained silent. And the other Master58 holds the opinion [that the meaning of the expression is] that his father will say, 'yes', and [the betrothal is invalid] because his father in fact did not say, 'yes'.
He raised [a further] objection against him.59 The Sages agree with R. Eliezer60 in respect of a minor whom her father had given in marriage and who was divorced,61 [in consequence of which] she is regarded as an 'orphan' in her father's lifetime,62 and who was then remarried,63 that she must perform halizah64 but may not65 contract the levirate marriage because her divorce was a perfectly legal divorce,66 but her remarriage was not a perfectly legal remarriage.67 This,68 however, applies only where he69 divorced her while she was a minor70 and remarried her while she was still a minor;71 but if he72 divorced her while she was a minor73 and remarried her while she was still a minor and she became of age while she was still with him, and then he died,74 she must either perform halizah or contract the levirate marriage.75
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(1) The second clause of our Mishnah.
(2) I.e., the second clause of our Mishnah is not dependent on the first one.
(3) Lit., 'thus'.
(4) This would seem to follow from the interpretation of our Mishnah just advanced on behalf of Samuel.
(5) A form of expression which, omitting all reference to marriage, might imply that if she was subsequently married unconditionally a divorce is required.
(6) That the betrothal is invalid and that consequently no divorce is required.
(7) The case enunciated in the present form of our Mishnah where the betrothal was not followed by marriage.
(8) Lit., 'thus also he said'.
(9) Should be be ordered to pay the kethubah.
(10) And her betrothal is, therefore, invalid as if the man had advanced such a plea at the actual time of the betrothal.
(11) Cf. p. 457, n. 10. Rab's view that 'no man treats his intercourse as a mere act of prostitution' (supra 73a) cannot be advanced here in reply, since Samuel, whose views are the subject of the present discussion, does not admit it.
(12) Of our Mishnah.
(13) As to 'whether the presumption that, as a rule, one does not want to live with a wife who is in the habit of making vows is sufficient reason for regarding the betrothal of such a woman as null and void.
(14) I.e., the kethubah. As the woman's claim to it is of a doubtful nature, her husband who is the possessor of the money cannot be made to pay it.
(15) That a divorce is necessary if she wishes to remarry.
(16) It is forbidden to live with another man's wife.
(17) Rab and Samuel, supra 72b, ad fin.
(18) I.e., the man believed that the woman was under no vow while in fact she was.
(19) The first of whom a man betrothed on the condition that she was under no vow and the second of whom he afterwards married without making any condition and subsequently found that she was under a vow. Samuel regards the non-conditional marriage of the second as invalid because the man is presumed to have married her on the same condition as that on which he betrothed the first. Rab, however, maintains that it is quite possible that the man was so attracted by the second woman that he was willing to dispense with his terms.
(20) Whom the man betrothed on a certain condition and afterwards married without making any condition.
(21) Even Rab.
(22) Since the man has made it clear at the betrothal that he objected to live with her if she were encumbered with any vows.
(23) Rashal deletes 'to him', which appears in brackets in cur. edd.
(24) Supra 73a ad fin.
(25) Against Samuel (l.c.); which shews, contrary to Rabbah's assumption, that even in the case of a mistake in respect of one woman, some authorities maintain that a divorce is required.
(26) Rab and Samuel, supra 72b ad fin.
(27) One, for instance, who was betrothed on a certain condition, was then divorced and subsequently married with no condition. In such a case Rab maintains that a divorce is required as in the case of the second woman where two women were involved (cf. supra p. 458, n. 9), while Samuel maintains that no divorce is required because the man's condition at the betrothal is regarded as a permanent declaration that he would not live with a woman who was in the habit of making vows and, since this condition renders the marriage null and void, no divorce is required to annul such a marriage.
(28) I.e., one whose marriage had followed her betrothal, and no divorce had intervened, so that the man may well be presumed to have consummated marriage on the same terms as those he laid down at the betrothal.
(29) Even Rab.
(30) In raising the objection against Samuel supra our Mishnah was assumed to deal with 'a woman who was in a position similar to that of two women' (cf. supra n. 1).
(31) Rabbah.
(32) This, at present, is presumed to mean that the woman was under a vow and the man was at the time unaware of it.
(33) V. Glos.
(34) Sablonoth; v. Kid. Sonc. ed. p. 254, n. 4.
(35) Although the presents, if specifically given as a token of betrothal, would effect a valid kinyan of betrothal.
(36) And since that betrothal is invalid the gifts cannot effect the necessary kinyan.
(37) Any of those mentioned whose betrothal is invalid.
(38) Tosef. Kid. IV.
(39) R. Ishmael and the first Tanna.
(40) Cf. supra note 6. This proves that one authority at least (viz. the first Tanna) regards a non-conditional marriage as valid though it followed a conditional betrothal. How then could Rabbah maintain, according to the second version, that in such a case all agree that, as the marriage is invalid, no divorce is required.
(41) The man, at the time of betrothal, having been under the erroneous impression that kinyan may be effected by such an insignificant sum. Since this law is generally known it may well be presumed that subsequent intercourse was intended as kinyan. In the case of an error in respect of vows, however, subsequent intercourse cannot alter the invalidity of the betrothal since during the performance of the latter act the man may still have been under the impression that his wife was not restricted by any vow. The general opinion, therefore, is, Rabbah may well maintain, that no divorce is in this case required.
(42) Is it likely that the same law should be repeated in the same context?
(43) R. Ishmael and the first Tanna.
(44) On the previous assumption (that the 'error' referred to the conditional betrothal of a woman who was under a vow) the principles underlying this dispute might be those upheld supra by Rab and Samuel respectively. On the present assumption, however, (that be 'error' refers to a betrothal attempted with less than a perutah) the difficulty arises (cf. supra note 1) 'on what principles do they differ?' sc. how could R. Ishmael maintain his view that 'even if they had cohabited they effect no kinyan'?
(45) The first Tanna.
(46) R. Ishmael.
(47) Which be believes to be a valid betrothal.
(48) Which was in fact invalid and in consequence of which the cohabitation constitutes no kinyan.
(49) Rabbah.
(50) To the union.
(51) Git. 25b.
(52) Since in both cases a condition was attached to the betrothal, merely one woman is involved, and no divorce intervened between betrothal and intercourse.
(53) R. Simeon and the first Tanna.
(54) R. Simeon maintaining that the intercourse is a valid kinyan, and a divorce is consequently required. How then (cf. supra p. 459, n. 14 mutatis mutandis) could Rabbah assert that in such a case all agree that no divorce is necessary?
(55) Lit., 'there'.
(56) Not on the principle underlying Rabbah's assertion.
(57) The first Tanna.
(58) R. Simeon.
(59) Rabbah.
(60) The reading in the parallel passage, Yeb. 109a, is 'Eleazar'.
(61) Her father having received the letter of divorce on her behalf.
(62) Like an orphan, she has no father to give her away in marriage, because though alive be has lost his right to do so after he has given her in marriage once.
(63) Lit., 'he (the first husband from whom she was divorced) married her again'. While she was still in her minority when her actions have no legal validity.
(64) V. Glos.
(65) If her husband died childless and was survived by a brother.
(66) And as the divorcee of his brother she is forbidden to the levir under the penalty of kareth (v. Glos.).
(67) Cf. supra n. 13.
(68) That the Sages admit that the minor in question may not contract the levirate marriage.
(69) Her first husband.
(70) The validity of the divorce being due to the fact that her father has accepted the letter of divorce on her behalf.
(71) When neither she nor her father (cf. supra p. 461, n. 12) had the right to contract the marriage; and her husband died while she was still in her minority so that no intercourse at all had taken place when she came of age.
(72) Her first husband.
(73) V. p. 461, n. 20.
(74) So that it was possible for intercourse to take place when she was already in her majority.
(75) Because the act of intercourse after she had come of age constituted a legal kinyan of marriage, and she became thereby the legally married wife of the deceased.
Talmud - Mas. Kethuboth 74a
In the name of R. Eliezer,1 however, it was stated: She2 must perform halizah but may not contract the levirate marriage.3 Now, here,4 surely, it is a case similar to that of an error5 affecting merely one woman and they6 nevertheless differ!7 - In that case8 also [it may be said that]9 they6 differ on the following principles.10 One Master11 maintains that everyone is aware that there is no validity in the betrothal of a minor and, consequently, any man having intercourse [after such an invalid act] determines that his intercourse shall serve the purpose of a betrothal.12 The other Master,13 however, maintains that not everyone is aware that there is no validity in the betrothal of a minor, and when a man has intercourse [after such an act14 he does so] in reliance on his original betrothal.15
[So]16 it was also stated: R. Aha b. Jacob stated in the name of R. Johanan. If a man betrothed a woman on a certain condition and then had intercourse with her, she,17 it is the opinion of all, requires no letter of divorce from him.
R. Aha the son of R. Ika, his18 sister's son19 raised an objection against him: A halizah under a false pretext20 is valid; and what is 'a halizah under a false pretext'? Resh Lakish explained: Where a levir is told, 'Submit to her halizah and you will thereby wed her'. Said R. Johanan to him:21 I am in the habit of repeating [a Baraitha,] 'Whether he22 had the intention23 [of performing the commandment of halizah] and she had no such intention, or whether she had such intention and he had not, her halizah is invalid, it being necessary24 that both shall [at the same time] have such intention', and you say that her halizah is valid?25 But, said R. Johanan, [this is the meaning:]26 When a levir is told, 'Submit to her halizah on the con dition that she gives you two hundred zuz'.27 Thus28 it clearly follows that as soon as a man has performed an act29 he has thereby dispensed with his condition, [why then should it not be said] here also that as soon as the man has intercourse he has thereby dispensed with his condition?30 - The other replied: Young hopeful,31 do you speak sensibly?32 Consider: Whence do we derive [the law of the validity of] any condition? [Obviously] from the condition in respect of the sons of Gad and the sons of Reuben;33 [hence it is only] a condition that may be carried out through an agent, as was the case there,34 that is regarded as a valid condition; but one which cannot be carried out through an agent,35 as was the case there, is not regarded as a valid condition.36 But is not intercourse37 an act which cannot be performed through an agent as was the case there34 and yet a condition in connection with it is valid?38 - The reason39 there is because the various forms of betrothal40 were compared to one another.41 R.'Ulla b. Abba in the name of 'Ulla in the name of R. Eleazar stated: If a man betrothed a woman by a loan42 and then had intercourse with her, or on a certain condition43 and then had intercourse with her, or with less than the value of a perutah44 and then had intercourse with her, she,45 it is the opinion of all, requires from him a letter of divorce.46
R. Joseph b. Abba, in the name of R. Menahem in the name of R. Ammi stated: If a man betrothed a woman with something worth less than a perutah and then had intercourse with her, she45 requires a letter of divorce from him.46 It is only in this case47 that no one could be mistaken,48 but in the case of the others49 a man may be mistaken.50
R. Kahana stated in the name of 'Ulla: If a man betrothed a woman on a certain condition43 and then had intercourse with her, she45 requires a divorce from him.46 Such a case once occurred and the Sages could find no legal ground51 for releasing the woman without a letter of divorce. [This is meant] to exclude [the ruling] of the following Tanna. For Rab Judah stated in the name of Samuel in the name of R. Ishmael: And she be not seized52 [only then53 is she] forbidden;54 if, however, she was seized55 she is permitted.54 There is, however, another [kind of woman] who is permitted54 even though she was not seized.56 And who is she? A woman whose betrothal was a mistaken one57 and who may, even if her son sits riding on her shoulder,
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(1) V. supra p. 461, n. 10.
(2) Whom the first husband remarried 'while she was still a minor and she came of age while she was with him, and then be died' (cf. Rashi, second version, s.v. ה ג a.l.). Aliter: Even if she was remarried after she came of age, or was divorced and remarried after she came of age, R. Eliezer's reason being that preventive measures were necessary against the possibility of erroneously allowing one who was an 'orphan in the lifetime of her father' to contract levirate marriage. If the former interpretation is adopted the author of the Baraitha here cited would be in disagreement with the one in Yeb. 109a (v. Rashi l.c.); if the latter interpretation is adopted, the reading of cur. edd. infra is to be emended (v. infra note 14).
(3) V. Yeb. 109a where this passage occurs with some slight variations.
(4) Where remarriage took place 'while she was still a minor and she came of age while she was with him'.
(5) The error of believing the betrothal of the minor to be valid.
(6) The Sages and R. Eliezer.
(7) The Sages maintaining that levirate marriage may be contracted; which proves that the intercourse that took place when she was of age is regarded as a valid kinyan. As the same principle applies also to the case of error in respect of a woman under a vow (supra) an objection arises against Rabbah (cf. supra p. 459, n. 14).
(8) Lit., 'there'.
(9) If the second interpretation (supra note 7) is adopted the reading is to be emended to: Every one knows that the betrothal of a minor is invalid, but where one betrothed a woman on a certain condition and then had intercourse he does so in reliance on this condition (v. Rashi).
(10) Not on the one underlying the case of which Rabbah spoke.
(11) The view expressed by the Sages.
(12) Hence the validity of the marriage and the permissibility of a levirate marriage.
(13) R. Eliezer.
(14) Which be believes to be a valid betrothal.
(15) Which in fact was invalid. Hence the invalidity of the marriage etc. (cf. supra note 1).
(16) In agreement with Rabbah who stated (supra 73b) that 'in the case of an error affecting merely one woman all agree that she requires no divorce from him'.
(17) If the condition has not been fulfilled.
(18) R. Aba b. Jacob's.
(19) MS.M. reads 'son of the sister of Resh Lakish'.
(20) מוטעת (rt. טעה, Hof'al.) lit., 'misled'.
(21) Resh Lakish. Cur. edd. omit 'to him' which is the reading of MS.M.
(22) The levir.
(23) When be submitted to halizah.
(24) Lit., 'until'.
(25) If the levir, according to the interpretation of Resh Lakish, performed the halizah in order to effect thereby a kinyan of marriage, he obviously did not intend to perform the commandment of halizah the very purpose of which is not the union of the woman with, but her separation from, the levir. And, since there was no intention to perform the commandment, how could such a halizah be valid?
(26) Of 'a halizah under a false pretext'.
(27) V. Glos. Even if the promised sum was not paid to the levir the halizah is nevertheless valid. Tosef. Yeb. XII, Yeb. 106a.
(28) Since the non-fulfilment of the condition does not invalidate the halizah.
(29) [Without emphasizing at the time that he does so in reliance on the condition (v. Tosaf.).]
(30) And the woman should, therefore, become his lawful wife. How then could R. Aha b. Jacob maintain in the name of R. Johanan that a betrothal, on a certain condition that has not been fulfilled, is invalid and no divorce is required even if intercourse followed the betrothal?
(31) Lit., 'son of the school house'.
(32) Lit., 'beautiful'.
(33) V. Num. XXXII, 29, 30 and Kid. 61a.
(34) Moses instructed Joshua to act, so to speak, as his agent in carrying out the condition he had made (v. Num. XXXII, 28ff).
(35) Halizah, for instance. The levir cannot instruct an agent to submit to halizah on his behalf when the sum promised shall have been handed to him.
(36) As the condition is null and void the act of halizah remains valid despite the unfulfilled condition. Where, however, the condition was valid, as in the case of the betrothal spoken of by R. Aha b. Jacob, the non-fulfilment of the condition renders the betrothal null and void and no subsequent intercourse can be regarded as an annulment of the condition and confirmation of the betrothal.
(37) When it was intended as a kinyan of marriage.
(38) As was stated in the passage quoted from Git. 25b (supra 73b).
(39) For the validity of the condition.
(40) הויות (rt. היה) lit., 'beings'. 'becomings'. היה is the rt. of והיתה (Deut. XXIV, 2), and she becometh . . . wife. A woman may become a man's wife either by receiving from him (a) money (or its equivalent in kind) or (b) a deed or (c) by cohabitation (Kid. 2a).
(41) As a condition in connection with (a) and (b) (which may be performed through an agent) is valid, so also is one in connection with (c).
(42) Which she owed him. Such betrothal is invalid because loaned money may be spent, while a betrothal cannot be valid unless money or its equivalent (v. p, 464, n. 15) was actually given to the woman at the time of the betrothal (v. Kid. 6b).
(43) Which was not fulfilled.
(44) V. Glos. The minimum sum for a betrothal to be valid is a perutah.
(45) If the union is to be dissolved.
(46) Because a man, it is assumed, would not allow his intercourse to deteriorate into a mere act of prostitution.
(47) Betrothal with less than a perutah.
(48) That the betrothal was valid. Knowing his act to be invalid be determines to effect the kinyan of the marriage through his subsequent intercourse. Hence the necessity for a divorce to dissolve it.
(49) Betrothal by a loan or on a certain condition, spoken of supra in the name of R. Eleazar.
(50) He might be under the impression that a loan may effect a valid betrothal or that the condition he had made had been fulfilled. As his intercourse would consequently be based on his erroneous presumption of the validity of the betrothal the union would have no validity and, contrary to the view expressed in the name of R. Eleazar (v. supra n. 8), no divorce to dissolve it would be required.
(51) Lit., 'there was no power'.
(52) Num. V, 13, E.V., neither she be taken in the act.
(53) Only if she was 'not seized', i.e., she did not act under compulsion but willingly (cf. Yeb. 56b).
(54) To her husband.
(55) I.e., if she acted under compulsion.
(56) Cf. supra n. 1.
(57) I.e., when a condition that was attached to it remained unfulfilled. In such a case the woman may leave her husband without a letter of divorce and is free to marry any other man.
Talmud - Mas. Kethuboth 74b
make a declaration of refusal1 [against her husband] and go away.2
Our Rabbis taught: If she3 went to a Sage [after her betrothal] and he disallowed her vow her betrothal is valid. [If one4 went] to a physician who cured her, her betrothal is invalid. What is the difference between the act of the Sage and that of the physician?5 - A Sage annuls6 the vow retrospectively7 while a physician effects the cure only from that moment onwards.8 But was it not, however, taught, [that if she9 went] to a Sage and he disallowed her vow or to a physician and he cured her, her betrothal is invalid?10 - Rabbah11 replied: There is no contradiction. The former12 represents the view of R. Meir; the latter13 represents that of R. Eleazar. 'The former represents the view of R. Meir', who holds that a man does not mind14 his wife's being exposed to the publicity15 of a court of law.16 'The latter represents that of R. Eleazar' who holds that no man wants his wife to be exposed to the publicity17 of a court of law.18 What is the source19 [of these statements]?20 - [The following] where we learned: If a man divorced his wife on account of a vow [she had made] he may not remarry her,21 nor may he remarry his wife [if he divorced her] on account of a had name.22 R. Judah ruled: In the case of a vow that was made in the presence of many people23 he may not remarry her,24 but if it was not made in the presence of many people he may remarry her.25 R. Meir ruled: In the case of a vow [the disallowance of which] necessitates the investigation of a Sage26 her husband may not remarry her,27 but if it does not require the investigation of a Sage28 he may remarry her.29 R. Eleazar said:30 The prohibition against [remarriage where the disallowance of the vow] required [the investigation of a Sage]31 was ordained only on account [of a vow] which requires [no such investigation].32
(What is R. Judah's reason?33 Because it is written in Scripture,
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(1) I.e., she requires no formal letter of divorce.
(2) V. supra 51b. The practical ruling of the Sages, as reported by R. Kahana in the name of 'Ulla, shews that the ruling of R. Ishmael was not adopted.
(3) The woman who was under a vow at the time of her betrothal.
(4) The woman who was afflicted with a bodily defect at the time of her betrothal.
(5) I.e., why is the betrothal valid in the case of the former and not in that of the latter?
(6) Lit., 'uproots'.
(7) So that the woman, at the time of her betrothal, was virtually under no vow. Hence the validity of the betrothal.
(8) Since the woman at the time of the betrothal was still suffering from her affliction the betrothal was effected under a false assumption and is therefore invalid.
(9) V. supra note 8.
(10) How is this statement to be reconciled with the previous one according to which disallowance of a vow by a Sage renders the preceding betrothal valid?
(11) V. Marg. glos. Cur. edd. , 'Raba'.
(12) The ruling that the betrothal is valid if a Sage disallowed the vow.
(13) That even where a Sage had disallowed the vow the betrothal is invalid.
(14) Lit., 'Is willing'.
(15) שתתבזה, lit., 'that she shall be disgraced'.
(16) By applying in person to the Sage for the disallowance of her vow. It is assumed, therefore, that a man has no objection to betrothing a woman who is under a vow, since she may subsequently apply to a Sage for a disallowance.
(17) V. p. 466, D. 20.
(18) Consequently, if he had known that she was under a vow he would not have betrothed her. Hence the invalidity of the betrothal.
(19) Lit., 'it'.
(20) Attributed to R. Meir and R. Eleazar respectively.
(21) Because, according to one opinion (v. Git. 45b), it is possible that after the woman had obtained from a Sage the disallowance of her vow and had married another man, her first husband might regret his action in divorcing her and, advancing the plea that he would not have divorced her had he known that her vow could be disallowed, might impair thereby the validity of her second marriage. By the enactment that 'he may not re-marry her' a husband is naturally induced to institute all the necessary enquiries and to consider very carefully his course before he decides upon divorce, and should he nevertheless divorce her and then plead that he was unaware that her vow could be disallowed, his plea might well be disregarded. According to another opinion (Git. l.c.) the prohibition to marry a woman in the circumstances mentioned is a penalty, and a warning to women to abstain from making vows.
(22) Immoral conduct. For the reason cf. supra note 6 mutatis mutandis. As a vow may be disallowed so may a bad name turn out to be unfounded, and the first husband might then try to impair the validity of the second marriage. According to the second opinion (v. supra note 6 ad fin.) the prohibition is a penalty for, and a warning against, lax morality and ill-reputed associations.
(23) Lit., 'of which many knew', cf. infra 75a ab init.
(24) Since such a vow can never be disallowed (v. infra p. 468, n. 6 and text). R. Judah adopts the second reason (supra note 6).
(25) Because, since the disallowance of such a vow is permitted, no penalty has been imposed upon the woman.
(26) I.e., if it is of the class of vows which a husband is not entitled to invalidate.
(27) R. Meir, maintaining that a husband does not mind his wife's being exposed to the publicity of a court of law forbids remarriage on account of the first reason supra p. 467, n. 6, since the first husband might plead that if he had known that the vow could be disallowed by a Sage he would not have consented to give a divorce.
(28) I.e., if the vow was of a class the invalidation of which is within the husband's rights.
(29) Because in this case the husband cannot advance the plea that the divorce was due to a misunderstanding (cf. supra p. 467, n. 6 and note 12).
(30) Cur. edd. insert in parentheses, 'Whether it requires or whether it does not require he may not remarry her' (cf. the reading in Git. 45b, Rashal and Asheri).
(31) V. p. 467, n. 11 .
(32) V. supra note 1. Since in the latter case the husband might plead that he was not aware that he had the right to disallow the vow. In the former case, however, no such plea can be advanced because no man would consent that his wife should be exposed to the publicity of a court of law. V. Git. 45b.
(33) For ruling that a vow that was made in public (v. supra p. 467, nn. 8 and 9) may not be disallowed.
Talmud - Mas. Kethuboth 75a
And the children of Israel smote them not, because the princes of the congregation had sworn unto them.1 And what is considered 'many'? R. Nahman b. Isaac said: Three [men]; [for the expression of] 'days'2 implies two [days] and 'many'2 three. R. Isaac replied: Ten; [for the term] congregation3 was applied to them.)4 [Now] 'R. Meir ruled: In the case of a vow [the disallowance of which] necessitates the investigation of a Sage he may not remarry her' [and] 'R. Eleazar said: The prohibition [against remarriage where the disallowance of the vow] required [the investigation of a Sage] was ordained only on account [of a vow] which required [no such investigation]'.5 on what principles do they6 differ? - R. Meir holds the view that 'a man does not mind his wife's being exposed to the publicity of a court of law' and R. Eleazar holds the view that 'no man wants his wife to be exposed to the publicity of a court of law'.7 Raba replied:8 Here9 we are dealing with the case of a woman from a noted family in which case the man10 could say,11 'I have no wish to be forbidden to marry her relatives'.12 If so,13 [consider] the final clause where it is stated, 'But if he14 went15 to a Sage who disallowed his vow or to a physician who cured him, his betrothal of the woman is valid', [why, it may be asked, was it not] stated, 'the betrothal is invalid' and16 explained,17 'Here we are dealing with the case of a man from a noted family concerning whom the woman18 might plead. 'I have no wish to be forbidden to marry his relatives'?19 - A woman is satisfied with any sort [of husband] as Resh Lakish said. For Resh Lakish stated: 'It is preferable to live in grief20 than to dwell in widowhood'.21 Abaye said: With a husband [of the size of an] ant her seat is placed among the great.22 R. Papa said: Though her husband be a carder23 she calls him to the threshold and sits down [at his side].24 R. Ashi said: Even if her husband is only a cabbage-head25 she requires no lentils26 for her pot.27
A Tanna taught: But all such women28 play the harlot and attribute the consequences29 to their husbands.
ALL DEFECTS WHICH DISQUALIFY etc. A Tanna taught: To these30 were added31 [excessive] perspiration, a mole and offensive breath.32 Do these, then, not cause a disqualification in respect of priests? Surely we have learned,33 'The old, the sick and the filthy'34 and we have also learned, 'These defects whether permanent or transitory, render human beings35 unfit [for the Temple service]!36 - R. Jose b. Hanina replied: This is no contradiction. The former refers to perspiration that can be removed;37 the latter, to perspiration that cannot be removed.38
R.Ashi said [in reply]: You are pointing out a contradiction between 'perspiration' and 'one who is filthy' [which in fact are not alike, for] there, in the case of priests,39 it is possible to remove the perspiration40 by the aid of sour wine, and it is also possible [to remove] an offensive breath by holding pepper in one's mouth and thus performing the Temple service, but in the case of a wife41 [such devices are for all practical purposes] impossible.42
What kind of a mole is here meant? If one overgrown with hair, it would cause disqualification in both cases; if one with no hair, [then, again], if it is a large one it causes disqualification in both cases43 and if it is a small one it causes no disqualification in either; for it was taught: A mole which is overgrown with hair is regarded as a bodily defect; if with no hair it is only deemed to be a bodily defect when large but when small it is no defect; and what is meant by large? R. Simeon b. Gamaliel explained: The size of an Italian issar!44 - R. Jose the son of R. Hanina said: One which is situated on her forehead.45 [If it was on] her forehead he46 must have seen it and acquiesced!47 - R. Papa replied: It is one that was situated under her bonnet and is sometimes exposed and sometimes not.
R. Hisda said: I heard the following statement from a great man
(And who is he? R. Shila). If a dog bit her48 and the spot of the bite turned into a scar [such a scar] is considered a bodily defect.
R. Hisda further stated: A harsh voice in a woman is a bodily defect; since it is said in Scripture, For sweet is thy voice, and thy countenance is comely.49
R. Nathan of Bira learnt: [The space] of one handbreadth between a woman's breasts.50 R. Aha the son of Raba intended to explain in the presence of R. Ashi [that this statement meant that '[the space of] a handbreadth' is to [a woman's] advantage,51 but R. Ashi said to him: This52 was taught in connection with bodily defects. And what space [is deemed normal]? Abaye replied: [A space of] three fingers.
It was taught: R. Nathan said, It is a bodily defect if a woman's breasts are bigger than those of others. By how much? - R. Meyasha the grandson of R. Joshua b. Levi replied in the name of R. Joshua b. Levi: By one handbreadth. Is such a deformity, however, possible?53 - Yes; for Rabbah b. Bar Hana related, I saw an Arab woman who flung her breasts over her back and nursed her child.
But54 of Zion it shall be said: 'This man and that55 was born in her; and the Most High Himself doth establish her;56 R. Meyasha, grandson of R. Joshua b. Levi, explained: Both57 he who was born therein and he who looks forward to seeing it.58
Said Abaye: And one of them59 is as good as two of us.60 Said Raba: When one of us, however, goes up there61 he is as good as two of them. For [you have the case of] R. Jeremiah who, while here,62 did not understand what the Rabbis were saying, but when he went up there he was able to refer to us as 'The stupid Babylonians'.63
MISHNAH. IF SHE64 WAS AFFLICTED WITH BODILY DEFECTS WHILE SHE WAS STILL IN HER FATHER'S HOUSE,65 HER FATHER66 MUST PRODUCE PROOF THAT THESE DEFECTS AROSE AFTER SHE HAD BEEN BETROTHED AND [THAT, CONSEQUENTLY, IT WAS THE] HUSBAND'S FIELD THAT WAS INUNDATED.67 IF SHE CAME UNDER THE AUTHORITY OF HER HUSBAND,68 THE HUSBAND69 MUST PRODUCE PROOF THAT THESE DEFECTS WERE UPON HER BEFORE SHE HAD BEEN BETROTHED AND [THAT CONSEQUENTLY] HIS BARGAIN WAS MADE IN ERROR. THIS IS THE RULING OF R. MEIR. THE SAGES, HOWEVER, RULED: THIS70 APPLIES ONLY TO CONCEALED BODILY DEFECTS;
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(1) Josh. IX, 28; the oath could not be annulled because it was taken in public.
(2) Referring to Lev. XV, 25. Cf. Nid. 73a.
(3) עדה (Josh. ibid.).
(4) And a congregation consists of not less than ten men.
(5) Cf. supra p. 467, nn. 11ff.
(6) R. Meir and R. Eleazar. Cf. supra p. 466, nn. 29ff.
(7) The source of the statements (v. supra p. 467, n-.5) has thus been shewn. For further notes on the passage v. Git. (Sonc. ed.) pp. 200ff.
(8) In explanation of the contradiction pointed out supra 74b.
(9) The second Baraitha which rules that the betrothal is invalid even if a Sage has disallowed the vow.
(10) Even according to R. Meir who maintains that a husband does not mind his wife's appearance before a court of law one may still be objecting to live with a wife who is restricted by a vow.
(11) In his desire to avoid a divorce and to obtain the retrospective annulment of his betrothal (v. following note).
(12) Her mother and sister who are forbidden to marry the man who divorced her. He may insist that he wishes to retain the privilege of marrying these women members of a noted family though he objected to the particular one who restricted herself by a vow. By obtaining the annulment of the betrothal he does not place his wife under the category of a divorcee and he retains, in consequence, the right of marrying her relatives. Hence the ruling (even according to R. Meir) that the betrothal is invalid.
(13) If Raba's explanation is to be accepted.
(14) A man who betrothed a woman on the condition that he was under no vow or that he suffered no bodily defects.
(15) After the betrothal
(16) In order to reconcile the two clauses.
(17) On the lines followed by Raba in the first clause.
(18) Cf. supra n. 3 mutatis mutandis.
(19) Cf. mutatis mutandis, supra nn. 4 and 5.
(20) Or 'together', 'as husband and wife'. V. following note.
(21) Yeb. 118b. This is a woman's maxim. She prefers a married life of unhappiness and misery to a happy and prosperous life in solitude. טן דו (adv.) 'with a load of grief', 'in trouble' (Jast.) Aliter: (Cf. supra n. 13) טן דו 'two bodies' (Rashi); 'two persons' (Levy).
(22) A woman's opinion of a married life (v. Yeb. l.c.). חראתא of חרתא, 'a free woman'.
(23) נפסא, 'flax-beater' (Rashi), a watchman of vegetables' (Aruch.), i.e., of a poor and humble occupation.
(24) To shew her friends that she is a married woman. She is proud to be in the company of a husband however humble his occupation and social status.
(25) קלוסא, i.e., 'dull', 'ugly' (v. Jast.): 'of a tainted family' (Rashi).
(26) I.e., even a cheap vegetable.
(27) A woman is content to dispense even with the cheapest enjoyments for the sake of a married life.
(28) Who marry the unlovely types enumerated.
(29) Lit., 'and hang on'.
(30) The defects that disqualify priests (v. Bek. 43a).
(31) In the case of women (v. our Mishnah).
(32) Lit., 'smell of the mouth'.
(33) In respect of defects that render animals unfit for the altar (Bek. 41a).
(34) Under which term, it is at present assumed, excessive perspiration and offensive breath are included.
(35) Sc. priests.
(36) Bek. 43a. How then could it be said supra that excessive perspiration and offensive breath are not included among those that disqualify a priest?
(37) By the application of water (v. Tosaf. s.v. כאן). Aliter: That may be cured (v. Tosaf. loc. cit.).
(38) Cf. supra n. 14 mutatis mutandis.
(39) Who were not described as 'filthy', but as suffering from excessive perspiration or offensive breath. R. Ashi, contrary to the previous assumption (v. supra note 11), draws a distinction between 'filthy' which implies a chronic state of the body and the two others which are only minor defects.
(40) Even if water could not remove it.
(41) With whom a husband is constantly in contact.
(42) Hence the ruling that even such minor defects render a betrothal invalid.
(43) Lit., 'here and here', in the case of a priest and in that of a wife.
(44) V. Glos. The question then arises: What kind of a mole was meant in the Baraitha supra where it is mentioned among the three defects of a wife that do not disqualify a priest.
(45) And is small in size and without hair.
(46) The man who betrothed her.
(47) How then could a mole in such circumstances be regarded as a defect that causes the invalidity of the betrothal?
(48) Any woman.
(49) Cant. II, 14.
(50) This is explained anon.
(51) But if it was bigger or smaller it is to be regarded as a defect.
(52) R. Nathan's statement.
(53) Lit., 'is there such a kind'.
(54) The following paragraph, though irrelevant to the subject under discussion, is inserted here because of its author, R. Meyasha, who is also the author of the previous statement.
(55) איש ואיש, lit., 'man and man'.
(56) Ps. LXXXVII, 5.
(57) The inference is derived from the repetition of man (v. supra n. 3).
(58) Will be acclaimed as a son of Zion.
(59) The man of Zion, i.e., the Palestinians (Rashi).
(60) Babylonians.
(61) To Palestine.
(62) In Babylon.
(63) Cf. Men. 42a.
(64) A betrothed woman.
(65) I.e., before she married and went to live with her husband.
(66) If his daughter is to be entitled to her kethubah from the man who betrothed her and refused to marry her on account of her defects.
(67) Metaph. It is the husband's misfortune that the woman who had no such defects prior to her betrothal is now afflicted with them.
(68) I.e., if the defects were discovered after the marriage.
(69) Should be, on account of her defects, desire to divorce her and to deny her the kethubah.
(70) The validity of a husband's plea that HIS BARGAIN WAS MADE IN ERROR.
Talmud - Mas. Kethuboth 75b
BUT IN RESPECT OF DEFECTS THAT ARE EXPOSED HE1 CANNOT ADVANCE ANY VALID PLEA.2 AND IF THERE WAS A BATH-HOUSE IN THE TOWN HE CANNOT ADVANCE ANY VALID PLEA2 EVEN AGAINST CONCEALED BODILY DEFECTS, BECAUSE HE [IS ASSUMED TO HAVE HAD HER] EXAMINED BY HIS WOMEN RELATIVES.3
GEMARA. The reason then4 is because the father produced proof, but if he produced no proof,5 the husband is believed.6 Whose [view consequently is here7 expressed]? [Obviously] that of R. Joshua who stated, 'Our life is not dependent on her statement'.8 Now read the final clause: IF SHE CAME UNDER THE AUTHORITY OF THE HUSBAND, THE HUSBAND MUST PRODUCE PROOF, the reason then9 is because the husband produced proof, but if he produced no proof,10 the father is believed,11 a ruling which expresses the view of R. Gamaliel who stated that the woman is believed!12 - R. Eleazar replied: The contradiction13 [is evident]; he who taught the one did not teach the other.14
Raba said: It must not be assumed that R. Joshua15 is never guided by the principle of the presumptive soundness of the body, for the fact is16 that R. Joshua is not guided by that principle only where it is opposed by the principle of possession.17 Where, however, the principle of possession is not applicable R. Joshua is guided by that of the soundness of the body; for it was taught: If the bright spot18 preceded the white hair, he19 is unclean; if the reverse, he is clean. [If the order is in] doubt, he is unclean; but R. Joshua said: It darkened.20 What is meant by 'It darkened'? Rabbah replied: [It is as though the spot] darkened21 [and, therefore,] he is clean.22
Raba explained:23 The first clause [is a case of] 'Here24 they25 were found and here they must have arisen'26 and so is the final clause: Here27 they28 were found and here they must have arisen.29 Abaye raised an objection against him:30 IF SHE CAME UNDER THE AUTHORITY OF THE HUSBAND, THE HUSBAND MUST PRODUCE PROOF THAT THESE DEFECTS WERE UPON HER BEFORE SHE HAD BEEN BETROTHED31 AND [THAT, CONSEQUENTLY,] HIS BARGAIN WAS MADE IN ERROR; [Thus only if she had the defects] BEFORE SHE HAD BEEN BETROTHED [is the husband's plea] accepted,32 [but if they were seen upon her] only after she had been betrothed33 [his plea would] not [be accepted]. But why? Let it be said,34 'Here they were found and here they must have arisen'!35 - The other30 replied: [The principle36 cannot be applied if the defects were discovered] after she had been betrothed because it may be taken for granted that no man drinks out of a cup37 unless he has first examined it; and this man38 must consequently have seen [the defects] and acquiesced.39 If so,40 [the same principle should apply] also to one [who had defects] prior to her betrothal. [Since,] however, [it is not applied], the presumption must be that no man is reconciled to bodily defects, [why then is it not presumed] here41 also that no man is reconciled to bodily defects? - This, however, is the explanation: [The principle36 cannot be applied to defects discovered] after she had been betrothed because two [principles] are [opposed to it:] The presumptive soundness of the woman's body42 and the presumption that no man drinks out of a cup unless he has first examined it and that this man must, consequently, have seen [the defects] and acquiesced. What possible objection can you raise?43 Is it the presumption that no man is reconciled to bodily defects? [But this] is only
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(1) Since he was in a position to see them.
(2) That he was not aware of these defects.
(3) He must have known, therefore, of the defects, and acquiesced.
(4) Why in the first clause of our Mishnah the woman who was divorced after a betrothal is entitled to her kethubah.
(5) So that it is unknown when the defects first arose.
(6) If he pleads that the woman was afflicted with the defects prior to her betrothal; and he, as the possessor of the money, is consequently exempt from paying the kethubah as is the law in respect of all monetary claims where the possessor cannot be deprived of his money without legal proof of the claim advanced against him.
(7) In the implication that the law is to be decided in favour of the husband who is the possessor of the money and not in favour of the woman who, since she was born without bodily defects, has the claim of presumptive soundness of body.
(8) I.e., we do not rely on the woman's assertion, supra 12b, where the time she had been outraged is a matter of dispute between her and her husband. Though the woman has in her favour the claim of the presumptive chastity of her body she, nevertheless, cannot obtain her kethubah because of her husband's stronger claim as the possessor of the amount of the kethubah.
(9) Why the woman does not receive her kethubah.
(10) So that it is unknown when the defects first arose.
(11) Cf. supra note 7 mutatis mutandis; the woman's presumptive soundness of body being regarded as a superior claim to that of the husband possessor of the amount of the kethubah.
(12) Supra 12b. Cf. supra p. 473, n. 9 mutatis mutandis and p. 473, n. 12. A contradiction thus arises between the first and the second clause of our Mishnah.
(13) תברא. Aliter: (rt. תבר, 'to break') Divide or sever (the two clauses). R. Han. (v. Tosaf. s.v. תברא). regards תברא as an imprecation.
(14) The first clause represents the view of R. Joshua who maintains the same view in the case spoken of in the second clause, while the second clause expresses the view of R. Gamaliel who maintains it in the case of the first clause also, neither of them drawing a distinction between a woman who was still in her father's house and one who was already under the authority of her husband.
(15) Cf. supra p. 473, nn 7-8.
(16) Lit., 'but'.
(17) Lit., 'presumptive possession of the money'.
(18) In leprosy. V. Lev. XIII, 2-4.
(19) The man afflicted.
(20) Neg. IV, 11.
(21) Cf. Lev. XIII, 6: If the plague be dim (or dark) . . . then the priest shall pronounce him clean.
(22) Thus it has been shewn that R. Joshua, since be ruled that a doubtful case of leprosy is clean, is guided by the principle of the presumptive soundness of the human body wherever it is not opposed by the principle of possession.
(23) The apparent contradiction between the first and the second clause of our Mishnah (cf. supra note 1).
(24) In the FATHER'S HOUSE.
(25) The BODILY DEFECTS of the woman.
(26) And it is owing to this principle only that the onus of producing proof was thrown upon the father. Otherwise, he would have been believed without proof, in agreement with the view of R.Gamaliel, which is the adopted halachah (v. supra 12b), because his claim is supported by the principle of his daughter's presumptive soundness of body.
(27) In the husband's house.
(28) The BODILY DEFECTS of the woman.
(29) The two clauses of our Mishnah thus present no contradiction, both expressing the view of R. Gamaliel (cf. supra p. 474, n. 15).
(30) Raba.
(31) תתארם. The reading in our Mishnah is נתארסה a change of tense and form that does not materially affect the meaning of the phrase.
(32) Lit., 'yes'.
(33) Although she was still in her father's house.
(34) If Raba's explanation is correct.
(35) Since this principle, however, is not adopted in the final clause, how could Raba's explanation be upheld?
(36) 'Here they were found etc.'.
(37) Euphemism.
(38) Since he had married the woman.
(39) Hence the inadmissibility of the principle, 'Here they were found etc.'.
(40) If the principle of the 'presumptive examination of the cup' is the determining factor in favour of the woman.
(41) In the final clause where the proof established the existence of the defects after betrothal while the woman was still in her father's house.
(42) Lit. 'place the body upon its strength'.
(43) Against deciding, on the basis of the two principles, in favour of the woman.
Talmud - Mas. Kethuboth 76a
one principle1 against two principles,2 and one against two cannot be upheld.3 [But where the defects were discovered] before betrothal, the principle of the presumptive soundness of her body cannot be applied,4 and all that remains is5 the presumption that no man drinks out of a cup unless he has first examined it and that this man must consequently have seen [the defects] and acquiesced, [but to this it can be retorted:] On the contrary, the presumption is that no man is reconciled to bodily defects, and consequently the money is to remain in the possession of its holder.6
R. Ashi explained:7 The [claim in the] first clause8 [is analogous to the claim] 'You owe my father a maneh',9 but that in the final clause10 [is analogous to the claim] 'You owe me a maneh'.11
R. Aha the son of R. Awya raised an objection against R. Ashi: R. Meir12 admits that in respect of bodily defects13 likely to have come14 with her from her father's house it is the father who must produce the proof.15 But why?16 Is [not this17 analogous to the claim,] 'You owe me a maneh'?18 - Here15 we are dealing with the case of a woman who had a superfluous limb.19 [But if] she had a superfluous limb20 what proof could be brought?21 - Proof that the man has seen it22 and acquiesced.
Rab Judah stated in the name of Samuel: If a man exchanged a cow for [another man's] ass, and the owner of the ass pulled23 the cow24 but the owner of the cow did not manage to pull25 the ass before the ass died, it is for the owner of the ass to produce proof that his ass was alive at the time the cow was pulled.26 And the Tanna [of our Mishnah who taught about] a bride27 supports this ruling. Which [ruling concerning the] bride?28 If it be suggested: [
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(1) In favour of the man. The principle of possession is of no consequence here because it is completely disregarded when opposed by that of the presumptive soundness of the body.
(2) Which are in favour of the woman.
(3) Hence the ruling in her favour.
(4) Since proof was adduced that she was afflicted with the defects prior to her betrothal.
(5) Lit. 'what is there?' in favour of the woman's claim.
(6) In the absence of the presumption of the soundness of body (cf. supra n. 5) the principle of possession is a determining factor (cf. supra note 2), and thus, being added to that of a man's irreconcilableness to bodily defects, two principles in favour of the man are opposed to one in favour of the woman. Hence the ruling in favour of the man.
(7) The apparent contradiction between the first and second clause of our Mishnah (cf. supra p. 474, n. 1).
(8) Since the kethubah of a betrothed woman, as a na'arah (v. Glos.), unlike that of a married one, belongs to her father and not to herself.
(9) Where the presumptive soundness of the claimant's daughter's body, not being that of the claimant herself, cannot override the principle of possession which is in favour of the husband. Hence the necessity for the father to produce the proof.
(10) Dealing with a married woman.
(11) In which case (cf. supra note 9 mutatis mutandis), the presumptive soundness of the body of the woman who is herself the claimant is sufficient to establish her claim. Hence it is for the husband to produce the necessary proof. Thus it is possible to assume that both the clauses of our Mishnah under discussion represent the view of R.Gamaliel who ruled that the presumptive soundness of body overrides the principle of possession.
(12) Though he stated in our Mishnah that if the defects were discovered after the woman CAME UNDER THE AUTHORITY OF HER HUSBAND it is the latter that MUST PRODUCE PROOF.
(13) The reference is at present assumed to be to any kind of defect.
(14) Lit., 'that are likely to come'.
(15) Tosef. Keth. VII.
(16) Should the father have to produce the proof.
(17) According to R. Ashi's explanation.
(18) The woman being married and the kethubah belonging to her, the presumptive soundness of her body should be sufficient to establish her claim.
(19) Not, as has been presumed by R. Aha, with one who was afflicted with any defect. A superfluous limb does not grow after betrothal. Being a congenital defect, the principle of the presumptive soundness of the body cannot be applied.
(20) Which is obviously congenital.
(21) In support of her claim to her kethubah.
(22) Prior to betrothal or marriage.
(23) Pulling, meshikah (v. Glos.) is one of the forms of acquiring legal possession.
(24) While the ass still remained on his premises.
(25) To take it to his premises.
(26) If such proof is produced the former owner of the cow must bear the loss, because the legal acquisition by one of the parties of one of two objects exchanged places upon the other party the responsibility for any accident that might happen to the other object even though he did not himself formally acquire it (v. Kid. 28a).
(27) Concerning whose defects a similar doubt exists. In the case of the exchanged animals it is uncertain whether the ass died before or after the acquisition of the cow; in the case of the bride it is uncertain whether she had her defects before or after her betrothal.
(28) Provides the support.
Talmud - Mas. Kethuboth 76b
The one concerning a bride IN HER FATHER'S HOUSE,1 are the two cases [it may be objected] alike? There it is the father2 who produces the proof and receives3 [the kethubah from the husband]4 while here it is the owner of the ass5 who produces the proof and retains [the cow],6 - R. Abba replied: [The ruling concerning a] bride in her father-in-law's house.7 But [the two cases] are still unlike, for there it is the husband who produces the proof8 and thereby impairs the presumptive right of the father,9 while here it is the owner of the ass who produces the proof10 and thereby confirms his presumptive right!11 - R. Nahman b. Isaac replied: [The support is derived from the case of the] bride IN HER FATHER'S HOUSE in respect of her token of betrothal.12 And, furthermore, it need not be said [that this13 applies only] in accordance with him who holds [that a token of] betrothal is not unreturnable14 but [it holds good] even according to him who maintains [that a token of] betrothal is unreturnable, since his ruling relates only to certain betrothal, but [not] to doubtful betrothal [where the father may retain the token] only15 if he produces proof but not otherwise.16
An objection was raised: If a needle was found in the thick walls of the second stomach [of a ritually killed beast, and it protrudes only] from one of its sides,17 the beast is fit [for human consumption,18 but if it protruded] from both sides, the beast is unfit for human consumption.19 If a drop of blood was found on [the needle] it is certain that [the wound was inflicted] before the ritual killing;20 if no drop of blood was found on it, it is certain that [the wound was made] after the killing.21 If the top22 of the wound was covered with a crust, it is certain that [the wounding occurred] three days prior to the killing;23 if the top22 of the wound was not covered with a crust,24 it is for the claimant to produce the proof.25 Now if the butcher26 had already paid the price he27 would have to produce the required proof and so obtain the refund [of his money]; but why? Let the owner of the beast rather produce the proof and retain [the purchase money]!28 - [This is a case] where the butcher26 has not yet paid the price.29 But how can such an absolute assertion30 be made?31 - [This] however, [will dispose of the difficulty:] For when Rami b. Ezekiel came he said, 'Pay no regard to those rules which my brother Judah laid down in the name of Samuel; for thus said Samuel: He in whose domain the doubt first arose32 must produce the proof; and the Tanna [of our Mishnah who taught about] the bride33 provides support for this ruling.34
An objection was raised: If a needle was found in the thick walls of the second stomach etc.35 Now,36 if the butcher26 has not yet paid the purchase price it would be the owner of the beast36 who would have to produce the proof and so obtain [its price] from [the butcher]; but why? [Has not] the doubt arisen [when the beast was already] in the possession of the butcher?37 - [This is a case] where the butcher has already paid the price.38 But how can such a categorical statement39 be made?40 - It is the usual practice that so long as one man does not pay the price the other does not give his beast.
THE SAGES, HOWEVER, RULED: THIS APPLIES ONLY TO CONCEALED BODILY DEFECTS. R. Nahman stated:
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(1) In the first clause; the assumption being that, in agreement with R. Eleazar (supra 75b), it represents the view of R. Joshua, and that the father must produce the proof even where the defects were discovered after marriage and the doubt did not arise until after the bride had come under the authority of her husband. (Cf. Rashi, a.l. and infra s.v. אליבא, ad fin.). Similarly in the case of the exchange of the animals the owner of the ass must produce proof though the doubt occurred after his meshikah of the cow had transferred the ass to the responsibility of the other party.
(2) The claimant.
(3) Lit., 'brings out'.
(4) Which is the usual rule: The claimant produces the proof and receives his due.
(5) The defendant.
(6) Contrary to the usual rule (v. supra n. 4). How then could it be asserted that the latter is supported by the former?
(7) I.e., the second clause of our Mishnah provides the support; the assumption being with R. Eleazar (supra 75b), that it represents the view of R. Gamaliel and that the husband must produce the proof even where the defects were discovered prior to marriage, while the bride was still in her parental home, and her kethubah still belonged to her father. (Cf. Rashi a.l. and infra s.v. אליבא ad fin.). The support is adduced thus: If in this case where the doubt first arose while the bride was still under her father's authority (i.e., in the claimant's possession) it is the husband, who is the defendant, that must produce the proof, how much more so in the case of the exchange of the animals where the doubt arose In the house of the defendant (the owner of the ass) that the latter must produce the proof.
(8) That she had the defects prior to her betrothal.
(9) The presumption of the woman's soundness of body.
(10) That the ass was alive at the time the cow was acquired by him.
(11) The presumption that the ass that was alive prior to the acquisition of the cow was also alive during the time the cow was acquired. How then could a case in which the proof rightly serves the purpose of impairing a presumptive right be taken as support to one in which the proof is adduced to confirm a presumptive right?
(12) In the first clause of our Mishnah where the proof must be produced by the father (cf. supra p. 478, n. 1 mutatis mutandis) though it serves also the purpose of enabling him to retain the money, or object of value, that was given as the token of the betrothal of the bride. Similarly in the case of the exchange of the animals, the owner of the ass produces the proof and retains the cow.
(13) That proof is required to enable the father to retain the token of betrothal.
(14) Lit., 'given for sinking', i.e., that it is not returned under any conditions whatsoever (v. B.B. 145a). Since it is 'not unreturnable', it is not in the father's full possession and he might well he expected to have to produce the proof.
(15) Lit., 'yes'.
(16) Lit., 'if not, not'.
(17) The inner side of the stomach. Owing to the thickness of its folds it is quite possible that the needle merely pricked, but did not pierce through the stomach wall.
(18) Since the wound caused by the needle was not fatal.
(19) Trefa (v. Glos.). A perforation of the stomach is a fatal wound which renders the afflicted animal unfit for human consumption even if it was ritually killed before it could die of the wound.
(20) And the beast is, therefore, unfit for human consumption (cf. supra n. 8).
(21) When it could not affect the life of the beast which, in consequence, remains fit for consumption.
(22) Lit., 'mouth'.
(23) And should a butcher buy the beast within the three days it is a bargain made in error which he may cancel and claim the refunding of his purchase money.
(24) And the vendor pleads that the wound was made after the sale when the beast was in the possession of the buyer, while the buyer insists that it was made prior to the sale when it was still in the vendor's possession.
(25) Hul. 50b.
(26) Sc. the buyer.
(27) Being the claimant.
(28) As in the case spoken of by Samuel (supra 76a), where the owner of the ass produces the proof and retains the cow. Since, however, the law here is not so, an objection arises against Samuel's ruling.
(29) So that the vendor is the claimant. Hence it is for the butcher, who is the defendant, to produce the proof and thus retain his money.
(30) That the butcher always buys on credit and that he is, therefore, always the defendant.
(31) A butcher, surely, does not always buy on credit and our Baraitha does not mention buyer at all but claimant, irrespective of whether he happens to be the buyer or the vendor.
(32) I.e., the owner of the cow, since the doubt first arose after the owner of the ass had acquired the cow and thereby transferred the responsibility for the ass to the former owner of the cow.
(33) That if the doubt concerning the first appearance of her defects arose while she was in her paternal home her father must produce the proof, and that if it arose when she was already under the authority of her husband it is the husband who must produce the proof.
(34) Samuel, according to the present explanation, would hold the same opinion as Raba who stated (supra 75b) that the first as well as the second clause of our Mishnah represents the view of one Tanna, viz. that of R. Joshua.
(35) Supra, cited from Hul. 50b.
(36) Since it has been laid down that the claimant must produce the proof.
(37) Of course it has, since the needle could not have been found before the beast had been killed. Now if Rami b. Ezekiel's report in the name of Samuel is to be regarded as authentic, the butcher should have been the party to produce the proof.
(38) And it is the butcher in fact from whom the proof is expected.
(39) That the butcher invariably buys for cash and that he is therefore always the claimant.
(40) Does not a butcher sometimes take on credit?
Talmud - Mas. Kethuboth 77a
Epilepsy1 is regarded as [one of the] concealed bodily defects.2 This, however, applies only to attacks which occur at regular periods,3 but if they are irregular [epilepsy is regarded] as [one of the] exposed bodily defects.4
MISHNAH. A MAN IN WHOM BODILY DEFECTS HAVE ARISEN CANNOT BE COMPELLED TO DIVORCE [HIS WIFE]. R. SIMEON B. GAMALIEL SAID: THIS APPLIES ONLY TO MINOR DEFECTS, BUT IN RESPECT OF MAJOR DEFECTS5 HE CAN BE COMPELLED TO DIVORCE HER.
GEMARA. Rab Judah recited: 'HAVE ARISEN';6 Hiyya b. Rab recited: 'Were'.7 He who recited 'HAVE ARISEN' [holds that the ruling applies] with even more force [where the defects] 'were',7 since [in the latter case the woman] was aware of the facts and acquiesced. He, however, who recited 'Were' [holds that the ruling does] not [apply where the defects] 'have arisen'.8
We learned: R. SIMEON B. GAMALIEL SAID: THIS APPLIES ONLY TO MINOR DEFECTS BUT IN RESPECT OF MAJOR DEFECTS HE CAN BE COMPELLED TO DIVORCE HER. Now, according to him who reads, 'HAVE ARISEN9 it is quite proper to make a distinction between major defects and minor defects.10 According to him, however, who reads, 'were', what [it may be asked] is the difference between major defects and minor ones? Was she not in fact aware [of their existence] and acquiesced?11 - She may have thought that she would be able to tolerate them but now she finds that she is unable to tolerate them.12
These,13 R. Simeon b. Gamaliel explained, are major defects: If, for instance, his eye was blinded, his hand was cut off or his leg was broken.
It was stated: R. Abba b. Jacob said in the name of R. Johanan: The halachah is in agreement with R. Simeon b. Gamaliel. Raba said in the name of R. Nahman: The halachah is in agreement with the Sages. But could R. Johanan, however, have made such a statement?14 Surely Rabbah b. Bar Hana stated in the name of R. Johanan: Wherever R. Simeon b. Gamaliel taught in our Mishnah, the halachah is in agreement with his ruling except [in the cases of] 'guarantor',15 'Zidon'16 and the 'latter proof'!17 - There is a dispute of Amoraim as to what was R. Johanan's view.18
MISHNAH. THE FOLLOWING ARE COMPELLED TO DI VORCE [THEIR WIVES]: A MAN WHO IS AFFLICTED WITH BOILS, OR HAS A POLYPUS,19 OR GATHERS [OBJECTIONABLE MATTER]20 OR IS A COPPERSMITH20 OR A TANNER,20 WHETHER THEY WERE [IN SUCH CONDITIONS OR POSITIONS] BEFORE THEY MARRIED OR WHETHER THEY AROSE AFTER THEY HAD MARRIED. AND CONCERNING ALL THESE R. MEIR SAID: ALTHOUGH THE MAN MADE A CONDITION WITH HER [THAT SHE ACQUIESCES IN HIS DEFECTS] SHE MAY NEVERTHELESS PLEAD, 'I THOUGHT I COULD ENDURE HIM,21 BUT NOW I CANNOT ENDURE HIM.'21 THE SAGES, HOWEVER, SAID: SHE MUST ENDURE [ANY SUCH PERSON] DESPITE HER WISHES, THE ONLY EXCEPTION BEING A MAN AFFLICTED WITH BOILS, BECAUSE SHE [BY HER INTERCOURSE] WILL ENERVATE HIM.
IT ONCE HAPPENED AT ZIDON THAT THERE DIED22 A TANNER WHO HAD A BROTHER23 WHO WAS ALSO A TANNER. THE SAGES RULED: SHE24 MAY SAY, 'I WAS ABLE TO ENDURE21 YOUR BROTHER BUT I CANNOT ENDURE YOU'.
GEMARA. What [is meant by one] WHO HAS A POLYPUS? - Rab Judah replied in the name of Samuel: [One who suffers from an offensive] nasal smell. In a Baraitha it was taught: [One suffering from] offensive breath.25 R. Assi learnt in the reverse order26 and supplied the mnemonic, 'Samuel did not cease [studying] all our chapter [with] his mouth'.27
WHO GATHERS. What [is meant by one] WHO GATHERS? - Rab Judah replied: One who gathers dogs' excrements.28
An objection was raised: 'One who gathers' means a tanner!29 - But even according to your own view,30 would not a contra diction arise from our Mishnah [which specifies] OR GATHERS OR IS A COPPERSMITH OR A TANNER?31 - One may well explain why our Mishnah31 presents no contradiction32 because the latter33 refers to a great tanner34 whilst the former35 refers to a small tanner;36 but according to Rab Judah the contradiction remains?37 - [The definition]38 is [a matter in dispute between] Tannaim. For it was taught: 'One who gathers' means a 'tanner'; and others say: It means 'one who gathers dogs' excrements'.39
OR IS A COPPERSMITH OR A TANNER. What is meant by A COPPERSMITH? - R. Ashi40 replied: A kettle-smith.41 Rabbah b. Bar Hana explained: One who digs copper from the mine.42 It was taught in agreement with Rabbah b. Bar Hana: What is meant by a coppersmith? One who digs copper from the mine.42
Rab stated: If a husband says, 'I will neither maintain nor support [my wife]', he must divorce her and give her also her kethubah. R. Eleazar went and told this reported statement to Samuel [who] exclaimed, 'Make Eleazar eat barley;43 rather than compel him to divorce her let him be compelled to maintain her'. And Rab?44 - No one can live with a serpent in the same basket.45 When R. Zera went up46 he found R. Benjamin b. Japheth sitting [at the college] and reporting this47 in the name of R. Johanan.48 'For this statement', he said to him, 'Eleazar was told in Babylon to eat barley'.
Rab Judah stated in the name of R. Assi:49 We do not compel divorce except [in the case of] those who are tainted.50 When I mentioned this in the presence of Samuel he remarked, 'As, for instance, a widow [who was married] to a High Priest, a divorced woman or a haluzah51 to a common priest, a bastard or a nethinah51 to an Israelite, or the daughter of an Israelite to a nathin51 or a bastard; but if a man married a woman and lived with her ten years and she bore no child he cannot be compelled [to divorce her]'. R. Tahlifa b. Abimi, however, stated in the name of Samuel: Even the man who married a woman and lived with her ten years and she bore no child may be compelled [to divorce her].52
We learned, THE FOLLOWING ARE COMPELLED TO DIVORCE [THEIR WIVES]: A MAN WHO IS AFFLICTED WITH BOILS OR HAS A POLYPUS. This53 is quite justified according to R. Assi, since only Rabbinically forbidden cases were enumerated whilst those which are Pentateuchally forbidden were omitted.54 According to R. Tahlifa b. Abimi55 however, our Mishnah should also have stated: If a man married a woman and lived with her for ten years and she bore no child he may be compelled [to divorce her].56 - R. Nahman replied: This is no difficulty. For in the latter case57 [compulsion is exercised] by words; in the former58 cases, by whips.59
R.Abba demurred: A servant will not be corrected by words!60 - The fact, however, explained R. Abba, is that in all these cases61 [compulsion is exercised] by means of whips
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(1) נכפה, 'one who is epileptic'. כפה in Nif. 'to be overtaken by a demon'.
(2) Because a woman may conceal her epilepsy by remaining indoors when the attack comes on.
(3) In such a case she can avoid appearing in public when she feels the approach of the attack.
(4) V. Our Mishnah.
(5) The nature of these is explained in the Gemara.
(6) I.e., that the husband's defects spoken of in our Mishnah arose after he married the woman.
(7) Cf. supra n. 10, i.e., the man was afflicted with the defects before his marriage.
(8) Cf. supra p. 481, n. 10. In this case the woman might well plead that had she known that the man would later develop bodily defects she would never have consented to marry him.
(9) V. supra p. 481, n. 10.
(10) Since it is reasonable to expect a woman to object to the former but not to the latter.
(11) Of course she was, the defects having arisen prior to her marriage.
(12) Hence her right to claim a divorce.
(13) This paragraph appears in old edd. and Alfasi (cf. Bah a.l.) as a Mishnah.
(14) Which implies that only in this particular case is the halachah in agreement with R. Simeon b. Gamaliel.
(15) V. B.B. 174a.
(16) V. Git. 74a.
(17) V. Sanh. 31a.
(18) Rabbah b. Bar Hana maintaining that a general rule had been laid down whilst R. Abba b. Jacob disputes this.
(19) Cf. and v. Gemara infra.
(20) This is explained in the Gemara.
(21) Lit., 'to receive', 'accept'.
(22) Without leaving any issue.
(23) It is the duty of the surviving brother to contract the levirate marriage with the widow (v. Deut. XXV, 5ff).
(24) The widow.
(25) Lit., 'smell of the mouth'.
(26) Attributing to Samuel the definition given in the Baraitha and vice versa.
(27) Mouth in association with the name of Samuel suggesting that it was Samuel who interpreted POLYPUS as offensive breath from the mouth (cf. supra note 7).
(28) Used for tanning.
(29) Tosef. Keth. VII, which is contradictory to the definition given here by Rab Judah.
(30) That 'one who gathers' means a tanner.
(31) Which shews that 'tanner' and 'one who gathers' are two distinct occupations.
(32) Against the Baraitha which defines 'one who gathers' as a 'tanner'.
(33) Lit., 'here', the term TANNER specifically mentioned.
(34) Who does not himself gather the excrements.
(35) 'One WHO GATHERS'.
(36) Who must himself gather the excrements needed for his work.
(37) Cf. supra p. 483, n. 11.
(38) Of 'one who GATHERS'.
(39) Rab Judah, in differing from the Baraitha, adopted this latter definition.
(40) Var. lec. Rab (Aruch.).
(41) חשלי, pl. of חשלא, 'smith'; דודי, pl. of דודא (Bib. Heb. דוד), 'pot', 'kettle'.
(42) Lit., 'cuts . . . from its root', sc. source'.
(43) Like an animal, since he, by being so credulous as to accept an absurd statement, displayed no higher intelligence.
(44) Why does he order divorce rather than maintenance?
(45) Metaph. Divorce is, therefore, preferable.
(46) From Babylon to Palestine.
(47) Rab's ruling supra.
(48) I.e., that R. Johanan also was of the same opinion as Rab.
(49) Var. lec., Rab (Asheri), R. Ashi (Alfasi).
(50) I.e., those who are disqualified to their husbands as priests or from marrying into the congregation of Israel. [Var. lec., 'We compel in the case of tainted (women)'. A man who married a woman disqualified to him is compelled to put her away (v. Shittah Mekubbezeth). According to our text it might be suggested that Samuel's dictum is restricted to cases where the defect resides in the woman and does not exclude the cases of blemishes dealt with in our Mishnah, where the defect is in the man].
(51) V. Glos.
(52) Because propagation of the species is one of the 613 commandments.
(53) The omission from this list in our Mishnah of the tainted persons enumerated by Samuel.
(54) As these are obvious.
(55) Who, unlike R. Assi, included the man, whose wife had no child after living for ten years with him, among those who are compelled to divorce their wives.
(56) Since compulsion in this case is only a Rabbinical ordinance.
(57) Lit., 'that', the man whose wife had no child for ten years (v. supra n. 6).
(58) Those enumerated in our Mishnah.
(59) As the compulsion in the latter case is merely in the nature of persuasion it could not be included among the others.
(60) Prov. XXIX, 19. How then would a man who refuses to carry out a decision of a court of law be moved by mere persuasion?
(61) The man whose wife had no child as well as those enumerated in our Mishnah. Lit., 'that and that'.
Talmud - Mas. Kethuboth 77b
but in the former, if she said, 'I wish to be with him', she is allowed [to live with him] whilst in the latter,1 even if she said, 'I wish to be with him', she is not allowed [to continue to live with him].2 But behold [the case of the man who was] afflicted with boils with whom the woman is not allowed to live even if she said, 'I wish to be with him', for we learned: THE ONLY EXCEPTION BEING A MAN AFFLICTED WITH BOILS BECAUSE SHE [BY HER INTERCOURSE] WILL ENERVATE HIM, and this case was nevertheless enumerated!3 - There,4 if she were to say. 'I will live with him under [the supervision of] witnesses',5 she would be allowed [to remain with him] but here,6 even if she were to say, 'I will live with him under [the supervision of] witnesses,' she would not be allowed to do so.
It was taught: R. Jose related, An old man of the inhabitants of Jerusalem told me, 'There are twenty-four [kinds of] skin disease,7 and in respect of all these the Sages said, "Intercourse is injurious", but most of all is this the case with those afflicted with ra'athan'.8 What is the cause of it? - As it was taught: If a man had intercourse immediately after being bled, he will have feeble9 children; if intercourse took place after the man and the woman10 had been bled they will have children afflicted with ra'athan. R. Papa stated: This11 has been said only in the case where nothing was tasted [after the bleeding] but if something was tasted there can be no harm.12
What are the13 symptoms? - His eyes tear, his nostrils run, spittle flows from his mouth and flies swarm about him. What is the cure?13 - Abaye said: Pila,14 ladanum,15 the rind of a nut tree, the shavings of a dressed hide,16 melilot17 and the calyx18 of a red date-tree. These must be boiled together and carried into a house of marble,19 and if no marble house is available they may be carried into a house [the walls of which are of the thickness] of seven bricks and a half.20 Three hundred cups [of the mixture] must then be poured upon his21 head until his cranium is softened, and then his brain is cut open. Four leaves of myrtle must be brought and each foot22 [in turn] lifted up and one [leaf] placed [beneath it].23 It24 is then grasped with a pair of tweezers and burned; for otherwise it would return to him.21
R. Johanan issued the announcement: Beware of the flies of the man afflicted with ra'athan.25
R. Zera never sat [with such a sufferer] in the same draught. R. Eleazar never entered his tent. R. Ammi and R. Assi never ate any of the eggs coming from the alley in which he lived. R. Joshua b. Levi, however, attached himself to these [sufferers] and studied the Torah; for he said, A lovely hind and a graceful doe,26 if [the Torah] bestows grace upon those who study it, would it not also protect them?
When he27 was about to die the Angel of Death was instructed, 'Go and carry out his wish'. When he came and shewed himself to him the latter said, 'Shew me my place [in Paradise]'. - 'Very well', he replied. 'Give me your knife', the other demanded, '[since, otherwise], you may frighten me on the way'. He gave it to him. On arriving there he lifted him up and shewed him [his place]. The latter jumped and dropped on the other side [of the wall].28 He seized him by the corner of his cloak; but the other exclaimed, 'I swear that I will not go back'. Thereupon the Holy One, blessed be He, said, 'If he ever had an oath of his annulled29 he must return;30 but if not, he need not return'. 'Return to me my knife', he said to him; but the other would not return it to him. A bath kol31 went forth and said to him, 'Return the thing to him, for it is required for the mortals'.32
Elijah33 heralded him34 proclaiming. 'Make room for the son of Levi, make room for the son of Levi'. As he34 proceeded on his way he found R. Simeon b. Yohai sitting on thirteen stools35 of gold. 'Are you', the latter asked him, 'the son of Levi?' - 'Yes', he replied. 'Has a rainbow [the latter asked again] ever appeared in your lifetime?' - 'Yes', he replied. 'If that is so [the other said] you are not the son of Levi'.36 The fact, however, is37 that there was no such thing [in his lifetime], but he38 thought, 'I must take no credit for myself'.
R. Hanina b. Papa was his39 friend, and when he was about to die the Angel of Death was commanded, 'Go and carry out any wish of his'. He went to his house and revealed himself to him. 'Allow me', the latter said to him, 'thirty days in which to revise my studies', for it was said,40 'Happy is he who comes here in full possession of his learning'. He left him, and after thirty days he appeared to him again. 'Shew me', the latter said to him 'my place [in Paradise]'. 'Very well', he replied. 'Give me your knife', the other said to him, [since otherwise], you may frighten me on the way'. 'Do you wish to treat me as your friend41 has done?' he asked. 'Bring', the other replied, 'the Scroll of the Law and see if anything that is written therein has not been observed by me'. 'Have you attached yourself', he asked 'to the sufferers of ra'athan and engaged thus in the study of the Torah?'42 Nevertheless when his soul passed to its eternal rest, a pillar of fire formed a partition between him and the world; and we have it as a tradition that such a partition by a pillar of fire is made only for a person who is unique in his generation43 or [one] of the two [outstanding men] in his generation. R. Alexandri approached him and said, 'Do it for the honour of the Sages', but he disregarded him. 'Do it [he said] for the honour of your father's house', but he again disregarded him. 'Do it [he finally requested] for your own honour's sake' [and the pillar of fire] departed.
Abaye remarked: [The purpose of the pillar of fire was] to keep away44 anyone who had failed to observe even a single letter45 [of the Torah]. Said R. Adda b. Mattena to him: [This then would also] exclude the Master, since he has no battlement to his roof.46 The fact, however, was47 that he did have one, but the wind had thrown it down at that moment.
R. Hanina said: Why are there no sufferers from ra'athan in Babylon? - Because they eat beet48 and drink beer containing cuscuta49 of the hizme50 shrub.
R. Johanan stated: Why are there no lepers in Babylon? - Because they eat beet,48 drink beer, and bathe in the waters of the Euphrates. [
____________________
(1) Lit., 'here'. V. supra p. 485, n. 9.
(2) V. supra p. 485, n. 3.
(3) An objection against R. Abba's explanation.
(4) In the case just cited.
(5) Sc. only to attend on him, while refraining from intercourse.
(6) The case of the man whose wife had no child for ten years after their marriage.
(7) Lit., 'stricken with boils'.
(8) Tosef. Keth. VII, ad fin. ראתן (cf. רתת 'trembling'), one of the skin diseases causing nervous trembling and extreme debility of the body (v. Jast.). Aliter: A person having an insect in his brain (cf. Rashi).
(9) Or 'nervous'. ויתיקין, rt. ותק, 'to unnerve'.
(10) Lit., 'both of them'.
(11) The warning against intercourse after being bled.
(12) Lit., 'we have nothing against it'.
(13) Lit., 'his', of the man suffering from ra'athan.
(14) A fragrant plant (v. Jast.). Aliter: polion (Rashi). Aliter: Penny royal (cf. Golds. 'Polei').
(15) Or 'labdanum', , a soft black or dark brown resinous exudation from the Cistus or rock rose.
(16) These fall off when the hide is being smoothed.
(17) Sweet scented clover.
(18) מתחלא (cf. תחלא, half-ripe date), the calyx of the date when it is in its early unripe condition.
(19) To shut out all draughts.
(20) אריחא is of the size of half a brick, the size of the brick being three handbreadths.
(21) The sufferer from ra'athan.
(22) Of the insect (cf. Rashi's interpretation, supra p. 486, n. 9).
(23) Thus preventing the insect from burying its feet in the brain when lifted out.
(24) The insect.
(25) Which are infectious.
(26) Prov. V, 19, a reference to the Torah.
(27) R. Joshua b. Levi.
(28) Of Paradise.
(29) איתשיל (rt. שאל 'to ask' in Ithpa'el) 'to ask a competent authority for absolution from an oath or a vow'.
(30) His present oath can also be annulled.
(31) V. Glos.
(32) Lit., 'creatures'
(33) Elijah, the prophet who went up by a whirlwind into heaven (II Kings II, 11).
(34) R. Joshua b. Levi.
(35) תכתקי, (v. Levy and Jast.). A more acceptable rendering might be: Sitting at thirteen tables of fine gold (cf. תכא 'a table').
(36) I.e., the saintly man concerning whom Elijah made his proclamation. The rainbow being a token of the covenant (Gen. IX, 12) that, though the people deserved destruction, the waters shall no more become a flood to destroy all flesh (ibid. 15), should not appear in the lifetime of a saint whose merit alone is sufficient to save the world from destruction (v. Rashi).
(37) Lit., 'and this is not (so)'.
(38) R. Joshua b. Levi.
(39) The pronoun refers to the Angel of Death (Rashi) or to R. Joshua b. Levi (according to a MS.).
(40) In the world to come (cf. B.B. 10b).
(41) Cf. p. 488, nn. 11 and 12.
(42) Sc. he was not even as pious and staunch in his faith as R. Joshua b. Levi to trust in the power of the Torah to protect him from all evil. If the latter, despite his extreme piety, did not hesitate to outwit the Angel of Death, how much more likely was he to do so.
(43) Head and shoulders above them in learning and piety.
(44) From attending on the deceased.
(45) 'Even . . . letter' is deleted by Rashal. [On this reading render: 'Who has failed to observe (the Torah as he did)', v. Rashi].
(46) Which is a contravention of Deut. XXII, 8.
(47) Lit., 'and this is not (so)'.
(48) Aliter: Tomatoes.
(49) Instead of the usual hops.
(50) Prob. Spira Regia (Jast.); is also suggested as a probable derivation.
Talmud - Mas. Kethuboth 78a

CHAPTER 8
MISHNAH. IF A WOMAN CAME INTO THE POSSESSION1 OF PROPERTY BEFORE SHE WAS BETROTHED, BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY2 SELL. IT OR GIVE IT AWAY AND HER ACT IS LEGALLY VALID. IF SHE CAME INTO THE POSSESSION OF THE PROPERTY AFTER SHE WAS BETROTHED, BETH SHAMMAI SAID: SHE MAY SELL IT,2 AND BETH HILLEL SAID: SHE MAY NOT SELL IT;2 BUT BOTH AGREE THAT IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID. R. JUDAH STATED: THE SAGES ARGUED BEFORE R. GAMALIEL, 'SINCE THE MAN3 GAINS POSSESSION OF THE WOMAN DOES HE NOT ALSO GAIN POSSESSION OF HER PROPERTY?'4 HE REPLIED, 'WE ARE EMBARRASSED5 WITH REGARD TO [THE PROBLEM OF] HER NEW POSSESSIONS6 AND DO YOU WISH TO INVOLVE US [IN THE PROBLEM OF] HER OLD ONES7 ALSO?' IF SHE CAME INTO THE POSSESSION OF PROPERTY AFTER SHE WAS MARRIED, BOTH8 AGREE THAT, EVEN IF SHE HAD SOLD IT OR GIVEN IT AWAY, THE HUSBAND MAY SEIZE IT FROM THE BUYERS. [IF SHE CAME INTO POSSESSION] BEFORE SHE MARRIED.9 AND SUBSEQUENTLY MARRIED, R. GAMALIEL SAID: IF SHE10 HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID. R. HANINA B. AKABIA STATED: THEY ARGUED BEFORE R. GAMALIEL, SINCE THE MAN11 GAINED POSSESSION OF THE WOMAN SHOULD HE NOT ALSO GAIN POSSESSION OF HER PROPERTY?' HE REPLIED, 'WE ARE EMBARRASSED WITH REGARD TO [THE PROBLEM OF] HER NEW POSSESSIONS AND DO YOU WISH TO INVOLVE US [IN THE PROBLEM OF] HER OLD ONES ALSO?12 R. SIMEON DRAWS A DISTINCTION BETWEEN ONE KIND OF PROPERTY AND ANOTHER: PROPERTY THAT IS KNOWN13 TO THE HUSBAND [THE WIFE] MAY NOT SELL, AND IF SHE HAS SOLD IT OR GIVEN IT AWAY HER ACT IS VOID; [PROPERTY, HOWEVER,] WHICH IS UNKNOWN TO THE HUSBAND SHE MAY NOT SELL, BUT IF SHE HAS SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID.
GEMARA. What is the essential difference between the first clause14 in which they15 do not differ and the succeeding clause16 in which they differ?17 - The school of R. Jannai replied: In the first clause it was into her possession that the property had come;18 in the succeeding clause16 the property came into his possession.19 If, however, [it is maintained] that the property 'came into his possession' why is HER ACT LEGALLY VALID when SHE HAD SOLD [THE PROPERTY] OR GIVEN IT AWAY? - This then [is the explanation:] In the first clause the property has beyond all doubt come into her possession.18 In the succeeding clause, [however, the property] might be said [to have come either] into her, or into his possession;20 [hence,]21 she may not properly sell [the property, but] IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID.
R. JUDAH STATED: [THE SAGES] ARGUED BEFORE R. GAMALIEL. The question was raised: Does R. Judah22 refer to the case of direct permissibility23 or also to one of ex post facto?24
____________________
(1) Lit., 'to whom there fell'.
(2) After her betrothal and before her marriage. V. infra.
(3) Through betrothal.
(4) The application of this argument is explained in the Gemara.
(5) Lit., 'ashamed'.
(6) In failing to discover a reason why a husband (as stated infra) is entitled to seize the property which his wife had sold or given away even though she obtained it after marriage.
(7) Property into the possession of which she came while she was only betrothed.
(8) Beth Shammai and Beth Hillel.
(9) [I.e either before or after she was betrothed (Rashi), v. Tosaf.].
(10) After her marriage.
(11) By marriage.
(12) Cf. supra p. 490, on. 5-7.
(13) This is explained in the Gemara.
(14) Of our Mishnah.
(15) Beth Shammai and Beth Hillel,
(16) Property obtained AFTER SHE WAS BETROTHED.
(17) In both cases surely, she sells or gives away after betrothal when her property presumably belongs to the man who betrothed her. Cf. infra note 10.
(18) Before betrothal she is the legal possessor of whatever is given to her.
(19) Because, as it is assumed at present, after betrothal the man is the legal owner of all that the woman may have.
(20) The kinyan of betrothal being regarded as that of a doubtful marriage, since it is uncertain whether marriage will follow.
(21) According to Beth Hillel.
(22) In the argument he reported in the name of the Sages to invalidate her sale.
(23) I.e.,the ruling of Beth Shammai that if she obtained property after she was betrothed she is fully entitled to sell it or to give it away.
(24) Where it is the unanimous opinion of Beth Shammai and Beth Hillel THAT IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID.
Talmud - Mas. Kethuboth 78b
Come and hear what was taught in the following. R. Judah stated: They argued before R. Gamaliel, 'Since the one woman1 is his wife and the other2 is his wife, just as a sale by the former3 is invalid so also should a sale by the latter4 be invalid'. He replied, 'We are in an embarrassed condition with regard to [the problem of] her new possessions and you wish to involve us [in the problem of] her old ones also?'5 Thus6 it may be inferred that he referred to a case of ex post facto also. This is conclusive.7
It was taught: R. Hanina b. Akabia said, It was not such a reply8 that R. Gamaliel gave to the Sages,9 but it was this that he replied, '[There is] no [comparison]; if you say [the ruling]10 is to apply to a married woman whose husband is entitled to her finds, to her handiwork and to the annulment of her vows, will you say it also applies to a betrothed woman whose husband is not entitled either to her finds or to her handiwork or to the annulment of her vows?'11 'Master', they said to him, '[this is quite feasible if] she effected a sale before she married;12 what, [however, will be your ruling where] she was married and effected the sale13 subsequently?' - 'This woman also', he replied, 'may sell or give away, and her act is valid'. 'Since, however', they argued, 'he14 gained possession of the woman15 should he not also gain possession of her property?'16 - 'We are quite embarrassed', he replied, 'about [the problem of] her new possessions and you wish to involve us [in the problem of] her old ones17 also!' But, surely, we learned, [IF SHE CAME INTO POSSESSION] BEFORE SHE MARRIED, AND SUBSEQUENTLY MARRIED, R. GAMALIEL SAID: IF SHE HAD SOLD IT OR GAVE IT AWAY18 HER ACT IS LEGALLY VALID!19 - R. Zebid replied, Read: She may sell or give away, and her act is valid.20 R. Papa replied: There is no difficulty,21 for one22 is the view of R. Judah on R. Gamaliel's opinion23 whilst the other24 is the view of R. Hanina b. Akabia on R. Gamaliel's opinion.25 Is R. Hanina b. Akabia then in agreement with Beth Shammai?26 - It is this that he meant: Beth Shammai and Beth Hillel did not differ at all on this point.27
Both Rab and Samuel stated: Whether a woman came into the possession of property before she was betrothed or whether she came into possession after she was betrothed her husband may, [if she sold it] after she married, take it away from the buyers. In agreement with whose view [is this ruling], which is neither in agreement with that of R. Judah nor with that of R. Hanina b. Akabia? - They adopted the ruling of our Masters; for it was taught: Our Masters took a recount [of votes, and decided that] whether a woman came into the possession [of property] before she was betrothed or whether she came into its possession after she was betrothed, her husband may, [if she sold it] after she married, take it away from the buyers.28
AFTER SHE WAS MARRIED, BOTH AGREE. May it be suggested that here we are learning Of the enactment of Usha,29 for R. Jose the son of R. Hanina stated: It was enacted at Usha that if a woman sold during the lifetime of her husband melog30 property,31 and died, the husband32 may seize it from the buyers!33 - Our Mishnah [deals with the seizure] during the woman's lifetime for the purposes of usufruct [only];34 the enactment of Usha [refers to the seizure] of the capital after her death.35
R. SIMEON DRAWS A DISTINCTION BETWEEN ONE KIND OF PROPERTY [etc.]. Which kind is regarded as KNOWN, and which as UNKNOWN? - R. Jose the son of R. Hanina replied: KNOWN means landed property;36 UNKNOWN, movable property. But R. Johanan said: Both are regarded as KNOWN, but the following is classed as UNKNOWN. Whenever a woman lives in a certain place and comes into the possession of property in a country beyond the sea. So it was also taught elsewhere: The following is classed as unknown. Wherever a woman lives in a certain place and comes into the possession of property in a country beyond the sea.
A certain woman37 wishing to deprive her [intended] husband of her estate assigned it in writing to her daughter.38 After she married and was divorced39
____________________
(1) Lit., 'this one', - whom he married.
(2) Whom he betrothed.
(3) Of any property that came into her possession after marriage.
(4) Of property she obtained after betrothal.
(5) Cf. supra p. 490, nn. 5-7. Tosef. Keth. VIII.
(6) Since this Baraitha speaks explicitly of a sale that had already taken place.
(7) Lit., 'hear or infer from it.
(8) As the one contained in our Mishnah.
(9) Who compared a betrothed to a married woman.
(10) 'EVEN IF SHE HAD SOLD IT . . . THE HUSBAND MAY SEIZE IT FROM THE BUYERS'.
(11) Only a husband and a father, acting together, may annul the vows of a betrothed woman as a na'arah (v. Glos.).
(12) While she was only betrothed.
(13) Of property that came into her possession before her marriage.
(14) By the kinyan of marriage.
(15) I.e., the right to her finds and handiwork and to the invalidation of her vows.
(16) To the usufruct of which a husband is entitled during her lifetime. If her sale is valid her husband would inevitably be deprived of his right to the usufruct.
(17) Cf. supra p. 490, nn. 5-7.
(18) I.e., a case ex post facto.
(19) From which it follows that such a sale or gift is not permitted in the first instance, a ruling which is in contradiction to that reported by R. Hanina in the name of R. Gamaliel.
(20) [On this reading the amendment is made in the text of our Mishnah; var. lec., 'Read: if she sold it or gave it away her act is valid', the change being made in the Baraitha, v. Tosaf. s.v. תני].
(21) V. supra n. 5.
(22) Our Mishnah (cf. supra n. 5).
(23) That even during betrothal a woman is not permitted in the first instance to sell or to give away, much less may she do so after marriage.
(24) The quoted Baraitha.
(25) That even a married woman may sell or give away property that came into her possession before she married. This view which R. Hanina did not state specifically in our Mishnah he elucidated in the Baraitha.
(26) And not with Beth Hillel who ruled that even after a betrothal a woman is not permitted in the first instance to sell or give away; much less may she do so after marriage. Would then R. Hanina deviate from the accepted halachah which is in agreement with Beth Hillel?
(27) But both agreed that the woman is fully entitled to sell or to give away.
(28) Tosef. Keth. VIII.
(29) V. supra p. 283. n. 12.
(30) V. Glos.
(31) The capital of which belongs to the woman, while its usufruct is enjoyed by the husband.
(32) Who is heir to his wife and has the status of a 'prior purchaser'.
(33) Supra 50a, B.K. 88b, E.M. 35a, 96b. B.B. 50a, 139b. The difficulty then arises: What need was there for the enactment of Usha in view of the ruling in our Mishnah on the enactment of Usha v. Epstein. L. The Jewish Marriage Contract, pp. 110ff.
(34) After the woman's death, however, even if she predeceased her husband, the capital would, according to our Mishnah, revert to the buyer.
(35) Cf. supra n. 5. [Tosaf. s.v. לימא states that the Gemara could have also explained the need of the enactment of Usha to provide for the case where she inherited the property whilst betrothed, whereas the Mishnah refers only to property which fell to her after marriage].
(36) It is to be assumed that the husband in marrying her expected such property to come into her possession.
(37) A widow who was about to marry.
(38) Intimating at the same time in the presence of witnesses that the transfer was only temporary, and that it was her wish that the estate shall revert to her on the death of her husband or on her being divorced by him.
(39) And her daughter refusing to part with the gift.
Talmud - Mas. Kethuboth 79a
she came before R. Nahman [to claim the return of her estate]. R. Nahman tore up the deed.1 R. Anan, thereupon, went to Mar 'Ukba2 and said to him, 'See, Master, how Nahman the boor3 tears up people's deeds'. 'Tell me', the other said to him, 'how exactly the incident occurred'. 'It occurred', he replied,' in such and such a manner'. 'Do you speak', the other exclaimed, 'of a deed a woman intended as a means of evasion?4 Thus said R. Hanilai b. Idi in the name of Samuel: I am an officially recognized judge,5 and should a deed which a woman intended as a means of evasion4 come into my hand I would tear it up.
Said Raba to R. Nahman:6 What in fact is the reason?7 [Obviously] because no man would neglect himself and give his property away to others. But this would apply to strangers only, whilst to a daughter one might well give!8 - Even in the case of a daughter a woman gives preference to her own person.9 An objection was raised: If a woman desires to keep her property from her husband, how is she to proceed? She writes out10 a deed of trust11 to a stranger;12 so R. Simeon b. Gamaliel.13 But the Sages said: If he14 wishes he may laugh at her15 unless she wrote out for him: '[You shall acquire possession] from this day whenever I shall express16 my consent',17 The reason then18 is because she wrote out for him in the manner prescribed;19 but had she not done so, the [fictitious] buyer would have acquired [would he not] possession of it?20 - R. Zera replied: There is no difficulty. One ruling21 refers to [a woman who has assigned to the stranger] all her property;22 the other,23 to [a woman who assigned to a stranger] a part of her property. But if the buyer does not24 acquire her property25 the husband26 should acquire it!27 - Abaye replied: It28 was treated as property WHICH IS UNKNOWN TO THE HUSBAND29 in accordance with the view of R. Simeon.30
MISHNAH. [IF A MARRIED WOMAN] CAME INTO THE POSSESSION OF MONEY, LAND SHOULD BE BOUGHT THEREWITH AND THE HUSBAND IS ENTITLED TO THE USUFRUCT.31 [IF SHE CAME INTO THE POSSESSION OF] PRODUCE THAT WAS DETACHED FROM THE GROUND,32 LAND SHOULD BE BOUGHT THEREWITH AND THE HUSBAND IS ENTITLED TO THE USUFRUCT. [IF IT WAS] PRODUCE ATTACHED TO THE GROUND, THE LAND,33 R. MEIR RULED, IS TO BE VALUED AS TO HOW MUCH IT IS WORTH WITH THE PRODUCE34 AND HOW MUCH WITHOUT THE PRODUCE, AND WITH THE DIFFERENCE35 LAND SHOULD BE BOUGHT36 AND THE HUSBAND IS ENTITLED TO ITS USUFRUCT.37 THE SAGES, HOWEVER, RULED: ALL PRODUCE ATTACHED TO THE GROUND BELONGS TO THE HUSBAND38 AND ONLY THAT WHICH IS DETACHED FROM IT39 BE LONGS TO THE WIFE; [WITH THE PROCEEDS OF THE LATTER] LAND IS TO BE BOUGHT AND THE HUSBAND IS ENTITLED TO THE USUFRUCT.40
R. SIMEON SAID: IN RESPECT OF THAT41 WHEREIN THE HUSBAND IS AT AN ADVANTAGE WHEN HE MARRIES HIS WIFE42 HE IS AT A DISADVANTAGE WHEN HE DIVORCES HER43 AND IN RESPECT OF THAT WHEREIN HE IS AT A DISADVANTAGE WHEN HE MARRIES HER HE IS AT AN ADVANTAGE WHEN HE DIVORCES HER. HOW SO? PRODUCE WHICH IS ATTACHED TO THE GROUND IS THE HUSBAND'S WHEN HE MARRIES HIS WIFE44 AND HERS WHEN HE DIVORCES HER,45 WHILST PRODUCE THAT IS DETACHED FROM THE GROUND IS HERS WHEN SHE MARRIES46 BUT THE HUSBAND'S WHEN SHE IS DIVORCED.47
GEMARA. It is obvious48 [that if husband and wife differ on the choice of purchase between] land and houses,49 land [is to receive preference].50 [If they differ on the choice between] houses and date-trees, houses [are to receive preference].51 [If they insist respectively on] date-trees and other fruit trees, date-trees [are to receive preference].51 [If their dispute is on] fruit trees and vines, fruit trees [are to receive preference].51 [What, however, is the ruling if the husband desires to purchase]52 a thicket of sorb53 or a fish pond?54 - Some maintain that it is regarded as55 produce;56 and others maintain that it is regarded as57 capital.58 This is the general rule:59 If the stump grows new shoots60 it is regarded as capital,61 but if the stump grows no new shoots it is regarded as produce.62
R. Zera stated in the name of R. Oshaia in the name of R. Jannai
(others say, R. Abba stated in the name of R. Oshaia in the name of R. Jannai), If a man steals
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(1) Of the gift which the daughter produced.
(2) Who was Ab Beth Din (v. Glos.). [The reference is to Mar 'Ukba II, v. Funk, Die Juden in Babylonian I, notes p. XIV.]
(3) חקלאה, lit 'field-labourer'; 'uncultured fellow'.
(4) מברחת (Hif. of ברח), lit., 'one who causes to flee' or 'to escape'.
(5) He was appointed to that office by the Resh Galutha or Exilarch (v. Sanh. 5a). מורה הוראה, lit., 'guide for ruling', one who gives directions or decisions on questions of ritual and legal practice.
(6) When he tore up the deed of gift which the daughter produced.
(7) Why Samuel (upon whose ruling R. Nahman relied) did not recognize the validity of a deed that was intended as a means of evasion.
(8) On what authority then did R. Nahman tear up the deed which had been produced by the woman's daughter?
(9) And it may safely be assumed, therefore, that the gift was intended as a temporary one which was to revert to the donor as soon as the cause that impelled her to make the gift had been removed.
(10) Prior to her marriage.
(11) שטר פסים (or פסים cf. Aruch and last.), a deed of a feigned sale or gift with which one person entrusts (cf. פיסטים 'trust') another in order to make people believe (in the interests of one of the parties) that a proper sale or presentation had actually taken place.
(12) Lit., to another', so MS.M. Cur. edd. 'to others'.
(13) Who, maintaining that such a deed has no legal validity, the holder of the deed having no claim whatever upon the property specified in it, considers the fictitious transaction as a safe protection for the woman.
(14) The holder of the deed.
(15) I.e., he may retain possession of the property by virtue of the deed; and thus refuse to return it to her.
(16) At any time in the future.
(17) Tosef. Keth. IX. In this case only is the woman protected against the holder of the deed as well as against her husband. For should the latter claim the property she can evade him by expressing consent to its acquisition by the stranger; and should the stranger claim possession she can exercise her right of refusing to give her consent.
(18) Why the holder of the deed cannot claim possession of the property in the case mentioned.
(19) Lit., 'thus'.
(20) This, then, is in contradiction to the ruling of Samuel supra.
(21) Lit., 'that', Samuel's view.
(22) Since no person would give away all his property to a stranger it is pretty obvious that the deed related to a fictitious transaction.
(23) The ruling of the Sages in the Baraitha cited.
(24) Where the woman's entire property had been assigned to him.
(25) In consequence of which the woman remains Its legal possessor.
(26) Who is entitled to the usufruct of his wife's possessions during her lifetime and to her capital also after her death.
(27) Why should the property be awarded to the woman?
(28) Property fictitiously transferred by a woman prior to her marriage.
(29) Since he believes the transaction to have been a genuine one, the husband does not expect ever to enjoy the use of the property in question.
(30) Our Mishnah ad fin.
(31) The land itself remaining in the possession of the woman.
(32) I.e., after being harvested.
(33) Which remains the property of the woman.
(34) Which, having grown before the land came into possession of the woman, remains her property, in the opinion of R. Meir, like the land itself.
(35) Lit., 'remainder', i.e., the value of the attached produce which is the property of the woman (v. supra note 7) and not of the husband who, according to R. Meir, is entitled only to such produce of his wife's land as grows after, but not before he had become entitled to the usufruct.
(36) Thus turning the proceeds of the produce into capital.
(37) The purchased land remaining the property of the wife (cf. supra note 4).
(38) Even if it grew before he had become entitled to the usufruct of the land.
(39) At the time he marries the woman, when he acquires the right to the usufruct.
(40) Cf. supra note 4.
(41) Lit., 'in the place'.
(42) Lit., 'at her entrance', sc. into her married state.
(43) Lit., 'at her going out'.
(44) If at that time they were still attached. This is in agreement with the view of the Sages supra and the point of difference between them and R. Simeon is discussed infra.
(45) A divorced woman being entitled not only to the land (which was hers all the time) but also to all produce of such land that had not been detached prior to her divorce.
(46) It is consequently turned into capital by purchasing therewith land to the usufruct of which the husband is entitled while the land itself remains in the possession of the woman.
(47) All detached fruit belonging to the husband who is entitled to the usufruct of his wife's land.
(48) When A MARRIED WOMAN CAME INTO THE POSSESSION OF MONEY which, as stated in our Mishnah, is to be invested in LAND, sc. a reliable profit yielding security.
(49) Each insisting on his or her choice.
(50) Land being a safer and better investment than houses both as regards durability (which is an advantage to the wife who remains the owner of the capital) and yield (which is an advantage to the husband who has the right of usufruct).
(51) Cf. supra n. 9 mutatis mutandis.
(52) Cf. supra n. 7. This is the interpretation of R. Tam and R. Han. (V. Tosaf. s.v. כללא) contrary to Rashi.
(53) Which can only be used for the cutting of its wood and which is valueless after the wood has been cut.
(54) That loses all its value after the fish have been removed.
(55) Lit., 'they say concerning it'.
(56) Since no capital remains (cf. supra p. 498, nn. 12 and 13) for the woman. Hence it is her right to veto such a purchase.
(57) Cf. supra n. 14.
(58) Because the land of the thicket and the pond respectively remain after the sorb had been cut or the fish had been removed. Against such a purchase, therefore, the woman may not exercise her veto.
(59) Laid down by the authors of the first ruling.
(60) I.e., if after the first yield had been disposed of the capital continues to yield further produce or profit.
(61) So R. Han. (v. Tosaf. a.l. s.v. כללא). Cur. edd., followed by Rashi, read produce'.
(62) V. supra n. 5. Cur. edd., followed by Rashi, read, 'capital'. As a thicket of sorb or a fish pond produces only one yield (cf. supra p. 498. on. 12 and 13) it may not be purchased (v. supra p. 498, n. 7) if the woman objects (cf. supra n. 15).
Talmud - Mas. Kethuboth 79b
the young of a melog1 beast he must pay double2 its value to the woman.3 In accordance with whose [view has this ruling4 been laid down]? Is it in agreement with neither that of the Rabbis nor with that of Hananiah? For it was taught: The young of a melog beast belongs to the husband; the child of a melog bondwoman belongs to the wife; but Hananiah the son of Josiah's brother ruled, The child of a melog bondwoman has been given the same legal status as the young of a melog beast!5 - It may be said to agree even with the opinion of all,6 for it is the produce alone that the Rabbis in their enactment have assigned to the husband but not the produce that accrues from this produce.7 [The view] of Hananiah is quite logical on the assumption8 that death9 is not to be taken into consideration,10 but [what principle is followed by] the Rabbis? If they do take into consideration the possibility of death,11 even the young of a melog beast also should not [belong to the husband], and if they do not take the possibility of death into consideration,12 then even the child of a bondwoman also [should belong to the husband]!13 - They do in fact take the possibility of death into consideration,11 but the case of the beast is different [from that of a bondwoman] since its skin remains.14
R. Huna b. Hiyya stated in the name of Samuel: The halachah is in agreement with Hananiah. Said Raba in the name of R. Nahman: Although Samuel said, 'The halachah is in agreement with Hananiah', Hananiah admits that if the woman is divorced she may pay the price [of the bondwoman's children] and take them because [they constitute] the pride of her paternal house [which she is entitled to retain].15
Raba stated in the name of R. Nahman: If a woman brought to her husband16 a goat for milking, a ewe for shearing, a hen for laying eggs, or a date-tree for producing fruit, he may go on eating [the yield of any of these]17 until the capital is consumed.
R. Nahman stated: If a woman16 brought to her husband a cloak18 [its use] is [to be regarded as] produce and he may continue to use it as a covering until it is worn out.19
In accordance with whose view [has this statement20 been made]? - In agreement with the following Tanna,21 for it has been taught: Salt or sand22 is regarded as produce;23 a sulphur quarry or an alum-mine24 is regarded, R. Meir said, as capital,25 but the Rabbis said, As produce.26
R.SIMEON SAID: IN RESPECT OF THAT WHEREIN THE HUSBAND IS AT AN ADVANTAGE. [Is not this view of] R. Simeon identical [with that of] the first Tanna?27 - Raba replied: The difference between them is [the case of produce that was] attached at the time of the divorce.28
MISHNAH. IF AGED BONDMEN OR BONDWOMEN FELL TO HER29 [AS AN INHERITANCE] THEY MUST BE SOLD, AND LAND PURCHASED WITH THE PROCEEDS, AND THE HUSBAND CAN ENJOY THE USUFRUCT THEREOF. R. SIMEON B. GAMALIEL SAID; SHE NEED NOT SELL THEM,30 BECAUSE THEY ARE THE PRIDE OF HER PATERNAL HOUSE.31 IF SHE CAME INTO THE POSSESSION OF OLD OLIVE-TREES OR VINES THEY MUST BE SOLD,32 AND LAND PURCHASED WITH THE PROCEEDS, AND THE HUSBAND CAN ENJOY THE USUFRUCT THEREOF. R. JUDAH SAID: SHE NEED NOT SELL THEM, BECAUSE THEY ARE THE PRIDE OF HER PATERNAL HOUSE.31
GEMARA. R. Kahana stated in the name of Rab: They33 differ only where [the olive-trees or vines] fell [to the woman] in her own field,34 but [if they were] in a field that did not belong to her35 she must, according to the opinion of all, sell them;36 because [otherwise] the capital37 would be destroyed.38 To this R. Joseph demurred: Are not BONDMEN OR BONDWOMEN39 the same as [trees in] a field that does not belong to her40 and there is nevertheless a dispute?41 - The fact is, if the statement42 has at all been made it must have been made in the following terms: R. Kahana stated in the name of Rab, They43 differ only where [the olive-trees and vines] fell [to the woman] in a field that did not belong to her44 but [if they were] in her own field45 it is the opinion of all that she need not sell them because [she is entitled to retain] the pride of her paternal house.
MISHNAH. HE WHO INCURRED EXPENDITURE IN CONNECTION WITH HIS WIFE'S [MELOG]46 PROPERTY, WHETHER HE SPENT MUCH AND CONSUMED47 LITTLE, [OR SPENT] LITTLE AND CONSUMED MUCH, WHAT HE HAS SPENT HE HAS SPENT, AND WHAT HE HAS CONSUMED HE HAS CONSUMED.48 IF HE SPENT BUT DID NOT CONSUME HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE COMPENSATION.
GEMARA. How much is considered LITTLE? - R. Assi replied: Even one dried fig; but this applies only where he ate it in a dignified manner.49 Said
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(1) V. Glos.
(2) V. Ex. XXII, 6ff.
(3) And not to the husband. Since a beast dies, and its yield ceases, the young must replace it as capital and is consequently the property of the wife. It may not be consumed by the husband but may be sold, and a produce-yielding object purchased with the proceeds.
(4) In the statement made in the name of R. jannai.
(5) And belongs to the husband.
(6) Both with that of the Rabbis and that of Hananiah.
(7) The young is the 'produce' of the beast but the 'double' that the thief pays as restitution is the produce of that young and consequently the 'produce of the produce' of the beast. This belongs to the wife.
(8) Lit., 'that is'.
(9) Either of the bondwoman or of the beast.
(10) Hence his ruling that the child of the bondwoman, as well as the young of the beast, are to be regarded as produce which belongs to the husband, the bondwoman or the beast being regarded as the 'capital' which remains in the possession of the wife.
(11) As implied by their ruling that 'the child of the melog bondwoman belongs to the wife' (cf. supra p. 499 n. 9 mutatis mutandis) and not to the husband.
(12) As their ruling that 'the young of a melog beast belongs to the husband' seems to imply.
(13) How then can the two rulings be reconciled?
(14) And constitutes a small capital which remains the possession of the woman so that the young is treated as 'produce'.
(15) Cf. Yeb. 66b.
(16) On marriage.
(17) Since milk, wool, eggs and fruit are the 'produce' of the goat, the ewe, the hen and the tree respectively and, even when the yield ceases, the woman is still left with some capital such as the skin of the goat and the ewe, the feathers of the hen or the wood of the date-tree.
(18) As melog property.
(19) The shreds being regarded as the woman's capital.
(20) Of R. Nahman that even shreds constitute capital.
(21) Sc. the Rabbis, infra, who differ from R. Meir.
(22) Of melog property situated on the sea shore.
(23) Since the yield is continual. It may, therefore, be used up by the husband.
(24) The supplies of which gradually come to an end.
(25) The quarry or the mine must he sold, and a constantly produce-yielding object is to he acquired with the proceeds.
(26) Which may he used up by the husband. The quarry or mine constitute in their opinion the capital which remains the property of the woman. Cf. supra note 2.
(27) The Sages, cf. supra p. 498, n. 3.
(28) Of which the Sages did not speak in our Mishnah. While according to R. Simeon such produce belongs to the woman, the Sages assign it to the husband because it grew prior to the divorce when he was still entitled to usufruct. That produce detached at the time of divorce belongs to the husband, as R. Simeon stated, cannot, of course, be a matter in dispute.
(29) A married woman.
(30) Even if her husband desires it (cf. Rashi).
(31) Which she is entitled to retain.
(32) 'As wood' (so the separate edd. of the Mishnah).
(33) The first Tanna and R. Judah in our Mishnah.
(34) I.e., if she came into the possession of the trees together with land in which they grew.
(35) If, for instance, her father from whom she inherited them did not own the soil and was only entitled to the trees alone until they withered.
(36) In order that land or any other produce-yielding capital might be acquired with the proceeds.
(37) Which should remain the permanent possession of the woman.
(38) When the trees withered.
(39) After whose death no capital whatsoever remains.
(40) Cf. supra note 6.
(41) Though the capital is destroyed.
(42) Attributed to Rab.
(43) The first Tanna and R. Judah in our Mishnah.
(44) V. supra note 3.
(45) V. supra note 2.
(46) V. Glos.
(47) By virtue of his right to its usufruct.
(48) He has no claim for compensation upon his wife should he divorce her.
(49) V. Kid. 45b.
Talmud - Mas. Kethuboth 80a
R. Abba: At the school of Rab it was stated, Even the refuse1 of dates.2
R.Bibi enquired: What [is the ruling in respect of] a mash of pressed dates?3 - This stands undecided.4
What [is the ruling if] he did not eat it5 in a dignified manner?6 'Ulla replied: On this there is a difference of opinion between two Amoraim in the West.7 One says, The value of an issar;8 and the other says, The value of a denar.8
The judges of Pumbeditha9 stated: Rab Judah gave a practical decision10 in [a case where the husband used up some] bundles of vine-shoots,11 Rab Judah acting here in accordance with his own principle; for Rab Judah ruled: If he12 ate thereof [during one of the three years] only 'uncircumcised'13 produce,14 [the produce of] the Sabbatical year,15 or the produce of mingled seed,16 this counts [towards the three years of] hazakah.17
R. Jacob stated in the name of R. Hisda: If a man has incurred expenses on the melog property of his wife who was a minor18 [he is in the same legal position] as one who incurred expenses on the property of a stranger.19 What is the reason? - The Rabbis have enacted this measure20 in order that he should not allow her property to deteriorate.21
A woman once came into the possession of four hundred zuz22 at Be-Hozae.23 Her husband went thither, spent six hundred [on his journey] and brought with him the four hundred. While he was on his way back he required one zuz and took it out of these. When he came before R. Ammi24 the latter ruled: What he has spent he has spent and what he used he has used.25 Said the Rabbis to R. Ammi: Does not this26 apply only where he consumes the produce, whilst here he used up the capital which [constituted a part of] the expenditure? - If so, he replied,27 he is one who SPENT BUT DID NOT CONSUME, then HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE HIS COMPENSATION. HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE COMPENSATION. Said R. Assi: This applies only where the appreciation corresponds to the expenditure. What exactly is the object of this28 law?29 - Abaye replied: That if the appreciation exceeded the expenditure be receives the sum of his outlay without an oath. Said Raba to him: If so,30 one might be induced to act cunningly!31 - [The object of the law] however, said Raba, was that if the outlay exceeded the appreciation he is only entitled to receive that amount of his outlay which corresponds to the appreciations and [even this can be obtained only] by an oath.32
The question was raised: What is the legal position where a husband has sent down33 arisin34 in his place?35 Does [an aris] go down [into melog fields] in his reliance on the rights of the husband, [and, consequently,] when the husband forfeits his claim36 they also37 lose theirs, or does an aris possibly go down [into the melog fields] in his reliance on the [yield of] the land, and land, surely is usually entrusted to arisin?38 To this Raba son of R. Hanan demurred: Wherein does this case essentially differ from that of a man who went down into a neighbour's field and planted it without the owner's authority where an assessment39 is made and he is at a disadvantage?40 - In that case41 there was no other person to take the trouble;42 but here there is the husband who should have taken the trouble.43 What then is the decision on the matter? - R. Huna the son of R. Joshua replied: We must observe [the conditions of each case]: If the husband is an aris,44 the arisin lose all claim to compensation wherever the husband loses his claim;45 if the husband is not an aris [they are entitled to compensation, since] all land is usually entrusted to arisin.46
The question was raised: What is the ruling where a husband sold [his wife's melog] land for usufruct?47 Do we say that whatever he possesses48 he may transfer to others, or is it possible that the Rabbis have by their enactment granted the usufruct to the husband Only
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(1) שיגרא (rt. שגר 'to flow', 'to cast').
(2) After all the juice and sweetness has been pressed out, when they are practically valueless.
(3) V. Jast. s.v. חובץ ,חובצא.
(4) Teku, v. Glos.
(5) The 'dried fig', supra.
(6) I.e., what minimum quantity must one eat in such a case to he regarded as having CONSUMED LITTLE?
(7) Palestine.
(8) V. Glos.
(9) The reference is to R. Papa b. Samuel (v. Sanh. 17b).
(10) In favour of the wife who was divorced.
(11) Of his wife's melog property, with which he fed his cattle. Though the shoots were hardly suitable for the purpose, Rab Judah regarded their consumption as sufficient reason for denying the husband all rights to compensation for his expenses.
(12) A person who occupied a field for three years.
(13) 'Orlah (v. Glos. and cf. Lev. XIX, 23).
(14) I.e., the shoots, since the fruits of 'Orlah are forbidden for all uses.
(15) Which is common property and the consumption of which is no proof of ownership.
(16) Kil'ayim (v. Glos. and cf. Lev. XIX, 19 and Deut. XXII, 9). Only the shoots are permitted in this case also (cf. supra n. 15).
(17) V. Glos. This shews that right of ownership may be established not only by the consumption of proper produce but also by that of mere shoots. Similarly, here, the improper feeding of one's cattle with vine-shoots is also regarded as proper consumption to exempt the woman from all responsibility for the expenses her husband had incurred on her melog property.
(18) Who might leave him at any time by exercising her right of mi'un (v. Glos.).
(19) The minor on exercising mi'un must compensate her husband for any improvements he may have effected in her property, paying him at the rate given to an aris (v. Glos.) in that country.
(20) Conferring upon the husband of a minor the rights of an aris in respect of any expenses on her melog property that he may incur.
(21) Had no provision been made for enabling him to recover his expenses he, knowing that the minor might leave him at any moment by exercising her right of mi'un, would exploit her property to the full, spending nothing on its improvement.
(22) V. Glos.
(23) A town in Khuzistan, S.W. Persia.
(24) Claiming his expenses.
(25) Cf. our Mishnah. The benefit he has derived from the one zuz ('CONSUMED LITTLE') deprives him of the right to recover the six hundred zuz for his expenses ('HE SPENT MUCH').
(26) That If HE HAS SPENT MUCH AND CONSUMED LITTLE he cannot recover his expenses.
(27) So Bah.
(28) Lit., 'concerning what'.
(29) Of R. Assi, i.e., does he lay the emphasis on TAKE AN OATH or on RECEIVE? In other words: Is it implied that the husband must swear Only where the appreciation just corresponds with his outlay, hut is to receive his outlay without any oath where the appreciation exceeds the outlay; or is the implication that he is to receive for his outlay no more than the value of the appreciation, and where the former exceeds the latter, he is not entitled to receive the difference even though he is willing to swear?
(30) That in the circumstances mentioned one may obtain a sum of money without affirming his claim by an oath.
(31) However small the outlay, one might claim the full value of appreciation minus a fraction, and receive it for the mere asking.
(32) Confirming the amount he claims.
(33) Into his wife's melog lands.
(34) Pl. of aris (v. Glos.).
(35) Do these arisin, when the woman is divorced, receive the full value of their amelioration?
(36) Where, e.g., he consumed any part of the produce.
(37) If they consumed any of it.
(38) Had not the husband sent them, the wife would have done it herself. The arisin should consequently he entitled to the full refund of their share.
(39) Of the appreciation.
(40) B.M. 101a. He is repaid the amount he spent or is allowed the value of the appreciation whichever is the less. The two cases being essentially analogous, why was the question of the arisin at all raised?
(41) That of the man who entered his neighbour's field.
(42) Of planting the field. The man who undertook the work in the absence of other cultivators, and thus benefited the owner, is therefore, justly entitled to some compensation.
(43) And since he would not have been entitled to any compensation if he consumed anything of the produce so also, it may well he argued, should not the arisin, who stepped into his place, be entitled to any compensation. Hence the enquiry.
(44) Capable of attending to the field himself as any experienced aris.
(45) Since the wife might well plead that, if they had not interfered, her husband would himself have done the work. As they have only done what the husband would have done they cannot expect any higher privileges.
(46) Cf. supra p. 505, n. 9.
(47) Sc. that the buyer cultivated the land and enjoys its produce while the land itself remains the property of its original owner.
(48) לה of cur. edd. in brackets is wanting in Alfasi. Cf. Asheri.
Talmud - Mas. Kethuboth 80b
in order to provide for the comfort of his home but not so that he should sell it? - Judah Mar b. Meremar replied in the name of Raba: Whatever he has done is done. R. Papi1 in the name of Raba replied: His act has no validity. Said R. Papa: The ruling reported2 by Judah Mar b. Meremar was not explicitly stated3 but was arrived at by inference. For a woman once brought to her husband4 two bondwomen,5 and the man went and married another wife and assigned to her one of them. [When the first wife] came before Raba and cried, he disregarded her. One who observed [the incident] formed the opinion [that Raba's inaction] was due to his view that whatever the husband did6 is valid;7 but in fact, it is not so.8 [Usufruct has been allowed to a husband] in order to provide for the comfort of his house and here, Surely, comfort was provided.9
And the law is that if a husband sold [his wife's melog] field for its usufruct10 his act has no legal validity. What is the reason? Abaye replied: Provision must be made against the possible deterioration of the land.11 Raba explained: In order [to safeguard] the comfort of his house.12 What is the practical difference between them?13 - The practical difference between them is the case of land that was adjoining a town;14 or else where the husband [himself] was [acting as] aris,15 or else where [the husband] receives money16 and trades therewith.17
MISHNAH. IF A WOMAN AWAITING THE DECISION OF THE LEVIR18 CAME19 INTO THE POSSESSION OF PROPERTY, BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY, AND THAT HER ACT IS LEGALLY VALID.20 IF SHE DIED, WHAT SHALL BE DONE WITH HER KETHUBAH21 AND WITH THE PROPERTY THAT COMES IN AND GOES OUT WITH HER?22 BETH SHAMMAI RULED: THE HEIRS OF HER HUSBAND23 ARE TO SHARE IT24 WITH THE HEIRS OF HER FATHER;25 AND BETH HILLEL RULED: THE [ZON BARZEL]26 PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS,27 THE KETHUBAH28 IS TO REMAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND, AND THE PROPERTY WHICH GOES IN AND COMES OUT WITH HER29 REMAINS IN THE POSSESSION OF THE HEIRS OF HER FATHER.
IF HIS30 BROTHER31 LEFT MONEY, LAND SHALL BE BOUGHT THEREWITH AND HE32 SHALL ENJOY ITS USUFRUCT.33 [IF THE DECEASED LEFT] PRODUCE THAT WAS DETACHED FROM THE GROUND, LAND SHALL BE BOUGHT [OUT OF THE PROCEEDS] AND HE32 SHALL ENJOY ITS USUFRUCT. [IF IT WAS STILL] ATTACHED TO THE GROUND, THE LAND34 IS TO BE ASSESSED, SAID R. MEIR, AS TO HOW MUCH IT IS WORTH35 TOGETHER WITH THE PRODUCE AND HOW MUCH IT IS WORTH WITHOUT THE PRODUCE, AND WITH THE DIFFERENCE LAND SHALL BE BOUGHT,36 AND HE37 SHALL ENJOY ITS USUFRUCT. THE SAGES, HOWEVER, RULED: PRODUCE WHICH IS [STILL] ATTACHED TO THE GROUND BELONGS TO HIM,38 BUT THAT WHICH IS DETACHED FROM THE GROUND PASSES INTO THE OWNERSHIP OF HIM WHO SEIZES IT FIRST.39 IF HE [SEIZED IT] FIRST HE ACQUIRES OWNERSHIP; AND IF SHE [SEIZED IT] FIRST LAND SHALL BE BOUGHT THEREWITH AND HE37 SHALL ENJOY ITS USUFRUCT. IF [THE LEVIR] MARRIED HER SHE IS REGARDED AS HIS WIFE IN ALL RESPECTS38 SAVE THAT HER KETHUBAH REMAINS A CHARGE ON HER FIRST HUSBAND'S ESTATE. HE CANNOT SAY TO HER, 'BEHOLD YOUR KETHUBAH LIES ON THE TABLE', BUT ALL HIS PROPERTY40 IS PLEDGED TO HER KETHUBAH.41 SO, TOO, A MAN MAY NOT SAY TO HIS WIFE, BEHOLD YOUR KETHUBAH LIES ON THE TABLE, BUT ALL HIS PROPERTY IS PLEDGED TO HER KETHUBAH. IF HE DIVORCED HER42 SHE IS ENTITLED ONLY TO HER KETHUBAH.43 IF HE SUBSEQUENTLY REMARRIED HER SHE IS [TO ENJOY THE SAME RIGHTS AS] ALL OTHER WIVES, AND IS ENTITLED ONLY TO HER KETHUBAH.38
GEMARA. The question was raised: If a woman awaiting the decision of a levir44 died, who is to bury her? Are her husband's heirs to bury her because they inherit her kethubah45 or is it possibly the heirs of her father who must bury her because they inherit the property that comes in and goes out with her? - R. Amram replied, Come and hear what was taught: If a woman awaiting the decision of a levir died,
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(1) So MS.M. and Bail. Cur. odd., 'Papa'.
(2) Lit., 'that'.
(3) By Raba.
(4) On marriage.
(5) As melog property.
(6) Even if he sold moles property.
(7) Hence the statement of Judah Mar.
(8) A husband has no right to sell such property. It was only in that particular case that the husband acted within his rights for the reason that follows.
(9) Since the bondwoman would even now attend to general household duties.
(10) V. supra note 4.
(11) Lit., 'we fear lest it will deteriorate'. The buyer of the usufruct, having no interest in the land itself, would exploit it to the full, neglecting its proper cultivation and use. The husband, however, who, in addition to his right to usufruct, might also, in the event of his surviving his wife, become the owner of the land itself, may well be relied upon to give it proper attention.
(12) The sale of the usufruct to a stranger would deprive the household of the enjoyment of it.
(13) Abaye and Raba. Is not the sale of the usufruct equally forbidden whatever the reason?
(14) Where it is possible to watch the treatment meted out to the land by the buyer and to take in good time the necessary steps for its protection. In such a ease Raba's reason is applicable; Abaye's is not. According to the latter the husband would he entitled to sell the usufruct.
(15) He himself was looking after the land, delivering to the buyer the harvested produce. In this case also Raba's reason is applicable, but not Abaye's (cf. supra note 4).
(16) From the buyer.
(17) In this case Abaye's reason applies: but not Raba's, since the income from the trading provides for the comfort of the house. According to Raba the sale of usufruct in such a case is permitted.
(18) שומרת יבם the widow of a deceased brother during the period intervening between the death of her husband and her halizah or marriage with the levir.
(19) During this waiting period (Rashi. Cf., however, Rashi on the parallel Mishnah s.v. שנפלו Yeb. 38a).
(20) As melog property (v. Glos.) she has the right to dispose of it in the way she thinks fit.
(21) V. Glos. Here it denotes the sum corresponding in value to the wife's dowry which is conveyed under terms of tenancy to the husband, who enters it in the marriage contract and accepts full responsibility: v. Glos. s.v. zon barzel.
(22) I.e., her melog property, the capital of which remains in the legal possession of the wife, the husband, who enjoys Only the usufruct, accepting no responsibility for it.
(23) Who is heir to his wife. 'Husband' in this context _ levir.
(24) I.e., the melog property, not the kethubah concerning which Beth Shammai are of the same opinion as Beth Hillel that follows. The discrepancy between the first clause in the Mishnah, where the melog property is declared definitely hers, whereas in this second clause it is considered doubtfully so, is explained in Yeb. 38a.
(25) Since it is a matter of doubt whether the marital bond with the levir constitutes such a close relationship as that of actual marriage, the right of heirship as between her husband's heirs and her father's cannot he definitely determined. The property must, therefore, he equally divided between them.
(26) V. Glos.
(27) The question whether these are the heirs of the husband who had undertaken responsibility for the property, or the heirs of the wife whose capital it was originally, is dealt with 10 B.B. 158b.
(28) Here (unlike supra p. 507, n. 11) it has its usual connotation; (a) the statutory sum of a hundred zuz for a widow and two hundred zuz for a virgin which is entered in all marriage contracts irrespective of any property that the wife may bring with her on marriage and (b) the amount which the husband adds to it over and above the value of the property which she brought to him.
(29) V. supra note 1,
(30) The levir's (v. supra p. 507, n. 11).
(31) The deceased (v. l.c.).
(32) The levir, if he contracted the levirate marriage with the widow.
(33) The capital being pledged to the woman for her kethubah which remains a charge upon the estate of her first husband, the deceased. According to this opinion even movable possessions, such as money. are also pledged for the kethubah.
(34) Read אותה with Bah a.l. Cur. edd. אותן refers to פירות and conveys no sense.
(35) היא יפה (so Bah). Cur. edd. הן יפין (cf. previous note).
(36) R. Meir holding the view that whatever the land yielded while it was in the possession of the deceased (i.e.. during his lifetime) is mortgaged for the wife's kethubah.
(37) The levir, if he contracted the levirate marriage with the widow.
(38) This is discussed in the Gemara infra.
(39) כל הקודם זכה lit., 'whoever is first gains possession'. The same ruling applies also to money, since movables, in the opinion of the Sages, are not pledged for the kethubah unless the wife had seized them (cf. Infra 84b).
(40) Which he inherited from his deceased brother.
(41) I.e., he cannot pay her out her kethubah and sell the rest, hut must hold the whole of the deceased brother's estate as mortgaged to her kethubah; v. infra p. 512, n. 21.
(42) After he had duly consummated the levirate marriage.
(43) And he is at liberty to dispose of the rest of the property (v. supra n. 6) as he may desire.
(44) Cf. supra p. 507, n. 8.
(45) Which should compensate for burial expenses (cf. supra 47b).
Talmud - Mas. Kethuboth 81a
it is the duty of her heirs, even those who inherit her kethubah, to bury her. Said Abaye, We also have learned a [similar Mishnah]: A widow is to be maintained out of the estate of [her deceased husband's] orphans, and her handiwork belongs to them. It is not their duty, however, to bury her; it is the duty of her heirs, even those who inherit her kethubah, to bury her.1 Now, what widow is it that has two kinds of heirs?2 Obviously3 she who is awaiting the decision of a levir.4
Said Raba: But could5 he not plead, 'I am only heir to my brother; it is not my duty to bury his wife'!6 - Abaye replied: [Such a plea would be untenable] because he is approached by two alternative demands:7 If he is heir to his brother he should bury his wife;8 if he does not bury his wife he should return her kethubah.9 [Raba] retorted, it is this that I mean: [Might he not plead], 'I am only heir to my brother; it is not my duty to bury his wife; and if [I am expected to bury her] on account of the kethubah10 [I may point out that] a kethubah is not payable during [the husband's] lifetime'?11 - Who is it that was heard to admit the kethubah as a text for legal exposition?12 Beth Shammai, of course.13 But Beth Shammai have also been heard to lay down the rule that a note of indebtedness which is due for payment is regarded as repaid.14 For we have learned: If their husbands15 died before they drank,16 Beth Shammai rule that they are to receive their kethubah and that they need not drink,16 and Beth Hillel rule that they either drinks or they do not receive their kethubah.17 [Now how could it be said,] 'They either drink', when the All-Merciful said, Then shall the man bring his wife to the priest,18 and he is not there? [The meaning must] consequently be: As they do not drink19 they are not to receive their kethubah. Again 'Beth Shammai rule that they are to receive their kethubah and that they need not drink', but why [should they receive their kethubah]? Is not their claim of a doubtful nature,20 it being uncertain whether she had committed adultery or not;21 then how could an uncertainty22 override a certainty?23 Beth Shammai [must consequently] hold the view that 'a note of indebtedness that is due for payment is regarded as repaid'.24 But is it not required [that the proviso], 'When thou wilt be married to another man thou wilt receive what is prescribed for thee' [be complied with], which is not the case here?25 - R. Ashi replied: A levir is also regarded as 'another man'.26
Raba addressed [the following message] to Abaye27 through R.Shemaya b. Zera: Is a kethubah28 indeed payable during [the levir's] lifetime? Has it not, in fact, been taught: R. Abba29 stated, 'I asked Symmachus, "How is a man30 who desires to sell his brother s property to proceed" [and he replied,] "If he is a priest,31 he should prepare a banquet32 and use persuasive means;33 if he is an Israelite34 he may divorce her and then marry her again".'35
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(1) Supra 43a, infra 95b.
(2) The expression 'her heirs, even those who inherit her kethubah' implies that there exists also another class of heirs who do not inherit her kethubah.
(3) Lit., 'be saying'.
(4) [The last clause is to be taken independently of the first, which cannot refer to such a widow since it speaks of orphans, v. Tosaf.].
(5) The levir who, in fact, inherits only the statutory kethubah and the additional jointure, which are the property of his brother, and not the zon barzel, the original property of the woman. Cf. however, Tosaf. s.v. ולימא a.l.
(6) It was only his brother's duty to bury his wife in return for her kethubah which he inherits (cf. supra 47b) but not his duty, since he does not inherit from the widow but from his brother.
(7) Lit 'they come to him from two sides'.
(8) As his brother would have done had he survived her.
(9) To her heirs. Which is conceded to a husband in return for his wife's burial expenses.
(10) Cf. note 10.
(11) And he, representing her husband, since it was his intention to consummate levirate marriage, is still alive.
(12) The exposition being: Since the kethubah contains the proviso, 'When thou wilt be married to another man, thou wilt receive what is prescribed for thee', it may be inferred that, except in the case of divorce, the kethubah is not payable during the lifetime of the husband, when his wife cannot 'be married to another man.
(13) V. Yeb. 117a.
(14) Yeb. 38b, Sol. 25a. The amount of the debt is deemed to he in the virtual possession of the creditor. So, too, with the amount of the kethubah which is deemed to he in the virtual possession of the widow. The levir is consequently inheriting it not from his brother but from the widow, in return for which he must incur the obligation of burying her.
(15) Of women suspected of illicit intercourse with strangers after they had been warned by their husbands.
(16) The water of bitterness. (V. Num. V, 24).
(17) Yeb. 38b. Sol. 24a.
(18) Num. V, 15, emphasis on man.
(19) The water of bitterness (v. Num. V, 24.)
(20) Of course it is.
(21) In the former case she loses her right to her kethubah; in the latter case she does not.
(22) That of her claim (v. supra n. 10).
(23) It is certain that the husband's heirs are the rightful owners of his estate.
(24) So that the woman (and not the heirs) being regarded as the virtual possessor of the amount of her kethubah, no certainty is here overridden by an uncertainty.
(25) Since one awaiting the decision of a levir is not permitted to marry any stranger. How, then, could it he said supra that the kethubah is collected in the levir's lifetime?
(26) At the moment her husband's death had set her free to marry the levir the proviso of her kethubah was fulfilled, and her kethubah is payable.
(27) Who maintained supra that the kethubah is payable even during the lifetime of the levir.
(28) Of a woman awaiting the decision of the levir.
(29) I.e., R. Abba Arika or Rab.
(30) A levir who married his deceased brother's widow for whose kethubah (v. our Mishnah) all the property he inherited from his deceased brother is mortgaged.
(31) Who is forbidden to marry a divorced woman (v. Lev. XXI, 7).
(32) For his wife, his former sister-in-law.
(33) To secure her consent to sell so much of the property (v. supra note 6) as is in excess of the amount of her kethubah. If her consent cannot he obtained and he wishes to live with her he has no redress. He cannot divorce and remarry her as an Israelite may (v. infra) since his priesthood (v. supra note 7) would preclude him from marrying a woman he has once divorced.
(34) Who may marry a divorced woman.
(35) Adopting this course, he may either (a) pay her the amount of her kethubah as soon as she is divorced and, after selling all the property which is in excess of it, marry her again (on the condition of the first kethubah, v. infra 80b) or (b) he may remarry her before paying to her the amount of her kethubah and on remarriage give her a new one which, as all ordinary kethuboth, is secured not only on his present possessions but also on his future acquisitions. It is only a levir whose future acquisitions are not pledged for the kethubah of his deceased brother's widow (whom he marries and whose only security is the property left by her deceased husband) that is forbidden to sell the property he has inherited from that brother. Any other husband, including a levir who remarried his sister-in-law after he consummated levirate marriage and after he divorced her, since such a kethubah is secured by present possession and future acquisition, may well sell all his property even without his wife's consent.
Talmud - Mas. Kethuboth 81b
Now if it could be assumed that a kethubah is payable during the lifetime [of the levir] why should he not set aside exclusively for her some property equal in value to the amount of the kethubah, and then sell the rest?1 'But according to your argument2 [it might be asked] why should not the same objection3 be raised from our Mishnah [where it was stated,] HE CANNOT SAY TO HER, "BEHOLD YOUR KETHUBAH LIES ON THE TABLE", BUT ALL HIS PROPERTY IS PLEDGED FOR HER KETHUBAH?' - 'There4 we might merely have been given a piece of good advice;5 for, were you not to admit this, [how would you] read the final clause where it is stated, So, TOO, A MAN MUST NOT SAY TO HIS WIFE, "BEHOLD YOUR KETHUBAH LIES ON THE TABLE", BUT ALL HIS PROPERTY IS PLEDGED FOR HER KETHUBAH, would he here also [it may be asked] not be able to sell if he wished to do so?6 Consequently [it must be agreed that] he was there merely giving a piece of good advice;7 and similarly here also we might merely be given a piece of good advice;5 the statement of R. Abba, however, does present an objection!'8 - 'R. Abba's statement also does not give rise to any objection [because the restrictions on the man's liberty to sell] are due to [the desire of avoiding] hatred.'9 A sister-in-law once fell to the lot of a man10 at Pumbeditha, and his [younger] brother wanted to cause her to be forbidden to marry him11 by [forcing upon her] a letter of divorce.12 'What is it', [the eldest brother] said to him, 'that you have in your mind? [Are you troubled] because of the property13 [that I all, to inherit]?14 I will share the property with you'. R. Joseph [in considering this case] said: Since the Rabbis have laid down that he15 may not sell,16 his sale is invalid even if he had already sold it.17 For it was taught:18 If a man died19 and left a widow who was awaiting the decision of a levir20 and also left a bequest of property of the value of a hundred maneh,21 [the levir] must not sell the property although the widow's kethubah amounts only to one maneh, because all his property is pledged to her kethubah.22 Said Abaye to him:23 Is it so that wherever the Rabbis ruled that one must not sell, the sale is invalid, even after it had taken place? Did we not, in fact, learn: Beth Shammai said, She24 may sell it, and Beth Hillel said, She may not sell it; but both agree that if she had sold it or given it away her act is legally valid?25 The case was sent to R. Hanina b. Papi who sent [the same reply] as that of R. Joseph. On this Abaye remarked: Has R. Hanina b. Papi, forsooth, hung jewels26 upon it?27 It was then sent to R. Minyomi the son of R. Nihumai who sent [the same reply] as Abaye28 [and added:]29 'Should R. Joseph give a new reason report it to me. R. Joseph thereupon went out, investigated, and discovered that it was taught: If a man who had a monetary claim against his brother died,30 and left a widow who had to await the decision of a levir, [the latter]31 is not entitled to plead, 'Since I am the heir I have acquired [the amount of the debt]', but it must be taken from the levir and spent on the purchase of land and he is only entitled to its usufruct.32 But 'is it not possible', said Abaye to him, 'that provision was made in his own interests?'33 - 'The Tanna stated', the other replied, 'that it must be "taken" from him,34 and you say that "provision was made in his own interests"'! The case was again sent to R. Minyomi the son of R. Nihumai who said to then,: Thus said R. Joseph b. Minyomi in the name of R. Nahman, 'This35 is not an authentic teaching'.36 What is the reason?37 If it be Suggested, 'Because money is a movable thing and movables are not pledged to a kethubah',38 is it not possible [it might be retorted] that the statement represents the view of R. Meir who holds that movables are pledged to a kethubah?39 [Should it be suggested,] however,40 'Because he41 could say to her: You are not the party I have to deal with',42
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(1) What need then was there for persuasion or divorce and remarriage?
(2) 'Since you can see no reason against the sale of the property in excess of the kethubah except that a kethubah is not payable during the levir's lifetime'.
(3) Against Abaye, supra.
(4) In our Mishnah.
(5) In the interests of the woman; but not a legal ruling. Hence no objection can arise from it.
(6) Of course he could sell, since his future acquisitions are also pledged for the kethubah (cf. supra p. 512, n. 11).
(7) Cf. supra n. 6.
(8) As shewn supra.
(9) Between husband and wife. Were he allowed to set aside a particular part of his property as surety for her kethubah she might misinterpret his action to be a preliminary to a permanent divorce. By adopting the measures described supra he makes it clear to all that the only motive for his action was his desire to sell the property.
(10) The woman's husband died without issue and the duty of marrying her or submitting to her halizah fell upon that man who was the eldest surviving brother of the deceased.
(11) His eldest brother.
(12) A divorce by one of the surviving brothers causes the widow to be forbidden to all the brothers (v. Yeb. 50a).
(13) Of the deceased.
(14) The brother who marries the widow inherits also the estate of the deceased (v. Yeb. 40a).
(15) A levir for whose marriage (or halizah) a sister-in-law is waiting.
(16) The estate of his deceased brother, which he inherits.
(17) Similarly, here, the share promised to the younger brother under a legal kinyan is deemed to be a sale which is invalid.
(18) Cf. infra n. 10.
(19) Without issue.
(20) Cf. supra p. 507, n. 8.
(21) V. Glos.
(22) Which proves that the levir who is responsible far his sister-in-law's kethubah may not sell any of his deceased brother's property which he inherits.
(23) R. Joseph.
(24) A wife who came into the possession of property.
(25) Supra 78a; which proves that a sale ex post facto is valid even though it was not originally permitted.
(26) כיפא ,כיף) כיפי 'stone') 'precious stones'.
(27) He has not. His ruling is no more supported by proof or reason than that of R. Joseph, and may he equally disregarded.
(28) That the sale is valid.
(29) Cf. MS.M. which inserts, 'and he (also) sent (word) to them'.
(30) Without issue.
(31) I.e., the debtor who, as brother of the deceased, marries his widow and also inherits his estate (v. supra p. 514, n. 4).
(32) The debt in this case is similar to a sale ex post facto, and nevertheless it is invalid; which proves the correctness of R. Joseph's ruling.
(33) Lit., 'that which was good for him they did for him'; it is more advantageous for a person when his money is invested than when it is spent.
(34) Implying forcible action against his will.
(35) The Baraitha discovered by R. Joseph.
(36) It is spurious and not to be relied upon.
(37) V. previous note.
(38) And a statement that regards them as pledged to a kethubah must consequently be spurious.
(39) Cf. Yeb. 99a, Kid. 68b.
(40) As a reason why the statement under discussion must be considered spurious.
(41) The levir.
(42) He is the debtor of the deceased but not hers. Cf. supra n.8 mutatis mutandis.
Talmud - Mas. Kethuboth 82a
is it not possible [it might be retorted] that the statement represents the view of R. Nathan, since it was taught: R. Nathan stated, 'Whence is it deduced that if a man claims a maneh1 from another, and this one [claims a similar sum] from a third, the sum is to be collected from the last [named] and handed over to the first? From Scripture, which stated,2 And give unto him against whom he hath trespassed'?3 [This], however, [is the reason:]4 We find nowhere a Tanna who imposes two restrictions5 in the matter of a kethuboth;6 we only find agreement either with R. Meir or with R. Nathan.7 Raba remarked: If so, I can well understand8 what Abaye meant when I heard him say, 'This is not an authentic teaching' and [at the time] I did not understand what [his reason] was.
A sister-in-law at Matha Mehasia9 once fell to the lot of a man10 whose [younger] brother wanted to cause her to be forbidden to marry him11 by [forcing upon her] a letter of divorce.12 'What is it', [the eldest brother] said to him, 'that you have in your mind? If it is on account of the property13 [that you are troubled]14 will share the estate with you'. 'I am afraid', the other replied, 'that you will treat me as the Pumbedithan rogue [has treated his brother]'.15 'If you wish', the first said to him, 'take your half at once'.16 Said Mar son of R. Ashi: Although when R. Dimi came17 he stated in the name of R. Johanan, If a man said to another, 'Go and pull18 this cow, but it shall pass into your legal possession only after thirty days', he legally acquires it after thirty days,19 even if it stands at the time in the meadow,20 [in this case the younger brother cannot acquire possession of the promised share]; for there21 it was in his power [to transfer possession at once]22 but here23 it is not in his power [to transfer immediate possession]. But, surely, when Rabin came24 be stated in the name of R. Johanan25 that 'he does not acquire possession'!26 - This is no difficulty: One27 refers to a case where the seller said, 'Acquire possession28 from now';29 the other, where he did not say, 'Acquire from now'.
'Ulla was asked: What is the ruling where levirate marriage was consummated first and the division of the property30 took place afterwards?31 - The act32 is null and void33 [he replied]. What is the ruling [he was asked] if the division30 took place first and the levirate marriage afterwards?31 -The act32 [he replied] is null and void.33 R. Shesheth demurred: Now [that it has been said that where] levirate marriage took place first and the division30 afterwards the act32 is null and void, was it at all necessary [to ask the question where] the division took place first and the levirate marriage afterwards?34 - [The respective enquiries related to] two independent incidents that occurred [at different times].35
When Rabin came24 he stated in the name of Resh Lakish: Whether levirate marriage was consummated first and the division took place afterwards, or whether the division took place first and the levirate marriage afterwards, the act is null and void. And [in fact] the law is that the act is null and void.
THE SAGES, HOWEVER, RULED: WHAT IS STILL ATTACHED TO THE GROUND BELONGS TO HIM. But why? Is not all his36 landed estate37 a pledge and a guarantee for her kethubah? - Resh Lakish replied: Read, 'Belongs to her'.38
IF [THE LEVlr] MARRIED HER SHE IS REGARDED AS HIS WIFE. In what respect? - R. Jose the son of R. Hanina replied: By this is meant that her separation from him is effected by a letter of divorce39 and that he may marry her again.40 [You say,] 'Her separation from him is effected By a letter of divorce'; [but] is not this obvious? - It might have been assumed that since the All-Merciful said, And perform the duty of a husband's brother unto her,41 she42 is still subject to the original levirate obligations43 and a letter of divorce should not be enough unless [the separation had been effected] by halizah, hence we were taught [that only a letter of divorce is required].
[You say,] 'He may marry her again'; [but] is not this obvious?
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(1) V. Glos.
(2) Num. V, 7.
(3) Emphasis on the last five words which refer to the first, who is the person against whom the trespass had been committed, and not to the second who is merely an intermediary who, even if the debt had been repaid to him, would also have had to transfer it to the first. Similarly in the statement under discussion the debt which the deceased claims from the levir might well be regarded as a debt due to the widow who has a claim upon the deceased.
(4) Cf. supra p. 515, n. 10.
(5) That of R. Meir as well as that of R. Nathan.
(6) Which is only a Rabbinical institution.
(7) But not with both. Since the statement under discussion does impose both restrictions it must be considered spurious.
(8) Lit., 'that is'.
(9) A suburb of Sura. It was an important seat of learning in the days of Rab, and attained even greater fame in the first two decades of the fifth century under the guidance of R. Ashi.
(10) Cf. supra p. 523, n. 10.
(11) Cf. loc. cit. n. 11.
(12) Cf. supra p. 513, n. 12.
(13) Cf. p. 514, n. 1.
(14) Cf. loc. cit. n. 2.
(15) He did not keep the promise he made (supra Rib). Pumbeditha was notorious for its sharpers (cf. B.E. 46a, Hul. 127a).
(16) Though legal acquisition could not be effected until the consummation of the levirate marriage.
(17) From Palestine to Babylon.
(18) Pulling, meshikah (v. Glos.) is one of the forms of kinyan.
(19) From the moment he pulled it.
(20) Sc., not in the possession of the buyer.
(21) In the case of the cow,
(22) Hence he may legally transfer possession even after thirty days.
(23) In the case of the share of the younger brother. The elder brother cannot possibly convey possession of the deceased brother's estate before performing the levirate marriage, when it then passes into his possession. Hence also the invalidity of the kinyan.
(24) From Palestine to Babylon.
(25) In the case of the deferred acquisition of a cow, just cited.
(26) Which presents a contradiction between the two rulings attributed to R. Johanan.
(27) The first cited ruling.
(28) After the thirty days.
(29) I.e., retrospective possession which is valid.
(30) Between the levir who married the widow and any other of the brothers.
(31) Is the brother entitled to retain the property the levir has allotted to him?
(32) Sc. the division by which the levir deprives the widow whom he married of a security for her kethubah.
(33) And the property remains in the possession of the levir, the kethubah of the widow being secured on it.
(34) If the division is invalid in the first case, where the kinyan might be immediate, how much more so in the second case where the kinyan can only be retrospective.
(35) The second enquiry was addressed by those who did not hear of the first mentioned ruling.
(36) The deceased.
(37) Including whatever is attached to it.
(38) The Sages' dispute being limited to detached produce and money which, they maintain, as movables are not pledged to a kethubah.
(39) Not by halizah (v. Glos.) by which the bond between a levir and his sister-in-law is severed where no levirate marriage is consummated.
(40) Though prior to the levirate marriage a divorced sister-in-law is forbidden to marry any of the brothers.
(41) Deut. XXV, 5.
(42) Since the expression of levirate marriage (duty of a husband's brother) is specifically mentioned in addition to the expression of marriage (And take her to him to wife, ibid.).
(43) Even after the consummation of the levirate marriage.
Talmud - Mas. Kethuboth 82b
- It might have been assumed that since he has already performed the commandment that the All-Merciful has imposed upon him she shall again resume towards him the prohibition of [marrying] a brother's wife,1 hence we were informed [that he may remarry her]. But might it not be suggested that the law is so2 indeed?3 - Scripture stated, And take her to him to wife,4 as soon as he has taken her she becomes his wife [in all respects].
SAVE THAT HER KETHUBAH REMAINS A CHARGE ON HER FIRST HUSBAND'S ESTATE. What is the reason?5 - A wife has been given6 to him from heaven.7 If, however, she is unable to obtain her kethubah from her first husband [provision was made by the Rabbis that] she receives it from the second8 in order that It may not be easy for bin, to divorce her.9
HE CANNOT SAY TO HER, BEHOLD YOUR KETHUBAH [etc.]'. What [need was there for stating] SO,TOO?10 - It might have been suggested [that the restriction mentioned applies only] in the former case11 because the levir does not insert [in her kethubah the clause] 'That which I possess and that which I will acquire',12 but that in the latter case, where he does insert [the pledge clause,] 'That which I possess and that which I will acquire',13 she relies upon this guarantee,14 hence we were told [that the ruling applies in both cases].
IF HE DIVORCED HER SHE IS ENTITLED ONLY TO HER KETHUBAH. Only15 IF HE DIVORCED HER [may he sell the property],16 but if he did not divorce her he may not. Thus we were informed in agreement with the ruling of R. Abba.17
IF HE SUBSEQUENTLY REMARRIED HER SHE IS [TO ENJOY THE SAME RIGHTS AS] ALL OTHER WIVES, AND IS ENTITLED ONLY TO HER KETHUBAH. IF HE SUBSEQUENTLY REMARRIED HER'! What does he thereby18 teach us? Have we not learned: If a man divorced his wife and then remarried her, his second marriage is contracted on the terms of her first kethubah?19 - It might have been assumed that the law applied only to his wife since it was he himself who wrote the kethubah; in the case of his sister-in-law, however, since it was not he20 who wrote the kethubah for her, it might well have been assumed that where he divorced, and then remarried her the kethubah must come from himself, hence we were taught [that in this case also she is entitled only to the first kethubah].
Rab Judah stated: At first they used to give merely a written undertaking21 in respect of [the kethubah of] a virgin for two hundred zuz22 and in respect of that of a widow for a maneh,22 and consequently23 they grew old and could not take any wives, when Simeon b. Shetah took the initiative24 and ordained that all the property of a husband is pledged for the kethubah of his wife. So it was also taught elsewhere: At first they used to give merely a written undertaking25 in respect of [the kethubah of] a virgin for two hundred zuz22 and in respect of that of a widow for a maneh,22 and consequently23 they grew old and could not take any wives. It was then ordained that the amount of the kethubah26 was to be deposited in the wife's father's house. At any time, however, when the husband was angry with her he used to tell her, 'Go to your kethubah'.27 It was ordained, therefore, that the amount of the kethubah26 was to be deposited in the house of her father-in-law.28 Wealthy women29 converted it into silver, or gold baskets, while poor women converted it into brass30 tubs. Still, whenever the husband had occasion to be angry with his wife he would say to her, 'Take your kethubah and go'.31 It was then that32 Simeon b. Shetah ordained that the husband must insert the pledging clause, 'All my property is mortgaged to your kethubah'.33 [
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(1) Lev. XVIII, 16.
(2) That halizah is required and that he may not remarry her.
(3) Lit., 'thus also'.
(4) Deut. XXV, 5; where only the latter part of the verse, And perform the duty of a husband's brother unto her, would have been sufficient.
(5) I.e., why should not the levir, her present husband, assume responsibility for her kethubah.
(6) Lit., 'they caused him to acquire'.
(7) She was not chosen by him but was imposed upon him by the Divine law of the levirate marriage. He cannot, therefore, be expected to undertake any monetary obligations in respect of her kethubah.
(8) The levir who married her.
(9) Lit., 'that it may not be easy in his eyes to cause her to go out'.
(10) In the case of a wife. Is it not obvious that a husband's obligation towards a wife he himself has chosen cannot possibly be less than those he incurs in respect of a sister-in-law he married only in obedience to a commandment?
(11) The marriage of a sister-inlaw.
(12) 'Shall be pledged to the kethubah'. So that the woman, having her security limited to the levir's possessions that were inherited from her deceased husband, would naturally suspect that by 'putting her kethubah on the table' the levir intends to escape his full responsibility and desires to deprive her of the possibility of collecting her kethubah when the occasion arises. This, as might well be expected, would create animosity between husband and wife (cf. supra p. 513, n. 9).
(13) So that the kethubah is well secured.
(14) And no animosity would ensue despite his 'putting of the kethubah on the table'.
(15) Lit., 'yes'.
(16) Which he inherited from the deceased and which is in excess of the amount of the kethubah.
(17) Supra 81a, that unless the woman can be persuaded to consent to the sale of the property it may be sold only after she had been divorced.
(18) By specifying the law in the case of a sister-in-law whom the levir had married.
(19) I.e., she cannot claim a second kethubah, infra 89b; And this law one would expect to apply also to a sister-in-law. What need then was there to specify it in the case of the latter. (V. Supra n. 1)?
(20) But her first husband.
(21) Lit., 'they would write'. No clause pledging the husband's landed property being inserted in the kethubah.
(22) V. Glos.
(23) Women refusing to marry under such precarious conditions, (v. supra note 4).
(24) Lit., 'until he came'.
(25) V. supra note 4.
(26) Lit., 'it'.
(27) I.e., he could easily get rid of her since the amount of her kethubah was at hand and there was no need for him to make any efforts to find the money.
(28) Sc. husband.
(29) The amount of whose kethubah was high. In addition to the statutory sum the kethubah also contains additional obligations on the part of the husband corresponding to the amount the wife brought to him on marriage.
(30) So Tosaf. s.v. עביט. Cur. edd. 'urine'.
(31) Cf. supra p. 520, n. 10.
(32) V. l.c. n. 7.
(33) So MS.M. Cur. edd., 'to her kethubah'. [For a full discussion of this passage v. Epstein, L., op. cit. pp. 19ff.]
Talmud - Mas. Kethuboth 83a
CHAPTER 9
MISHNAH. IF A HUSBAND GIVES TO HIS WIFE A WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER1 UPON YOUR ESTATES', HE MAY NEVERTHELESS ENJOY ITS USUFRUCT DURING HER LIFETIME AND, WHEN SHE DIES, HE IS HER HEIR. IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES'? THAT IF SHE SOLD THEM OR GAVE THEM AWAY HER ACT MIGHT BE VALID. IF HE WROTE, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE, HE MAY NOT ENJOY THEIR USUFRUCT DURING HER LIFETIME BUT, WHEN SHE DIES, HE IS HER HEIR. R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE UNLESS HE WROTE OUT FOR HER [THE FOLLOWING UNDERTAKING]: 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE AND SO ON WITHOUT END.
IF HE WROTE, 'I HAVE NO CLAIM UPON YOUR ESTATES, THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE DURING YOUR LIFETIME AND AFTER YOUR DEATH', HE MAY NEITHER ENJOY THEIR PRODUCE DURING HER LIFETIME NOR CAN HE BE HER HEIR WHEN SHE DIES. R. SIMEON B. GAMALIEL RULED:WHEN SHE DIES HE IS HER HEIR BECAUSE [BY HIS DECLARATION] HE IS MAKING A CONDITION WHICH IS CONTRARY TO WHAT IS ENJOINED IN THE TORAH2 AND WHENEVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID.3
GEMARA. R. Hiyya taught:4 If a husband said5 to his wife.6
And if he gave her such an undertaking in writing,7 what does It matter? Was it not taught: If a man says8 to another,9 'I have no claim whatsoever on this field, I have no concern in it and I entirely dissociate myself from it',10 his statement is of no effect?11 - At the school of R. Jannai it was explained, [we are dealing here with the case] of a man who gave the undertaking to his wife12 while she was still only betrothed to him,13 [the ruling14 being] in agreement with that of R. Kahana, that a man is at liberty to renounce beforehand an inheritance15 which is likely to accrue to him from another source;16 and [this ruling, furthermore, is] in agreement with a dictum of Raba, that if anyone says. 'I do not desire [to avail myself] of a regulation of the Rabbis of this kind', his desire is granted.17 What [is meant by the expression] 'of this kind'? As [that referred to in the statement made by] R. Huna in the name of Rab: A woman is entitled to say to her husband, 'I do not wish either to be maintained by you or to work for you'.18 If so,19 should not [the same ruling apply to] a married woman also?20 Abaye replied: In the case of a married woman the husband's rights have the same force as the wife's.21 Raba said: His rights are superior to hers. This22 is of practical significance in the case of a woman who was awaiting the decision of the levir.23 The question was raised: What is the ruling if symbolic kinyan was executed24 [at the time of the renunciation]?25 - R. Joseph replied: [The kinyan is invalid since] it related to an abstract renunciation.26 R. Nahman replied: [The kinyan is valid because] it related to land itself.27 Said Abaye: R. Joseph's statement is reasonable
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(1) Lit., 'no right nor claim'.
(2) According to the Torah it is the husband who is the heir of his wife (v. B.B. 111b).
(3) It is only the produce which was granted to the husband by a Rabbinical measure, that he may renounce.
(4) In reference to the rulings in our Mishnah.
(5) Emphasis on said, sc. he can waive his rights by a mere verbal declaration.
(6) Infra 102b.
(7) Much less if it was only verbal.
(8) Either verbally or in a written document (v. Rashi).
(9) Sc. to his partner.
(10) Lit., 'and my hand is removed from it'.
(11) Infra 95a. Git. 77a, B.B. 43a, 49a; because no man can renounce his rights by a mere verbal declaration unless by way of a gift or sale, but since there was no expression such as, 'I make the field over to you'. or words to the same effect denoting a gift, the waiver is ineffective. Now since a written undertaking that omitted such an expression is invalid, bow much more so would that be the case with a mere verbal utterance? An objection thus arises against R. Hiyya.
(12) Lit., 'when he writes for her'.
(13) When he has as yet no right to her property.
(14) Which allows renunciation in such a case.
(15) Lit., 'stipulate that he shall not inherit'.
(16) Sc. from a stranger to whom he becomes next of kin through an act of his (such as marriage) and whose heir he becomes thereby in accordance with Rabbinic law. It is only an inheritance from a next-of-kin, or property that is already in one's possession, the rights of which cannot be waived by mere renunciation but requires (v. supra n. 8) the specific expressions of 'giving'. [This statement of R. Kahana is on the view that the law that the husband inherits his wife is a Rabbinic provision. v. supra p. 528, cf. supra p. 522, n. 2].
(17) Since the regulation was made for his benefit, he is at liberty to reject it.
(18) Since her maintenance by her husband in return for her handiwork is a Rabbinic regulation made in favour of the woman, she is at liberty to reject it. A husband (cf. supra nn. 13 and 14) is similarly entitled to renounce his rights as heir to his wife, without any further formality.
(19) That the husband's right to renounce his claim upon his wife's property is due to the fact that it was for his benefit that her property was assigned to him.
(20) Of course it should. Why then was it necessary for the school of R. Jannai supra to explain the ruling as referring to an undertaking that was given 'while she was still only betrothed to him'?
(21) Lit., 'his hand is like her hand'. Since he is consequently legal possessor of the property he cannot (cf. supra p. 523, n. 13) waive his rights to it by mere renunciation.
(22) The difference of opinion between Abaye and Raba, which does not in any way affect our present discussion since in either case a husband is regarded as the possessor of his wife's property and cannot, by a mere verbal renunciation, legally transfer it.
(23) If such a woman died and left property which came into her possession either (a) while her husband was still alive or (b) after his death while she was awaiting the levir's decision, the respective rights of her heirs and her husband's heirs to such property depend on, and vary according to, the respective views of Abaye and Raba as fully discussed in Yeb. 39a, q.v.
(24) Lit., 'they (sc. witnesses) acquired from him (on behalf of his partner)'. Cf. Rashi.
(25) Of his share in his partner's property. spoken of in the Baraitha quoted supra in objection to R. Hiyya. Does, or does not such kinyan, it is asked, effect the legal transfer of the land despite. or because of the fact, that no expression of 'giving' (v. supra p. 523. n. 8) was used. [According to Tosaf. s.v. קני the query refers to the waiving of rights by a husband to the property of his wife after marriage].
(26) Lit., 'they acquired from him (a mere verbal expression) of right and claim', which are not in his power to waive.
(27) Lit., 'of the body of the land', which is, of course, a concrete object that may well be acquired by symbolic kinyan.
Talmud - Mas. Kethuboth 83b
where [the partner]1 lodged his protest forthwith,2 but if he delayed,3 the kinyan must be regarded as relating to the land itself,4 Amemar said, the law is that the kinyan is taken to refer to the land itself.5 Said R. Ashi to Amemar: [Do you speak] of one who lodged his protest forthwith or of one who delayed it? 'In what respect [the other asked] does this matter?' - In respect of [determining whether the law is] in agreement with the view of R. Joseph.6 'I did not hear this',7 the other replied. 'by which I mean that I do not accept it.'
IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING etc. But8 why should she not be able to say to him, 'You have renounced all your claims'?9 - Abaye replied: The holder of a deed is always at a disadvantage.10 But might it not be suggested [that he renounced his claim] upon the usufruct?11 - Abaye replied: A young pumpkin [in hand] is better than a full-grown one [in the field].12 But may it be suggested [that his renunciation related] to his heirship?13 Abaye replied: Death is a common occurrence but the sale [of property by a wife] is not common;14 and whenever a person renounces his claims [he does so] in respect of what is not a common occurrence but he does not do it in respect Of that which is a common occurrence. R. Ashi replied:15 [The husband's renunciation was] 'UPON YOUR ESTATES',16 but not upon their produce; 'UPON YOUR17 ESTATES', but not after your death.18
R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE [etc.]. Our Rabbis taught: The following are regarded as produce and the following as the yield of the produce respectively. If a woman brought to her husband19 a plot of land and it yielded produce, such yield is regarded as produce. If he sold the produce and purchased land with the proceeds and that land yielded produce, such yield is regarded as the yield of the produce. The question was raised: According to R. Judah, [is the expression] THE PRODUCE OF THEIR PRODUCE20 the essential element,21 or is rather WITHOUT END22 the essential element,23 or is it possible that both expressions are essential?24 But should you find [some ground] for deciding [that the expression] THE PRODUCE OF THEIR PRODUCE is the essential element,25 what need was there [it might be asked, for the mention26 of] 'WITHOUT END'? - It is this that we were taught: So long as he renounced in her favour, in writing, the yield of the produce it is as if he had expressly written in her favour, 'without end'. But should you find [some reason] for deciding that WITHOUT END is the essential element,27 what need was there [it might be asked, for the mention26 of] THE PRODUCE OF THEIR PRODUCE? - It is this that we were taught; Although he renounced in her favour, in writing, the yield of the produce [the renunciation] is valid only28 if he also wrote 'without end' but is invalid29 if he did not [write it]. But if you should find some argument for giving the decision that both expressions are essential [it could he asked]. what need is there for the specification30 of both? Both are necessary. For if only the 'yield of the produce' had been written in her favour and 'without end' had been omitted, it might have been assumed that he loses thereby his right to the enjoyment of the yield of the produce only but that he is still entitled to enjoy the produce of the yield of that produce, hence it is necessary for the expression 'without end' [to be included in the renunciation]. And if only 'without end' had been written in her favour and the 'yield of the produce' had not been specified,30 it might have been assumed that 'without end' referred to the first produce only,31 hence it is necessary to specify also the 'yield of the produce'.32
The question was raised: May a husband who wrote, in favour of his wife, the renunciation 'I have no claim whatsoever upon your estates and upon the yield of their produce', enjoy the produce itself? Has he renounced the yield of their produce only but not the produce [itself] or is it possible that he renounced all his claim? But it is quite obvious that he has renounced all his claims. For should you suggest that he only renounced his claim upon the yield of the produce but not upon the produce itself, whence [it might be objected] would arise a yield of the produce if the man had consumed the produce itself?33
[No, for even] according to your view, [how will you explain] the statement in our Mishnah, R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE etc. [Where it may equally be objected,] whence would there be a yield of the produce if she34 has consumed the produce itself? [Your explanation,] however, [would be that the reference is to a case] where the woman had allowed [the produce] to remain;35 here also [it may be a case] where the husband has allowed the produce to remain.35
R. SIMEON B. GAMALIEL RULED etc. Rab said: The halachah is in agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave. What is meant by 'the halachah is In agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave'? If it be suggested: 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' in respect of his statement that WHEN SHE DIES HE IS HER HEIR, 'but not because of the reason he gave'.for whereas R. Simeon b. Gamaliel is of the opinion that if A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab holds that such a condition36 is valid37 and [his acceptance of the ruling38 is solely due to] his opinion that a husband's right of inheritance is a Rabbinical enactment and that the Sages have imposed upon their enactments greater restrictions than upon those of the Torah;39
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(1) Who waived his rights.
(2) As soon as the partner came to take possession of the field, he declared that he never intended to give away his share and that his renunciation was merely a way of escape from a quarrel with his partner.
(3) Lit., 'when standing', the protest being made sometime after his partner had taken possession of the field.
(4) Cf. p. 524, n. 9; it being obvious that this belated protest was only the result of an afterthought, and that his original intention was to give away his share to his partner.
(5) V. p. 524, n. 9.
(6) Supra 83a ad fin.
(7) The ruling of R. Joseph. Cf. MS. M.
(8) If the husband's renunciation is sufficiently valid to confer legality on his wife's sale or gift.
(9) I.e., even his rights to usufruct and heirship.
(10) Should his claims ever conflict with those of the person in possession in whose favour the deed is always to be interpreted. In the case under discussion the wife is regarded as the 'holder of the deed' and the husband as the possessor of the rights of (i) usufruct, (ii) heirship and (iii) the seizure of any property she has sold or given away. Since his renunciation can be interpreted as referring to one of these rights only, the woman has no legal footing on which to claim 'You have renounced all your claims'.
(11) And not upon his other rights (cf. note 7) including that of seizure of the property his wife has sold or given away.
(12) Cf. 'a bird in hand is worth two in the bush' (Eng. prov.). The right to usufruct, which can be enjoyed at once, though it is of less value than the land itself, is more advantageous to a husband than the right of the seizure of property that his wife may possibly sell at some future time. The former is a certainty, the other is an eventuality.
(13) Cf. supra n. 9 mutatis mutandis.
(14) A woman as a rule does not sell her ancestral possessions.
(15) To the two objections just dealt with by Abaye.
(16) Emphasis on ESTATES.
(17) Emphasis on the pronoun.
(18) When they are no longer hers.
(19) On marriage.
(20) And not that of WITHOUT END. (Rashi); cf. note 8 ad fin.
(21) In the wording of the renunciation spoken of by R. Judah; and, if it was omitted, the renunciation, as far as the yield of produce is concerned, is invalid even though the expression 'without end' had been used. Aliter. And the renunciation is valid even though 'without end' was omitted (Tosaf. s.v. פירי).
(22) And not 'the produce of the produce'.
(23) Cf. supra n. 7, mutatis mutandis.
(24) And if one of them was omitted the renunciation is invalid.
(25) V. supra note 7.
(26) In our Mishnah.
(27) Cf. supra note 5.
(28) Lit., 'yes'.
(29) LIt., 'not'.
(30) In the renunciation.
(31) That it is this produce, but not its yield, that he renounces for ever
(32) [All of which justifies the query as to which expression is regarded as essential according to R. Judah. The query is left unanswered, v. infra p. 528. n. 2].
(33) Obviously there could be none Hence it may be concluded that the husband renounced 'all his claims'.
(34) The wife. Cf. Rashi. Cur. edd., דאכלינהו.
(35) It had for some reason remained unconsumed and a produce-yielding object had been purchased with the proceeds. [Here, too, the question remains unanswered, v. supra p. 527. n. 5].
(36) If it relates to monetary matters.
(37) In agreement with R. Judah, supra 56a.
(38) Of R. Simeon b. Gamaliel, that the condition is invalid in the case of the husband's heirship.
(39) Not being Pentateuchal, people might be lax in their observance. Greater safeguards were, therefore, required.
Talmud - Mas. Kethuboth 84a
could Rab, however, [it may be retorted,] hold the opinion that one's condition [though contrary to what is written in the Torah] is valid? Has it not in fact been stated: If a man says to another, '[I sell you this object] on condition that you have no claim for overreaching against me' [the buyer]. Rab ruled, has nevertheless a claim for overreaching against him,1 and Samuel ruled, He has no claim for overreaching against him?2 - [It is this] then [that was meant;] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that IF A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, 'but not because of the reason he gave', for whereas R. Simeon b. Gamaliel is of the opinion that WHEN SHE DIES HE IS HER HEIR, Rab maintains that when she dies he is not her heir.3 But is not this in agreement with his reason4 and not with his ruling?5 - This then [it is that was meant:] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave' for, whereas R. Simeon b. Gamaliel is of the opinion that only a condition that is contrary to a Pentateuchal law is null but one that is contrary only to a Rabbinic law6 is valid, Rab maintains that even a condition contrary to a Rabbinic law6 is also null.7
But this would be in agreement, would it not, with both his reason8 and his ruling.9 Rab only adding [greater force to it]?10 This then [it is that was meant :] 'The halachah is in agreement with R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave', for, whereas R. Simeon b. Gamaliel holds that a husband's right of heirship is Pentateuchal and that [it is invalid because] WHEREVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab maintains that a husband's right of heirship is only a Rabbinic enactment and [that the condition is nevertheless null because] the Sages have imparted to their enactments the same force as that of Pentateuchal laws.
But [could it be said,] that Rab is of the opinion that a husband's right of heirship is only Rabbinical when in fact we have learned:11 R. Johanan b. Beroka ruled, 'If a husband is the heir of his wife he must [when the Jubilee year12 arrives] return [the inheritance] to the members of her family and allow them a reduction of price';13 and, in considering this statement, the objection was raised: What is really his14 opinion? If he holds that a husband's right of heirship is Pentateuchal, why [it may be asked] should he return [the inheritance at all]?15 And if [he16 holds it to be only] Rabbinical, why [it may be objected] should [even a part of] its price be paid?17 And Rab explained: He16 holds in fact the opinion that a husband's right of heirship is Pentateuchal but18 [here it is a case of a man], for instance, whose wife bequeathed to him a [family] graveyard, [and it is] in order [to avoid] a family taint19 that the Rabbis have ruled, Let him take the price and return it; and by20 'allow them a reduction in price' [was meant a deduction of] the cost of his wife's grave;21 [the return of a family graveyard being] in agreement with what was taught: If a person has sold his [family] grave, the path to this grave, his halting place.22 or his place of mourning, the members of his family may come and bury him perforce,23 in order [to avert] a slight upon the family!24 - Rab spoke here in accordance with R. Johanan b. Beroka's point of view but he himself does not uphold it.
MISHNAH. IF A MAN DIED AND LEFT A WIFE,25 A CREDITOR,26 AND HEIRS27 AND HE ALSO HAD A DEPOSIT OR A LOAN IN THE POSSESSION OF OTHERS, THIS, R. TARFON RULED, SHALL BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.28 R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT29 SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS30 MUST TAKE AN OATH31 THE HEIRS NEED NOT TAKE ANY OATH.32 IF HE LEFT PRODUCE THAT WAS DETACHED FROM THE GROUND, THEN WHOEVER33 SEIZES IT FIRST ACQUIRES POSSESSION. IF THE WIFE TOOK POSSESSION OF MORE THAN THE AMOUNT OF HER KETHUBAH, OR A CREDIT OR OF MORE THAN THE VALUE OF HIS DEBT, THE BALANCE, R. TARFON RULED, SHALl. BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.34 R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS30 MUST TAKE AN OATH31 THE HEIRS NEED NOT TAKE ANY OATH.32
GEMARA. What was the object of specifying both A LOAN and a DEPOSIT?35 [Both were] required. For if A LOAN only had been mentioned it might have been presumed that only in that case did R. Tarfon maintain his view, because a loan is intended to be spent,36 but that in the case of a deposit which is in existence37 he agrees with R. Akiba.38 And if the former39 only had been mentioned it might have been assumed that only in that case did R. Akiba maintain his view40 but that in the other case41 he agrees with R. Tarfon.42 [Hence both were] necessary.
What is meant by TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE? - R. Jose the son of R. Hanina replied: To the one who is under the greatest disadvantage in respect of proof.43 R. Johanan replied: [The reference is] to the kethubah of the wife44 [who was given this privilege] in order to maintain pleasantness45 [between her and her husband].46 [This dispute is the same] as that between the following Tannaim: R. Benjamin said, To the one who is under the greatest disadvantage in respect of proof.43 and this is the proper [course to take]; R. Eleazar said.[The reference is] to the kethubah of the wife44 [who was given this privilege] in order to maintain pleasantness45 [between her and her husband].46 IF HE LEFT PRODUCE THAT WAS DETACHED. As to R. Akiba,47 what was the point in discussing the BALANCE when48 the entire estate belongs to the heirs?49 - The law is so indeed,50 but since R. Tarfon spoke of the BALANCE, he also mentioned the BALANCE.
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(1) Because the condition is contrary to the Pentateuchal injunction of אל-תונו (Lev. XXV, 24).
(2) Now, since Rab recognizes the invalidity of a condition that is contrary to Pentateuchal law of overreaching, how could he be said to regard a similar condition elsewhere as valid?
(3) The condition being 'and because a husband's right of heirship is, in Rab's opinion, a Rabbinical enactment which has not the same force as that of a Pentateuchal law.
(4) I.e., that a condition which is contrary to a Pentateuchal law is null.
(5) That WHEN SHE DIES HE IS HER HEIR. The answer being in the affirmative, the facts are directly opposite to the statement made supra by Rab.
(6) Such, e.g. as a renunciation by a husband of his rights to the usufruct of his wife's property.
(7) Because in his opinion the Sages have impaired to their enactments the same force as that of a Pentateuchal law.
(8) V. supra note 2.
(9) Cf. supra note 3.
(10) Viz., and extending R. Gamaliel's principle to a Rabbinic enactment applies it also to the usufruct. This being the case, how is Rab's statement supra to be understood?
(11) Bek. 52b.
(12) Cf. Lev. XXV, 8ff.
(13) This, it is at present assumed, is the meaning of וינכה להן מן הדמים.
(14) R. Johanan b. Beroka.
(15) An inheritance to which one is Pentateuchally entitled does not return in the Jubilee Year (cf. Bek. 52b).
(16) R. Johanan b. Beroka.
(17) By the members of the wife's family. Lit., 'what is their doing?' Since the husband's right is only in Rabbinic law the members of the wife's family, who are the original owners Pentateuchally, should be entitled to the return of the inheritance to them without any monetary payment on their part.
(18) In explanation of the difficulty as to why such all inheritance should be restored in the Jubilee Year.
(19) It is derogatory for a family that strangers should be interred in their graveyard while their own members should have to seek burial in another family's graveyard.
(20) Lit., 'and what?'
(21) Since it is a husband's duty to bury his dead wife.
(22) The place where, on returning from burial, the funeral escort halts to offer, with due ceremonial, consolation to the mourners. On returning from a burial the funeral escort halted on the way at a certain station where seven times they stood up and sat down on the ground, to offer comfort and consolation to the mourners or to weep and lament for the departed.
(23) They may force the buyer to take back the purchase price and so cancel the sale.
(24) B.B. 100b, Bek. 52b. Cf. supra p. 530. n. 9. Now since Rab specifically stated here that 'a husband's right of inheritance is Pentateuchal' how could he be said to hold that such a right is only Rabbinical.
(25) Who claims her kethubah.
(26) Claiming the repayment of his debt.
(27) Expecting their inheritance.
(28) This is explained infra.
(29) The deposit or the loan
(30) Widows and creditors.
(31) Before they are authorized to seize any portion of the estate.
(32) The inheritance passes into their possession as soon as the parson whose heirs they are dies. Since they are the legal possessors, the others, whose claims have yet to be substantiated by an oath, cannot deprive them of their possessions, for the movables of orphans are not pledged to the creditors of their father.
(33) The heirs, the widow or the creditor.
(34) This is explained infra.
(35) Could not the law of the one be inferred from the other?
(36) The amount of the loan not being in existence at the time the man died it cannot pass into the possession of his heirs before it had been collected from the debtor.
(37) At the time the depositor died, since a deposit must never be spent by the bailee.
(38) That, since it is in existence, it passes into the possession of the heirs.
(39) A DEPOSIT.
(40) Cf supra note 4.
(41) A loan.
(42) Cf. supra note 2.
(43) Sc. the holder of the last dated bond by which such landed estate only may be seized as had been sold after that date.
(44) Who, being unable to exert herself like a man in the search for any possible possessions of her husband, is regarded as 'THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE'.
(45) חינא lit., 'grace'.
(46) While he is alive. Her uncertainty in respect of her settlement after his death might have led to quarrels and strife. Aliter; That women may readily consent to marriage. Had they not been assured that they would have the first claim upon their husband's estate they might refuse all offers of marriage (cf. Rashi). Aliter; That women may be attractive to their husbands by their attachment and devotion which would result from the sense of security they would feel in the provision fist their future (cf. T.J., Aruch and R. Han. in Tosaf. s.v. לכתובת a.l.).
(47) Who regards the heirs as the possessors because WHEREAS OTHERS MUST TAKE AN OATH THE HEIRS NEED NOT.
(48) For the very same reason (cf. previous note).
(49) The seizure on the part of the widow or a creditor of any movable portion of such property would consequently be invalid.
(50) Lit., yes, so also', even if the creditor or the widow has seized any portion of the estate the heirs' right to it is in no way affected and the seized property must be returned to them in its entirety.
Talmud - Mas. Kethuboth 84b
. But would R. Akiba1 maintain that seizure2 is never legally valid?3 Raba replied in the name of R. Nahman: Seizure4 is valid where it took place during the lifetime [of the deceased].5 Now according to R. Tarfon,6 where [must the produce] be kept?7 - Both Rab and Samuel replied: It must be heaped up and lie in a public domain, but [if it was kept] in an alley8 no [seizure is valid]. Both R. Johanan and Resh Lakish, however, said: Even [if the produce lay] in an alley [seizure is valid].
Certain judges once gave their decision in agreement with R. Tarfon, and Resh Lakish9 reversed their verdict. Said R. Johanan to him, 'You have acted as [if R. Akiba's ruling were a law] of the Torah'!10 May it be assumed that they11 differ on this principle; One Master upholds the view that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed12 and the other Master upholds the view that if a law cited in a Mishnah had been overlooked the decision need not be reversed?13 - No; all agree that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed, but this is the point at issue between them:14 One Master holds that the halachah is in agreement with the opinion of R. Akiba [only when he differs] from a colleague of his but not from his master,15 while the other Master holds that the halachah [is in agreement with him] even [if he differs] from his master. If you prefer16 I might say; All agree that the halachah agrees with R. Akiba [only when he differs] from a colleague of his but not from his master. Here, however. the point at issue is this: One Master holds R. Tarfon to have been his17 master and the other Master holds him to have been his colleague. Alternatively it might be said: All agree that he18 was his19 colleague; but the point at issue between them20 is this: One Master maintains that the statement21 was that 'The halachah [agrees with R. Akiba]'22 and the other Master maintains that the statement21 was that 'one should be inclined [in favour of a ruling of R. Akiba]'.23
R. Johanan's relatives seized in an alley a cow that belonged to orphans. When they appeared before R. Johanan, he said to them, 'Your seizure is quite lawful'. R. Simeon b. Lakish, however, before whom they subsequently appeared, said to them. 'Go and return it'.24 'What can I do', said R. Johanan to whom they came again, 'when one of equal authority25 differs from me?'
[A creditor] once seized an ox from the herdsman of [his debtor's] orphans. The creditor said, 'I seized it during the lifetime [of the debtor]'26 and the herdsman said, 'He seized it after the debtor's death'.27 They appeared before R. Nahman who asked the herdsman, 'Have you witnesses that [the creditor] has seized it?' - 'No', the other replied. [R. Nahman thereupon] said to him: Since he could have said, 'It came into my possession through purchase'28 he is also entitled to say. 'I seized it during the lifetime [of the debtor]'. But did not Resh Lakish state; The law of presumptive possession is inapplicable to living creatures?29 - The case of an ox that was entrusted to a herdsman is different [from that of other living creatures].30
The people of the Nasi's31 household once seized in an alley a bondwoman belonging to orphans. At a session held by R. Abbahu, R. Hanina b. Papi and R. Isaac Nappaha in whose presence sat also R. Abba they32 were told, 'Your seizure is quite lawful'. 'Is it', said R. Abba to them,33 'because these people are of the Nasi's household that you are favouring them? Surely, when certain judges once gave a decision in agreement with R. Tarfon Resh Lakish reversed their decision'.34
Yemar b. Hashu had a money claim against a certain person who died and left a boat. 'Go', he said to his agent, 'and seize it'. [The latter] went and seized it, but R. Papa and R. Huna the son of R. Joshua met him and told him, 'You are seizing [the ship] on behalf of a creditor and thereby you are causing loss to others,35 and R. Johanan ruled: He who seizes [a debtor's property] on behalf of a creditor and thereby causes loss to others35
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(1) V. supra note 1.
(2) Cf. note 3.
(3) This is a mere enquiry (v. Rashi). R. Tan, regards it as an objection. the assumption of the invalidity of seizure being contradictory to the Mishnah supra 80b, where the woman awaiting levirate marriage, who was first to take possession of the detached produce, is declared to have acquired it; (v. Tosaf. s.v. ולרבי a.l.).
(4) Of chattels.
(5) So that the chattels had never for one moment passed into the possession of the heirs.
(6) Who maintains that WHOEVER SEIZES IT FIRST ACQUIRES POSSESSION, because the heirs do not become its possessors as soon as the man dies.
(7) That the seizure should be valid.
(8) Which is frequented by few people. In such a spot where meshikah (v. Glos.) is valid (cf. B.B. 84b) the produce, even according to R. Tarfon, passes into the possession of the heirs as soon as its original owner dies, and seizure by any other person is invalid.
(9) Who follows the ruling of R. Akiba.
(10) An expression of disapproval. Only a decision which is contrary to the Torah must be reversed. A Rabbinical ruling, however, has no such force, and though a judge may be expected to act according to a certain ruling, his decision must not be reversed if he differed from it.
(11) R. Johanan and Resh Lakish.
(12) Though R. Akiba's ruling is not explicitly contained in a Mishnah, but reported by Amoraim, it is considered a Mishnaic ruling since the law is in agreement with his opinion whenever it is opposed by no more than one individual. Cf. Sanh. 33a.
(13) Is it likely, however, that any authority would uphold the latter view?
(14) R. Johanan and Resh Lakish.
(15) R. Tarfon was sometimes regarded as the master of R. Akiba (v. infra).
(16) Since the last mentioned view seems unlikely.
(17) R. Akiba's.
(18) R. Tarfon.
(19) R. Akiba's.
(20) R. Johanan and Resh Lakish.
(21) On the reliability of R. Akiba's rulings.
(22) Hence the action of Resh Lakish in reversing the decision of the judges mentioned.
(23) I.e. , a ruling of his has not the force of an halachah though a judge is expected to follow it rather than that of any other individual who is opposed to it. Since, however, a decision has been given to the contrary the decision must stand. Hence R. Johanan's objection to the action of Resh Lakish (v. supra n. 11).
(24) In agreement with R. Akiba that seizure of movables for debt after the death of the original owner is invalid, the property having passed, at the moment he died, into the possession of his heirs.
(25) V. Rashi. Lit., 'who is corresponding to me'.
(26) So that it never came into the possession of the orphans.
(27) Cf. supra note 3 mutatis mutandis.
(28) And his statement could not be disproved on account of the absence of witnesses to testify to the seizure.
(29) הגודרות lit., 'those kept In the fold', since (a) they stray into other people's folds and (b) are sometimes taken accidentally from the pasture lands by a shepherd to whom they do not belong. (v. B.B. 36a. Cit. 20b). Now, since the creditor's right to the retention of the animal can only be based on that of presumptive possession, which is here inapplicable, why did Rash Lakish allow the creditor to retain it?
(30) A herdsman is presumed to take good care that his flock stray not into other people's folds, or be seized by other shepherds.
(31) Judah II.
(32) The people of the Nasi's household.
(33) R. Abbahu and his colleagues.
(34) Supra.
(35) Other creditors.
Talmud - Mas. Kethuboth 85a
does not legally acquire it'.1 Thereupon they2 seized it themselves, R. Papa rowing3 the boat while R. Huna the son of R. Joshua pulled it by the rope. One Master then declared, 'I have acquired all the ship'4 and the other similarly declared, 'I have acquired all of it'.5 They were met by R. Phinehas b. Ammi who said to them: Both Rab and Samuel ruled that '[Seizure is valid] only if [the produce] was piled up and lay in a public domain'.6 'We too', they replied, 'have seized it at the main current of the river'.7 When they appeared before Raba he said to them, 'Ye white geese8 that strip the people of their cloaks;9 thus ruled R. Nahman; [The seizure is valid] only if it took place during the lifetime [of the original owner].
The men of Be-Hozae10 once claimed a sum of money from Abimi the son of R. Abbahu, who sent it to them by the hand of Hama the son of Rabbah b. Abbahu. He duly went there and paid them, but when he asked them, 'Return to me the bond', they replied. 'This payment was made in settlement of some other claims'.9 He came before R. Abbahu [to complain] and the latter asked him, 'Have you witnesses that you have paid them?' - 'No', he replied. 'Since', the former said to him, 'they could plead11 that the payment was never made,12 they are also entitled to plead that the payment was made in settlement of some other claims'.13
What is the law in respect of the agent's liability to refund? - R. Ashi replied; We have to consider the facts. If he14 said to him. 'Secure the bond and pay the money' he15 must refund it; [but if he14 said.] 'Pay the money and secure the bond', he is under no obligation to refund it. The law, however, is not so. He15 must refund it in either case, because the other14 may well say. 'I deputed you to improve my position, not to make it worse
There was a certain woman with whom a case16 of bonds was once deposited and when the heirs [of the depositor] came to claim it from her she said, 'I seized them17 during [the depositor's] lifetime'.18 R. Nahman to whom she came said to her, 'Have you witnesses that it19 was claimed from you during [the depositor's] lifetime and that you refused to return it?' - 'No', she replied. 'If so', he said to her, 'your seizure is one that took place after [the owner's] death,20 and such a seizure is invalid.21
A woman was once ordered22 to take an oath23 at the court of Raba, but when R. Hisda's daughter24 said to him, 'I know that she is suspected of [taking false] oaths', Raba transferred the oath to her opponent.25
On another occasion R. Papa and R. Adda b. Mattena sat in his presence when a bond was brought to him. Said R. Papa to him. 'I know that this bond is paid up'. 'Is there, [Raba] asked him, 'any other man with the Master [to confirm the statement]?' 'No', he replied. 'Although', the other said to him, 'the Master is present [to give evidence] there is no validity [in the testimony of] one witness'.26 Said R. Adda b. Mattena to him, 'Should not R.Papa be [deemed as reliable] as the daughter of R. Hisda?'27 - 'As to the daughter of R. Hisda [he replied] I am certain of her;28 I am not sure, however, about the Master'.29 Said R. Papa: Now that the Master has stated [that a judge who can assert,] 'I am certain of a person', may rely upon that person's evidence,30 I would tear up a bond on the evidence of my son Abba Mar of whose reliability I am certain. 'I would tear up'! Is such an act conceivable?31 - He rather [meant to say,] 'I would impair a bond32 on his evidence'.
A woman was once ordered to take33 an oath at the court of R. Bibi b. Abaye, when her opponent suggested to them, 'Let her rather come and take the oath in our town,34 where she might possibly feel ashamed [of her action] and confess'. 'Write out said she to them, 'the verdict in my favour35 so that after I shall have taken the oath it may be given to me'. 'Write it out for her', ordered R. Bibi b. Abaye. 'Because', said R. Papi. 'you are descendants of short-lived people you speak frail words;36 surely Raba stated, 'An attestation37 by judges that was written before the witnesses have identified their signatures is invalid',38 from which it is evident [that such an attestation] has the appearance of a false declaration, and so here also [the verdict]39 would appear to contain a false statement'. This conclusion,40 however, is futile41 [as may be inferred] from a statement of R. Nahman, who said; R. Meir ruled that even if [a husband] found it42 on a rubbish heap, and then signed and gave it to her, it is valid; and even the Rabbis43 differ from R. Meir only in respect of letters of divorce where it is necessary that the writing shall be done specifically in her name, but in respect of other legal documents they agree with him,44 for R. Assi stated in the name of R. Johanan, 'A man may not borrow again on a bond on which he has once borrowed and which he has repaid.45 because the obligation [incurred by the first loan]46 was cancelled;47 the reason then is because 'the obligation was cancelled', but that [the contents of the document] have the appearance
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(1) One has no right to acquire a benefit for one man at the expense of another, v. Git. 11b.
(2) Who were also among the deceased's creditors.
(3) A form of acquisition.
(4) Rowing being in his opinion the proper form of acquiring legal possession of a ship.
(5) Cf. supra n. 6 mutatis mutandis.
(6) Supra 84b, infra 86b. The boat presumably lying at the river bank which, not being frequented by many boats, has the status of an alley, could not, therefore, be lawfully seized and acquired.
(7) On which many boats ply and which has the status of a public thoroughfare where seizure is legal.
(8) Metaph., 'old men'.
(9) By giving a decision in their own favour and thus robbing the other creditors.
(10) V. supra p. 504, n. 5. (13) Lit., 'these are (from other) sides'.
(11) In the absence of witnesses to testify that the debt had been paid.
(12) לא היו דברים מעולם lit., 'the things never were'.
(13) V. supra p. 536, n. 23.
(14) The man who sent him.
(15) The agent.
(16) מלוגא (rt. מלד 'to pluck'), a bag made of skins from which the hair has been plucked.
(17) The bonds.
(18) 'In payment of the debt he owed me'.
(19) The case of bonds.
(20) As long as he was alive the bonds were held by her as a deposit which was virtually in the possession of the depositor.
(21) Since at the death of the depositor the bonds had passed directly into the possession of his heirs.
(22) Lit., 'became liable'.
(23) To confirm her denial of a monetary claim that had been advanced against bet.
(24) Raba's wife.
(25) The claimant who in such a case (cf. Shebu. 44b) is entitled to the sum claimed on confirming it by an oath
(26) [Asheri, Alfasi and Isaiah Trani omit 'No . . . one witness'. According to this reading Raba required the confirmation by another person because R. Papa was related to one of the parties, v. Tosaf, and Strashun].
(27) Whose testimony was regarded by Raba, supra, as sufficient to disqualify the defendant from taking an oath.
(28) That I can rely upon her evidence.
(29) [Did he mean to imply that he suspected R. Papa of lying? This is unlikely in view of the discussion that follows in which R. Papa seemed to betray no resentment at the affront. Yet this is the only meaning which can be attached to the text of cur. edd. Preference is consequently to be given to the reading of Asheri and Alfasi (v. n. 1); and what Raba meant was that, as a relative, R. Papa's evidence could not be accepted].
(30) Even though no other witness is available Lit.. 'It is a thing'.
(31) In money matters, surely, the evidence of two witnesses is required.
(32) Sc. the holder would have to confirm the statement in the bond by an oath before an order for repayment could he issued (Tosaf.).
(33) Lit., 'become liable'.
(34) So Bah. Cur. edd. omit 'our'.
(35) זכװתא pl, of זכותא 'favourable judgment'.
(36) Abaye was a descendant of the house of Eli who were condemned to die young (cf. I Sam. II, 32). ממולאי and מוליתא (rt. מלל 'to crush') 'frail things', 'frail words', 'frail or short-lived people'. A similar expression in Arabic means 'to be foolish'. Cf. B.B. 137b, Sone. ed. p. 582, n. 6.
(37) Of a document, confirming the signature of the witnesses.
(38) Git 26b, supra 21b.
(39) Which the woman requested and the wording of which would have implied that when it was written she had already taken the oath.
(40) That a document containing a statement which at the time of writing was not yet true is invalid even after the act it mentions has materialized.
(41) Lit., 'and it is not'.
(42) A letter of divorce he has prepared for his wife.
(43) Who denied the validity of the document.
(44) That the validity of the document (cf. supra n. 4) is not affected.
(45) On the same day that he borrowed. Though the bond in such a case is not antedated it may not be used again.
(46) Viz., the right to seize the debtor's property.
(47) When it was repaid. The second loan, since no new bond was issued in connection with it, has only the force of a loan by word of mouth which does not entitle the creditor to seize any of the debtor's sold property. Should the first bond, however, be used for the second loan, the lender might unlawfully seize property to which he is not legally entitled. B.M. 17a.
Talmud - Mas. Kethuboth 85b
of a false statement1 is a matter which need not be taken into consideration.
A certain man once deposited seven pearls, wrapped in a sheet, with R. Miasha the son of the son of R. Joshua h. Levi. As R. Miasha died intestate2 they came to R. Ammi.3 'In the first instance', he said to them, 'I know that R. Miasha the son of the son of R. Joshua b. Levi was not a wealthy man,4 and secondly. does not the man5 indicate the marks?'6 This ruling, however, applies only to a man who was not a frequent visitor at the bailee's house,7 but if he was a frequent visitor there [the marks he indicates are no evidence of ownership since] it might well be assumed that another person has made the deposit and he happened to see it. A certain man once deposited a silver cup with Nasa; and Hasa died intestate.8 R. Nahman before whom [the heirs] appeared said to them, 'I know that Hasa was not a wealthy man? and, furthermore, does he5 not indicate the mark?'9 This, however, applies only to a man who was not an habitual visitor at the bailee's house,7 but if he was a frequent visitor there [the mark he indicates is no valid proof since] it might be said that another person had deposited [the cup] and he happened to see it.
A certain man once deposited a silk cloth10 with R. Dimi the brother of R. Safra, and R. Dimi died intestate.2 R. Abba, to whom [the depositor] came [to submit his claim.] said to them,11 'In the first place I know that R. Dimi was not a wealthy man4 and, secondly, the man is here indicating the distinguishing mark.' This, however, applies only to a man who was not a frequent visitor7 at the bailee's house, but if he was a frequent visitor there [the indication of the mark is no valid proof since] it might well be suggested that another man deposited the object and he happened to see it. A man once said12 to those around him,13 'Let my estate be given to Tobiah', and then he died. [A man named] Tobiah came [to claim the estate]. 'Behold', said R. Johanan. 'Tobiah has come'.14 Now if he said, 'Tobiah'15 and 'R. Tobiah'16 came, [the latter is not entitled to the estate, since] he said 'To Tobiah' but not 'To R. Tobiah'. If he,16 however, was on familiar terms with him17 [the estate must be given to him, since the omission of title might have been due to] the fact that he was on intimate terms with him. If two Tobiahs appeared,18 one of whom was a neighbour19 and the other a scholar, the scholar is to be given precedence.20 If one [of the Tobiahs] is a relative and the other a scholar, the scholar is given precedence.20 The question was asked: What is the position where one is a neighbour19 and the other a relative? - Come and hear; Better is a neighbour that is near than a brother far off21 if both22 are relatives, or both are neighbours. or both are scholars the decision is left to the discretion23 of the judges.
Come, said Raba to the son of R. Hiyya b. Abin, I will tell you a fine saying of your father's:24 Although25 Samuel said, 'If a man sold a bond of indebtedness to another person and then he26 released the debtor, the latter is legally released;27 and, moreover, even [a creditor's] heir may28 release [the debtor]' Samuel, nevertheless, admits that, where a wife brought in to her husband29 a bond of indebtedness and then remitted it, the debt is not to be considered remitted, because her husband's rights are equal to hers.30
A relative of R. Nahman once sold her kethubah for the goodwill.31 She was divorced and then died. Thereupon [the buyers] came to claim [the amount of the kethubah] from her daughter.32 'Is there no one', said R. Nahman to those around him,33 'who can tender her advice?
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(1) The bond having been written not for the second but for the first loan.
(2) Lit., 'he did not order'. And his heirs maintained that the pearls might have belonged to the deceased from whom they inherited them.
(3) To obtain his ruling on the ownership of the deposit.
(4) And he could not consequently have been the owner of costly objects.
(5) The depositor.
(6) That the pearls were (a) wrapped up in a sheet and (b) their number was seven (Rashi. Cf., however, Tosaf. s.v. קיהיב.
(7) Lit.,' that be was not in the habit of entering and going out from there'.
(8) He was accidentally drowned (v. Yeb. 121b).
(9) That it was a silver cup.
(10) מטכסא cf. , silk or silk cloth.
(11) To the heirs.
(12) While he was on his death bed.
(13) Lit., 'to them'.
(14) Sc. the estate must be given to this man.
(15) I.e., if he assigned his estate to a person whom he named without describing him by the title by which he is usually known.
(16) A scholar of the name of Tobiah who bears the title 'R(abbi)'.
(17) The testator.
(18) Claiming the estate.
(19) Of the deceased.
(20) A person is assumed to be more favourably disposed towards a scholar than towards any other person. On the merit and heavenly reward of him who benefits scholars, v. Bet. 34b.
(21) Prov. XXVII, 10.
(22) Who claim the estate.
(23) שוחדא שודא 'choice', 'singling out', 'discretion' (Jast.). Aliter. 'Favour', 'gift'. i.e., the judges in their verdict may favour, or make a gift of the estate to any of the claimants they prefer (cf. R. Tam in Tosaf. s.v. שודא and Levy s.v.). Aliter: שדי שודא 'to throw', i.e., the judges must cast about for (gauge) the opinion of the testator to determine which of the claimants he preferred (Rashi). Cf. Golds. שודא ist unverkennbar das syn. סװדא ,סודא (confabulatio, colloquium) Rat, Beschluss der Richter'.
(24) Lit 'which your father said'.
(25) This is the reading in the parallel passage elsewhere (cf. B.B. 147b). The reading here is הא, lit., 'that', 'as to that'.
(26) The seller.
(27) Because the buyer of a bond is entitled only to the same rights as those of the seller and since the latter, by his release of the creditor, has forfeited his claims upon the debt, the former also forfeits them; v. Kid.. Sonc. ed. p. 239. n. 1.
(28) When he inherits the estate of the creditor.
(29) On marriage.
(30) Lit., 'his hand is like her hand'; hence it is not within her power to remit the debt without her husband's consent.
(31) Cf. Rashi. טובת הנאה lit , 'the goodness of a favour' (cf. the English idiom, 'a game for love'), i.e., receiving no full price for her kethubah from the buyers, who purchase it as a speculation in case her husband dies first it divorces her. Should she die first, they have no claim to the kethubah.
(32) Who was the heir to her mother's kethubah.
(33) Lit., 'to them'.
Talmud - Mas. Kethuboth 86a
She might remit1 her mother's kethubah in favour of her father,2 and then she may inherit it frons him'.3 When she heard this she went and remitted it [in her father's favour]. Thereupon R. Nahman said: 'We have put ourselves in the [unenviable] position of legal advisers'.4 What was the opinion that he held at first5 and what made him change it afterwards?6 - At first he thought [of the Scriptural text.] And that thou hide not thyself from thine own flesh,7 but ultimately he realized that [the position of] a noted personality is different [from that of the general public].8
[Reverting to] the main text; Samuel said, 'If a man sold a bond of indebtedness to another person, and then he released the debtor, the latter is released; and, moreover, even [a creditor's] heir may release [the debtor].'9 Said R. Huna the son of R. Joshua; But if he10 is clever he11 rattles some coins in his12 face and [the latter]13 writes the bond14 in his15 name.
Amemar said; He16 who adjudicates [liability] in an action [for damage] caused indirectly would here also17 adjudge damages18 to the amount [recoverable] on a valid bond,19 but he who does not adjudicate [liability] in an action for damage caused indirectly20 would here adjudge damages only to the extent of the value of the mere scrap of paper.21 Such22 an action was [once tried] when through Rafram's insistence23 R. Ashi24 was compelled to order the collection [of damages]25 in the manner of a beam that is fit for decorative mouldings.26
Amemar stated in the name of R. Hama; If a man has against him, the claim of his wife's kethubah and that of a creditor, and he owns a plot of land and has also ready money, the creditor's claim is settled by means of the ready money while the woman's claim is settled by means of the land, the creditor being treated in accordance with his rights,27 and the wife in accordance with her rights.28 If, however, he owns only one plot of land and it suffices to meet the claim of one only, it is to be given to the creditor;29 it is not to be given to the wife. What is the reason?30 - More than the man's desire to marry is the woman's desire to be married.31
Said R. Papa to R. Hama, Is it a fact that you have stated in the name of Raba; If a man, against whom there was a monetary claim owned a plot of land, and who, when his creditor approached hini with the claim for repayment, replied, 'Collect your loan from the land', he is to be ordered [by the court,] 'You must yourself go and sell it, bring [the net proceeds] and deliver it to him'?32
'No', the other replied. 'Tell me then', [the first said to him,] 'how the incident33 had actually occurred'. '[The debtor]' the other replied, 'alleged that his money belonged to34 an idolater; and since he acted in an improper manner35 he was similarly treated in an improper manner'.36
Said K. Kahana to R. Papa; According to the statement you made that the repayment of [a debt to] a creditor is a religious act,37 what is the ruling where [a debtor] said, 'I am not disposed to perform a religious act'?38 - 'We', the other replied. 'have learned: This39 applies only to negative precepts, but in the case of positive precepts, as for instance, when a man is told, 'Make a sukkah'40 and he does not make it [or, 'Perform the commandment of the] lulab'41 and he does not perform it
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(1) Lit., 'let her go and remit'.
(2) Since, as has been stated (supra 85b ad fin.), even a creditor's heir may release the debtor'. The daughter is in this case the heir to a debt (the kethubah) which her father owed her mother who sold it to others who, like the buyers of a bond, lose all their claims upon it as soon as the heir has remitted it.
(3) Upon whom the buyers have no claim.
(4) עורכי הדײנין lit., 'those who arrange (the pleas) before the judges'. A judge is forbidden to act even indirectly as legal adviser to one of the parties. Cf. Aboth I, 8, Sonc. ed. p. 6. n. 1.
(5) When he tendered advice.
(6) Lit., 'and in the end what did he think?' sc. why did he finally reproach himself for acting as 'legal adviser'?
(7) Isa. LVIII, 7, implying that it is one's duty to come to the assistance of one's relative.
(8) A judge, in order to be free from all suspicion of partiality, must subject himself to greater restrictions and must consequently tender no legal advice whatever to line of the parties in a lawsuit, even in cases where the action is not to be tried by him, v. supra 52b.
(9) V. p. 541, nn. 15ff.
(10) The buyer.
(11) As soon as he buys the bond and before the creditor has had time to think of remitting it to the debtor.
(12) The debtor.
(13) Being naturally in need of ready money.
(14) For the amount involved. As soon as he buys the bond and before the creditor has time to think of remitting it to the debtor.
(15) The buyer's.
(16) I.e., R. Meir (cf. B.K. 100a f).
(17) Lit., 'by it'; in the case of a bond the debt in which had been remitted to the debtor after the creditor had sold the bond of indebtedness.
(18) In favour of the buyer.
(19) The creditor who was the cause of the damage must compensate the buyer for his loss.
(20) As to the dispute on this point v. B.K. 116b.
(21) On which the bond is written, since the creditor might plead that he is only liable for the piece of paper which he sold. For the debt itself he is not liable since it was only indirectly that he caused the loss of it.
(22) Cf.. however, Infra n. 17.
(23) By his legal and scholastic arguments.
(24) Who was the adjudicator in the action (cf however, infra n. 17).
(25) From, the creditor who remitted the debt. According to another interpretation (cf. Rashi on the parallel passage, B.K. 98b) R. Ashi in his childhood had destroyed a bond of indebtedness, and Rafram made him pay for it in accordance with the ruling of R. Meir (v. supra note 8).
(26) Metaph. As the beam is smooth and straight and of the best quality of wood so was the collection made to the full extent of the damage and of the best of the creditor's estate.
(27) As he advanced ready money he is justly entitled to ready money.
(28) As her statutory kethubah is secured on the husband's lands she is entitled to his land only. The amount (if the kethubah corresponding to the on barzel (v. Glos.) property, though this might have consisted of ready money, is, like the statutory kethubah with which it is amalgamated, also secured on the husband's lands only.
(29) If the bond of indebtedness and the kethubah bear the same date. Otherwise, the holder of the document bearing the earlier date takes precedence.
(30) For the preference of the creditor where the documents were issued on the same date.
(31) And the disadvantage in respect of the collection of her kethubah would not in any way deter her from marriage. If a creditor, on the other hand, were to experience undue difficulty in the collection of his debt he might decide to turn away from his door all future borrowers.
(32) Is it possible that a debtor would be expected to go to all this trouble when the creditor's security was not that of ready money but of land?
(33) That gave rise to the erroneous report.
(34) Lit., 'attached his money to'.
(35) By attempting to deprive his creditor from his due.
(36) In being ordered to find a buyer for his land, though elsewhere (cf. supra n. 6) it is the task of the creditor to do so.
(37) V. 'Ar. 22a.
(38) [Since, that is to say, the payment of a debt is a religious obligation, where is the sanction for the employment of compulsory measures to make one pay his debts? Others connect the question with the preceding case of one who ascribes his money to a non-Jew so as to evade payment, v. Tosaf. s.v. אמר].
(39) That flogging is administered and the sinner is thereby purged.
(40) The festive booth for the Feast of Tabernacles (cf Lev. XXIII, 34ff).
(41) 'Palm-branch', the term applied to the festive wreath used in the Tabernacles ritual and consisting of four species of which the palm-branch is one (cf. Lev. XXIII, 40).
Talmud - Mas. Kethuboth 86b
he is flogged1 until his soul departeth.2
Rami b. Hama enquired of R. Hisda: What is the ruling where [a husband said to his wife,] 'Here is your letter of divorce but you shall be divorced thereby only after [the lapse of] thirty days'. and she went and laid it down at the side of a public domain?3 - 'She', the other replied, 'is not divorced, by reason of the ruling of Rab and Samuel, both of whom have stated, 'It must be heaped up and lie in a public domain'4 and the sides of a public domain are regarded as the public domain itself.5 On the contrary! She should be deemed divorced by reason of a ruling of R. Nahman, who stated in the name of Rabbah b. Abbuha, 'If a man said to another, "Pull this cow, but it shall pass into your possession Only after thirty days", he legally acquires it even if it stands at the time in the meadow';6 and a meadow presumably has, has it not, the same status as the sides of a public domain?7 - No; a meadow has a status of its own8 and the sides of a public domain, too, have a status of their own.9 Another version: He10 said to him,11 'She12 is divorced by reason of a ruling of R. Nahman,13 the sides of a public domain having the same status as a meadow'. - 'On the contrary! She should not be regarded as divorced by reason of a ruling of Rab and Samuel.13 for have not the sides of a public domain the same status as a public domain?' - 'No; a public domain has a status of its own8 and the sides of a public domain, too, have a status of their own'.9
MISHNAH. IF A HUSBAND SET UP HIS WIFE AS A SHOPKEEPER14 OR APPOINTED HER AS HIS ADMINISTRATRIX HE MAY IMPOSE UPON HER AN OATH15 WHENEVER HE DESIRES TO DO SO. R. ELIEZER SAID; [SUCH AN OATH15 MAY BE IMPOSED UPON HER] EVEN IN RESPECT OF HER SPINDLE AND HER DOUGH.16
GEMARA. The question was asked; Does R. Eliezer mean [that the oath17 is to be imposed] by implication18 or does he mean that it may be imposed directly?19 Come and hear: They20 said to R. Eliezer, 'No one can live with a serpent in the same basket'.21 Now if you will assume that R. Eliezer meant the imposition of a direct oath19 one can well understand the argument;22 but if you were to suggest [that he meant the oath to be imposed] by implication only, what [it may be objected] could this23 matter to her?24 - She might tell him, 'Since you are so particular with me I am unable to live with you'.25
Come and hear:26 If a man did not exempt his wife27 from a vow28 and from an oath29 and set her up as his saleswoman or appointed her as his administratrix, he may impose upon her an oath29 whenever he desires to do so. If, however, he did not set her up as his saleswoman and did not appoint her as his administratrix, he may not impose any oath upon her. R. Eliezer said: Although he did not set her up as his saleswoman and did not appoint her as his administratrix, he may nevertheless impose upon her an oath wherever he desires to do so, because there is no woman who was not administratrix for a short time, at least, during the lifetime of her husband, in respect of her spindle and her dough. Thereupon they said to him: No one can live with a serpent in the same basket. Thus you may infer that [R. Eliezer meant that the oath29 may he imposed] directly. This is conclusive.
MISHNAH. [IF A HUSBAND] GAVE TO HIS WIFE AN UNDERTAKING IN WRITING, 'I HAVE NO CLAIM UPON YOU FOR EITHER VOW30 OR OATH',31 HE CANNOT IMPOSE AN OATH32 UPON HER. HE MAY, HOWEVER, IMPOSE AN OATH UPON HER HEIRS33 AND UPON HER LAWFUL SUCCESSORS.34 [IF HE WROTE,] I HAVE NO CLAIM FOR EITHER VOW30 OR OATH31 EITHER UPON YOU, OR UPON YOUR HEIRS OR UPON YOUR LAWFUL SUCCESSORS', HE MAY NOT IMPOSE AN OATH EITHER UPON HER OR UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS. HIS HEIRS, HOWEVER, MAY35 IMPOSE AN OATH UPON HER, UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS. [IF THE WRITTEN UNDERTAKING READ.] 'NEITHER I NOR MY HEIRS NOR MY LAWFUL SUCCESSORS36 SHALL HAVE ANY CLAIM UPON YOU OR UPON YOUR HEIRS OR UPON YOUR LAWFUL SUCCESSORS FOR EITHER VOW OR OATH', NEITHER HE NOR HIS HEIRS NOR HIS LAWFUL SUCCESSORS MAY IMPOSE AN OATH EITHER UPON HER OR UPON HER HEIRS OR UPON HER LAWFUL SUCCESSORS.
IF SHE37 WENT FROM HER HUSBAND'S GRAVE TO HER FATHER'S HOUSE,38 OR RETURNED TO HER FATHER-IN-LAW'S HOUSE BUT WAS NOT MADE ADMINISTRATRIX, THE HEIRS ARE NOT ENTITLED TO IMPOSE AN OATH UPON HER;39 BUT IF SHE WAS MADE ADMINISTRATRIX THE HEIRS MAY IMPOSE AN OATH UPON HER IN RESPECT OF [HER ADMINISTRATION] DURING THE SUBSEQUENT PERIOD40 BUT NOT IN RESPECT OF THE PAST.41
GEMARA. What is the nature of the oath?42 - Rab Judah replied in the name of Rab:
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(1) In an endeavour to coerce him to perform the precept.
(2) Hul. 132b; if he persists in his refusal. Thus it follows that no one is at liberty to declare, 'I am not disposed to perform a religious act'.
(3) Where fewer people walk, and where it remained intact until the lapse of the thirty days. Is the letter of divorce, it is asked, regarded as being still in the possession of the woman, despite its place of deposit, and the woman is consequently legally divorced, or is the spot, being at the side of a public domain, subject to the same restrictions in respect of kinyan as the public domain itself.
(4) Supra 84b, 85a, q.v., from which it follows that an object in a public domain cannot be acquired except by a specific act of kinyan.
(5) Cf. supra n. 9. The woman cannot consequently he regarded as being in possession of the letter of divorce and her divorce is, therefore, invalid.
(6) Supra 82a q.v. for notes.
(7) As the cow is acquired after the specified period, though stationed in a meadow', so should the woman be deemed to be in the possession of the letter of divorce, though it lies at the side of a public domain.
(8) Hence the validity of a deferred kinyan if at the specified period the object was within its boundaries.
(9) No deferred kinyan being effective within such a spot.
(10) R. Hisda.
(11) Rami b. Hama.
(12) The woman to whom her husband gave a letter of divorce stipulating that it shall take effect only after the lapse of thirty days.
(13) V. supra.
(14) That she should sell his wares
(15) That she has not dealt fraudulently with anything that had been put in her charge.
(16) Sc. not only when she is engaged in commercial transactions, but also when she is occupied with her domestic affairs only. (V. Gemara infra).
(17) He has spoken of in our Mishnah.
(18) גלגול lit 'rolling'. sc only where the wife has to take an oath in respect of her commercial transactions may an oath in respect of her domestic occupations be added.
(19) Sc. even if she is attending to her domestic occupations only.
(20) The Rabbis who differed from him.
(21) Proverb. Serpent _ cantankerous husband.
(22) A wife could justly object to live with a cantankerous man who does not trust her in her domestic responsibilities.
(23) The oath by implication.
(24) When she has in any case to take an oath in respect of her business transactions.
(25) Her refusal to live with him is not due to the actual oath but to his mistrust of her integrity.
(26) An answer to the question supra as to what was R. Eliezer's meaning.
(27) By a formal declaration.
(28) E.g., 'may all the produce of the world be forbidden to me if I misappropriated any of your goods or money' (cf. Git. 34b).
(29) V. supra p. 546. n, 10.
(30) V. p. 547. n. 10.
(31) V. supra p. 546, n. 20.
(32) The nature of this oath is explained infra.
(33) If, having been divorced by him, she died and they claim from him the amount of her kethubah. The oath they take affirms that the deceased had not enjoined upon them either while, or before, she was dying, not did they find any entry among her papers that the kethubah was paid (v. Shebu. 45a).
(34) People who bought her kethubah from her. Cf. n. 4, mutatis mutandis.
(35) If on the death of their father the widow, her heirs or lawful successors claim from them the payment of her kethubah.
(36) The purchasers of his estate from whom the kethubah is claimed in the absence of unencumbered property.
(37) The woman whom her husband had granted exemption from vow and oath (v. supra).
(38) Sc. she severed all connection with her husband's business affairs as soon as he was buried.
(39) Even in respect of the period between her husband's death and burial.
(40) Lit., 'for that which is to come', the exemption having expired at the moment the estate passed into the possession of the heirs.
(41) The period of her administration prior to their father's death, when she was protected by his exemption.
(42) The exemption from which is discussed in the first clause of our Mishnah.
Talmud - Mas. Kethuboth 87a
[It is one that is incumbent] upon a woman who during the lifetime of her husband was made administratrix [of his affairs].1 R. Nahman replied in the name of Rabbah b. Abbuha: [It is one that is incumbent] upon a woman who impairs her kethubah.2 R. Mordecai went to R. Ashi and submitted to him this argument: One can well imagine [the origin of the exemption], according to him who holds [that the oath is one incumbent] upon a woman who impairs her kethubah [by assuming that] it occurred to the woman that she might sometime be in need of money and would draw it from her kethubah and would, therefore, tell her husband, 'Give me an undertaking in writing that you will impose no oath upon me'.3 According to him, however, who holds [that the oath is one incumbent] upon a woman who during the lifetime of her husband was made administratrix [of his affairs],4 did she know [it may be objected] that he would set her up as administratrix that she should say to him, 'Give me a written undertaking that you will impose no oath upon me'?5 - The other replied: You taught this statement6 in connection with that clause;7 we teach it8 in connection with this:9 IF SHE WENT FROM HER HUSBAND'S GRAVE TO HER FATHER'S HOUSE, OR RETURNED TO HER FATHER-IN-LAW'S HOUSE BUT WAS NOT MADE ADMINISTRATRIX, THE HEIRS ARE NOT ENTITLED TO IMPOSE AN OATH UPON HER, BUT IF SHE WAS MADE ADMINISTRATRIX THE HEIRS MAY IMPOSE AN OATH UPON HER IN RESPECT OF [HER ADMINISTRATION] DURING THE SUBSEQUENT PERIOD BUT NOT IN CONNECTION WITH THE PAST, [and, in reply to the question as to] what exactly was meant by THE PAST, Rab Judah stated in the name of Rab: [The period] during the lifetime of her husband for which she was made administratrix [of his affairs], but in respect of [the period intervening] between death and burial an oath may be imposed upon her.10 R. Mattena, however,11 maintained that no oath may be imposed upon her12 even in respect of [the period between] death and burial;13 for the Nehardeans laid down: For poll-tax,14 maintenance15 and funeral expenses. an estate16 is sold without public announcement.17
Said Rabbah in the name of R. Hiyya: [If in giving exemption to his wife a husband wrote,] 'Neither vow nor oath' it is only he who cannot impose an oath upon her, but his heirs may impose an oath upon her. [If he wrote, however,] 'Free from vow, free from oath', neither he nor his heirs may exact an oath from her, [since by this expression] he meant to say to her: 'Be free from the obligation of an oath'.
R. Joseph. however, stated in the name of R. Hiyya: [If in giving exemption to his wife a husband writes,] 'Neither vow nor oath' it is only he who cannot impose an oath upon her but his heirs may; [but if he wrote,] 'Free from vow, free from oath', both he and his heirs may exact an oath from her [since by such an expression] he thus meant to say to her: 'Clear yourself by means of an oath'. R. Zakkai sent to Mar 'Ukba the following message: Whether [the husband wrote,] 'Neither oath' or 'Free from oath', or whether [he wrote.] 'Neither vow', or 'Free from vow', [and he used the expression] 'In respect of my estates',18 he cannot impose an oath upon her, but his heirs may. [If he wrote, however,] 'In respect of these estates', neither he nor his heirs may exact an oath from her.
R. Nahman stated in the name of Samuel in the name of Abba Saul the son of Imma Miriam: Whether [the husband wrote,] 'Neither oath' or 'Free from oath'' whether [he wrote,] 'Neither vow' or 'Free from vow , or whether [he used the expression,] 'In respect of my18 estates' or 'In respect of these estates', neither he nor his heirs may exact an oath from her; but what can I do in view of a ruling of the Sages that anyone who comes to exact payment out of the property of orphans is not to be paid unless he first takes an oath.19
Others read this20 as a Baraitha: Abba Saul the son of Imma Miriam stated; Whether [the husband wrote.] 'Neither oath' or 'Free from oath', whether [he wrote,] 'Neither vow' or 'Free from vow , or whether [he used the expression,] 'In respect of my18 estates, or 'In respect of these estates'. neither he nor his heirs may impose ,an oath upon her; but what can I do in view of a ruling of the Sages that anyone who comes to exact payment out of the property of orphans need not be paid unless he first takes an oath. [It was in connection with this Baraitha21 that] R. Nahman said in the name of Samuel: The halachah is in agreement with the ruling of the son of Imma Miriam.
MISHNAH. A WOMAN WHO IMPAIRS22 HER KETHUBAH IS NOT PAID23 UNLESS SHE FIRST TAKES AN OATH.24 IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID,25 SHE IS NOT BE PAID UNLESS SHE FIRST TAKES THE OATH. FROM THE PROPERTY OF ORPHANS, FROM ASSIGNED PROPERTY26 AND [FROM THE PROPERTY OF] AN ABSENT HUSBAND27 SHE MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH.28
HOW [ARE WE TO UNDERSTAND THE STATEMENT,] 'A WOMAN WHO IMPAIRS HER KETHUBAH'? IF HER KETHUBAH WAS FOR A THOUSAND ZUZ29 AND [HER HUSBAND] SAID TO HER, 'YOU HAVE ALREADY RECEIVED [THE FULL AMOUNT OF] YOUR KETHUBAH', AND SHE SAYS, 'I RECEIVED ONLY A MANEH',29 SHE IS NOT PAID [THE BALANCE] UNLESS SHE TAKES AN OATH. WHAT IS MEANT BY30 'IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID'? IF HER KETHUBAH WAS FOR A THOUSAND ZUZ29 AND WHEN [HER HUSBAND] SAID TO HER, 'YOU HAVE RECEIVED [THE FULL AMOUNT OF] YOUR KETHUBAH', SHE REPLIED, 'I HAVE NOT RECEIVED IT WHILE ONE WITNESS TESTIFIES AGAINST HER THAT [THE KETHUBAH] HAS BEEN PAID25 SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS MEANT BY THE EXPRESSION,30 'FROM ASSIGNED PROPERTY'? IF [HER HUSBAND] HAD SOLD HIS PROPERTY TO OTHERS AND SHE SEEKS TO RECOVER PAYMENT FROM THE BUYERS, SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS THE EXPLANATION OF THE EXPRESSION,30 FROM THE PROPERTY OF ORPHANS'? IF [HER HUSBAND] DIED AND LEFT HIS ESTATE TO HIS ORPHANS AND SHE SEEKS TO RECOVER PAYMENT FROM THE ORPHANS, SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH. WHAT IS TO BE UNDERSTOOD BY31 'AN ABSENT HUSBAND'? IF HER HUSBAND WENT TO A COUNTRY BEYOND THE SEA AND SHE SEEKS TO RECOVER PAYMENT IN HIS ABSENCE,32 SHE IS NOT PAID UNLESS SHE FIRST TAKES AN OATH.
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(1) It is from such an oath only that a husband exempts his wife, but not from one which a woman incurs when she impairs her kethubah (v. infra). A husband, according to this view, only exempts his wife from an obligation which is in his power to impose upon her but not from one which she has brought upon herself.
(2) By admitting that part of it has been paid to her. A woman who makes such an admission while her husband pleads that he has paid her the full amount is not entitled to receive the balance she claims except on oath, and it is the opinion of the authority cited by R. Nahman that a husband's general exemption extends to such an oath also, much more so to that required from her as administratrix (cf. supra note 2).
(3) And while asking for exemption from this particular oath she might at the same time ask for an exemption from both oaths.
(4) Cf. supra note 2.
(5) As she cannot be assumed to divine her husband's thoughts and intentions, the desire for such a request could naturally never arise.
(6) Rab Judah's, (supra 86b f).
(7) The case dealt with in the first clause of our Mishnah (cf. supra p. 549. n. i).
(8) I.e., you assume that R. Judah and R. Nahman refer to one and the same clause.
(9) The final clause dealing with the oath of an administratrix.
(10) Cf. supra p. 548, n. 11. Whereas R. Nahman refers to the first clause, Rah Judah refers to the case of an administratrix in the last clause, and so R. Mordecai's objection does not arise.
(11) Differing from Rab Judah.
(12) The administratrix whom her husband has exempted from oath.
(13) This period also coming under the term of THE PAST.
(14) On behalf of orphans.
(15) Of one's widow or daughter.
(16) A bequest now belonging to the orphans of the deceased.
(17) Because in all these cases money is urgently needed and there is no time for the public announcement that must precede all sales effected on the order of a court. The urgency of the sale must inevitably lead to some undercutting of prices which the widow cannot possibly avoid (v. Git. 52b). It would consequently be an act of injustice to impose upon her an oath in respect of her administration during the period between her husband's death and burial.
(18) Omitting the demonstrative pronoun 'these'.
(19) V. B.B. 5b.
(20) The ruling cited in the name of Abba Saul.
(21) Cf. supra n. 3.
(22) This is explained anon.
(23) The balance she claims.
(24) Affirming her claim.
(25) In full (v. infra).
(26) Mortgaged or sold.
(27) Lit., 'and not in his presence', i.e., if a husband who was abroad sent a divorce to his wife and she claims her kethubah in his absence.
(28) Which is imposed upon her by the court even if the respective defendants mentioned do not demand it.
(29) V. Glos.
(30) Lit., 'how".
(31) Lit., 'how'.
(32) Cf. supra p. 552, n. 6.
Talmud - Mas. Kethuboth 87b
R. SIMEON RULED: WHENEVER1 SHE2 CLAIMS HER KETHUBAH THE HEIRS MAY IMPOSE AN OATH UPON HER BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CAN NOT IMPOSE AN OATH UPON HER.
GEMARA. Rami b. Hama wished to assume that the OATH3 was Pentateuchal,4 since [it is a case where] one [of two persons] claims two hundred [zuz] and the other admits one hundred [the defence] being an admission of a part of the claim,5 and whoever admits part of a claim must6 take an oath.7 Said Raba: There are two objections to this assumption: In the first place, all who take an oath in accordance with Pentateuchal law take the oath and do not pay,8 while she9 takes the oath and receives payment. And, secondly, no oath may be imposed6 in respect of the denial of [a claim that is] secured10 on landed property.11 [The fact,] however, is, said Raba, [that the oath is only] Rabbinical. As it is the person who pays that is careful to remember the details while he who receives payment is not, the Rabbis have imposed an oath upon her12 that she might be careful to recollect the details.
The question was raised; What if a woman impaired her kethubah by [admitting that she received part payment in the presence of] witnesses? [Is it assumed that] were [her husband] to pay her [the balance] he would do it in the presence of witnesses,13 or [is it rather assumed that] it was a mere coincidence [that witnesses were present when the first payment was made]?14 - Come and hear;15 All who take an oath in accordance with Pentateuchal law, take the oath and do not pay,16 but the following take an oath and receive payment; A hired labourer,17 a man who was robbed18 or wounded,19 [any claimant] whose opponent is suspected of [taking a false] oath20 and a shopkeeper21 with his [accounts] book,22 and also [a creditor] who impaired his bond [the first instalment of which had been paid] in the absence of witnesses.23 Thus only24 [where the first instalment was paid] 'in the absence of witnesses'25 but not where it was paid in the presence of witnesses!26 - This is a case of 'there is no question . . .'27 There is no question28 that [when the first instalment was paid] in the presence of witnesses she must take an oath; when, however, [it was paid] in the absence of witnesses,it might be assumed that she has [the same privilege] as one who restores a lost object [to its owner]29 and should, therefore, receive payment without taking an oath. It was, therefore, taught [that the oath is nevertheless not to be dispensed with].
The question was raised: What if a woman impaired her kethubah [by including in the amount she admitted] sums amounting to30 less than the value of a perutah?31 Is it assumed that since she32 is so careful in her statements she must be speaking the truth33 or is it possible that she34 is merely acting cunningly?35 - This remains unsolved.36
The question was raised: What if a woman declares her [original] kethubah to have been less [than the amount recorded in the written document]?37 Is it assumed that such a woman is in the same position as the woman who impaired [her kethubah] or is it possible [that the two cases are unlike, since] the woman who impairs [her kethubah] admits a part [of the sum involved]38 while this one does not admit a part [of the sum involved]?39 - Come and hear: A woman who declares that her [original] kethubah was less [than the amount recorded in the document] receives payment without an oath. How [is this to be understood]? If her kethubah was for a thousand zuz40 and when her husband said to her, 'You have already received your kethubah,'41 she replies. 'I have not received it,41 but [the original kethubah] was only for one maneh,'42 she is to receive payment without an oath.43
Wherewith, however, does she collect [the amount she claims]? Obviously with that document.44 But is not that document a mere potsherd?45 - Raba the son of Rabbah replied: [This is a case] where she states, 'There was an arrangement of mutual trust between me and him'.46
IF ONE WITNESS TESTIFIES AGAINST HER THAT [HER KETHUBAH] HAS BEEN PAID [etc.]. Rami b. Hama wished to assume that the OATH was Pentateuchal, for it is written In Scripture, One witness shall not rise up against a man for any iniquity, or for any sin;47 it is only for ally iniquity or for any sin that he may not rise up, but he may rise up [to cause the imposition upon one of the obligation] of an oath. And, furthermore, a Master has laid down: In all cases where two witnesses render a man liable to pay money, one witness renders him liable to take an oath.48 Said Raba: There are two objections to this assumption. In the first place, all who take an oath in accordance with Pentateuchal law, do so and do not pay,49 while she takes an oath and receives payment; and, secondly, no oath may be imposed in respect of the denial of [a claim that is] secured on landed property. [The fact], however, is, said Raba [that the oath is only] Rabbinical, [having been enacted] to appease the mind of the husband.
R. Papa said:
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(1) Lit., 'all the time'.
(2) The Gemara infra explains what R. Simeon refers to.
(3) Which A WOMAN WHO IMPAIRS HER KETHUBAH must take.
(4) On the difference between a Rabbinical oath and one imposed by the Torah v. Shebu. 41a.
(5) [Read with MS.M.: for she claims of him two hundred (zuz) and he admits to her one hundred, so that he is admitting part of the claim].
(6) Pentateuchally.
(7) That he has repaid the difference. The woman, having admitted receipt of a part of her kethubah, must consequently be in a similar position.
(8) I.e., it is the defendant, not the claimant, who takes the oath.
(9) The woman who impaired her kethubah and claims the balance.
(10) As is a kethubah.
(11) V. Shebu. 42b, B.M. 57b.
(12) V. supra p. 553, n. 11.
(13) As he did in the case of the first payment. The woman would consequently be entitled to payment without taking the oath.
(14) And since the man was not particular to secure witnesses on the first occasion, he might have been equally indifferent on the second occasion, and the woman would consequently have to take an oath.
(15) V. Mishnah Shebu. 44b.
(16) V. supra p. 553, n. 10.
(17) Who swears that he has not received his wages.
(18) Witnesses testifying that they saw the robber emerging from that person's house carrying an object which they could not identify.
(19) The evidence shewing that the wound had been inflicted while the two men were alone in a particular spot, though no third party had witnessed the actual wounding.
(20) I.e., if the defendant is known to have once before sworn falsely.
(21) Who was given an order by an employer to supply a certain amount of goods to his workmen on account of their wages.
(22) If the book shews that the goods had been duly supplied and the workmen deny receiving them, the shopkeeper, like the workmen, is ordered to take an oath (the former that he supplied the goods and the latter that they had Dot received them) and both receive payment from the employer.
(23) [Add with MS.M. 'and she who impairs her kethubah without witnesses']. These last two mentioned cases are not found in the Mishnah (v. supra n. 11 ad fin.) and their source is a Baraitha (cf. Tosaf. s.v. ואלו a.l.).
(24) Lit., 'yes'.
(25) Must the claimant take the oath.
(26) The woman, in the case under discussion, would consequently be entitled to collect the balance she claims without taking an oath.
(27) Lit., 'he implied (the formula)."It is not required" (to say etc.)'.
(28) Lit., it is not required (to say that)'.
(29) In such a case a person is not expected to take an oath that he had returned all that he had found. His honesty is taken for granted in view of the fact that a dishonest man would have kept the object entirely to himself. Similarly with the impaired kethubah. Had the woman been dishonest she need not have admitted the receipt of an instalment at all and could have collected the full amount of her kethubah by virtue of the written document she possesses.
(30) Lit., 'less less'.
(31) V. Glos.
(32) By including even small and insignificant payments.
(33) And should, therefore, be exempt from an oath in respect of the balance.
(34) In mentioning insignificant payments.
(35) She mentioned the small sums in order to give the impression of being a careful and scrupulous person while in fact the instalment or instalment she received were substantial sums. Consequently an oath should be imposed upon her.
(36) Teku, v. Glos.
(37) And she claims that amount; while her husband states that he had paid her all her kethubah.
(38) The husband asserting that he paid the full amount and she admitting the receipt of a part of it. In such a case an oath may justly be imposed upon the woman.
(39) Since according to her statement the kethubah never amounted to more than the sum she now claims.
(40) V. Glos.
(41) The amount entered in the document.
(42) While the document contains a larger sum.
(43) This solves the problem.
(44) The kethubah she holds.
(45) Sc. of no legal value, since she herself admits that the amount it records is fictitious.
(46) They agreed, she states, that she would claim the smaller sum only despite the entry in the kethubah which shewed a larger one. This verbal agreement does not in any way affect the validity of the kethubah which, having been written and signed in a proper manner and attested by qualified witnesses, is a valid document on the strength of which a legal claim may well be founded; cf. supra 19b.
(47) Deut. XIX. 15.
(48) As two witnesses would have caused the woman to lose her kethubah entirely, one witness may rightly cause an oath to be imposed upon her. V. Shebu. 40a.
(49) V. supra p. 553, n. 10ff.
Talmud - Mas. Kethuboth 88a
If he1 is clever he may bring her under the obligation2 of a Pentateuchal oath:3 He pays her4 the amount of her kethubah in the presence of one witness, associates the first witness5 with the second6 and then treats his first payments7 as a loan.8 R. Shisha son of R. Idi demurred: How can one associate the first witness with the second one?9 - But, said R. Shisha the son of R. Idi, [he might proceed in this manner:]10 He pays her the amount of her kethubah in the presence of the first witness and a second one, and then treats his first payments as a loan. R. Ashi demurred: Might she not still assert that there were two kethubahs?11 - But, said R. Ashi: He might inform them12 [of the facts].13
FROM ASSIGNED PROPERTY. Elsewhere we have learned; And so also orphans cannot exact payment unless they first take an oath.14 From whom?15 If it be suggested. From a borrower16 [it may be objected;] Since17 their father would have received payment without an oath18 should they require an oath?19 - It is this, however, that was meant: And so also orphans cannot exact payment from orphans unless they first take an oath.20
R. Zerika stated in the name of Rab Judah: This21 has been taught only [in the case] where the orphans22 stated, 'Father told us; I have borrowed and paid up'. If, however, they said, 'Father told us: I have never borrowed' [the others] cannot exact payment even if they take an oath. Raba demurred: On the contrary. wherever a man says. 'I have not borrowed', it is as if he had said, 'I have not paid'!23 - [The fact,] however, [is that] if such a statement24 was at all made it was made in these terms: R. Zerika stated in the name of Rab Judah. This25 has been taught only [in a case] where the orphans22 stated, 'Father told us: l have borrowed and paid up'. If, however, they said - 'Father told us: I have never borrowed', [the orphans of the creditor] may exact payment from them without an oath , because to say, 'I have not borrowed' is equivalent to saying, 'I have not paid'.
AND26 [FROM THE PROPERTY OF] AN ABSENT HUSBAND [A WOMAN] MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH. R. Aha, the governor of the castle,27 stated: A case28 was once brought before R. Isaac Nappaha29 at Antioch30 and he made this statement, 'This31 has been taught only in respect of the kethubah of a woman [who receives preferential treatment] in order to maintain pleasant relations32 [between her and her husband] but not [in respect of] a creditor. Raba, however, stated in the name of R. Nahman; Even a creditor [has been given the same privilege],33 in order that every person shall not take his friend's money and abscond and settle in a country beyond the sea and thus [cause the creditor's] door to be shut in the face of intending borrowers.34
R. SIMEON RULED: WHENEVER SHE CLAIMS HER KETHUBAH etc. What is R. Simeon referring to? - R. Jeremiah replied. To this; AND35 [FROM THE PROPERTY OF] AN ABSENT HUSBAND [A WOMAN] MAY NOT RECOVER [THE PAYMENT OF HER KETHUBAH] UNLESS SHE FIRST TAKES AN OATH [which implies that] there is no difference between [a claim] for maintenance and one for a kethubah,'36 and [in opposition to this ruling] R. Simeon came to lay down the rule that WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY IMPOSE AN OATH UPON HER
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(1) The husband whose plea is supported by one witness only.
(2) Lit., 'bring her to the hands of'.
(3) Cf. supra p. 553. n. 6.
(4) A second time.
(5) Who saw the first payment.
(6) Should she deny having had her kethubah paid, he presents the two witnesses in support of his claim.
(7) On account of her kethubah.
(8) Should she then deny receiving the money he may well impose upon her a Pentateuchal oath on the strength of the evidence of the first witness who was present when she received it. It is only in the case of a kethubah which is an hypothecary obligation (v. supra) that a witness cannot impose upon a defendant the Pentateuchal oath.
(9) In view of the fact that the evidence of the one relates to a transaction at which the other was not present. The law of evidence demands that both witnesses testify to the same transaction. Should the woman he prepared to deny the second payment also, no Pentateuchal oath could be imposed upon her and she would thus be able to obtain a third payment also on taking a Rabbinical oath.
(10) V. supra notes 1-8.
(11) The first of which she had returned when she had received her first payment. As the first witness, who knows that the two payments were made to her in settlement of a kethubah would naturally corroborate her statement, the dispute would still relate to a kethubah and not to a loan. How then could a Pentateuchal oath be imposed upon her?
(12) The two witnesses.
(13) Before he makes his second payment. As the first witness would thus be aware that the second payment is made solely for the purpose of imposing upon her a Pentateuchal oath in respect of the first payment which she fraudulently denied, he would refrain from giving evidence in her favour and the man would thus be able to recover his money. Her peculiar plea that she had two kethubahs would naturally be disregarded in the absence of all supporting evidence.
(14) Shebu. 45a. Cf. supra p. 548, n. 4.
(15) Can they not 'exact payment etc.'.
(16) Against whom they produce a bond of indebtedness bequeathed by their father.
(17) Lit., 'now".
(18) As all creditors who produce a bond of indebtedness against a debtor.
(19) Obviously not, since orphans would not be subject to a restriction from which their father was exempt.
(20) Cf. Shebu. 47a.
(21) That after taking an oath the orphans of a lender are entitled to receive payment of a bond they have inherited.
(22) Of the borrower.
(23) B.B. 6a, Shebu. 41b. If a man did not borrow he obviously did not repay; but since the bond shews that he did borrow, he must obviously be ordered to pay. How then could it be said that if the orphans pleaded that their father told them that he never borrowed they are exempt from payment?
(24) As the one attributed to R. Zerika.
(25) That the orphans cannot exact payment of a bond they have inherited unless they first take an oath.
(26) V. our Mishnah. Cut. edd. add here ונפרעת MS.M. והנפרעת.
(27) A surname (v. Rashi). Cf. Neb. VII, 2, where Hananiah is so described.
(28) Of a claim against an absent debtor.
(29) So MS.M. and Bah. Cut. edd. omit 'Nappaha'.
(30) The capital of Syria, on the river Orontes. It was founded by Seleucus Nicator and was at one time named Epidaphnes.
(31) That a claimant may be authorized by a court to seize the property of a defendant in the latter's absence.
(32) V. supra p. 532, n. 11f.
(33) Cf. supra n. 5.
(34) Metaph. Undue difficulty in the collection of a debt would prevent people from risking their money in the granting of loans.
(35) Cf. supra p. 558. n. 13.
(36) For either claim the woman cannot recover from her absentee husband's property without an oath.
Talmud - Mas. Kethuboth 88b
BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CANNOT IMPOSE AN OATH UPON HER. And they1 [in fact] differ on the same principles as those on which Hanan and the sons of the High Priests differed; for we learned: If a man went to a country beyond the sea and his wife claimed maintenance, she must, Hanan ruled, take an oath at the end2 but not at the beginning.3 The sons of the High Priests, however, differed from him and said that she must take an oath both at the beginning3 and at the end.4 R. Simeon [is thus of the same opinion] as Hanan while the Rabbis5 [hold the same view] as the sons of the High Priests.
R. Shesheth demurred; Then6 [instead of saying,] THE HEIRS MAY IMPOSE AN OATH UPON HER, It should have said, 'Beth din7 may impose an oath upon her'! - The fact, however, is, said R. Shesheth.[that R. Simeon referred] to this:8 If she went from her husband's grave to her father's house, or returned to her father-in-law's house but was not made administratrix, the heirs are not entitled to impose an oath upon her; but if she was made administratrix the heirs may exact an oath from her in respect of [her administration] during the subsequent period but may not exact one concerning the past;9 and [in reference to this ruling] R. Simeon came to lay down the rule that WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY ENACT AN OATH FROM HER BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH THE HEIRS CANNOT IMPOSE AN OATH10 UPON HER. And they11 differ on the same principles as those on which Abba Saul and the Rabbis differed; for we have learned: An administrator whom the father of the orphans had appointed must take an oath,10 but one whom the Beth din have appointed need not take an oath. Abba Saul, however, said, The rule is to be reversed: If Beth din appointed him he must take an oath but if the father of the orphans appointed him he need not take an oath.12 R. Simeon [thus holds the same view] as Abba Saul13 and the Rabbis [in our Mishnah hold the same view] as the Rabbis.14 Abaye demurred: Then15 [rather than say,] WHEREVER SHE CLAIMS HER KETHUBAH16 it should have said,15 'If17 she claims'.18 The fact, however, is, said Abaye, [that R. Simeon referred] to this: [If a husband] gave to his wife an undertaking in writing, 'I renounce my claim upon you for either vow or oath', he cannot impose an oath upon her etc. [If the written undertaking read,] 'Neither I nor my heirs nor my lawful successors will have any claim upon you. or your heirs or your lawful successors for either vow or oath', neither he nor his heirs nor his lawful successors may impose an oath either upon her or upon her heirs or upon her lawful successors;19 and [in reference to this ruling]20 R. Simeon came to lay down the rule21 that22 WHENEVER SHE CLAIMS HER KETHUBAH THE HEIRS MAY ENACT AN OATH FROM HER.22
And they23 [consequently] differ on the same principles as those on which Abba Saul the son of Imma Miriam, and the Rabbis differed.24 R. Simeon agreeing with Abba Saul and the Rabbis [of our Mishnah] with the Rabbis.25 R. Papa demurred: This would satisfactorily explain [the expression] WHENEVER SHE CLAIMS HER KETHUBAH.26 What, however, can be said [in justification of] BUT WHERE SHE DOES NOT CLAIM HER KETHUBAH?27 The fact, however, is, said R. Papa, [R. Simeon's ruling was intended] to oppose the views of both R. Eliezer and those who differed from him.28 MISHNAH. IF SHE29 PRODUCED A LETTER OF DIVORCE WITHOUT A KETHUBAH30
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(1) R. Simeon and the first Tanna.
(2) Sc. when her husband dies and she claims her kethubah.
(3) I.e., when he is still alive and she claims maintenance.
(4) Infra 104b.
(5) The first Tanna in our Mishnah.
(6) Lit., 'that', i.e., if it is a case of a wife's claim for maintenance during her husband's lifetime.
(7) The court. V. Glos.
(8) The preceding Mishnah.
(9) Supra 86b, q.v. for notes.
(10) Affirming faithful and honest administration.
(11) R. Simeon and the first Tanna.
(12) Git. 52b, q.v. for the reasons of the respective rulings.
(13) Since the woman also has been appointed by the 'father of the orphans'.
(14) Of the Mishnah cited.
(15) Since R. Simeon relaxes the law in favour of the woman.
(16) Then THE HEIRS MAY IMPOSE AN OATH, an expression which implies that R. Simeon is adding a restriction.
(17) I.e., only if.
(18) 'May an oath be exacted'. 'WHENEVER SHE CLAIMS . . . THE HEIRS MAY' implies that whereas the first Tanna exempted the woman from an oath even where she claimed her kethubah, R. Simeon differed from him and imposed upon her an oath 'WHEREVER SHE CLAIMS'.
(19) Supra 86b q.v. for notes.
(20) Which exempts the woman from an oath even when she seeks to recover payment from orphans.
(21) Restricting the woman's privilege. Cf. supra n. 2f.
(22) Cf. supra n. 4.
(23) R. Simeon and the first Tanna.
(24) Supra 87a.
(25) Of the Baraitha referred to.
(26) Cf. supra note 4. The Rabbis having exempted the woman from the oath that the orphans might wish to impose upon her, R. Simeon laid down that WHEREVER etc.
(27) What need was there for this statement which has no beating on what the Rabbis have said?
(28) I.e., R. Simeon differs from the views expressed in the two Mishnahs, supra 86b, and not only, as Abaye maintained, from those of the second Mishnah only. Contrary to what has been stated in these two Mishnahs, R. Simeon laid down that a wife's liability to take an oath is not determined by the action of the husband in granting her exemption and by the terms of that exemption, but is entirely dependent on whether the woman does or does not claim her kethubah. (V. Rashi and Tosaf'. s.v. לאפוקי a.I.). [On this interpretation R. Papa does not disagree with Abaye but merely adds that R. Simeon's interpretation refers also to the second clause. This is supported by MS.M. which omits: The fact is however, (lit. 'but'), said R. Papa. For other interpretations v. Shittah Mekubbezeth].
(29) A woman who seeks to recover the amount of her kethubah.
(30) I.e., the written marriage contract (v. Glos.). It is now assumed that the woman asserts that the document was lost.
Talmud - Mas. Kethuboth 89a
SHE IS ENTITLED TO COLLECT THE AMOUNT OF HER KETHUBAH.1 [IF SHE, HOWEVER, PRODUCED HER] KETHUBAH WITHOUT A LETTER OF DIVORCE AND, WHILE SHE PLEADS, MY LETTER OF DIVORCE WAS LOST',2 HE3 Pleads, 'MY QUITTANCE4 WAS LOST', AND SO ALSO A CREDITOR WHO PRODUCED5 A BOND OF INDEBTEDNESS THAT WAS UNACCOMPANIED BY A PROSBUL,6 THESE7 ARE NOT PAID. R. SIMEON B. GAMALIEL RULED; SINCE THE TIME OF DANGER8 A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITH OUT A LETTER OF DIVORCE AND A CREDITOR IS ENTITLED TO COLLECT [HIS DEBT] WITHOUT A PROSBUL.
GEMARA. This9 implies [does it not] that a quittance10 may be written;11 for if a quittance may not be written would not the possibility have been taken into consideration that the woman might produce her kethubah [after her husband's death] and12 collect therewith [a second time]?13 - Rab replied: We are dealing14 with a place where no kethubah is written.15 Samuel, however, said: [Our Mishnah refers] also to a place where a kethubah is written.
May then16 a quittance be written according to Samuel?17 R. Anan replied, This was explained to me by Mar Samuel;18 Where it is the custom not to write [a kethubah] and [the husband] asserted, 'I have written one' it is he who must produce the proof, where it is the usage to write one and she pleads. 'He did not write one for me' it is she that must produce the proof.19
Rab20 also withdrew from [his previously expressed opinion]. For Rab had stated: Both in a place where [a kethubah] is written and in one where it is not written, a letter of divorce [enables a woman to] collect her statutory21 kethubah [while the written document of the] kethubah [enables her to] collect the additional jointure;22 and whosoever wishes to raise any objection may come and do so.23
We have learned: [A WOMAN, HOWEVER, WHO PRODUCED HER] KETHUBAH WITHOUT A LETTER OF DIVORCE AND, WHILE SHE PLEADS, 'MY LETTER OF DIVORCE WAS LOST HE PLEADS, 'MY QUITTANCE WAS LOST'. AND SO ALSO A CREDITOR WHO PRODUCED A BOND OF INDEBTEDNESS WITHOUT A PROSBUL, THESE ARE NOT PAID. Now, according to Samuel24 this statement is quite intelligible since one might interpret it as applying to a locality where it is the practice to write [no kethubah] and the husband pleaded. 'I did write one'. In such a case [the man] might justly be told, 'Produce your evidence', and should he fail to do so he might well be told, 'Go and pay up'.25 According to Rab,26 however, [the question arises,] granted that she27 is not to collect her statutory kethubah,28 let her at least collect the additional jointure!29 - R. Joseph replied: Here30 we are dealing with a case where no witnesses to the divorce were present. Since [the husband] could have pleaded. 'I have not divorced her',31
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(1) Sc. the sum she claims. Should the husband plead that he already paid her that sum and that the document had been returned to him at the time and was then duly destroyed, his plea would be disregarded since the provision for a kethubah has the force of 'an act of a court', מעשה בית דין, and is as binding in the absence of a written document as if one had been actually in existence. Only the production of valid evidence could exempt the man from payment. Cf. B.M. 17b.
(2) 'Before I collected my kethubah'.
(3) The husband.
(4) 'Which was given to me at the time I paid the amount of the kethubah'. His wife, he alleges. had produced at that time her letter of divorce only asserting that her written kethubah was lost. As is the procedure in such cases, he maintains, the letter of divorce was duly destroyed in order to prevent the woman from claiming therewith a second payment at another court of law, while he was furnished with a quittance as a protection for his heirs should the woman produce her kethubah after his death, and, denying that she was ever divorced, claim the amount of her kethubah as the widow of the deceased.
(5) After the Sabbatical year when all debts must be released (v. Deut. XV. 2).
(6) Pleading that the prosbul was lost, while the debtor asserts that such a document had never been made out and that he was consequently released from his debt by the Sabbatical year. פרוזבול, a form of declaration which enables a creditor to retain his rights to the collection of his debts even after the Sabbatical year. (V. Glos. and cf. Git. 34b).
(7) Lit., 'behold these'.
(8) The Hadrianic persecutions that followed the rebellion of Bar Cochba (132-135 C.E.) when all religious practices were forbidden on the penalty of death and it was hazardous to preserve a letter of divorce or a prosbul.
(9) The ruling in out Mishnah that the amount of a kethubah may be collected by a woman who produces her letter of divorce only, even if, under the plea that she lost it, she does not surrender her kethubah.
(10) In lieu of the return of the original document, such as the kethubah or any bond of indebtedness.
(11) Despite the pleas of the defendant who objects to become the custodian of a quittance and demands the return of the original record of his obligations or, in its absence, exemption from payment.
(12) As a widow (cf. supra p. 562, n. 6 ad fin.).
(13) As this possibility is disregarded it follows that a quittance may well be written despite the defendant's objection. But how is this ruling to be reconciled with the accepted view of the authority (B.B. 171b) who holds that the defendant may rightly object to have to 'guard his quittance from mice'?
(14) In our Mishnah.
(15) The women relying on the general provision of the Rabbis which entitles every wife to a kethubah.
(16) Cf. supra notes 2 and 3.
(17) Cf. supra n. 9.
(18) MS.M.: Samuel.
(19) Samuel also is thus of the opinion that a quittance may not be written, as was laid down in B.B. 171b, while our Mishnah, according to his interpretation, refers both to places where a kethubah is written as well as to those where a kethubah is not written. The woman IS ENTITLED TO COLLECT THE AMOUNT OF HER KETHUBAH even if she fails to produce the document when, in the former case, she produced valid proof that her husband did not write one for her, and, in the latter case, where the man failed to produce valid proof that he did write one for her.
(20) Who first restricted the ruling of our Mishnah to a place where no kethubah is written.
(21) Lit., 'root', i.e., the amount of two hundred and a hundred zuz to which a virgin and a widow respectively are entitled.
(22) The first clause of our Mishnah thus refers to the statutory kethubah which may be collected with a letter of divorce, while the second clause refers to the additional jointure, both clauses applying to all localities irrespective of whether the custom of the place was to write a kethubah or not to write one.
(23) Sc. no possible objection could be raised to this view, since the woman would never be able to collect mote than what is her due.
(24) Who allows the statutory kethubah as well as the additional jointure to be collected on the strength of a letter of divorce.
(25) Both the additional and the statutory jointure, on the evidence of the letter of divorce. Should the woman subsequently produce a written kethubah without her letter of divorce, payment, as stated in our Mishnah, might justly be refused if the husband pleads that he had already paid her all that was due to her, at the time she produced her letter of divorce, that her letter of divorce was then destroyed and that a quittance was given to him. The ruling that she NEED NOT BE PAID is consequently quite logical.
(26) Who allows only the statutory kethubah to be collected on the production of a letter of divorce.
(27) When she produces her written kethubah alone.
(28) Because she might have already collected it with her letter of divorce (cf. supra p. 564, n. 5).
(29) Which is at all events due to her (cf. supra p. 564. n' 5). As our Mishnah, however, ruled that she NEED NOT BE PAID anything at all, an objection against Rab's view thus arises.
(30) In the statement of our Mishnah under discussion.
(31) And thereby procured exemption from payment of the kethubah.
Talmud - Mas. Kethuboth 89b
he is also entitled to plead, 'I have divorced her but I have already paid her the kethubah'.1
But since it was stated in the final clause, R. SIMEON B. GAMALIEL RULED: SINCE THE TIME OF DANGER A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITHOUT A LETTER OF DIVORCE AND A CREDITOR IS ENTITLED TO COLLECT [HIS DEBT] WITHOUT A PROSBUL, [it follows that] we are dealing with a case where witnesses to the divorce are present; for had no such witnesses been present whereby could she have collected [her kethubah]?2 - [The fact], however, is that the entire Mishnah represents the view of R. Simeon b. Gamaliel, but some clauses are missing, the correct reading being the following: NEED NOT BE PAID'. This applies only where no witnesses to the divorce are present, but if such witnesses are present she is entitled to collect her additional jointure. As to the statutory kethubah, if she produces her letter of divorce she may collect it, but if she does not produce her letter of divorce she may not collect it.3 Since the time of danger, however, a woman may collect her kethubah even if she does not produce her letter of divorce, for R. SIMEON B. GAMALIEL RULED; SINCE THE TIME OF DANGER A WOMAN IS ENTITLED TO COLLECT HER KETHUBAH WITHOUT A LETTER OF DIVORCE AND A CREDIT OR [IS ENTITLED TO COLLECT HIS DEBT] WITHOUT A PROSBUL'.
R. Kahana and R. Assi said to Rab; According to the ruling you have laid down that the statutory kethubah is collected by the letter of divorce , [the question arises,] whereby does a woman who was widowed after her marriage collect her kethubah? [Obviously] through the witnesses [who testify to the] death [of her husband]. Should we not, however, take into consideration the possibility that her husband might have divorced her and that she might subsequently4 produce the letter of divorce5 and collect6 with it also? - [A widow may collect her kethubah only] if she lived with her husband.7 But is it not possible that he might have divorced her near the time of his death?8 - [In such a case] it is he9 who has brought the loss upon himself.
Whereby does a woman who was widowed after her betrothal collect her kethubah? [Obviously] by the witnesses [who testify to the man's] death. Should we not, however, take into consideration the possibility that the man might have divorced her and that she would subsequently produce her letter of divorce and collect with it also?10 - [This],11 however, [is the explanation:]12 Where no other course is possible a quittance may be written.13 For were you not to admit this [the objection might be raised even in respect of] the very witnesses [who testify to her husband's] death:14 The possibility should be considered that the woman might present [one pair of] witnesses to [her husband's] death before one court and so collect [her kethubah] and then present [another pair] before another court and collect it [again]. It must he obvious, therefore,15 that where no other course is possible a quittance may be written.
Said Mar Kashisha the son of R. Hisda to R. Ashi: Whence is it derived that a woman who was widowed after her betrothal is entitled to a kethubah.16 If it be suggested [that it may he derived] from this passage: 'A woman who was widowed or divorced either after her betrothal or after her marriage is entitled to collect all17 [that is due to her]',18 is it not possible [it may be retorted that this applies to a case] where the man had written a kethubah for her? And were you to argue. 'If he has written one for her, what need was there to tell [such an obvious rule?' It could be retorted that it serves the purpose] of rejecting the view of R. Eleazar b. Azariah who maintained that 'the man wrote the [additional jointure] for her with the sole object of marrying her'.19 The inference too [from the Mishnah cited leads to the same conclusion].20 For it has been stated, '[She] is entitled to collect all [that is due to her]'. Now if you agree that [this is a case where] the man had written [a kethubah] for her one can well understand why she 'is entitled to collect all [that is due to her]'.21 If you submit, however, that the man did not write a kethubah for her, what [it may be objected is the justification for the expression.] 'is entitled to collect all', seeing that she is only entitled to one hundred or two hundred22 zuz?23 [Should it,] however, [be suggested that the law24 may be derived] from that which R. Hiyya b. Abin25 taught: 'In the case of a betrothed wife26 [a husband] is neither [subject to the laws of] onan27 nor may he28 defile himself for her,29 and she likewise is not subject to the laws of the onan30 nor is she31 obliged32 to defile herself for him;33 if she died he34 does not inherit from her though if he died she is entitled to collect the amount of her kethubah',35 is it not possible [it might be retorted that this refers only to a case] where the man had written a kethubah for her? And should you argue. 'If he had written one for her what need was there to state [such an obvious ruling?' It might be replied that] 'it was necessary [in order to inform us that if] she died he does not inherit from her'.36
R. Nahman said to R. Huna: According to Rab who laid down that a letter of divorce [enables a woman to] collect her statutory kethubah, is there no cause to apprehend that she might produce the letter of divorce at one court of law and collect her kethubah therewith and then again produce it at another court of law and collect therewith [a second time]? And should you reply that it might be torn up,37 could she not [it may be retorted] demand, 'I need [it to be enabled] thereby38 to marry again? - [What we do is,] we tear it up and endorse on the back of it: 'This letter of divorce has been torn by us, not because it is an invalid document but in order to prevent the woman from collecting therewith a second payments.
MISHNAH. [A WOMAN WHO PRODUCED] TWO LETTERS OF DIVORCE AND TWO KETHUBAHS MAY39 COLLECT PAYMENT OF THE TWO KETHUBAHS.40 [IF SHE PRODUCES, HOWEVER.] TWO KETHUBAHS AND ONE LETTER OF DIVORCE41 OR ONE KETHUBAH AND TWO LETTERS OF DIVORCE,42 OR A KETHUBAH, A LETTER OF DIVORCE AND [EVIDENCE OF HER HUSBAND'S] DEATH,43 SHE MAY COLLECT PAYMENT FOR ONE KETHUBAH ONLY, FOR ANY MAN WHO DIVORCES HIS WIFE AND THEN REMARRIES HER CONTRACTS HIS SECOND MARRIAGE ON THE CONDITION OF THE FIRST KETHUBAH.44
GEMARA. If she desired it, she45 could [evidently]46 collect [payment of her kethubah] either with the one kethubah or with the other.47 May it not then be argued that this ruling presents an objection against the ruling which R. Nahman stated in the name of Samuel? For R. Nahman stated in the name of Samuel: Where two bills48 are issued one after the other49 the latter annuls the former!50 - Has it not been stated in connection with this ruling that R. Papa said: 'R. Nahman in fact admits that if one51 has added in the [second] bill one palm-tree52 [it is assumed that] he has written it53 for the sake of that addition',54 so also here [it is a case] where the husband has added something for her [in the second kethubah].55
Our Rabbis taught: If [a woman] produced a letter of divorce, a kethubah and [evidence of her husband's] death56
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(1) His plea is accepted because by abstaining from the use of the false though convenient plea, 'I have not divorced her at all', he has established his reputation for honesty.
(2) It is obvious, therefore, that witnesses were available; contrary to R. Joseph's interpretation (supra 89a ad fin.).
(3) Since it is possible that she had already collected it once on the strength of her letter of divorce.
(4) After receiving payment of her kethubah on the evidence of the witnesses who testified to the death of her husband.
(5) Before another court.
(6) Her statutory kethubah.
(7) Where it is well known that she was not divorced by him.
(8) So that the fact would remain unknown.
(9) By consenting to a secret divorce.
(10) The answer previously given, which well explains the case of a widow after her marriage, is inapplicable here since a betrothed man and woman do not live together.
(11) And not as has been first suggested, 'where she lived with her husband'.
(12) Of the difficulty pointed out by R. Kahana and R. Assi.
(13) Had no quittance been allowed in such instances claimants would be deprived unjustly of their legitimate rights.
(14) In localities where no kethubah is written.
(15) Lit., 'but it is certain'.
(16) Even where the man did not write one for her. That this is the case is apparent from the previous discussion where the husband's liability has been tacitly assumed. Had not a betrothed woman been allowed a kethubah unless she possessed also a written document, the objection that she might collect her kethubah mote than once could must have been advanced, since the document would have been destroyed as soon as payment had been made.
(17) I.e., both her statutory kethubah and her additional jointure.
(18) Supra 47b, 54b, B.M. 17b.
(19) Cf. loc. cit., and since be died before he married her she, it might have been thought, is only entitled to her statutory kethubah but not to the additional jointure. Hence it was necessary for the ruling that she '15 entitled to collect all
(that is due to her)'.
(20) That the case dealt with is one 'where the man had actually written a kethubah for her'.
(21) The reason being that the man had expressly promised her in writing not only the statutory kethubah but also the additional jointure.
(22) One hundred if she married as a widow, and two hundred if as a virgin.
(23) I.e., the statutory kethubah only and nothing more.
(24) That a woman who was widowed after her betrothal is entitled to her kethubah (v. supra p. 567, n. 2).
(25) The reading elsewhere (cf. B.M. 18a, Sanh. 28b) is 'Ammi'.
(26) Before the marriage took place.
(27) A mourner during the period between the death and burial of certain relatives is called onan (v. Glos.) and is subject to a number of restrictions. A priest whose betrothed wife died may, unlike one whose married wife died, partake of sacrificial meat or any other holy food.
(28) If he is a priest.
(29) Cf. Lev. XXI, 1ff.
(30) She is allowed to partake of holy food.
(31) Unlike a married wife whose duty it is to attend to the burial of her husband.
(32) Cf. supra n. 10. The laws of defilement do not apply to women. Cf., however, infra n. 22.
(33) Aliter; 'Nor may she defile herself for him', i.e., during a festival when not only priests but also Israelites and women are forbidden to attend on the corpses of those who are not their near relatives (v. R.H. 16b).
(34) Unlike a husband who is heir to his wife (v. B.B. 111b).
(35) Yeb. 29b, B.M. 18a.
(36) Which is not obvious. And since the case where 'she deed' had to be stated, the one where 'he died', though self-evident, had, by way of contrast, also to be mentioned.
(37) As soon as payment is made.
(38) By using it as evidence that she had been legally divorced.
(39) If the date of the first kethubah is earlier than that of the first divorce and that of the second kethubah is earlier than that of the second divorce.
(40) Because it is assumed that after he had once divorced her the man had remarried her and then divorced her again. The kethubahs are consequently both due to her.
(41) The dates of both kethubahs being earlier than that of the letter of divorce, so that both obviously refer to the same marriage.
(42) I.e., the man married her after she had once been divorced by him, but did not write for her a second kethubah before he again divorced her.
(43) If the order was marriage, divorce, remarriage, death.
(44) I.e., that she should be entitled only to the first kethubah.
(45) WHO PRODUCED TWO KETHUBAHS AND ONE LETTER OF DIVORCE.
(46) Since our Mishnah does not specify which of the two kethubahs is to be used, the choice is evidently left to the woman.
(47) I.e., either with the kethubah that bears the earlier, or with the one that bears the later date. Should she prefer to use that of the earlier date she would obviously be able to seize even such property as her husband had sold after the earlier, though prior to the later, date.
(48) Signed by the same person and referring to the same transaction.
(49) Sc. the date on the one is later than on the other.
(50) Supra 44a; and the holder of the two bills is entitled to seize only such property as the defendant had sold subsequent to the later date. This then is in contradiction, is it not, to the ruling in out Mishnah which authorizes the woman (cf. supra p. 569, n. 11) to make use of her earlier kethubah?
(51) A seller or donor.
(52) That was not included in the bill of the earlier date.
(53) The second bill.
(54) And not with the intention of annulling the first one.
(55) Cf supra n. 7. Hence the ruling that the woman may collect payment with either of the two kethubahs. She may not collect, however, with both kethubahs unless the second document contained a specific insertion to the effect that it was the husband's desire that the second one shall form an addition to the first. In the absence of such an insertion the woman may collect either (a) the smaller amount contained in the first kethubah and enjoy the right of seizing all property her husband had sold since that date or (b) the bigger amount in the second kethubah and restrict her right of seizure to such property only as bad been sold after the second date. By the issue of a second kethubah, containing an addition to the first one without the specific insertion mentioned, a husband is assumed to have conferred upon his wife the right of choosing between the respective advantages and disadvantages of the two documents. Where the second kethubah, however, contains no addition at all, the latter document is assumed to have been intended as a cancellation of the first, since otherwise it need not have been issued, and seizure of property is restricted to the later date.
(56) Claiming one kethubah as a divorcee from her first marriage and the other as a widow from her second marriage.
Talmud - Mas. Kethuboth 90a
she may. if the letter of divorce bears an earlier date than the kethubah, collect payment for two kethubahs,1 but if the kethubah bears an earlier date than the letter of divorce she may collect payment of one kethubah only, for any man who divorces his wife and then remarries her contracts his second marriage on the condition of the first kethubah.
MISHNAH. [IN THE CASE OF] A MINOR WHOM HIS FATHER HAD GIVEN IN MARRIAGE, THE KETHUBAH OF HIS WIFE2 REMAINS VALID,3 SINCE IT IS ON THIS CONDITION THAT HE KEPT HER AS HIS WIFE. [IN THE CASE OF ONE WHO BECAME] A PROSELYTE AND HIS WIFE WITH HIM, THE KETHUBAH REMAINS VALID,4 SINCE IT IS ON THIS CONDITION THAT HE KEPT HER AS HIS WIFE.
GEMARA. R. Huna stated: [The ruling of our Mishnah]5 was given only in respect of the maneh6 or the two hundred zuz;7 to the additional jointure, however, she8 is not entitled.9 Rab Judah, however, stated: She10 is entitled [to receive payment for] her additional jointure also.
An objection was raised: If an additional monetary obligation was undertaken11 the woman receives that which was added.12 [Thus it follows, does it not, that] only if an additional monetary obligation was undertaken13 is the woman to receive any addition14 but if no such addition was made15 [she does] not [receive any addition at all]?16 - Read: 'Also that which had been added'.17 But surely, [in the following Baraitha] it was not taught so: 'If an additional monetary obligation was undertaken13 the woman receives that which was added, and if no additional monetary obligation was undertaken a virgin receives two hundred zuz and a widow receives a maneh'. Is not this then an objection against Rab Judah?18 - Rab Judah was misled by the wording of our Mishnah. He thought that the rule, 'THE KETHUBAH OF HIS WIFE REMAINS VALID', applied to the full amount;19 but in fact it is not so. It applies to the statutory kethubah alone.
CHAPTER 10
MISHNAH. IF A MAN WAS MARRIED TO TWO WIVES AND DIED, THE FIRST [WIFE] TAXES PRECEDENCE20 OVER THE SECOND, AND THE HEIRS21 OF THE FIRST WIFE TAKE PRECEDENCE22 OVER THE HEIRS OF THE SECOND. IF HE MARRIED A FIRST WIFE AND SHE DIED AND THEN HE MARRIED A SECOND WIFE AND HE HIMSELF DIED,23 THE SECOND WIFE24 AND HER HEIRS25 TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE.26
GEMARA. Since it was stated THE FIRST [WIFE] TAKES PRECEDENCE OVER THE SECOND but not 'The first wife receives payment27 and the second does not',28 it may be implied that if the second wife forestalled [the first] and seized [the payment of her kethubah] it cannot be taken away from her.29 May it then be inferred from this ruling that if a creditor of a later date has forestalled [one of an earlier date] and 'distrained [on the property of the debtor], his distraint is of legal Validity?30 In fact it may be maintained that his distraint is of no legal validity, and as to [the phrase] TAKES PRECEDENCE, It means complete [right of seizure];31 as we have learned: A son takes precedence over a daughter.32
Some there are who say: Since it was not stated, 'If the second wife forestalled [the first] and seized [the payment of her kethubah] it is not to he taken away from her', it may be implied that even if she has seized payment it may be taken away from her. May it then be concluded that if a creditor of a later date has forestalled [one of an earlier date] and distrained [on the property of a debtor] his distraint is of no legal Validity?33 - In fact it may be maintained that his distraint is of legal validity, only because the Tanna stated, THE SECOND WIFE AND HER HEIRS TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE34 ,
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(1) Since in such a case it is evident that the kethubah was given to her in connection with her second marriage. Her first kethubah she collects on the evidence of her letter of divorce.
(2) The sum of two hundred in which is assigned to a virgin.
(3) Even when he becomes of age, though the woman at that time is no longer a virgin. (V. Tosaf. s.v לא). The kethubah of a non-virgin is only one hundred in.
(4) Though it was given to her before her husband became a proselyte.
(5) That the wife of a minor is entitled to her kethubah even when he becomes of age.
(6) V. Glos.
(7) I.e., the statutory kethubah (cf supra n. 3) which is a woman s due in accordance with a Rabbinical enactment and is entirely independent of the minor's will or consent.
(8) The woman married to a minor.
(9) Since a minor cannot legally be bound to any contract.
(10) The woman who married a minor.
(11) Lit., 'they renewed', sc. the monetary addition was undertaken by the minor after he came of age or by the intending proselyte after he had embraced Judaism.
(12) Tosef. Keth. IX. It is now assumed that this refers to the additional sum only.
(13) V. p. 571. n. 11.
(14) Lit., 'yes'. Cf. p. 571, n. 12.
(15) After the minor came of age or the idolater had embraced Judaism.
(16) An objection against Rab Judah who allows a woman even the additional jointure that a minor or an idolater may have settled upon her.
(17) To the additional jointure that had been settled upon her while her husband was still an idolater or in his minority.
(18) Since here it was explicitly stated that only the statutory kethubah may be recovered (cf. supra n. 4).
(19) That was mentioned in the kethubah, i.e., the statutory kethubah as well as the additional jointure.
(20) In respect of her claim to her kethubah.
(21) If the women, having survived their husband, died before they had collected the payments of their kethubahs.
(22) Cf. supra n. 1, mutatis mutandis.
(23) And the sons of the first wife claim (a) their mother's kethubah to which they are entitled by virtue of the 'male children' clause (v. Mishnah supra 52b) which their father had entered in their mother's kethubah, or (b) their due share in their father's estate.
(24) Who, unlike the first, has survived her husband and consequently has, in respect of her claim upon her kethubah, the same legal status as a creditor.
(25) Who, like their mother, have the status of creditors.
(26) Who predeceased her husband and consequently lost her claim to her kethubah, since a surviving husband is the heir of his wife, her sons' claim to her kethubah (v. n. 4) being treated as a claim for an inheritance (v. supra 55a) and as such must yield precedence to that of a creditor.
(27) Lit., 'she has'.
(28) Lit., 'has not'.
(29) Since the expression of 'PRECEDENCE' only Implies priority of claim but not actual and inalienable right.
(30) Lit., 'what he collected is collected'. But If this were the case there would have been no dispute on the subject infra 94a.
(31) Lit , 'and what....he taught completely', i.e , the claim of the first wife to her kethubah is absolute; and, should there be no balance, the second wife would receive nothing.
(32) B.B. 115a, where the meaning is that if there is a son he has full rights to the estate whilst a daughter has no claim of heirship upon it at all.
(33) Cf. supra n. 1 mutatis mutandis.
(34) Where the statement, 'If the heir's of the first forestalled the heirs of the second and seized payment it is not to be taken away from them' is inapplicable, since, in fact, it is taken away from then, the estate being mortgaged to the heirs of the second who have the status of creditors.
Talmud - Mas. Kethuboth 90b
he also taught. THE FIRST WIFE TAKES PRECEDENCE OVER THE SECOND.1
IF A MAN MARRIED A FIRST WIFE. Three rulings may be inferred from this statement. It may be inferred that if one [wife died] during her husband's lifetime and the other after his death, [the sons of the former] are entitled to the kethubah of 'male children'2 and we do not apprehend any quarrelling.3 Whence is this inferred? Since it was stated, THE SECOND WIFE AND HER HEIRS TAKE PRECEDENCE OVER THE HEIRS OF THE FIRST WIFE [it follows that] they are only entitled to precedence but that if there is [a balance, the others also] take [their share]. It may also be inferred that the kethubah [of the second wife]4 may be regarded as the surplus5 over the other.6 Whence is this inferred? Since it was not stated [that payment7 is made only] if a surplus of a denar remained there. Furthermore It may be inferred that a kethubah [claimed by virtue] of the 'male children' [clause] may not be distrained on mortgaged property;8 for if it could be imagined that it may be distrained on mortgaged property, the sons of the first wife9 should [be entitled to] come and distrain on [the property] of the sons of the second .10 To this R. Ashi demurred: Whence [these conclusions]? Might I not in fact maintain that if one [wife died] while her husband was alive, and the other after his death, [the sons of the former] are not entitled to the kethubah [that they claim by virtue] of the 'male children' clause, whilst the expression of11 TAKE PRECEDENCE12 might refer13 to the inheritance?14 And were you to retort: What was the object15 [of the description] THE HEIRS OF THE FIRST WIFE?16 [I might reply that] as the Tanna used the expression, THE SECOND WIFE AND HER HEIRS17 he also spoke of THE HEIRS OF THE FIRST WIFE!18 And with reference to your conclusion that 'the kethubah [of the second wife] may be regarded as a surplus over the other', might I not in fact still maintain that no kethubah may be regarded as a surplus over the other, but here19 it is a case where there was a surplus of a denar!20 [As to the case where] one [wife died] during her husband's lifetime and the other after his death, this is [a matter in dispute21 between] Tannaim. For it was taught: [If a man's wives] died, one during his lifetime and the other after his death, the sons of the first wife, Ben Nannus ruled, can say to the sons of the second,22 'You are the sons of a creditor;23 take your mother's kethubah24 and go'.25 R. Akiba said: The inheritance26 has already been transferred27 from [the sole right of inheritance by] the sons of the first wife28 [the joint right of inheritance by these and] the sons of the second.29 Do they30 not differ on the following principle: One Master31 holds the Opinion that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the kethubah [of their mother by Virtue of the] 'male children' clause, and the other Master holds that where one [wife died] during a husband's lifetime and the other after his death [the sons of the former] are not entitled to the 'male children' kethubah?32 Said Rabbah: I found the young scholars of the academy while they were sitting [at their studies] and arguing: All33 [may hold the view that where] one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to [their mother's] 'male children' kethubah, but here they34 differ [on the principle whether the second wife's]35 kethubah may be regarded36 as a surplus over the other; and the same dispute applies to [the debt] of a creditor.37 One Master31 holds that the [second wife's]35 kethubah is regarded as a surplus over the other,36 and the same law applies to [the debt] of a creditor, and the other Master holds that no one kethubah may be regarded as a surplus over the other, and the same law applies to [the debt] of a creditor. Thereupon I said to them: In respect of [a claim of] a creditor no ones disputes [the view] that [the debt] is regarded as a surplus;38 they30 only differ in respect of a kethubah.39 TO this R. Joseph demurred: If so40 [instead of saying.] 'R. Akiba said: The inheritance has already been transferred' it should [have said.] 'If there is a surplus of a denar [the sons of the first wife receive their mother's kethubah].'41 [The fact]. however, is, said R. Joseph. that they42 differ [on the question whether the 'male children' kethubah is payable where] one [wife died] during her husband's lifetime and the other after his death .43
These Tannaim44 [differ on the same principle] as the following Tannaim. For it was taught: If a man married his first wife and she died and then he married his second wife and he himself died, the sons of this wife44 may come after [her]45 death and exact their mother's kethubah.46 R. Simeon ruled: If there is a surplus of one denar47 both48 receive the kethubahs of their mothers but if no [such surplus remains] they48 divide [the residue]49 in equal portions. Do they50 not differ on this principle: Whereas one Master51 holds that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the 'male children' kethubah, the other Master holds that where one [wife died] during her husband's lifetime and the other after his death [the children of the former] are not entitled to the 'male children' kethubah?52 No; all53 may agree that where one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are to receive the 'male children' kethubah,
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(1) omitting here also an expression which is inapplicable in the other case.
(2) Cf. supra 52b and supra p. 573' n. 4.
(3) Between the heirs of the second, who claim their mother's kethubah as creditors (cf. supra p. 57. n. 6) and those of the first, who claim (cf. loc. cit. n. 7) their 'male children' kethubah as heirs, the former disputing the right of the latter to have .1 larger share in the father's estate than they.
(4) Which has the force of a debt.
(5) V. Mishnah infra 91a. The kethubahs that wives heirs receive by virtue of the 'male children' clause (supra 52b) is subject to a surplus of one denar, at least, that must remain after the kethubahs have been paid in full, to safeguard the application of the Pentateuchal law of succession in regard to at least part if the estate. If no such minimum surplus remains the 'male children' kethubahs cannot he collected and the entire estate is divided in accordance with the Pentateuchal law of succession among all the sons.
(6) The kethubah which the heirs of the first wife claim by virtue of the 'male childrens' clause. The kethubah of the second wife which has to he paid as a debt by all the heirs (cf. infra p. 573,11. 5) who first inherit that amount, provides for the application of the Pentateuchal law' of succession. The heirs the first wife consequently receive their 'male children' kethubah and no minimum surplus of a denar is required as would have been the case had the second kethubah also been dependent on the 'male children' clause.
(7) Of the 'male children' kethubah of the first wife.
(8) l.c . it has the status of an inheritance and not that of a debt.
(9) Whose claim is of an earlier date than that of the second.
(10) Hence it may be inferred that their claim cannot be distrained on mortgaged property.
(11) Lit , 'and what'.
(12) Which implies that if there is any residue they also receive a share.
(13) Lit., 'it was taught'.
(14) Of their father's estate; and not to the 'male children' kethubah.
(15) Lit., 'wherefore to me'.
(16) 'OF THE FIRST WIFE' in the final clause has no point if bet sons claim, not the 'male children' kethubah by virtue of her rights, but their share in their fathers estate as his heirs.
(17) A proper description, since it is by virtue of their mother's rights that their claim to her kethubah is established.
(18) A mere balancing of expression which has no bearing in the latter case on the source from which their claim is derived.
(19) If the PRECEDENCE spoken of refers even, as at first suggested, to the 'male children' kethubah.
(20) Though this fact was not specifically stated in our Mishnah it may have been taken for granted in view of the ruling laid down in the following Mishnah (infra 91a).
(21) As to whether the sons of the first wife are entitled to their mother's kethubah by virtue of the 'male children' clause.
(22) Wherever the estate does not allow of a surplus of a denar above the amount of the two kethubahs.
(23) Cf. supra p' 573, n. 5.
(24) Which becomes due to her on the father's death, and which you inherit from her. This provides for the application of the Pentateuchal law of succession, all the heirs discharging a debt incurred by the father (cf. supra p. 575' n. 3)'
(25) The Pentateuchal law of succession having been fulfilled (v. supra n 10) the sons of the first wife are entitled to the full payment of their mother's 'male children' kethubah out of the residue of the estate.
(26) Of the kethubah of the first wife who predeceased her husband.
(27) Lit., 'jumped'. at the time the man died and was survived by his second wife.
(28) Lit., 'and fell before'.
(29) I.e., the residue of the estate, remaining after the deduction of the second wife's kethubah, is the common inheritance of all the sons of the deceased, those of the wife who predeceased him having no claim whatsoever in respect of the male children' kethubah which is payable only where both wives predeceased their husband.
(30) Ben Nannus and R. Akiba.
(31) Ben Nannus.
(32) V. supra note I.
(33) Lit., 'all the world' (v. supra note 2).
(34) V. supra note 2.
(35) The woman who survived her husband and whose claim has the same force as that of a creditor.
(36) Where not even a denar remained after the claims of the two kethubahs had been met.
(37) In the ease where both wives predeceased their husband and the sons of both claim the 'male children' kethubahs of their mothers while the creditor lays claim to the residue.
(38) And the sons of the two wives are consequently entitled to their mother's 'male children' kethubahs respectively.
(39) Ben Nannus holds the view that the kethubah of a wife, who had survived her husband, has the same status as a debt and consequently (v. supra P. 575. n. 3) enables the sons of the first wife to collect the payment of the 'male children' kethubah of their mother; while R. Akiba maintains that the payment of a kethubah is not on a par with that of any other debt; for, whereas any other debt is paid by the heirs to another person after they had first inherited that sum (v. l.c ). the amount of a kethubah is received by the sons themselves, in the first instance, as debtors without it having first fallen into their possession as heirs. The sons not having inherited the kethubah, there is no application here of the Pentateuchal law of succession. In order, therefore. that the Pentateuchal law of succession might not be superseded by the Rabbinical enactment of the 'male children' kethubah, it was ordained that in such a ease the sons of the first wife shall lose completely their rights to the kethubah.
(40) That R. Akiba allows the 'male children' kethubah where there is a surplus.
(41) The expression. however, which he actually used implies that the sons never receive their mother's kethubah.
(42) Ben Nannus and R. Akiba.
(43) As has been assumed at first (cf supra p. 576. notes 7.14. and p. 577' nn. 1-4).
(44) This (according to Rashi) is at present assumed to refer to the second wife who survived him and whose kethubah has, therefore, the status of a debt. R. Han, however, reads explicitly 'the sons of the second' (v. Tosaf infra 91a s.v. וכי).
(45) V. Tosaf. l.c.
(46) While the sons of the wife who predeceased her husband, as at present assumed (v. supra n. 5), are not entitled to their mother's kethubah, in virtue of the 'male children' clause.
(47) After the sum of the two kethubahs bad been deducted.
(48) The sons of both wives.
(49) The balance remaining after the kethubah of the second wife bad been paid.
(50) R. Simeon and the first Tanna.
(51) R. Simeon.
(52) But since the principles are the same what need was there to record two disputes on the very same principles?
(53) R. Simeon and the first Tanna,

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