Talmud - Mas. Baba Bathra 126a
and [in the case of] a loan that is with him1 [the portion of the birthright] is to be divided [between him and the other heirs].2
R. Huna said in the name of R. Assi: [If] the firstborn son had protested [against the proposed improvements in the bequeathed estate]3 his protest is valid.4
Rabbah said: [The law] of R. Assi stands to reason in [the case] where grapes were cut5 [or] where olives were plucked;6 but where these were pressed7 [the firstborn does] not [receive a double portion].8 But R. Joseph said: Even if they were pressed. 'If,' [you said], 'they were pressed',[surely] at first [they were] grapes; now [they turned into] wine!9 - As R. 'Ukba b. Hama said [elsewhere]. 'Compensation is to be paid to him for any damaged grapes',10 [so] here, also, compensation is paid to him for any damaged grapes.
In what connection11 was [the statement] of R. 'Ukba b. Mama made?12 [In connection] with what Rab Judah said in the name of Samuel: Where a father bequeathed to a firstborn, and to an ordinary son grapes which they cut13 [or] olives which they plucked, the firstborn receives a double portion even if they pressed [the grapes]. '[If] they pressed [the grapes]', it was asked, '[were these not] first grapes [and] now [they are turned into] wine?'14 [To this] R. 'Ukba b. Mama replied. 'Compensation is paid to him for any damaged grapes.'15
R. Assi said: If a firstborn son accepted a share [of a field]16 equal [to that of] any other [brother], he has renounced [the claims of his birthright]. What [is meant by] 'renounced'? - R. Papa said in the name of Raba: He renounced his claim upon that field only.17 R. Papi in the name of Raba said: He renounced [thereby] his claims upon the entire estate. R. Papa had said in the name of Raba [that] he renounced his claim upon that field only, [for] he is of the opinion [that] the firstborn is not regarded as legal possessor of [his share] before the division [between the heirs takes place];18 and R. Papi had said in the name of Raba that he renounced. [thereby]. his claim upon the entire estate, [because] he is of the opinion [that] the firstborn is considered [legal] possessor of [his share] before the division takes place, and [it is assumed that], since he has renounced his claim over that [one field] he has [also] renounced his claim upon all the others.
And the [statements reported by] R. Papi and R. Papa [in the name of Raba] were not made19 explicitly [by him], but inferred [by them]. For there was a certain firstborn son who went [and] sold his own property20 and [that] of his other [brother].21 [When] the orphans, the sons of the other [brother], went to eat [of] the dates of the buyers, the latter beat then,. 'Is it not enough', said the [orphans'] relatives to them, 'that you bought up their property. but you must also beat them?' They came before Raba, [and] he said to them: 'The sale is invalid'22 .
(1) With the firstborn. I.e., when he himself owes money to his father.
(2) He takes one half, and the others take the other half. The portion of the birthright is, in this case, of 'doubtful ownership'. If the loan in question were to be regarded as an ordinary debt, the firstborn would have had no claim at all to the double portion of the birthright. Since, however, the loan is in his own possession, it might he argued that he is entitled to the full share of his birthright. Hence the compromise.
(3) Demanding the distribution of the property prior to the introduction of the improvements; and the other heirs effected them against his wish.
(4) Lit., 'he protested'. He is entitled to a double portion even in the appreciation that was produced by their efforts.
(5) By the heirs.
(6) Since the appreciation in these cases has not produced any radical change in the fruit.
(7) Into wine or oil.
(8) Even though he protested; because, in this case, there was complete transformation of the original bequest. The wine or oil was never in the possession of the deceased.
(9) The wine has never been in the possession of the deceased, why then should the firstborn be entitled to a double portion in the wine?
(10) Lit., 'to give him the value (money) of the damage of his grapes'. (12) The firstborn receives a double portion. not in the wine, but in value of the grapes that were lost or damaged in the process of the manufacturing of the wine. The heirs, who made the change in disregard of his protest, must hear the loss.
(12) Lit., 'said'.
(13) Despite the protest of the firstborn.
(14) Since this is a case of complete transformation. why should he receive a double portion? v. p. 522. n. 9. and n. 10.
(15) v. p. 522. n. 12.
(16) Bequeathed by his father.
(17) He may, however, still claim his rights in any of the other parts of the estate.
(18) Hence, he can only renounce his share in that field which has been divided, but not in those parts of the estate which have not yet been divided, since no man can renounce or confer possession of a thing which is not his. (Rashb.)
(19) Lit., 'said'.
(20) His double portion in the bequeathed stare of his father.
(21) I.e he sold the entire estate, before It had been divided between him and his brother, without the consent of the latter.
(22) Lit., 'he (the firstborn) has not done anything'.
Talmud - Mas. Baba Bathra 126b
[One] master1 holds the opinion [that Raba's meaning was that the sale] of a part2 [only of the estate was] invalid, and the [other] Master3 holds the opinion [that Raba's meaning was that] the entire [sale was invalid].4
[A message] was sent from Palestine:5 [If] a firstborn son had sold [his share] before the division [of the estate took place, that sale] is invalid.6 This shows that the firstborn is not regarded as the [legal] possessor of his share7 before distribution [had taken place]. And the law is that the firstborn is the possessor of his share8 [even] before distribution [of the estate had taken place].
Mar Zutra of Darishba divided a basket9 of pepper with [his] brothers in equal [shares].10 [When] he came before R. Ashi, [the latter] said to him: 'Since you have renounced [your rights in] a part [of the estate]11 you have [implicitly] renounced [them] in all of it'.12
M I S H N A H. [IF] ANY ONE SAID,13 'MY FIRSTBORN SON, SHALL NOT RECEIVE A DOUBLE PORTION,' [OR] 'X, MY SON, SHALL NOT BE HEIR WITH HIS BROTHERS', HIS INSTRUCTIONS ARE DISREGARDED,14 BECAUSE HE MADE A STIPULATION [WHICH IS] CONTRARY TO WHAT IS WRITTEN IN THE TORAH.15 IF ONE16 DISTRIBUTED HIS PROPERTY VERBALLY, [AND] GAVE TO ONE [SON] MORE, AND TO [ANOTHER] ONE LESS, OR [IF] HE ASSIGNED TO THE FIRST BORN A SHARE EQUAL TO THAT OF HIS BROTHERS,17 HIS ARRANGEMENTS ARE VALID.18 IF, [However]. HE SAID, AS AN INHERITANCE',19 HIS INSTRUCTIONS ARE DISREGARDED.20 [IF] HE WROTE,21 EITHER AT THE BEGINNING OR THE MIDDLE OR THE END, 'AS A GIFT',22 HIS INSTRUCTIONS ARE VALID.23
GEMARA. [Must] it be said [that] our Mishnah24 is not in accordance with R. Judah? For, if [it be suggested that it is in accordance with] R. Judah. surely he said, [it may be asked]. [that] in money matters one's stipulation is valid'.25 For it was taught: If a man said to a woman, 'Behold thou art consecrated unto me26 on condition that thou shalt have no [claim] upon me [for] food, raiment and conjugal rights' she is consecrated27 but the stipulation is null28 ; these are the words of R. Meir. R. Judah said: In respect of the money matters his stipulation is valid!29 [Our Mishnah] may be said [to be in agreement] even [with the view of] R. Judah; [only] there,30 she knew [his conditions] and renounced her privilege31 [but] here,32 [the son] did not renounce [his privileges].33
R. Joseph said: [If] one said, 'X is my firstborn son', [the latter] is to receive a double portion.34 [But if he said]. 'X is a firstborn' [the latter] is not to receive a double portion, for he may have meant,' the firstborn son of his mother'.35
A certain [person once] came before Rabbah b. Bar Hana [and] said to him, 'I am certain that this [man] is a firstborn'. He said to him: 'Whence do you know [this]?' 'Because his father called him foolish36 firstborn' 'He might have been the firstborn of his mother [only], because the firstborn of a mother is also called foolish firstborn.'37
A certain [Person once] came before R. Hanina [and] said to him, 'I am certain that this [man] is firstborn'. He said to him, 'Whence do you know [this]?' - [The other] replied to him,: 'Because when [people] came to his father,38 he used to say to then,: Go to my son Shikhath, Who is firstborn and his spittle heals'. - Might he not have been the firstborn of his mother [only]? - There is a tradition that the spittle of the firstborn of a father is healing, but that of the firstborn of a mother is not healing.
R. Ammi said: A tumtum39 [firstborn] who, having been operated upon, was found to be a male, does not receive a double portion [as heir], for Scripture says. And if the firstborn son be hers that was hated,40 [which implies that he cannot be regarded as firstborn] unless41 he was a son at the beginning42 of [his] being.43 R. Nahman b. Isaac said: Neither is he tried as a 'stubborn and rebellious son';44 for Scripture says. If a man have a stubborn and rebellious son,45 [which implies that] he must have been46 a son at the beginning47 of[his] being.48
(1) R. Papi.
(2) Lit., 'half'. That part which belonged to his brother. The sale of his own share, however, is valid since, according to R. Papi. the firstborn comes into the possession of his own share even before the distribution had taken place.
(3) R. Papa
(4) Because, according to R. Papa, the firstborn does not come into the possession of his share heir the distribution had taken place.
(5) Lit , 'from there'.
(6) V. note 3.
(7) Lit 'he has not'
(8) Lit 'he has'.
(9) Lit., 'in a basket'.
(10) Though he was the firstborn, he renounced his claim upon the double portion.
(11) The pepper.
(12) Lit., 'in all the property'.
(13) Prior to his death.
(14) Lit., 'he said nothing'.
(15) One has no right to give instructions which are contrary to the law of the Torah which has entitled every son to a portion, and the firstborn to a double portion, in the father's estate.
(16) A man on his death-bed.
(17) Lit , 'he made the firstborn equal to them'.
(18) Because a person is entitled to dispose of his property, as a gift, in any manner that appeals to him.
(19) I.e., if he distributed the shares as portions of an inheritance and not as gifts.
(20) V. supra n. 2 and 1.
(21) Disposing of his property in a written will.
(22) Though he used the expression of 'inheritance' also.
(23) Lit, 'his words stand'. So long as the expression. 'as a gift', was used, the other expression. 'as an inheritance'. that may have been used with it, does not affect the validity of the testator's instructions.
(24) Which forbids any stipulation that is contrary to a law of the Torah.
(25) Even if it is contrary to a law of the Torah Since our Mishnah deals with money matters and yet it is stated that one's stipulation that is contrary to the Torah, is invalid, it obviously cannot agree with R. Judah's view.
(26) The formula of marriage used by the bridegroom is, 'Behold, thou art consecrated onto me by this ring according to the law of Moses and Israel'.
(27) Becomes his legal wife.
(28) Because it is contrary to the law of the Torah. Cf. Ex. XXI, 10.
(29) I.e., her 'food and raiment'. Now since the law is always decided in accordance with the view of R. Judah, in opposition to the rival view' of R. Meir, is it likely that our Mishnah is contrary to the accepted law?
(30) In the stipulation about the food and clothing of one's wife.
(31) By the acceptance of his proposal. Hence the validity of the stipulation.
(32) The case in our Mishnah.
(33) Which the Torah had conferred upon him. Hence the law that the stipulation is null.
(34) His father's word is sufficient in this case to establish his right.
(35) Such a firstborn has to be redeemed from the priest in the same way as the firstborn of a father, but is not entitled to a double portion.
(36) The witness assumed that 'foolish firstborn' implied that he was 'firstborn to his father' and 'weak in intellect'.
(37) 'Foolish', implying that he has the title 'firstborn' without the rights and privileges attached to it.
(38) Complaining of certain pains or eruptions on their bodies.
(39) טומטום one whose sexual organs are undeveloped or concealed. (11) Lit., 'who was torn'.
(40) Deut. XXI, 15.
(41) Lit., 'until'.
(42) Lit., 'from the moment'.
(43) הויה being', 'existence', comes from the same root as והיה 'and if . . . be', in the text cited.
(44) V\ Deut. XXI, 28-21.
(45) Ibid. v. 28.
(46) Lit., 'until he shall be'.
(47) V. supra n. 3.
(48) Cf. I.e. n. 4. The Heb. for hare in the text cited, is יהיה of the same root as הויה
Talmud - Mas. Baba Bathra 127a
Amemar said: Nor does he reduce the portion of the birthright;1 for it is said, And they have born him sons2 [which implies that] he must have been3 a son4 at the time of [his] birth.4 R. Shezbi said: Nor is he circumcised on the eighth [day5 of his birth];6 for Scripture said, If in woman be delivered, and bear a man-child. . . and in the eighth day [the flesh of his foreskin] shall be circumcised,7 [which implies that] he must be8 a male at9 the time of [his] birth.10 R. Sherabya said: Nor is his mother [levitically] unclean [on account] of [his] birth;11 for Scripture said, If in woman be delivered, and bear a man-child, then she shall be unclean seven days [which implies that she is not unclean]12 unless he13 was a male at9 the time of [his] birth.14
An objection was raised: [It was taught]. 'If a woman miscarried a tumtum15 or an androginos,16 she must continue [in her levitical uncleanness and cleanness, as] for both a male and a female'.17 [Is not this] an objection [to the statement] of R. Sherabya?18 - This is an objection.
May it be suggested [that] this is [also] all objection [against the statement] of R. Shezbi?19 The Tanna20 may have been in doubt21 and, [consequently. he imposed a double] restriction.22 If so,23 it should have been [stated that] she should continue [in her uncleanness] for a male, and for a female, and for her menstruation!24 - This is a difficulty.
Raba said: It was taught in agreement with [the view] of R. Ammi:25 [The expression.] a Son,26 [Implies], but not a tumtum;27 [the expression] a firstborn,28 [implies] but not a doubtful case.29 [The statement]. 'in son, but not a tumtum' [can well be explained] in accordance with [the view] of R. Ammi; but what does [the statement]. 'a firstborn, but not a doubtful case', exclude?30 - It excludes31 [the opinion arrived at] through Raba's exposition. For Raba gave the following exposition: [if] two women32 gave birth [respectively] to two male children in a hiding place.33 [these34 may] write out an authorisation for one another.35
R. Papa said to Raba: Surely Rabin had sent [a message stating]: This question I have asked of all my teachers, but they told me nothing; the following, however, was reported in the name R. Jannai: [If] they36 were identified,37 and afterwards they were exchanged, they may give written authorisation to one another; [if] they were not identified,37 they may not give written authorisation to one another.38
Subsequently Raba appointed an Amora39 by his side, and made the following exposition: what have told you was in error; but this, indeed, has been reported in the name of R. Jannai. 'If they36 were identified34 and afterwards they were exchanged, they may give written authorisation to one another, [if] they were not identified37 they may not give written authorisation to one another.
The men of Akra di Agama40 addressed41 [the following enquiry] to Samuel: Will our master instruct us [as to] what [is the law in the case] where one was generally held-to be a firstborn son, but his father declared that another [son] was the firstborn?42 - He sent to them [the following reply]: 'They may write on an authorisation
(1) If the tumtum had, e.g., two brothers, one of whom was firstborn, the inherited estate is to be divided into three portions only, (as if the tumtum did not exist). Of these, the firstborn who is entitled to a double Portion (one ordinary and one as his birthright) receives one portion (that for the birthright), while the remaining two are subdivided into three Portions, each of the three brothers receiving one. The firstborn's portion of the birthright is thus in no way diminished through the existence of the tumtum.
(2) Deut., XXI. 15.
(3) V. note 7.
(4) Emphasis is laid on born and sons, in the text cited.
(5) V. Gen. XVII, 12.
(6) If that day fell on a Sabbath.
(7) Lev. XII, 2-3, from which is derived the suspension of the Sabbath laws in favour of circumcision on the eighth day (v. Shab. 131b).
(8) V. note 7.
(9) Lit., 'from'.
(10) Since Scripture states, man-child . . .' shall be circumcised'.
(11) V. Lev. XII, 2 and 5.
(12) The period of seven days. V. ibid. v. 2.
(13) V. note 7, supra.
(14) The emphasis is on man-child, then she shall be unclean'.
(15) V. p. 526, n. 20.
(16) אנדרוגינום Gr.** Hermaphrodite.
(17) She must observe fourteen unclean clays as for a female (Lev. XII. 5), and not seven only as for a male (ibid. v. 2); while her period of cleanness is not sixty-six days. as for a female (ibid. v. 5)' but only thirty-three as for a male (ibid. v. 4) Prom these thirty-three days, however, the additional seven days (the difference between the unclean periods if male and female respectively) are to be deducted, so that her period if cleanness consists of twenty-six days only.
(18) Who said that the mother was not unclean at all.
(19) He does not regard a tumtum as male at all, while the cited Baraitha regards him as partly male.
(20) Of the cited Baraitha.
(21) As to whether a tumtum and an androginos are to be regarded as males or females.
(22) That if a female as regards the unclean period, and that of a male regarding the clean period. In the case of circumcision, the restrictions of Sabbath observance also have been imposed.
(23) That, on account of the doubt, additional restrictions were imposed.
(24) Since it is also possible that the law of 'uncleanness of birth' is not applicable in such a doubtful case, the woman should be subject must only to the restrictions connected with the birth of a male and a female, but also to those of menstruation. The unclean period due to birth (fourteen for a female which include the seven for a male should not, accordingly, be followed by the clean period of twenty-six days (v. note 1, supra) during which she is regarded as clean even if blood had appeared, but by that of menstruation, I.e., let her be treated as if no birth at all had taken place and, consequently, if any blood appeared she should become menstrually unclean.
(25) That a tumtum, though found after an operation to be male, is not entitled to the birthright.
(26) Deut. XXI. is.
(27) I.e., a birth, though found later to be made.
(29) That of one about whom it is uncertain whether he is firstborn.
(30) It being obvious that the doubtful first-boris has no claim to the double portion.
(31) Lit., 'to exclude'.
(32) Wives of the same husband.
(33) So that it is not known is who was born first.
(34) When they came to claim a share in their father's bequeathed estate.
(35) Since one of the to is is certainly firstborn, he who receives the authorisation can claim from his brothers the double portion of the birthright, either on his own behalf or on behalf of his brother. The second clause of the cited Baraitha proves that Scripture did not permit of such a Procedure, and that in any doubtful case the double portion of the birthright cannot he claimed.
(36) The two sons of whom it is not known which is the firstborn.
(37) At their birth.
(38) How, then, could Raba state that is written authorisation may be given in all cases, presumably even when they were never identified.
(39) An interpreter. v. Glos.
(40) ['The fort of Agama' near Pumbeditha (v. Obermeyer. op. cit , P. 237. n. 3).]
(41) Lit., 'Sent'.
(42) Which of the two is entitled to the birthrights
Talmud - Mas. Baba Bathra 127b
for one another.' What [is really] your opinion [on the matter]? If [Samuel] holds the same view as the Rabbis,1 he should have sent [word] to them, according to the Rabbis; if he holds the same view as R. Judah.1 he should have sent [word] to them according to R. Judah! - He was in doubt as to whether [the law is] according to R. Judah or according to the Rabbis.2
What is that [dispute]?3 - It was taught: He shall acknowledge4 [implies]. 'he shall [be entitled to] acknowledge him before others'.5 From this R. Judah deduced that a person is believed when he declares, 'This son of mine is firstborn'.6 And as a person is believed when he declares 'this son of mine is firstborn', so one is believed when one declares, 'this is the son of a divorced woman', or 'this is the son of a haluzah.'7 But the Sages say he is not believed.8
R. Nahman b. Isaac said to Raba: According to R. Judah it is correct for Scripture to say, he shall acknowledge,'9 according to the Rabbis, however, what need is there for10 [the expression] he shall acknowledge? - When acknowledgment is required.11 In what legal respect?12 As regards giving him a double portion? Should he [even] be [regarded as] but a stranger, could he13 not give [it]14 to him if he desired to make a gift of it? - This15 is required only [in the case] where property has come into his possession16 afterwards.17 But according to R. Meir Who said, 'a man may give possession of a thing that has not come into existence',18 what need is there for, he shall acknowledge?19 - [It is needed for the case] where property came into his possession20 while he was dying.21
Our Rabbis taught: [Where a son] was held to be a firstborn, and his father declared another [son] to be the firstborn, [the father] is believed. [Where, however, a son] was held not to be a first-born, and his father declared him to be a firstborn, [the father] is not believed. The first [clause harmonises with the view of] R. Judah,22 and the last [clause harmonises with that of] the Rabbis.23
R. Johanan said: [If] a person declared, 'this is my son', and then retracted and declared, 'He is my slave', he is not believed. [If, however, he said], 'He is my slave', and then he retracted and declared, 'He is my son', he is believed, for he [may] mean,24 'who attends upon me as a slave'. [This law,] however, is reversed [when the statements were made] at a custom house. If, when passing the custom house, he declared, 'This is my son', and then he retracted, and said, 'He is my slave', he is to be believed.25 [If, however,] he declared, 'He is my slave', and then he retracted, and said,'He is my son', he is not believed.26
An objection was raised: [It was taught:] If a man attended upon another as a son27 and the latter came [before the court] and declared, 'He is my son' and, then, he retracted and stated, 'He is my slave', he is not believed. [If, however], he attended upon him as a slave, and [the latter] came [to the court] and declared, 'he is my slave', and then he retracted, and stated, 'He is my son', he is not believed!28 - R. Nahman b. Isaac replied: [The case] there29 [refers to one] whom he called, 'a slave of a rope of a hundred'.30 What [is meant By] 'a rope of a hundred'? - A rope of a slave [who is worth] a hundred zuz.31
R. Abba sent to R. Joseph b. Hama: If one says to another, 'You stole my slave', and the other says, 'I did not steal [him]'. [And when the first inquires, 'In] what capacity [is he] with you?' [the latter replies]. 'You sold him to me,
(1) The dispute between the Rabbis (the Sages) and R. Judah follows, infra.
(2) Hence his original message.
(3) Between R. Judah and the Rabbis.
(4) 'The firstborn'. Deut. XXI, 27.
(5) יכיר may be rendered, 'he shall acknowledge' and also, being a Hiphil. 'he shall make known', viz., 'to others'.
(6) Though another son was hitherto reputed to be the first-born.
(7) חלוצה The term is applied to the wife of a deceased brother (who left no issue) after she had been released from levirate marriage. The ceremony of release, in the course of which the widow takes off the shoe of her dead husband's brother, is called halizah, חליתה from root חלץ 'to take off'. Cf. Deut. XXV. 9f.
(8) If another son was reputed to be the firstborn.
(9) Since from this expression it has been inferred that the father's word is the determining factor in deciding the birthright, though another son was generally recognised as firstborn.
(10) Lit, 'wherefore to me'.
(11) Where it is not known stall who is the firstborn.
(12) Lit., 'to what law'; under what legal circumstances is it necessary, according to the Rabbis, for a father to declare which of his sons is his firstborn?
(13) 'The father.
(14) The double portion.
(15) The law on the reliability of a father's declaration.
(16) Lit., 'fell to him'.
(17) After he made the declaration on the birthright. A person can make a gift of that only which he already has in his possession, but not of that which he may acquire in the future. Consequently the necessity in such a case, for the father's declaration.
(18) Lit., 'to the world'.
(19) Surely he could, according to R. Meir, make a gift to the firstborn, of the double portion. in any property that he might acquire in the future.
(20) Lit., 'fell to him'.
(21) When he is physically unfit to make any gifts. The law of R. Meir which allows a person to give possession of what he might get in the future, applies only to one who is in a condition to make the gift when it reaches him. A dying man, though legally entitled to obtain possession, is not in a condition to make gifts and to give possession. Hence the necessity for a father's declaration on the birthright.
(22) Who places implicit confidence on the testimony of the father.
(23) Who rely upon repute more than on a father's word.
(24) When cising the term, 'Slave'.
(25) By his first statement he may have desired to avoid the slave tax.
(26) For, if his latter statement were correct, he would not have declared his son upon whom there is no tax) to be his slave for whom a tax is payable.
(27) Performing for him light services.
(28) How, then, could R. Johanan say that a person is believed when he declares one to be his son though he first declared him to be his slave?
(29) In the Baraitha cited.
(30) Heb. mezar, מתר, 'a rope'. A term of contempt for confirmed slaves (Jast.) [Kohut, Aruch, connects it with an Arabic word, denoting 'bag', and renders, 'a slave if a bag of a hundred.']
(31) [According to Kohut, ibid, a bag, or price of a slave is a hundred in.]
Talmud - Mas. Baba Bathra 128a
you gave him to me as a gift, [but] if you wish, take an oath1 and you will get him back';2 and [the first] took the oath; [the latter] is not allowed to retract.3 What does he teach us?4 [The obvious principle underlying the law] has [surely] been taught [elsewhere]:5 [If one of the litigants] said to the other,6 'I have full confidence7 in my father,8 I have full confidence in your father, I have full confidence in three oxherds',9 R. Meir says, he may retract,10 and the Sages say he may not!11 He12 teaches us this: That the dispute13 [relates also to the case] where [a litigant declared], 'I will give it to you'14 and [that] the halachah is in accordance with the words of the Sages.
R. Abba sent to R. Joseph b. Hama: the halachah is that slaves may be seized [from orphans, in payment of a debt incurred by the father].15 R. Nahman. however, said they may not be seized.16
R. Abba sent to R. Joseph b. Hama: The halachah is that [a relative in the] third [degree] is qualified [to act as witness for or against a relative] in the second [degree].17 Raba said: Also [for, or against a relative] in the first [degree]18 also. Mar, son of R. Ashi permitted [a grandson to act as witness] for his father's father. The law, [however], is not in accordance with [the view of] Mar, son of R. Ashi.
R. Abba sent to R. Joseph b. Hama: If a person possessed evidence19 in one's favour [in the matter of a plot of] land, before he became blind, and [then] became blind, he is disqualified.20 Samuel, however, said: He is permitted [to give evidence], [since] it is possible for him to gauge [the extent of] its boundaries; but [in the case of] a cloak [he is] not [to be admitted as witness].21 R. Shesheth said: Even [in the case of] a cloak [his evidence is admissible, for] it is possible for him gauge the measurements of its length and of its breadth; but not [in the case of] a bar of metal. R. Papa said: Even [in the case of] a bar of metal, [for] it is possible for him to gauge its weight.
An objection was raised: 'If a person possessed evidence22 affecting another before he became his son-in-law, and, [subsequently,] he became his son-in-law, [or if that witness] had the faculty of hearing and became deaf, the faculty of seeing and became blind, sane and became insane, he is disqualified [from giving evidence]. If, however, he possessed evidence affecting him before he became his son-in-law, and when he became his son-in-law, his daughter died; [or if he] had the faculty of hearing, became deaf, and regained his hearing; [or if he] had the faculty of Seeing, became blind, and regained his eyesight; [or if] he was sane, became insane, and regained his sanity, [in all these cases] he is qualified [to act as witness]. This is the general rule: Whenever his beginning23 or his end24 was under a disqualification, he is disqualified, [but whenever] his beginning and his end [find him] in a suitable condition, he is permitted [to give evidence].25
(1) That he was neither sold nor presented.
(2) Though, legally, the possessor cannot be compelled to accept the oath of the claimant.
(3) Since he once consented to return the slave if the other took an oath he cannot subsequently withdraw that consent, and re-assert his former rights.
(4) I.e., what new point or principle.
(5) Sanh. 24a.
(6) Lit., 'to him'.
(7) I.e., he accepts as judge or witness.
(8) A father, like any other relative, is disqualified from acting either as judge or as witness.
(9) I.e., ignorant men, unsuitable to act as judges.
(10) Since these are legally disqualified, and their authority for acting as judges or witnesses is derived solely from his verbal consent, he may retract and allow the matter to be settled in accordance with the accepted legal procedure.
(11) Which shows, like the message of R. Abba, that once a man has renounced his legal rights, he cannot retract. Why, then, the need for R. Abba's statement, seeing that the underlying principle has already been enunciated in a Mishnah?
(12) R. Abba.
(13) Between R. Meir and the Sages
(14) Against the view that the dispute has reference only to the case where a litigant declared, 'You may keep it.' R. Abba, by his statement that the defendant cannot retract but has to surrender the slave to the claimant, has taught us that the dispute between R. Meir and the Sages is not limited to the case where a claimant agrees to forfeit his claim in favour of the defendant on the ruling of relatives (or other disqualified persons), as in the view of one authority in Sanhedrin 24a, but applies also to that of a defendant who agrees to abide by the ruling of such disqualified persons and pay up; and that even in such a case the Sages hold the opinion that the defendant cannot retract.
(15) Slaves are compared to real estate which may be seized from orphans by their father's creditors.
(16) Like movable property which cannot be seized from orphans (v. B. K 11b).
(17) To his father's first cousin. Brothers are relatives in the first degree, their sons in the second, and their grandsons in the third degree.
(18) His grandfather's brother.
(19) Lit., 'he knew'.
(20) From acting as witness, A blind man cannot possibly indicate the exact position of the boundaries of a field, though he may have known them well before he lost his eyesight.
(21) Because many cloaks are equal in size.
(22) V. p. 533, n. 8.
(23) The time of his observation.
(24) When he appears for the purpose of giving evidence.
(25) 'Ar. 17b.
Talmud - Mas. Baba Bathra 128b
[This, surely, presents an] objection against all of them!1 - This is [indeed] an objection.
R. Abba sent to R. Joseph b. Hama: If one said [something] concerning a child among [his] sons, he is to be trusted.2 And R. Johanan said: He is not to be trusted.2 What does this mean? - Abaye replied: It is this that was meant: If one said concerning a child among [his] sons [that] he shall be heir to all his estate, he is to be trusted in accordance with [the view of] R. Johanan b. Beroka;3 and R. Johanan said [that] he is not to be trusted, in accordance with [the view of] the Rabbis.4
Raba pointed out a difficulty. [If] that [is the meaning, why the expressions], 'trusted' and 'not trusted'? 'He shall be heir' and 'he shall not be heir' should have been [the expressions used]! But, said Raba, it is this that was meant: If one said concerning a child among [his] sons [that] he was the firstborn, he is to be trusted,5 in accordance [with the view of] R. Judah;6 and R. Johanan said that he was not to be trusted, in accordance with [the view of] the Rabbis.6
R. Abba sent to R. Joseph b. Hama: If one said, 'Let my wife receive [a share in my estate] as [any] one of [my] sons,'7 she is to receive [a share] like [any] one of the sons. Raba said: But [only] in the property [which he had in his possession] at that time,8 and among the sons who may appear subsequently.9
R. Abba sent to R. Joseph b. Hama: [In the case when] one produces a bond of indebtedness against another, and the lender states, 'I received no payment at all', and the borrower pleads, 'I have paid a half', while witnesses testify that all [the debt] was paid, that [borrower] must take an oath,10 and the [lender] collects the [other] half from [the borrower's] free property but not from [that] which has been disposed of,11 for [the buyers or the creditors] can say, 'We rely upon the witness.'12 And even [according] to R. Akiba, who said [that he13 is to be treated in the same way as] one who returns a lost object,14 these words [apply only to the case] where there are no witnesses, but where there are witnesses [his admission may be due to the fact that] he is simply afraid.15 Mar son of R, Ashi pointed out a difficulty: On the contrary, even [according] to R. Simeon b. Eleazar who said,16 [in the case mentioned, that] he17 is [to he treated as] one who admits part of the claim, these words, [it may be argued, are applicable only to the case] where there are no witnesses who support him, but where there are witnesses who support him, he [should] certainly [be treated as] one who returns a lost object!18
Mar Zutra taught in the name of R. Shimi b. Ashi: The law in [the case of] all these reported statements [is] in accordance with [the messages] which R. Abba sent to R. Joseph b. Hama. Rabina said to R. Ashi: What [about the law] of R. Nahman?19 He replied to him: We learnt that [message of R. Abba as], 'they may not be seized', and so said R. Nahman.20 What, then, does [the declaration of] the law exclude?21
(1) Samuel, R. Shesheth and R. Papa, all of whom admitted the evidence of a witness who lost his eyesight.
(2) This is explained infra.
(3) Who stated that a father has a right to assign all his property to one only among all his legal heirs.
(4) The first Tanna, with whom R. Johanan b. Beroka is in dispute.
(5) Though another son was the reputed firstborn.
(6) Supra 127b.
(7) In addition to her kethubah or marriage settlement; or (with her consent) in lieu of it.
(8) Lit., 'of now', i.e., at the time he gave his instructions. She receives no share in any property that he acquires afterwards.
(9) I.e., if the number of sons had increased, she is to receive a smaller share, the estate being divided in accordance with the number of heirs (all the sons and the widow) that are alive at the time of the distribution, not according to the number at the time the will was made.
(10) That he repaid half the debt, in accordance with the law that the admission of part of a money claim, carries an oath on the remaining sum; v. B.M. 4a.
(11) I.e., either sold or mortgaged.
(12) Who testified that all the debt was paid. The admission of the borrower, they may claim, is due to collusion with the creditor to deprive them of their land.
(13) Who admits part of the claim but more than can be proved against him.
(14) And need not, therefore, take an oath.
(15) That they might testify against him. Hence, in such a case, even R. Akiba agrees that the borrower must take an oath.
(16) In his dispute with R. Akiba.
(17) V. p. 535, n. 9.
(18) How, then, could R. Abba subject the borrower in our case to an oath.
(19) Regarding the seizure of slaves, supra. In civil matters the law is always in accordance with R. Nahman's views, while here it has been stated that the law is in accordance with R. Abba's message. How, then, is one to reconcile the laws of R. Nahman and R. Abba, which are mutually contradictory?
(20) The two views are not contradictory, but identical.
(21) The declaration cannot have for its object the mere statement of the law regarding the seizure of slaves. Since that is obvious from the fact that R. Nahman and R. Abba hold the same opinion, there was no need to state it.
Talmud - Mas. Baba Bathra 129a
If [its purpose is] to exclude Raba's [law1 , surely] he [merely] adds [to that of R. Abba]!2 If [to exclude the law] of Mar son of R. Ashi, [surely, it has already been stated that] the law is not according to Mar son of R. Ashi!3 If to exclude [the laws] of Samuel and R. Shesheth and R. Papa, to these, surely, objections have already been raised!4 - But, [this is the object of the declaration:] To exclude [the law] of R. Johanan,5 and [that which was to be implied by] the difficulty of Mar son of R. Ashi.6
IF ONE DISTRIBUTED HIS PROPERTY VERBALLY [AND] GAVE TO ONE [SON] MORE, AND TO [ANOTHER] ONE LESS, etc. How is one to understand [the giving of] A GIFT AT THE BEGINNING, IN THE MIDDLE, or AT THE END? - When R. Dimi came7 he stated in the name of R. Johanan: [If one wrote,] 'Let a certain field be given to X and he shall inherit it,' this is [called] A GIFT AT THE BEGINNING. [If he wrote], 'let him inherit it and it shall be given to him', this is [called] A GIFT AT THE END. 'Let him inherit it and let it be given to him so that he may inherit it', this is A GIFT IN THE MIDDLE. [This law is] only [applicable to the case] of one person and one field,8 but not to [the case of] one person and two fields,9 [or] one field and two persons.10 R. Eleazar said: ['The same law applies] even [to the case of] one person and two fields [or] one field and two persons'. [The law,]11 however, [is] not [applicable] in [the case of] two fields and two persons.
When Rabin came7 he said: [In the case where one wrote], 'Let this field be given to X, and let Y inherit that [other] field', R. Johanan said: He12 acquires possession, [and] R. Eleazar said: He13 does not acquire possession. Said Abaye to Rabin: You have given us satisfaction [in one [respect] and cause for demurring in another.14 [For, as regards the apparent contradiction between the statement] of R. Eliezar15 and the other statement of His16 one can well explain [that there is] no [real] difficulty [since] one statement17 [may be said to refer to the case] of one person and two fields;18 and the other,19 to two persons and two fields. [The contradiction], however, [between the first statement] of R. Johanan,20 and his second one21 [presents] a difficulty!22 - [We23 are] Amoraim [in dispute] as to [which were the views] of R. Johanan.
Resh Lakish, however, said: No possession is [ever] acquired24 unless [the testator] had said, 'Let X and Y inherit this and that particular field, which I had assigned to them as a gift, so that they may inherit them'.25
[The following Amoraim are] in [the same] dispute [as that of those mentioned]. R. Hamnuna said: [The law that possession26 is acquired], was only taught [in the case of] one person and one field, but not [in the case of] one person and two fields [or] one field and two persons.27 And R. Nahman said: [The same law applies] even [to the case of] one person and two fields [or] one field and two persons, but not [to that of] two fields and two persons.28 And R. Shesheth said: [Possession is acquired] even [in the case of] two fields and two persons.29
R. Shesheth said: I derive my decision from the following Baraitha.30 If one31 said, 'Give my children32 a shekel a week',33 and they require a sela',34 a sela' is to be given to them.35 If, however, he said,'Give them no more than a shekel', only a shekel is to be given to them. But if he gave instructions [that] if these died
(1) Regarding the evidence of certain relatives, supra 128a.
(2) Without disagreeing with R. Abba's law.
(3) Why, then, state the same thing again?
(4) And the law could not, in any case, be decided in accordance with their views.
(5) Regarding the assignment of one's entire estate to one child among all the heirs (supra 128b), which is contrary to that of R. Abba.
(6) Who, contrary to the law of R. Abba (supra 128b), sought to prove that the borrower need not take an oath.
(7) From Palestine.
(8) In such a case, the expression of 'inheritance' is counteracted by that of 'gift'.
(9) If, in connection with one field, the expression of 'inheritance' and with the other that of 'gift' was used, the latter field is acquired by the donee but not the former.
(10) If the testator said, e.g., that the half of the field shall be inherited by one person and the other half shall be taken as a gift by another, the latter acquires possession of his share, but the former does not,
(11) This is a Talmudic comment, nad does not belong to R. Eleazar's statement (Rashb.).
(12) The latter and certainly the former.
(13) The latter.
(14) Lit., 'one'.
(15) In R. Dimi's report, supra, where it is stated that possession is acquired.
(16) In Rabin's report, according to which possession is not acquired.
(17) Lit., 'here'; viz., the first statement.
(18) Both fields were given to him at the same time; and since he acquires possession of the one field, (given as a gift), he also acquires possession of the other.
(19) Lit., 'here', the second statement; that of Rabin,
(20) In R. Dimi's report.
(21) In the report of Rabin.
(22) According to the first statement no possession is acquired even in the case where the two fields were assigned as an inheritance to one person, much less where they were so assigned to two persons, while according to the second statement, possession is acquired even in the case of two fields and two persons.
(23) R. Dimi and I (Rabin).
(24) Where the expression of 'inheritance' was used together with that of 'gift', in the case of two persons and two fields.
(25) Both acquire possession of the respective fields, because the testator had used the expression, 'I had assigned to them as a gift', implying that the gift was made before it was assigned as 'inheritance' (R. Gersh.).
(26) Where the expression of 'gift' was used with that of 'inheritance'.
(27) This is in agreement with the statement of R. Dimi in the name of R. Johanan, supra.
(28) Agreeing with the view of R. Eleazar, supra.
(29) As Rabin stated in the name of R. Johanan.
(30) Lit., 'whence do I say it? For it was taught'.
(31) A dying person, or one setting out on a long journey.
(32) Out of the estate he leaves behind.
(33) For their maintenance.
(34) Sela' = two shekels.
(35) By mentioning shekel, the father did not imply the exclusion of the bigger sum. He only meant to convey his wish that his sons were no to be given more than their weekly requirements.
Talmud - Mas. Baba Bathra 129b
others1 shall be his heirs in their stead, only a shekel [a week] is to be given to them, whether he used the expression 'give' or 'give no [more]'.2 Now here, surely, it is [a case] similar to that of two fields3 and two persons,4 and yet it is taught that possession is acquired.5 He raised this6 as an objection [to the opinions of his colleagues]7 and he [himself] gave the reply: [The Baraitha8 deals with such persons] as are entitled to be his heirs,9 and this [law is in agreement with the law of] R. Johanan b. Beroka.10
R. Ashi said: Come and hear! [If a person said], '[I give11 ] my estate to you; and after you, X shall be [my] heir; and after X,12 Y shall be heir', [when the] first dies, the second acquires the ownership; when the second dies, the third acquires the ownership. And if the second died in the lifetime of the first, the estate reverts to the heirs of the first.13 Now here, surely, [the case] resembles that of two fields and two persons14 and yet it was taught that possession is acquired!15 And if it be suggested [that] here also [one deals with the case of one] who is entitled to be his heir and [that] it16 is [in accordance with the view of] R. Johanan b. Beroka;17 if so,18 [the question arises, how can it be said that if] the second died, the third acquired possession? Surely, R. Aha the son of R. Iwya sent [the following message]: According to the view of R. Johanan b. Beroka,19 [if one said],20 'My estate [shall be] yours, and after you [it shall be given] to X', and the first is [one who is] entitled to be his heir, the second has no [claim] whatsoever in face of the first,21 for this22 is not a [specific] expression of 'gift' but [rather] of 'inheritance'23 and an inheritance cannot be terminated.24 [Is not this25 then,] a refutation of [the views of] all of them?26 - This is a refutation.
May this be regarded also as a refutation of [the view of] Resh Lakish?27 - [How can] you think so! Did not Raba say,28 'The law is in accordance with [the views] of Resh Lakish in these three [cases]'?29 - [This is] no difficulty, [for] here,30 [the expressions of 'gift' and 'inheritance' may have been uttered] one immediately after the other;31 there,32 [the two expressions] may not have been uttered one immediately after the other.33
And the law is that [expressions uttered] immediately after one another31 [are] always [regarded] as having been uttered simultaneously, except, [in the case of] idolatry34
(1) Whom he nominated.
(2) Since it is obvious that he desired to economise in the weekly maintenance of his children in order that as much as possible may remain for his appointed heirs.
(3) (a) The total sum of the shekels to be given to the children and (b) the sum to be given subsequently to his appointed beneficiaries.
(4) (a) The children, (b) the other heirs. In the case of the former he used the expression of 'giving'; in that of the latter, 'inheritance'.
(5) By the appointed heirs. Since it has been said that the children were not to be given more than a shekel a week in order to leave as much as possible for the appointed heirs, it is obvious that the latter acquire possession. Thus, the law of R. Shesheth is proved.
(6) The Baraitha cited.
(7) R. Hamnuna and R. Nahman, who stated that in such a case one cannot dispose of an 'inheritance' to strangers.
(8) Which allows one to bequeath his estate by the use of the term 'inheritance' .
(9) He did not bequeath the estate to strangers, but to one or more of his legal heirs. Hence the question of the use of the term 'inheritance' does not arise.
(10) Who allows the appointment to an estate of one of the heirs to the exclusion of all others, infra 130a.
(11) Using the expression of gift.
(12) Lit., 'after after you'.
(13) The third can gain possession from the second only, and since the latter died before he himself gained possession, the entire estate must revert to the first.
(14) (a) The 'gift' of usufruct to the first, and (b) the transmission thereof as 'inheritance' to the second or the entire estate to the third.
(15) which shows that, even in such a case, the term 'gift', used with reference to one, makes effective the term 'inheritance' applied to the other.
(16) The statement declaring the term 'inheritance' effective.
(17) V. p. 539, n. 12.
(18) that the second was not a stranger, but an heir.
(19) Who holds that provided the beneficiaries are heirs, the testator can distribute his property among them in any manner he thinks fit.
(20) Without specifying whether as a 'gift' or an 'inheritance'.
(21) Or his heirs.
(22) The vague expression, 'shall be yours'.
(23) Since the person is a legal heir.
(24) An estate, once bequeathed by a father to one of his heirs, becomes the absolute property of that heir, from whom it is transmitted to his own heirs. The father has no right to interrupt his succession by appointing any other person as second heir.
(25) The Baraitha cited by R. Ashi.
(26) All the Amoraim who maintained, supra, that if one gave instructions for field to be given as an 'inheritance' to one person and as a 'gift' to another, his instructions are invalid. As has been proved, the Baraitha cited by R. Ashi does not, as has been suggested, deal with the case of one who is entitled to be heir, but with that of any stranger appointed by the testator; and, though the estate was given as a 'gift' to one, and as an 'inheritance' to another, possession is acquired, the instructions of the testator being obviously regarded as legally valid. How then, could the Amoraim mentioned maintain that the testator's instructions in such a case are invalid, and that the person appointed as heir does not acquire possession of the estate?
(27) Who holds the opinion that the expression of 'gift' used in connection with the one, does not make effective the term 'inheritance' applied to the other.
(28) Yeb. 36a, Hul. 76a.
(29) Of which the view he advanced here is one. Surely, it would not have been regarded as law if it were refuted by the Baraitha.
(30) In the Baraitha; according to which possession is acquired when the expression 'gift' was used in the case of one and that of 'inheritance' in the case of the other.
(31) תוך כדי דבור, lit., 'within as much (time) as is required for an utterance', i.e., the time needed to utter a short greeting such as, 'Peace be upon thee my master', represented by the three words, שלום עליך רבי
(32) In the statement of Resh Lakish.
(33) Lit., 'after the time required for an utterance.
(34) I.e., if one set aside an object for idol worship, though he withdrew immediately, the object remains prohibited. [Or, according to Tosaf. if a man proclaims an idol as his god, his immediate retraction does not save him from the death penalty. (V. Ned. 87a.)]
Talmud - Mas. Baba Bathra 130a
MISHNAH. IF A PERSON SAID, 'X2 SHALL BE MY HEIR', WHERE THERE IS A DAUGHTER, [OR] IF HE SAID, 'MY DAUGHTER SHALL BE MY HEIR', WHERE THERE IS A SON, HIS INSTRUCTIONS ARE TO BE DISREGARDED,3 FOR HE MADE A STIPULATION AGAINST A [LAW] WHICH IS WRITTEN IN THE TORAH. R. JOHANAN B. BEROKAH SAID: IF [A PERSON] SAID [IT]4 CONCERNING ONE WHO IS ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE VALID; [IF], HOWEVER, [HE SAID IT] CONCERNING ONE WHO IS NOT ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE NOT VALID.
GEMARA. The reason [why the testator's instructions are invalid, is,] because [he appointed, as has been said], another [legal heir] where there was a daughter, or a daughter where there was a son,5 [had he appointed,] however, a son among the [other] sons or a daughter among the [other] daughters, his instructions would, [accordingly], have been valid; tell [me, then, what you understand by] the latter clause [which reads], R. JOHANAN B. BEROKAH SAID: IF [A PERSON] SAID [IT] CONCERNING ONE WHO IS ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE VALID, surely this [represents] the same [view as that of] the first Tanna!6 And if it be suggested [that] R. Johanan b. Beroka maintains [that] even another [legal heir may be appointed] where there is a daughter, and [that] a daughter [may be appointed as heir] where there is a son;7 [it may be retorted], surely, it has been taught: R. Ishmael the son of R. Johanan b. Beroka said, 'There was no dispute between father and the Sages concerning [the law] that one's instructions are invalid8 when another [legal heir was appointed] where there was a daughter, or [where] a daughter [was appointed heir] where there was a son; their dispute related only9 [to the case of an appointment as sole heir] of a son among the [other] sons or [of] a daughter among the [other] daughters, [in] which [case] father said, [the one appointed] inherits, and the Sages say [that] he does no inherit'!10 - If you wish, it may be replied: Since he11 said that they12 did not dispute, it may be inferred that the first Tanna13 is of the opinion that they did dispute.14 [And] if you prefer,15 it may be replied that all [the Mishnah]16 represents17 [the views of] R. Johanan b. Beroka, only some [words are] missing [from the text] which should read as follows:18 IF A PERSON SAID, 'X SHALL BE MY HEIR', WHERE THERE IS A DAUGHTER, [OR IF HE SAID], 'MY DAUGHTER SHALL BE MY HEIR', WHERE THERE IS A SON, HIS INSTRUCTIONS ARE TO BE DISREGARDED, but [in the case of the appointment as heir of] a daughter among the [other] daughters or [of] a son among the [other] sons, if [the father] said, [that one of them]19 should inherit all his estate, his instruction is legally valid, for R. Johanan said: IF [A PERSON] SAID [IT]20 CONCERNING ONE WHO IS ENTITLED TO BE HIS [IMMEDIATE] HEIR, HIS INSTRUCTIONS ARE LEGALLY VALID.
R. Judah said in the name of Samuel: The halachah is in agreement with [the view of] R. Johanan b. Beroka. And so said Raba: The halachah is in agreement with [the view of] R. Johanan b. Beroka.
Raba said: What is the reason [for the opinion] of R. Johanan b. Beroka? - Scripture said: Then it shall be, in the day that he causeth his sons to inherit21 [from which it is to be inferred that] the Torah gave authority to a father to cause anyone22 whom he desires to inherit [his estate].
Abaye said to him: This [law,23 surely, could be] deduced from, He may not make [the son of the beloved] the firstborn!24 - That [text] is required for [the purpose of another inference], as it was taught: Abba Hanan said in the name of R. Eliezer:
(1) If a man betrothed a woman, though he changed his mind immediately, the betrothal remains valid. [In Ned. 87a the reading is fuller: 'except (in the case) of blasphemy, idolatry, betrothal and divorce.]
(2) I.e., any relative other than a son.
(3) Lit., 'he said nothing'.
(4) That one person shall he his sole heir.
(5) In both of which cases his instructions are contrary to the Torah.
(6) Wherein, then, lies the difference between them?
(7) And that it is on this point that he differs from the first Tanna.
(8) V, p. 541, n. 11.
(9) Lit., 'what do they dispute on?', or 'on what are they divided?'
(10) From this statement it is obvious that R. Johanan b. Beroka cannot be assumed to maintain, as has been suggested, that another legal heir may he appointed where there is a daughter, or that a daughter may be made heir where there is son
(11) R. Ishmael.
(12) R. Johanan b. Beroka and the Sages.
(13) I.e., some other Tanna.
(14) Our Mishnah, then, may be explained to represent the view of the first Tanna. Hence it is possible to suggest that R. Johanan maintains, as has been suggested above, that another legal heir may be appointed even where there is a son etc.
(15) I.e., if there is an objection to the assumption that R. Ishmael was in dispute with another Tanna as to whether his own father was or was not in disagreement with the Sages.
(16) Lit., 'all of it'.
(17) Lit., 'is of',
(18) Lit., 'and thus it teaches'.
(19) Whom he named.
(20) Gave instructions as to whom he desired to be his heir.
(21) Deut. XXI, 16.
(22) Of his sons; or, according to the first interpretation (supra note 1), any one of his legal heirs.
(23) That a father may transmit all his estate to any one of his sons (or heirs).
(24) Ibid. Which shows that it is only the birthright that a father may not transfer to another son. The other shares of his estate, however, he may, consequently, assign to whomsoever he pleases.
Talmud - Mas. Baba Bathra 130b
What [need was there for Scripture] to say, He may not make [the son of the beloved] the firstborn?1 - Since it was said, Then it should be, in the day that he causeth his sons to inherit,2 one might argue that it is a matter of logical deduction, [thus:]3 If [in the case of'] an ordinary [son], who is privileged to receive [a share] in any prospective [property of his father] as in that which is actually in his possession, the Torah [nevertheless] gave authority to the father to transmit [his estate] to whomsoever he pleases, how much more [should he have this right in the case of] a firstborn, whose rights are impaired in that he does not receive [the portion of the birthright] in prospective property as in that which is actually in the possession [of his father]; hence it was expressly stated, He may not make [the son of the beloved] the firstborn. Then let Scripture say, He may not make [the son of the beloved] the firstborn,4 why should it [also] state Then it shall be, in the day that he causeth his sons to inherit? - Because one might [argue], is not this a matter of logical deduction?5 If [in the case of] a firstborn, whose rights are impaired in that he does not receive [the portion of his birthright] in prospective [property] as in that which is actually in [his father's] possession, the Torah, [nevertheless,] said, He6 may not make [the son of the beloved] the firstborn, how much less [should he have this right in the case of] an ordinary [son] who is privileged to receive in prospective [property] as in that which is actually in [his father's] possession; hence it was expressly stated, Then it shall be, in the day that he causeth his son to inherit, [in order to make it clear that] the Torah gave a father authority to transmit his estate to whomsoever he pleases.
R. Zerika said in the name of R. Ammi in the name of R. Hanina in the name of R. Jannai7 in the name of Rabbi: The halachah is in agreement with [the views of] R. Johanan b. Beroka. R. Abba said to him: The statement was that he [only] gave [such] a decision!8 Wherein lies the difference?9 - [One] Master holds [that] an halachah is preferable10 and the [other] Master holds that a practical decision is [of] greater [importance].11
Our Rabbis taught: The halachah12 may not be derived either from theoretical [conclusion] or from a practical [decision] unless one has been told [that] the halachah [is to be taken as a rule] for practical decisions. [Once a person has] asked and was informed [that] an halachah [was to be taken as a guide] for practical decisions, he may continue to give practical decisions [accordingly],13 provided he draws no comparisons.14 What [could be meant by], 'provided he draws no comparisons'? Surely, in the entire [domain of] the Torah comparisons are made! - R. Ashi said: It is this that was meant: Provided one draws no comparisons in [ritual questions relating to] trefoth.15 For it was taught: In [the laws of] trefoth it must not be said this [one] is equal to that.16 And do not be astonished [at this], for [an animal] may be cut on one side17 and die, [yet when] it is cut on another side17 it remains alive.18
R. Assi said to R. Johanan: 'May we, when the Master tells us:19 "The halachah is so and so," give a practical decision accordingly?' He said: 'Do not use it as a practical guide20 unless I declare [it to be] an halachah in [connection with] a practical decision.'21
Raba said to R. Papa and to R. Huna the son of R. Joshua: 'When a legal decision of mine comes before you [in a written form], and you see any objection to it, do not tear it up before you have seen me.22 If I have a [valid] reason [for my decision] I will tell [it to] you; and if not, I will withdraw. After my death, you shall neither tear it up nor infer [any law] from it. "You shall neither tear it up" since, had I been there, it is possible that I might have told you the reason;
(1) This law, surely, is specifically stated in Deut. XXI, 17, 'but he shall acknowledge he firstborn etc.'!
(2) V. p. 543, n. 8.
(3) Lit., 'for one might [say], is it not an argument.'
(4) And this will amply prove that the birthright cannot be transferred.
(5) V. note 3.
(6) The father.
(7) V. Bah., a.l.
(8) I.e., that he decided a particular case in agreement with R. Johanan's views; not that he laid it down as a general rule, or halachah.
(9) Between R. Zerika and R. Abba as regards practical considerations.
(10) Since a halachah may be regarded as a general rule; while one practical decision which happens to agree with R. Johanan's views would not show that the law is always to be administered in accordance with these views. Other factors and circumstances may have led to the decision in that particular case.
(11) Or, 'is a teacher', (Jast.) Since a practical case has been decided in agreement with R. Johanan, one may decide similar cases accordingly. A statement that the halachah is in agreement with R. Johanan would not enable one to act accordingly, unless, as stated infra, it was specifically added that it was to be taken as a guide for practical decisions.
(12) I.e., laws for practical guidance.
(13) He need not ask for a new ruling every time an exactly similar case is brought before him.
(14) Whereby to decide other cases which do not resemble it in all respects.
(15) טרפות diseased animals which, though ritually slaughtered, are forbidden to be eaten.
(16) And thus derive one law from another; the law relating, e.g., to a diseased liver from that of a diseased lung.
(17) Lit., 'from here'.
(18) Which shows that the injury to one limb must in no way be compared, for ritual purposes, to the injury of another.
(19) In the course of our studies and discussions.
(20) Lit., 'do not do'.
(21) In which case one is careful with one's statements. In the course of theoretical discussions, however, one may sometimes give an unconsidered decision which may be contrary to the accepted law,
(22) Lit., 'until you come before me'.
Talmud - Mas. Baba Bathra 131a
"nor infer [any law] from it" - because a judge must be guided only by that1 which his eyes see.
Raba inquired: What2 [is the law in the case of] a person in good health?3 Does R. Johanan b. Beroka4 speak [only] of [the case of] a dying man, who has the right to appoint an heir [on the spot],5 but not [of] one [who is] in good health; or [does he] perhaps [speak] also even of one in good health? - R. Mesharsheya said to Raba: Come and hear: R. Nathan said to Rabbi,6 'You7 have taught your Mishnah8 in accordance with [the views of] R. Johanan b. Beroka; for we learnt:8 [A husband who] did not give [his wife] in writing9 [the following statement, viz.], "The male children that will be born from our marriage10 shall inherit11 the money of thy marriage settlement in addition to their shares with their brothers",12 is [nevertheless] liable, because it is a condition13 laid down by the court'.14 And Rabbi replied [to him]:15 "We learnt: they shall take".16 [Later], however, Rabbi stated: "It was childishness on my part to be presumptuous in the presence of Nathan the Babylonian. The fact is17 that the law is well established [that] male children may not seize18 any sold property [of their father in payment for their mother's kethubah]".19 [Now], if it is assumed [that] we learnt, "they shall take", why may they not seize sold property?20 Consequently it must be inferred that we learnt: "they shall inherit"'.21 [Now], who has been heard to hold this view?22 [Surely] R. Johanan b. Beroka! Thus it may be inferred [that the law23 applies] even to [the case of] one who is in good health.24
R. Papa said to Abaye: Whether according to him who said, [that the reading25 was] 'they shall take', or according to him who said [that the reading was], 'they shall inherit', [the question may be asked], surely one [has] not [the right] to give possession of something which is not yet in existence! And even R. Meir,26 who maintains [that] one may give possession of that which is not yet in existence, applies this law27 [only to the case where the possession was given] to one who is [already] in existence,28 but not [to the case where possession is given] to one who does not exist.29 [The reason], however,30 [must be that] a condition [imposed] by a court is different [from an ordinary assignment],31 here, likewise,32 [it could have been explained33 that] a condition [imposed] by a court is different!34 - He replied to him: Because he [first] used the expression, 'they shall inherit'.35
Subsequently, Abaye said: What I said is nothing,36 For we learnt:37 [A husband who] did not give his wife in writing38 [the following] undertaking, viz., 'The female children that will be born from our marriage39 shall live in my house and be maintained out of my estate until they shall be taken [in marriage] by men ,is [nevertheless] liable, because that [fatherly duty] is a condition [imposed] by the court. Consequently, this40 is a case of giving to one as a 'gift'41 and to another as an 'inheritance',42 and wherever [something is given] to one person as an inheritance and to another as a gift43 even the Rabbis agree [that the assignments are valid].44
R. Nihumai (one said, it was R. Hananya b. Minyumai) asked Abaye:
(1) Lit., 'a judge has nothing but'.
(2) Lit., 'how'.
(3) Who appointed one of his legal heirs to inherit all his estate.
(4) In our Mishnah, supra 130a.
(5) Without the necessity for a formal written document. The instructions of a dying man, though only verbal, are legally binding.
(6) R. Judah I, Editor of the Mishnah.
(7) I.e., Palestinians. R. Nathan (v. infra) was a Babylonian.
(8) Keth. 52b.
(9) As part of her kethubah, or marriage contract,
(10) Lit., 'that you will have from me'.
(12) This provision is necessary, in the interests of the children, in case their mother predeceases their father who subsequently marries another wife who gives birth to new male children.
(13) That the marriage settlement of a wife who predeceased her husband is to be inherited by her sons on the death of the husband. [The reason of this enactment is given by R. Simeon b. Yohai (Keth. 52b) 'in order that a man may be encouraged to give as liberal a dowry to his daughter as he would give to his son - for the fear lest the daughter's property should eventually go to another woman's children would make a father hesitate before dowering her as liberally as he would like on marriage.]
(14) This shows that the Mishnah is in accordance with the views of R. Johanan. Why, then, Rabbi was asked, did he adopt the view of an individual against the Rabbis who were in the majority?
(15) Keth. 55a.
(16) Not 'inherit', i.e., as a gift and not as an inheritance. That a father has the right to give his estate as a gift, to whomsoever he desires, is disputed by no one.
(17) Lit., 'but'.
(18) Lit., 'it (the kethubah) may not' etc.
(19) Keth. 55a.
(20) Which was really mortgaged to them prior to the sale. The right to the gift was acquired at once, i.e., on the date of the marriage contract.
(21) Since an inheritance takes effect after the testator's death, the buyers of the property, purchase of which took place in the owner's lifetime, have the prior claim. R. Nathan's objection was, therefore, well founded.
(22) Enunciated in the cited Mishnah.
(23) Of R. Johanan in our Mishnah.
(24) Since here the appointment to heirship was made at the time of the marriage.
(25) In the Mishnah cited by R. Nathan.
(26) Lit, 'according to R. Meir'.
(27) Lit., 'these words'.
(28) At the time when possession was conferred.
(29) How, then, can the children, who were not in existence when the marriage contract between their father and mother was written, acquire possession of their mother's kethubah?
(30) Why the children do acquire possession.
(31) Though a private assignment is not valid unless the assignee was alive at the time when it was made, an assignment based on the decision of a court takes effect in all cases.
(32) In respect to the objection raised by R. Nathan.
(33) by Rabbi.
(34) And all (even the Rabbis who elsewhere maintain that the expression of 'inherit' does not confer possession), agree that, in such a case, the assignment is valid. What need, then, was there for Rabbi to suggest a change if reading from 'inherit' to 'receive'?
(35) Instead of the generally more effective term 'take', denoting 'gift'. This seemed to imply agreement with the view of R. Johanan b. Beroka, as against that of the Rabbis. Hence, Rabbi preferred to change the reading.
(36) There was really no need for Rabbi to suggest a change of reading, for in either case, whatever the reading, the Mishnah may be considered to be in agreement with both R. Johanan and the Rabbis.
(37) Keth. 52b.
(38) Together with her kethubah.
(39) Lit., 'which you will have from me'.
(40) The husband's undertaking with reference to the male children on the one hand, and to that of the female children on the other.
(41) The maintenance of the daughters. There is legal obligation on a father to provide for the maintenance of his daughters.
(42) The sons are given their mother's kethubah as her legal heirs.
(43) And the expressions of 'gift' and 'inheritance' were used one immediately after the other.
(44) According to the Mishnah, supra 126b, which represents the opinion of the Rabbis, an assignment made by using the expression of inheritance is legally valid whenever the expression of 'gift' was used with it. This was explained in the Gemara, supra 129a, to apply even to the case of two separate fields given as an inheritance and a gift respectively to two different persons. Similarly, here, the kethubah for the sons and the maintenance for the daughters may be regarded as the assignment of an inheritance and a gift respecting two persons; and, since the two provisions were made by the same court and are to be entered in the same contract, the two clauses, one containing the term, 'inherit', and the other, 'give', may be assumed to follow in close proximity to one another; in which case the Rabbis also agree that both the inheritance and the gift are acquired. The question, therefore, remains why was Rabbi compelled to have recourse to a change of reading?
Talmud - Mas. Baba Bathra 131b
Whence [it is to be inferred] that [both provisions] were made by one court? Is it not possible [that] they were made by two [different] courts?1 - This possibility2 cannot be entertained,3 for in the earlier part [of the Mishnah cited] it was stated: R. Eleazar b. Azariah gave the following exposition in the presence of the Sages in the Vineyard of Jabneh:4 '[Since it was provided that] the sons shall be heirs [to their mother's kethubah], and the daughters shall be maintained [out of their father's estate, the two cases are to be compared]: As the sons cannot be heirs except after the death of their father, so the daughters cannot claim maintenance except after the death of their father'5 . [Now], if it is granted [that both provisions]6 were enacted by one court, one can well understand why an analogy was drawn between one provision and the other. If, however, it is argued [that they] were enacted at two [different] courts, how could an analogy be drawn between one provision and the other?7 - What proof!8 It is quite possible still to maintain [that the provisions]9 were enacted by two [different] courts;10 but11 the latter court had to frame its provisions on the lines analogous to those of the former court in order that there might be no discrepancy between the one provision and the other.
Rab Judah said in the name of Samuel: If a [dying] man gave all his property12 to his wife, in writing, he [thereby] only appointed her administratrix.13
It is obvious [that if he assigned all his property to] his grown up son, he [thereby], merely appointed him administrator.14 What [is the law, however, if he assigned it to] his young son? - It was stated [that] R. Hanilai b. Idi said in the name of Samuel: Even [If to] his youngest son who [still] lies in [his] cradle.15
It is obvious [that if a father assigned all his property to] his son or [to] a stranger, the stranger [is to receive it] as a gift,16 while the son [is merely appointed] administrator.17 [If he assigned it to] his betrothed or [to] his divorced wife, [either of them is to receive it] as a gift.18 The question was [however], asked, What [is the law if the assignment was made to] a daughter where there are sons, [to] a wife where there are brothers,19 or to a wife where there are sons of the husband?20 - Rabina said in the name of Raba: None of these21 acquires possession, except his betrothed, or divorced wife. R. 'Awira in the name of Raba said: All these acquire possession except a wife where there are brothers,22 and a wife where there are sons of the husband.23
(1) And, consequently, the two expressions, ('inheritance' for the sons, and 'gift' for the daughters), cannot be regarded as made one immediately after the other. And since in this case the Rabbis would regard the assignments as invalid, Rabbi had to revert to a change of reading, in order that the Mishnah may conform with the view of the Rabbis.
(2) That the provisions were made at two courts.
(3) Lit., 'it cannot enter your mind'.
(4) [The name of the School established in that town (Jamnia) by R. Johanan b. Zakkai, and so called because the members sat in rows like vines in a vineyard (J. Ber. IV, 1). Krauss Lewy's Festschrift, 22, maintains that they originally met in a vineyard.]
(5) He thus holds that there is no legal, as distinct from moral, obligation on the father to support his daughter after a certain age, v. Keth. 49a.
(6) Kethubah for the sons, and maintenance for the daughters.
(7) One court may have given the sons the right of heirship after the father's death, while the other court may have granted the daughters' maintenance even during the lifetime of their father. Hence it must be assumed that both provisions were made by the same court.
(8) Lit., 'whence your proof'?
(9) V. p. 549, n. 6.
(10) Hence the expressions of 'inheritance' and 'gift' cannot be regarded as having been made one immediately after the other. Rabbi was consequently compelled, in order that the Mishnah may conform with the view of the Rabbis, to change the reading from 'they shall inherit' to 'they shall take'.
(11) As to the argument, how could R. Eleazar draw an analogy between provisions made by different courts.
(12) As a gift.
(13) And his sons are entitled to receive their due shares in the estate. Since no father would give all his estate to his wife and leave his children penniless it is taken for granted that the testator's wish was not that all his property shall be given to his wife for her sole use, but that she shall only administer it in the interests of all the heirs. His use of the expression 'gift' is assumed to have been intended as a means of making his children dependent on her, so that she might enjoy the respect due to her.
(14) So that his brothers may pay him due respect.
(15) The estate is not to be given to him alone but to all the heirs. The father's wish is interpreted as a desire that all the other heirs shall pay respect to his youngest son.
(16) For, had the testator merely meant him to be administrator, he would have stated the fact explicitly.
(17) V. n. 8 and 9 supra.
(18) As he can hardly be so much concerned about safeguarding their respect as to make provision to that extent.
(19) Of the testator; and no other heirs.
(20) Born from another wife, in each of these cases the consideration of respect is likely to arise.
(21) Lit., 'in all of them not'.
(22) V. note 2.
(23) V. note 3.
Talmud - Mas. Baba Bathra 132a
Raba inquired: What1 [is the law] in [the case of] a person in good health?2 [Should we say] that this3 applies only to a dying person because [we assume] he is desirous [to make provision] for due respect to be paid to her,4 but [not] to a person in good health, since he himself is alive;5 or, is it the same with a man in good health, since there too he may desire [to make provision] that respect may be paid to her4 already in his lifetime?6 - Come and hear: [It was taught:] If a person gives the usufruct of his estate to his wife, in writing,7 she may [nevertheless] collect her kethubah from [his] landed property.8 [If he gave her] a half,9 a third or a quarter, she may collect her kethubah from the rest.10 If he gave all his property to his wife in writing, and a bond of indebtedness11 was produced against him, R. Eliezer said: She may tear up [the deed of] her gift and claim the rights of12 her kethubah.13 But the Sages said: She tears up her kethubah,14 remains with the claim of her gift,15 and forfeits both.16 And R. Judah the baker related: [Such] a case once happened with the daughter of my sister [who was] a bride,17 and [when] the matter was brought before the Sages they decided [that] she must tear up her kethubah, remain with the claims of her gift and forfeit both. [Front this Baraitha it follows that] the reason [why the widow forfeits her claims is] that a bond of indebtedness bad been produced against [her husband] but had no such bond been produced she would have acquired possession [of the entire estate]. Now, with what [kind of testator is the Baraitha concerned]? If it be suggested [that it deals] with a dying man, surely, [it may be pointed out,] it has been said that [a person in such a condition] merely appointed her administratrix! [Must it] not, then, [be concluded that the Baraitha deals] with a person in good health?18 - [No; the Baraitha cited may] really [be concerned] with a dying man but19 R. 'Awira establishes it as dealing with all cases20 [while] Rabina establishes it as dealing with one's betrothed, or divorced wife.21
R. Joseph b. Manyumi said in the name of R. Nahman: The halachah is that she is to tear up her kethubah,22 remain with the claim of her gift23 and forfeit both.24 Does this25 imply that R. Nahman is not guided by an assumption?26 Surely, it has been taught: in the case of [a person] whose son went to a distant country,27 and having heard that the latter28 had died, assigned all his property, in writing, to strangers; though his son subsequently appeared, his gift is [nevertheless, legally] valid.29 R. Simeon b. Menasya said: His gift is not [legally] a gift, for had he known that his son was alive, he would not have given it away.30 And R. Nahman said: The halachah is in accordance with R. Simeon b. Menasya!31 - There32 it is different, for she is content [to renounce her claim to her kethubah] for the pleasure of having it known33 that [her husband] had presented34 her with that property.35
We learned elsewhere:36 If [a person] assigns his property to his sons, in writing, and he [also] assigns to his wife [a piece of] land of any size whatsoever37 she loses [the claims of] her kethubah.38 [Does] she lose her kethubah because he assigned to her any [small] piece of land?39 - Rab replied: [This applies to the case] where he40 confers the ownership upon them41 through her42 agency.43 Samuel replied: [This applies also to the case] where he43 made the distribution in her presence and she remained silent.44 R. Jose b. Hanina replied: [This may also apply to the case] where he said to her,45 'Take this [piece of] land in place of your kethubah'.46
(1) Lit., 'how'.
(2) Who has assigned all his property as a gift to his wife.
(3) The ruling that the husband thereby appointed her only as administratix.
(4) His widow. Lit., 'that her word may be listened to.'
(5) And well able to safeguard her honour.
(6) Lit., 'from now.'
(7) Assigning it to her as a gift.
(8) Since all real estate of a husband is mortgaged for his wife's kethubah. The gift of usufruct is not regarded as an inducement for the wife to renounce her established rights.
(9) Of his estate.
(10) From the portion which was not assigned to her.
(11) Bearing a date later than that of the kethubah and earlier than that of the gift.
(12) Lit., 'and stand upon'.
(13) Since the gift was made later than the date of the bond of indebtedness, the creditor has the prior claim. The widow, therefore, renounces the gift, and claims her kethubah the date of which is earlier than that of the debt. She is entitled to do so according to R. Eliezer since he holds the view that she originally accepted the gift with the object of gaining any amount over and above her kethubah, but not to lose any of the rights to which that document entitled her.
(14) by accepting her husband's gift she is assumed, according to the Sages, to have renounced the rights of her kethubah as far as that property (which formed part of the gift) is concerned.
(15) Which, owing to the debt which antedated it, is invalid.
(16) Lit., 'and she becomes bald on both sides (from here and from here)'.
(17) The bridegroom gave her a kethubah on their betrothal, and, prior to his death, having incurred a debt, presented her with all his estate.
(18) Thus it has been proved that in the case of a person in good health the presentation by him of his entire estate to his wife confers upon her the full rights of possession and not merely those of an administratrix. Consequently (in answer to Raba's enquiry), Samuel's law must refer to the case of a dying man only.
(19) As to the objection that in such a case it has been said that the widow is merely appointed administratrix.
(20) Mentioned by him supra 131b, in all these, according to his report in the name of Raba, possession is acquired.
(21) In which two cases, according to Rabina's report also (supra 131b), possession is acquired. Hence, neither according to R. 'Awira nor according to Rabina can the law applying to the case of a person in good health be inferred.
(22) V. p. 552, n. 1 supra.
(23) V., l.c. n. 2.
(24) V., l.c., n. 3.
(25) R. Nahman's decision that the widow forfeits her claim to the kethubah.
(26) Since the assumption must he that no woman would renounce the rights to which her kethubah entitles her for the sake of such a gift made to her by her husband.
(27) Lit., 'country of (i.e., beyond) the sea'.
(28) Lit., 'his son'.
(29) Lit., 'a gift'. Since it was made unconditionally.
(30) Lit., 'written them'.
(31) As R. Nahman upholds it. Simeon's decision, according to which it is assumed that 'had the father known that his son was alive he would not have made the gift', he most also agree with the view that an assumption is to be taken into consideration. How, then, (v. supra note 5), could R. Nahman say that the widow forfeited the rights of her kethubah?
(32) In the case of a widow who forfeits her kethubah on account if a gift she received from her husband.
(33) Lit., 'that a voice may issue about her'.
(34) Lit., 'written'.
(35) The assumption, therefore, is that she willingly renounced her claims to the kethubah. R. Nahman, in his decision, consequently takes assumption into consideration here also.
(36) Pe'ah III, 7.
(37) Not specifying whether as a gift or in payment for her kethubah.
(38) I.e., the right to seize the land assigned to the sons; since, as will be explained, infra, she accepted the arrangement in return for the gift made to her.
(39) Surely, no woman would give up her kethubah in return for any small piece of land
(40) The husband.
(41) The sons.
(42) The wife's.
(43) Lit., 'through her hand.' I.e., she acquired it on their behalf by means of a 'scarf', Kinyan Sudar (v. Glos. and cf. p. 310, n. 11, supra). Since she assisted in the transfer of the estate, received also a small share for herself and raised no protest whatsoever, it is taken for granted that she agreed to lose the amount of her kethubah, should her husband possess no other lands at the time of his death.
(44) Even though she did not assist in the transfer. Her presence alone, since she raised no protest and received also some share, is sufficient proof that she agreed to give up her claims as far as the lands distributed are concerned. If she, however, receives no share whatsoever, her silence is interpreted not as acquiescence but as designed to gratify her husband.
(45) When he gave her in writing that piece of land.
(46) According to R. Jose, even if she was absent from the distribution, her silence, when the gift was made to her, is sufficient evidence that she renounced her claims, upon the lands distributed.
Talmud - Mas. Baba Bathra 132b
And [the laws] taught here [are among those in which the claims relating to] a kethubah [are] weaker [than those of creditors].1
We learned: R. Jose said: If she accepted, [explicitly]2 although the husband did not put her [gift] in writing, she loses her kethubah.3 [Does not] this is4 imply that the first Tanna holds the opinion that both writing and her [explicit] acceptance are required?5 And if it be suggested that the whole [Mishnah] represents [the view of] R. Jose,6 surely, [it may be retorted,] it was taught: 'R. Judah said:7 When [is it said that she lost her kethubah]? [Only] when she was there8 and accepted [explicitly]9 but if she was there and did not accept,10 or accepted and was not there, she did not lose her kethubah.' [This, surely, is] a refutation11 of [the views of] all [the previous explanations]!12 It is a refutation.
Raba said to R. Nahman: Here is [the explanation] of Rab, here [that of] Samuel, [and] here [that of] R. Jose the son of R. Hanina; what is the opinion of the Master? - He replied to him: It is my opinion that since he made her partner with the sons,13 she lost her kethubah.14 [The same] was also said [elsewhere]: R. Jose b. Manyumi said in the name of R. Nahman: Since he made her a partner with the sons she loses her kethubah.
Raba enquired: What15 [is the law] in [the case of] a person in good health?16 Shall we say that this17 is only in [the case of] a dying man since she knows that he has no more property18 and [therefore by her acceptance] renounces her claims, but in [the case of] a person in good health16 [we do not assume that she renounces her claim since] she might expect that he would again acquire [property];19 or, perhaps, [in the latter case also she is assumed to renounce her claims since] now, at least, he has none?20 - Let it stand.21
[Once] a certain [dying] man said to [his executors]; - 'A half22 [shall be given] to [one] daughter [of mine], a half to [the other] daughter, and a third of the fruit to [my] wife'. R. Nahman, [who] happened to be [at that time] at Sura was visited by R. Hisda [who] inquired of him [as to] what [was the legal position] in such a case.23 - He replied to him: Thus said Samuel, 'Even if he allotted to her one palm-tree for its usufruct24 her kethubah is lost,'25 [R. Hisda] asked him [again], 'is it not possible26 that Samuel held this view27 [only] there, where he allotted to her [a share] in the land itself28 [but not] here, [where] only fruit29 [was allotted]? - [R. Nahman] replied to him: ' [Do] you speak of movable objects?30 I certainly do not suggest [that the law quoted is to be applied to] moveables'.
[Once] a certain [dying] man said to [his executors], 'a third [of my estate shall be given] to [one] daughter [of mine], a third to [the other] daughter, and a third to [my] wife'.31 [Then] one of his daughters died.32 R. Papi intended to give his decision [that the wife] receives only a third;33
(1) A creditor cannot be deprived of his right to seize the debtor's lands even though he received from him a gift.
(2) The arrangement as to the distribution of her husband's property. This Mishnah is a continuation of that just cited and discussed.
(3) Pe'ah III, 7.
(4) R. Jose's expression, 'if she accepted although . . . did not put . . . in writing'.
(5) For, had writing alone sufficed to deprive her of her claim according to the first Tanna, R. Jose should have said as follows: 'Although he put it in writing, she does not lose her kethubah unless she explicitly accepted.' Hence it must be concluded that the first Tanna holds that both, writing and her explicit acceptance, are required. How then could Rab, Samuel and R. Jose the son of Hanina explain the Mishnah as dealing with the case where the woman merely remained silent?
(6) And, accordingly, the first part would teach that writing alone, and the second part that acceptance alone is sufficient.
(7) In explanation of the Mishnah of Pe'ah cited supra 132a.
(8) When the distribution took place.
(9) For had she not acquiesced in the arrangements she would surely have protested at being deprived of her due share.
(10) But remained silent.
(11) Since from R. Judah's interpretation it follows that the first Tanna is not R. Jose, and that he requires both writing and explicit acceptance.
(12) Lit., 'of all of them'. Those of Rab, Samuel and R. Jose the son of R. Hanina, according to whom the silence of the wife although there was no explicit acceptance on her part, is sufficient to deprive her of her kethubah.
(13) By giving her a piece of land, however small.
(14) If she accepted explicitly (R. Gersh.). Either writing or explicit acceptance is enough (Rashb.).
(15) Lit., 'how'.
(16) Who assigned his property, in writing, to his sons and allotted some fraction of land to his wife.
(17) The law that she forfeits her kethubah.
(18) And a dying man is certainly not likely to acquire any new possessions. Hence, her silence may be interpreted as consent.
(19) Her silence in such a case might be due to her consideration for the feelings of her husband whom she did not wish to annoy unnecessarily at the moment, thinking that there would be time to protest later if he does not acquire any new property. Hence, her claim upon the lands assigned to the sons cannot be regarded as renounced, and her kethubah, therefore, is not lost.
(20) And, had she not been reconciled to the idea of losing her claims upon the lands allotted to the sons, she would have protested immediately.
(21) V. Glos. s.v. Teko.
(22) Of his landed property.
(23) Where the husband had assigned no land at all to his wife. The question is whether it is assumed that a woman renounces her claims only when she is given a share in the land itself but not when she only obtains a portion of fruit (as here), or whether there is no difference between land and fruit as regards the renouncement of her claims.
(24) I.e., only while it continues to be fruit-bearing.
(25) Her share of the fruit of the tree is regarded as a share in the land itself, since the tree draws its nourishment from the ground and is consequently regarded as real estate. The same law should apply to the case under consideration.
(26) Lit., 'Say'.
(27) Lit., 'said'.
(28) The tree was planted in the ground and is regarded as real estate.
(29) I.e., detached from the ground.
(30) R. Nahman first understood the question to refer to fruit that was still growing on the trees.
(31) In consequence of this gift his wife forfeited her right to seize the other two thirds in payment of her kethubah.
(32) And her third reverted to her father who (in the absence of sons of her own) is heir to his daughter.
(33) Viz., that third which her husband had allotted to her. She cannot claim her kethubah, according to R. Papi, from the third that reverted to her husband from his dead daughter, because once she renounced her claim upon it (when one of the thirds was allotted to her) she cannot any more regain it.
Talmud - Mas. Baba Bathra 133a
R. Kahana, [however], said to him: If [her husband] had [subsequently] bought other property would she not [have been entitled to] seize [it]?1 Now, since if he had bought other property she would [have been entitled to] seize [it],1 in this case too she [is] also [entitled to] seize [the dead daughter's third].2
[Once] a certain [dying] man divided his estate between his wife and his son, [and] left over one palm-tree.3 Rabina intended to give his decision [that] she4 can only have5 [that] one palm-tree.6 R. Yemar, [however], said to Rabina: If she had no [claim upon the son's share], she [should] have no [claim] even [upon] the one palmtree.7 But since she may seize8 the palm-tree she may also seize8 all the estate.9
R. Huna said, [if] a dying man assigned all his estate, in writing, to another [person]10 the matter is to be investigated.11 If he12 is entitled to be his heir, he receives it as an inheritance; and if not, he receives it as a gift. R. Nahman said to him: Why should you indulge in circumlocution!13 If you hold [the same view] as R. Johanan b. Beroka,14 say, 'The halachah is according to R. Johanan b. Beroka', for, indeed, your statement runs on [the same lines] as [those of] R. Johanan b. Beroka? [But], perhaps, you meant [your statement to apply to a case] like the following.15 Once, while a person was in a dying condition he was asked to whom his estate shall be given. '[Shall it] perhaps [be given] to X?' he was asked. And he replied to them, 'To whom [else] then?' And [is it] on [such a case as] this [that] you told us, '[If that person] is entitled to be his heir he receives it as an inheritance, and if not, he receives it as a gift?' - He replied to him: 'Yes, this [is exactly] what I meant'.
In respect of what legal practice?16 - R. Adda b. Ahabah wished to explain17 before Raba [that] if he18 is entitled to be his heir his19 widow is maintained out of his estate,20 and if not, his19 widow is not maintained out of his estate.20 Raba, however, said to him: Should she be worse off [in the case of a gift]? If21 in [the case of] an inheritance which is Biblical,22 it has been said [that] his19 widow is to be maintained out of his estate,23 how much more [should that be so] in [the case of] a gift24 which is only Rabbinical?25 But, said Raba, [the difference26 lies in a case] like [the following] which [was] sent [by] R. Aha son of R. 'Awya: According to the view of R. Johanan b. Beroka, [if a dying man said], 'My estate [shall be] yours, and after you [it shall be given] to X', if the first was [one] entitled to be his heir, the second has no [claim] whatsoever beside the first, for this is not a [specific] expression of 'gift' but [rather] of 'inheritance', and an inheritance cannot be terminated.27 Raba said to R. Nahman: Surely, he28 has [already] intercepted it!29 - He thought [erroneously] that it could be intercepted but the All-Merciful said, 'It cannot be terminated'.30
(1) In payment of her kethubah. She only renounced her claim upon that property which her husband gave to his daughters at the time her share was assigned to her.
(2) Lit., 'now'. The third that her husband inherited from his dead daughter is regarded as new property acquired by him after the assignments were made. (V. previous note).
(3) Which he assigned to no one.
(4) The widow.
(5) In payment of the balance of her kethubah.
(6) She has no claim, however, on the share which the son received. Since a wife is assumed to renounce her claims in the case where her husband assigned to others all his estate with the exception of any small fraction allotted to her, she must also be assumed to have renounced her claims in this case, where only one palm-tree was not disposed of, in consideration of the share allotted to her.
(7) Just as she renounced her claim upon the share of the son in consideration of the share allotted to her, so she must have renounced her claim upon the palm-tree. She well knew that besides her share, her husband had no property other than that palm-tree and the share assigned to the son. As she forfeits her rights in the case of the one, so she should forfeit them in the case of the other.
(8) Lit., 'go down'.
(9) Even the share that was given to the son. A wife is assumed to renounce the claims to which her kethubah entitles her only when her husband had disposed of all his estate, in which case she must have known that nothing was left for her kethubah and, since she did not protest, she must have acquiesced in its forfeiture. When, however, one palm-tree remains, she is assumed to rely on the proceeds of that tree for the payment of the kethubah. Consequently, she does not renounce her rights; and her silence is assumed to be due to a desire for postponing her protest until the value of the tree had been ascertained. When, therefore, it becomes known that the palm-tree does not cover the amount of her kethubah, she is entitled to seize any other part of the estate also.
(10) Not specifying whether as an 'inheritance' or as a 'gift'.
(11) Lit., 'we see'.
(12) The assignee.
(13) 'O thou cunning man, what is the use of thy going round about?' (Jast.).
(14) That one has a right to assign all his estate to one of his legal heirs, V. supra 130a.
(15) I.e., to a case when the testator had no sons or daughters, contrary to the opinion of R. Johanan b. Beroka who allows it even when there is a son or a daughter (R. Gersh.). According to Rashb., the suggestion of R. Nahman is that R. Huna wishes to state the case where the testator was vague in his instructions and did not declare whether the bequest was to be in the terms of a gift or those of an inheritance.
(16) Does it matter whether the estate was given as a gift or ass 'inheritance'?
(17) This difference.
(18) The person named.
(19) The testator's.
(20) Which he inherited from her husband.
(21) Lit., 'now'.
(22) The laws of inheritance are enumerated in Numbers and Deuteronomy.
(23) V. p. 558, n. 11.
(24) Made by a dying man without a properly binding agreement.
(25) According to Biblical law a gift made in such a manner is not legally binding and remains part of the estate.
(26) Between 'gift' and 'inheritance'.
(27) V. p. 540, n. 10 and 11, supra. Similarly, in the case under discussion, if the dying man said, in reply to the question whether his estate shall be given to a certain person, 'To whom else? But after him it shall be given to a certain other person,' the second is entitled to receive it only if the first was not a legal heir and received it as a gift.
(28) The testator.
(29) By making the assignment of the estate to the first conditional upon its being transferred later to the second.
(30) Since the divine word prohibits interception of the succession no one has the right to make arrangements which disagree with it.
Talmud - Mas. Baba Bathra 133b
Once a certain man said to his friend, 'My estate [shall be] yours and after you [it shall pass over] to X'. The first [was one] entitled to be his heir.1 [When] the first died, the second came to claim [the estate]. R. 'Ilish proposed in the presence of Raba to give his decision2 that the second also is entitled to receive the bequest.3 [Raba, however], said to him, 'Such decisions are given by arbitration judges,4 [is] not [the case exactly] the same as [that] which [was] sent [by] R. Aha son of 'Awya?'5 As he6 became embarrassed, [Raba] applied to him the Scriptural text. I, the Lord, will hasten it in its time.7
MISHNAH. IF A PERSON GIVES HIS ESTATE, IN WRITING, TO STRANGERS, AND LEAVES OUT HIS CHILDREN, HIS ARRANGEMENTS ARE LEGALLY VALID,8 BUT THE SPIRIT OF THE SAGES FINDS NO DELIGHT IN HIM.9 R. SIMEON B. GAMALIEL SAID: IF HIS CHILDREN DID NOT CONDUCT THEMSELVES IN A PROPER MANNER HE WILL BE REMEMBERED FOR GOOD.10
GEMARA. The question was raised whether the Rabbis11 were in disagreement with [the view of] R. Simeon b. Gamaliel12 or not. - Come and hear, Joseph b. Joezer,13 had a son who did not conduct himself in a proper manner. He had a loft [full] of denarii14 and he consecrated it [for the Temple]. He, [the son], went away and married the daughter of King Jannai's15 wreath-maker. [On the occasion when] his wife gave birth to a son he bought for her a fish. Opening it he found therein a pearl. 'Do not take it to the king', she said to him, 'for they will take it away from you for a small sum of money.16 Go take it rather17 to the Treasurers [of the Temple], but do not you suggest its price, since the making of an offer to the Most High18 is [as binding] as [actual] delivery in ordinary transactions.19 But let them fix the price'. On being brought [to the Temple]20 it was valued at thirteen lofts of denarii.21 'Seven [of them]', they said to him, 'are available, [but the remaining] six are not available'.22 He said to them, 'Give me the seven; and the six23 are, [hereby]. consecrated to the Temple'.24 Thereupon it was recorded,25 'Joseph b. Joezer brought in one, but his son brought to six others say, [the record read as follows]: 'Joseph b. Joezer brought in one, but his son took away seven'. Now, since the expression used [in the record26 was], 'he27 brought in', it may be inferred that [in their opinion] he28 acted rightly.29 On the contrary! Since the expression used30 was, 'he took out', it may be inferred that he did not act rightly.31 But [the fact is that] from this [record] nothing may be inferred.
What, then, is the answer to the enquiry?32 - Come and hear: Samuel said to Rab Judah. 'Shinena'.33 Keep away from34 transfers35 of inheritance even [if they be] from a bad son to a good son, much more [when they are] from a son to a daughter'.36
Our Rabbis taught: Once it happened with a certain person whose sons did not conduct themselves in a proper manner [that] he took the definite step of assigning his estate, in writing,37 to Jonathan b. Uzziel. What did Jonathan b. Uzziel do? - He sold a third,38 consecrated a third, and returned a third to his39 sons. [Thereupon], Shammai came upon him with his staff and bag.40 He41 said to him, 'Shammai! If you can take back what I have sold and what I have consecrated, you can [also] take back what I have returned;42
(1) The testator's.
(2) Lit., 'to say'.
(3) Since the rights over the estate were given to the first during his lifetime only, they cease with his death.
(4) I.e., judges whose knowledge of the law is not extensive enough to enable them to give legal decisions, and they consequently have recourse to arbitration (Rashi. and R. Gersh.). 'Graveyard judges' (R. Han.).
(5) Since the first was entitled to be legal heir, the succession cannot be terminated.
(6) R. 'Ilish.
(7) Isa. LX, 22, i.e., he need not worry too much about the slip he had made, since he was saved in time from giving effect to a wrong decision.
(8) Lit., 'what he has done is done'.
(9) Though his action is strictly legal, it is not human.
(10) His action will serve as a warning to wicked children.
(11) The authors of the first part of our Mishnah.
(12) I.e., do they object to the disinheritance of bad children?
(13) [Identified by Weiss, Dor, I, 107, with Jose, the first of the Pairs (v. Aboth I, 5) who had been put to death by the renegade High-Priest Alcimus. Buchler, The Hebrew University, Jerusalem Inauguration, Hebrew part, 79, shows the untenability of this view, and suggests Jose b. Joezer, the Priest (v. Hag. II, 7) who lived in the days of Agrippa II.]
(14) I.e., a large sum of money.
(15) [Identified variously either with Jonathan, son of Mattathias, or Agrippa who appears elsewhere in the Talmud under this name. (V. Buchler, ibid.)]
(16) Lit., 'for light money'.
(17) Lit., 'go bring it.'
(18) I.e., Temple of God.
(19) Lit., 'to an ordinary person.' Once the seller made an offer in a Temple transaction, the price can no more be raised, however much the object may have been undervalued.
(20) Lit., 'he brought it'.
(21) Cf. p. 560, n. 8.
(22) I.e., the Treasury had no funds wherewith to pay the full amount of its value.
(23) The balance of the price.
(24) Lit., 'heaven'.
(25) Lit., 'they stood and wrote'.
(26) According to the first version.
(27) The son.
(28) The father.
(29) 'Brought in', is all expression of approval, and it implies that the father's act was meritorious and resulted in the moral improvement of the son. Since, also, the wording if the record met with general approval, as evidenced by the statement 'they (1.e. all) stood and wrote', the Rabbis are obviously of the same opinion as R. Simeon b. Gamaliel.
(30) According to the second version of the record.
(31) 'Took out', is an expression of disapproval of the act of the son which reflects also on the action of the father. The fatherly act was, accordingly, regarded by the Rabbis with disfavour. (Cf. n. 10). Hence they must be in disagreement with R. Simeon b. Gamaliel.
(32) Lit., 'what is about it'.
(33) שיננא (root שנן, 'sharp'); (i) 'keen witted', [(ii) 'long-toothed', denoting some facial characteristic; (iii) 'man of iron endurance' (Bacher).]
(34) Lit., 'be not among.'
(35) I.e., from one who is legally entitled to be heir.
(36) Since Samuel's opinion (being that of an Amora) must be in agreement with one at least of the Tannaim, and since his opinion is clearly in direct contradiction to that of R. Simeon h. Gamaliel, it is obvious that Samuel must have had as his authority the view of the Rabbis (the authors of the first part of our Mishnah). Thus it follows that the Rabbis are in disagreement with R. Simeon b. Gamaliel in maintaining, like Samuel, that even a bad son must not he disinherited.
(37) Lit., 'he stood and wrote his estate'.
(38) The proceeds of which he retained for himself.
(39) The testator's.
(40) I.e., he objected vehemently to his return of the one third to the sons, maintaining that, though he did not say it explicitly, the deceased gave his estate to Jonathan for the express purpose of depriving his sons from any share in it; and since it was the duty of Jonathan to carry out the dead man's wishes, his gift of one third to the sons is invalid, and must be taken from them.
(42) To the sons.
Talmud - Mas. Baba Bathra 134a
if not, neither can you take back what I have returned'.1 He exclaimed: 'The son of Uzziel has confounded2 me, the son of Uzziel has confounded me!'3
Why did he first hold [a different opinion]? - On account of the incident at Beth Horon.4 For we learnt: Once it happened at Beth Horon with a person whose father was forbidden, by a vow, to derive any benefit from him. Celebrating the marriage of his [own] son, he said to his friend, 'The court and the banquet are presented to you as a gift, but they are at your disposal only with the object that [my] father comes and dines with us at the banquet'. [The other] said to him, 'If they are mine, behold, they are consecrated to the Temple'.5 The first said to him, 'I did not give you my possessions that you shall consecrate them to the Temple!' 'You gave me yours', said the other, 'only [with the object] that you and your father might eat and drink and be reconciled to one an other while the sin6 will fall upon my head!7 [Thereupon]8 , the Sages said: Any gift which is not [of such a character] as would [allow it to] become sacred when [the recipient] consecrated it, is not a [proper] gift.9
Our Rabbis taught:10 Hillel the Elder had eighty disciples. Thirty of them deserved that the divine presence shall rest upon them as [upon] Moses our teacher. Thirty of them deserved that the sun shall stand [still] for them as [for] Joshua the son of Nun.11 Twenty were of an average character. The greatest of them12 was Jonathan b. Uzziel; the least of them was R. Johanan b. Zakkai.
It was said of R. Johanan b. Zakkai that his studies included13 the Scriptures, the Mishnah, the Gemara,14 the Halachoth15 , the Aggadoth;16 the subtle points of the Torah and the minutiae of the Scribes; the inferences from minor to major and the [verbal] analogies; astronomy and geometry;17 washer's proverbs18 and fox fables; the language of the demons, the whisper of the palms, the language of the ministering angels and the great matter and the small matter. The 'great matter' is the manifestation of the [divine] chariot19 and the small matter is the arguments of Abaye and Raba.20 Thereby is fulfilled the Scriptural text, That I may cause those that love me to inherit substance and that I may fill their treasuries.21 Now, if the least among them [was] so, how great must have been the greatest among them! It was related of Jonathan b. Uzziel [that] when he sat and studied the Torah, every bird that flew over him was burned.
MISHNAH. IF A PERSON STATES, 'THIS IS MY SON', HE IS BELIEVED. [IF, HOWEVER, HE STATES], 'THIS IS MY BROTHER', HE IS NOT BELIEVED,22 BUT HE23 RECEIVES [A SHARE] WITH HIM IN HIS PORTION.24 [IF] HE23 DIES, THE PROPERTY25 REVERTS TO ITS OWNER.26 [IF, HOWEVER,] HE ACQUIRED PROPERTY FROM OTHER SOURCES,27 HIS BROTHERS SHARE THE INHERITANCE WITH HIM.28
GEMARA. 'THIS IS MY SON', HE IS BELIEVED; in [respect of] what legal practice? - Rab Judah said in the name of Samuel: As regards the right of heirship29 , and the exemption of his wife from levirate marriage30 .
(1) If the sale and the consecration are valid it follows that the estate has passed into the absolute ownership of Jonathan. Consequently he is entitled to dispose of it in any way he pleases. Hence his gift to the sons of the deceased is also legally valid.
(2) Lit., 'cast mud'.
(3) Tacitly admitting defeat.
(4) Ned. 48a.
(5) Lit., 'heaven'.
(6) For the breach of the vow; since the presentation of the court and banquet was mere sham.
(7) As one guilty of aiding and abetting.
(8) V. Bah., Ned. 48. a.l.
(9) From this it follows that a gift which is dependent on certain conditions is not legally valid. Shammai, drawing an analogy between this case and that of Jonathan, where the father was manifestly determined that his sons shall have no benefit from his estate, disputed the legality of the return of the third to the sons. Though the father's condition was not explicit it was sufficiently implicit, in the opinion of Shammai, to render the gift to Jonathan entirely dependent on its fulfilment. Jonathan by his reply pointed out to Shammai that the gift to him could not possibly he regarded as conditional, since it was generally conceded that he was fully entitled to sell it and to consecrate it and to dispose of it in any way he liked. [For a different version of the story, v. J. Nedarim, v. 6].
(10) Suk. 28a.
(11) V., Josh. X, 12-13.
(12) The average disciples (R. Gersh.).
(13) Lit., 'he did not leave'.
(14) The interpretation and elucidation of the Mishnah.
(15) הלכות plur. of Halachah, הלכה
(16) אגדות plur. of Aggada, אגדה
(17) V. Aboth III, 23 and notes, a.l.
(18) [The washer is a well known figure in Roman comedy, v. Krauss, TA, I, 520, note 325.]
(19) מעשה מרכבה the esoteric lore concerning the divine chariot described in Ezek. I.
(20) Whose keen discussions and arguments occupy a considerable portion of the present Gemara. [For a discussion of the various branches of study mentioned in this passage, v. Blau, Sauberwesen, 46f.]
(21) Prov. VIII, 21.
(22) If the other brothers dispute his statement.
(23) The doubtful brother.
(24) In the case of two brothers, A and B, for example, one of whom (A) does not, and the other (B) does acknowledge a third person (C) as a brother, the estate is divided into three portions, and each one of the two brothers (A and B) receives one and a half of these portions (half the estate). The second (B), however, retains only one portion (a third of the estate) to which he is in any case entitled, giving to the doubtful brother (C) the half of the third portion. Should C ever be able to establish his brotherhood, he would also be entitled to receive from A the other half of the third portion.
(25) The half of the third portion which B (v. previous note) has given him.
(26) Lit., 'their place'. I.e., to B from whom he received it. The other brother (A), who previously disowned, and denied C the second half of the third portion, is not entitled to claim any portion at all of that which was allowed him by B. Even if C were his real brother from whom he is entitled to inherit, A has no claim now, since he already received his share of C's estate by his retaining the half of the third portion.
(27) Lit., 'property fell to him from another place', either as an inheritance or as a gift or purchase.
(28) With B, since he had acknowledged them as brothers of C.
(29) Lit., 'to inherit him'.
(30) V. Deut. XXV, 5.
Talmud - Mas. Baba Bathra 134b
As regards the right of heirship! Is it not obvious [that a father is believed]?1 - [The statement] was required in respect of the exemption of his wife from levirate marriage. Surely, this also has been taught [elsewhere]:2 'A person who declared at the time of his death, 'I have sons', is believed.3 [If he declared], 'I have a brother', he is not believed'!4 - There, [the law refers to the case] where it was not known [that he had] a brother,5 [but] here [it refers] even [to a case] where it is known6 that he had a brother.7
R. Joseph said in the name of Rab Judah in the name of Samuel: Why has it been stated [that if a person said], 'This is my son', he is believed?8 - Because a husband who said, 'I divorced my wife', is believed.9 'God of Abraham', exclaimed R. Joseph.10 'could he11 have proved12 that which we have learnt from that which we have not learnt?13 If, however, that statement was made, it must have been in the following terms;14 Rab Judah said in the name of Samuel: Why has it been stated [that if a person said]. 'This is my son', he is believed? - Because it is in his power to divorce her'.15 'Now that you have accepted the principle of16 Because',17 continued18 R. Joseph, 'a husband is believed if he stated "I divorced my wife", because it is in his power to divorce her'.
When R. Isaac b. Joseph came,19 he stated in the name of R. Johanan: A husband who said, 'I divorced my wife', is not believed. R. Shesheth blew upon his hand20 [exclaiming]. 'R. Joseph's "because'21 has gone'.22 [But] it is not [so]!23 For, surely, R. Hiyya b. Abin said in the name of R. Johanan: A husband who stated, 'I divorced my wife', is believed!24 There is no difficulty: One25 [speaks] retrospectively;26 the other,27 of the future.28
The question was raised: [Is a husband who] testified retrospectively29 believed as regards the future?30 Do we divide [his] statement31 or do we not divide it?32 - R. Mari and R. Zebid [are in dispute on the matter]. One said, 'we do divide', and the other said, 'we do not divide [it]'. Wherein [is this] different from [the law] of Raba? For Raba said: [If a husband testifies,] 'X had intimate intercourse with my wife', he and [one] other [witness] may combine to procure his death;33 his death, but not her death!34 - In [the case of] two individuals35 we [may] divide [a statement]; in [the case of] one individual36 [it is possible that we may] not divide.
(1) For, were he not his real son there was no need for the father falsely to declare him as an heir. He could have assigned the estate to him as a gift.
(2) Kid. 64a.
(3) And his wife is exempt from levirate marriage.
(4) V. infra n. 6. Why, then, should the same law be repeated in our Mishnah?
(5) Or sons; and the question of halizah (V., Glos.) could only arise through his own statement. Hence, he is believed only in so far as he does not impair the freedom of the widow.
(6) There is a general belief, but not reliable evidence.
(7) Our Mishnah teaches that, even in such a case, where owing to general belief the widow might be assumed to be subject to the laws of levirate marriage, the husband's statement that he has sons exempts her from the levirate marriage (V. infra). The second clause, according to which the statement, 'This is my brother' is not accepted, does not deal with the question of levirate, but with that of inheritance; v. Mishnah and notes a.l.
(8) And his widow is, accordingly, exempt from the Ievirate marriage.
(9) If his statement, then, were not true, and motivated only by a desire to liberate his wife from the levirate marriage, or halizah, he could have stated that he divorced her, and would thus have achieved the Same object.
(10) R. Joseph, as a result of serious illness, forgot his studies and many of his own statements (v. Ned. 41a). He was here wondering how he could possibly have made such a statement in the name of his masters.
(11) Rab Judah.
(12) Lit., 'suspended'.
(13) The law of the reliability of a father's statement in respect of a son has been taught in the Mishnah, while that in respect of the divorce of a wife does not occur either in a Mishnah or a Baraitha.
(14) Lit., 'but if it were said, it was said thus'.
(15) Since he could divorce her there and then and then liberate her from the levirate marriage, and halizah, he is also believed when he states, 'this is my son'. (Cf. p. 565, n. 10).
(16) Lit., 'that you said, we say'.
(17) 'Because it is in his power etc., i.e., the principle that a person is believed regarding what he said, because it is in any case in his power to achieve his object.
(18) Lit., 'said'.
(19) From Palestine to Babylon.
(20) As though blowing away some imaginary fluff.
(21) Cf. supra note 1.
(22) Since R. Johanan's view is definitely opposed to it'
(23) I.e., R. Johanan's view is not in disagreement with the principle adopted by R. Joseph.
(24) This confirms the view of R. Joseph. It reveals, however, a contradiction between the two statements if R. Johanan
(25) Lit., 'here', R. Isaac's report that the husband is not believed.
(26) I.e., if the husband states that his wife was divorced prior to the date of his statement, he is not believed since he cannot now divorce her retrospectively, and she is regarded as a married woman at least up to that date, v. infra.
(27) Lit., 'here', the report of R. Hiyya.
(28) If the husband states 'I divorced my wife', whether he specifies, 'now', or not, he is believed, since he can divorce her there and then; and the woman is regarded as divorced from that day onwards.
(29) Declaring that the divorce took place prior to the date of his statement.
(30) Is the woman regarded as divorced from that day onwards.
(31) I.e., though he is not believed as regards the time that had passed, is his word nevertheless relied upon as regards the future? (V. previous note).
(32) Since part of the statement (that relating to the past), is not relied upon, is the entire statement disregarded?
(33) Lit., 'to kill him'.
(34) Because a husband is not qualified to act as witness against his wife. Thus it follows that the evidence is divided; the part relating to the wife being disqualified, that relating to her seducer being accepted as valid.
(35) Raba's case dealing with (1) the wife and (2) her seducer.
(36) Retrospectively and prospectively in the case of one woman.
Talmud - Mas. Baba Bathra 135a
[Once] a certain [man] was dying.1 Being asked to whom his wife [was permitted to be married2 and] he replied to them, 'She is suitable for the High Priest',3 [in considering this case], Raba said: What is there to apprehend?4 Surely R. Hiyya b. Abba said in the name of R. Johanan [that] a husband who said, 'I divorced my wife' is believed.5 Abaye said to him: But, surely, when R. Isaac b. Joseph came, he said in the name of R. Johanan [that] a husband, who said, 'I divorced my wife', is not believed! - He said to him: Is he not? Surely it has been explained that one6 [report speaks] retrospectively and the other6 as to the future! Shall we then,7 [came the reply], rely upon an explanation?!8 [Thereupon] said Raba to R. Nathan b. Ammi: Take this into consideration.9
A certain [person] was known10 to have no brothers,11 and at the time of his death he declared that he had no brothers, [in considering the case.] R. Joseph said: What is there here12 to apprehend? In the first place13 it is known that he has no brothers, and secondly14 he [himself] has declared at the time of his death that he had none. Abaye said to him: But [people] say that in the countries beyond the sea15 there are witnesses who know that he has brothers! - 'Now, at any rate [replied the other, 'they are not before us'.16 [Is] not [this case] the same as that of R. Hanina? For R. Hanina said: Shall she17 be forbidden [because there are] witnesses at the North Pole!'18 Abaye said to him: Shall we relax [the law] in [the case of] a married woman19 because20 we relaxed [it] in [the case of] a captive woman?21 [Thereupon] said Raba to R. Nathan b. Animi: Take this into consideration.22
THIS IS MY BROTHER', HE IS NOT BELIEVED. And what do the other [brothers] say? If they say. 'He is our brother', why should he [only] take [a share] with him23 in his portion and no more?24 [If], however, they say, 'He is not our brother', [how will you] explain the latter [clause]: [IF, HOWEVER,] HE ACQUIRED PROPERTY FROM ANOTHER SOURCE, HIS BROTHERS SHARE THE INHERITANCE WITH HIM. [Why should they inherit?] Surely they had declared of him, 'He is not our brother'! - [This law is] required [in the case] only where they say, 'We do not know'.25
Raba said: This implies [that if a person claims from another], 'You owe me a maneh' and the other replies. 'I do not know, he26 is exempt.27 Said Abaye:
(1) Who had brothers but no sons.
(2) I.e., whether she was subject to the laws of levirate marriage.
(3) I.e., 'she may marry anyone' having been divorced by him. 'High Priest' is thus not to be taken literally, since even a priest is forbidden by law to marry a divorced woman (v. Rashb. and Tosaf.) [Yad Ramah, a.l., explains that the marriage had not been consummated and the husband claimed the annulment thereof because it had been contracted on a certain condition which was not fulfilled, in these circumstances the woman might be allowed to marry even a High Priest.]
(4) If she is exempted from the levirate marriage.
(5) For the reason stated supra. Similarly, here, since he said that she may marry anyone, i.e., that he had divorced her
(or, owing to the non-fulfilment of the condition on which the marriage was contracted), he is believed.
(6) Lit., 'here'.
(7) Lit., 'shall we rise'.
(8) It is still possible, despite the explanation, that the matter is in dispute between Amoraim, and that according to one opinion the husband's evidence in such a case is not accepted at all.
(9) I.e., the widow must not marry without obtaining halizah (v. Glos.)
(10) But there was no legal evidence.
(11) It was certain, however, that he had no children.
(12) In allowing the widow to marry.
(13) Lit., 'one'.
(14) Lit., 'and again, surely'.
(15) Lit., 'country of the sea'.
(16) And one need not go to the ends of the earth to discover witnesses in order to restrict the widows freedom.
(17) The incident related to the daughters of Samuel, who were in captivity; and when brought to Palestine, declared that their honour was not violated. R. Hanina allowed them to be married to priests, who are forbidden to marry a woman whose chastity had been violated.
(18) Goldschmidt. Heb., istan, אסתן 'the north wind'. Cf. Assyr. is-ta-na-ni ( = north), C. J. Gadd, Tablets from Kirkuk in Revue d'Assyriologie, vol. XXIII, no. 34, line 12, and il-ta-an ( = north) op. cit., no. 2, line 6, and passim.
(19) Lit., 'wife of a man', where the assumption is that she is subject to the laws of the levirate marriage.
(20) Lit., 'if'.
(21) In this case the captive is entitled to the benefit of the doubt, since there is the assumption that she as a woman protected her chastity and honour.
(22) I.e., do not allow her to marry before complying with the laws of halizah.
(23) With the brother who acknowledged him.
(24) He should receive all equal share with all the brothers.
(25) He cannot claim a share in their portions since he has no legal proof of the brotherhood. They, however, are entitled to be his heirs since both he and the brother who acknowledged him admitted that they were brothers.
(26) The defendant.
(27) He need not pay the claim. It is incumbent upon the claimant to produce the proof; v, B.K. 118a; B.M. 97b.
Talmud - Mas. Baba Bathra 135b
It may still be maintained [that he is] liable,1 but here [the case is] different2 , for it resembles [the case where one states]. 'You owe a maneh to another [person]'.3
IF HE DIES THE PROPERTY REVERTS TO ITS OWNER [etc.]4 Raba inquired: What [is the law in respect of] the natural appreciation of the estate? As regards appreciation which reaches the carriers5 there is no question at all,6 since this resembles PROPERTY ACQUIRED FROM OTHER SOURCES.7 The question, however, arises [as to] what [is the law] in [the case of] appreciation which does not reach the carriers as, for example, [where he8 gave him] a palm-tree and it grew stronger [or a plot of] land and it yielded alluvial soil.9 This remains undecided.
MISHNAH. IF A PERSON DIED AND A WILL10 WAS FOUND TIED TO HIS THIGH,11 IT IS OF NO LEGAL VALUE.12 IF THEREBY13 HE14 MADE AN ASSIGNMENT15 TO SOMEONE,16 WHETHER [THIS PERSON IS ONE] OF THE HEIRS OR NOT, HIS17 INSTRUCTIONS ARE LEGALLY VALID.18
GEMARA. Our Rabbis taught: What is a deyathiki?19 - Any [deed] in which is written, 'This is to stand and to be'.20 And which is a [legal] gift?21 - Any [deed] in which is written, '[Acquire the gift]22 from this day, and23 after my death'. But, [accordingly], a gift would be [legal only when it is written] 'from this day, and after my death',24 [if. however, it were written].'from now25 the gift would not be [legal]?26 - Abaye replied: [It is] this that was meant: 'Which is the gift of a person in good health that is [regarded] as the gift of a dying man in that no possession [of its fruit] is acquired until27 after death? - Any [deed] in which it is written, "from this day and after my death".'
Rabbah, son of R. Huna sat in the hall,28 of the school-house,29 and reported [the following statement] in the name of R. Johanan: [If] a dying man said, 'Write [the deed] and deliver a maneh to X', and he died,30 they [must] neither write not deliver, since it is possible31 that he has determined to give him the right of ownership by means of the deed only, and no deed [may be the means of acquiring possession] after [the testator's] death. R. Eleazar said to them, 'Be careful about this'.32 R. Shezbi said [that] R. Eleazar had reported it, and [that] R. Johanan said to them, 'Be careful about this'. R. Nahman b. Isaac said: Logical reasoning favours the opinion of R. Shezbi. [For] if it be said that R. Eleazar had reported it, it was quite right [for] R. Johanan to corroborate his statement;33 if, however, it be said [that] R. Johanan had said it, [was] it necessary [for] R. Eleazar to corroborate the view of R. Johanan his master? And, furthermore, come and hear [the following which proves] that R. Eleazar had recited it. For Rabin sent in the name of R. Abbahu: Be [it] known to you that R. Eleazar has sent [word] to [those in] the diaspora34 in the name of our Master35 [that] if a dying man said, 'Write and deliver a maneh to X', and he died, they must neither write nor deliver, since it is possible that he has determined to give him the right of ownership by means of the deed only, and no deed [may serve as a means of acquiring possession] after [the testator's] death. And R. Johanan said,36 '[The matter]37 shall be investigated'. What is meant by, 'it shall be investigated'? - When R. Dimi came he38 said: [i]. [One] will annuls [another] will.39 [ii], [If] a dying man said, 'Write [a deed] and give a maneh to X' and he died, [his motive] is inquired into.40 If [it was] to strengthen his claim,41 [the deed] is written; but if not,42 it is not written.43
R. Abba b. Memel raised an objection: [It was taught,] 'If a person in good health said, "Write [a deed] and deliver a maneh to X", and he died, they must neither write nor deliver.' But, [it follows,44 in the case of] a dying man, they may both write and deliver!45 - He raised the objection and he himself explained it: [This refers to the case] where [the testator desired] to strengthen his46 claim. How is one to understand [whether a testator desired] to strengthen [the beneficiary's] claim?
(1) Since the one party is certain of its claim while the other is doubtful.
(2) The doubtful brother does not himself advance a certain claim, but one of his brothers does that for him, so that as far as he is concerned his claim is as doubtful as that of the other brothers.
(3) One of the brothers claims that the others owe a share to the brother whose claim is disputed.
(4) Cf. Bah. a.l.
(5) I.e., fruit, which is carried in baskets. If the land given to him by the brother who acknowledged him was fallow and he improved it so that it produced quantities of fruit. Heb., כתפים 'carriers', with the Lamed of the dative. R. Tam reads ktayfayim 'shoulders', with the Lamed of the instrument; i.e., appreciation due to hard and strenuous work (v., supra 42b, Tosaf. s.v., שבח.) Cf. 'putting the shoulder to the wheel', a barren track was turned into a fruit-producing field.
(6) That all the brothers are entitled to have shares in it.
(7) Which, according to our Mishnah, is shared by all the brothers.
(8) The brother who acknowledged him.
(9) And similar cases where there is no appreciation that can be carried away, or that had been brought about by human effort, in such cases there might apply the law that 'the property reverts to its owner,' that is, the brother who had given it to him.
(10) Heb. deyathiki, דײתיקי, Gr. ** .
(11) I,e., even on his thigh, in which case it is obvious that the deceased himself had written it,
(12) Lit., 'this is nothing'. The person to whom a bequest was made in this will is not entitled to receive it; since possession is to be acquired by means of the receipt of the will, and since, at the time it reaches him, the owner, being dead, is not there to transfer to him the right of ownership.
(13) I,e., by the handing over of the will,
(14) The testator.
(15) While he was still alive.
(16) Lit., 'to another'. I,e., if when handing over the will to the assignee he said that thereby he desired to confer upon him the ownership of the bequest mentioned in it.
(17) The testator's.
(18) Even if the assignee is not the testator's legal heir, and even though his name is not mentioned in the will, he receives all that is enumerated in it. The verbal instructions of a dying person are legally binding.
(19) V. note I. The question is, which kind of will entitles one to acquire ownership of an estate after the death of the testator, in the case where 'immediate' acquisition is not provided for?
(20) I.e., after death. Aram.' Do T'hey lmaykam wlhiyot' a play upon the word דײתיקי.
(21) Of a person in good health.
(22) I.e., the property itself,
(23) Its produce.
(24) I.e., where 'after my death' was explicitly added to 'from this day'.
(25) Without the addition of 'after my death'.
(26) How is this possible? Surely, the expression, 'from now, without any additions, rather implies that both land and produce are given to the recipient at once.
(27) Lit., 'but'.
(28) Gr. ** .
(29) Taking רב as meaning, 'teacher', v. supra 11b.
(30) Before his instructions were carried out.
(31) Lit., 'perhaps'.
(32) I.e., this is the accepted law,
(33) It would be quite natural and necessary for the master (R. Johanan) to corroborate the view of his disciple (R. Eleazar).
(34) [Heb. גולה denoting generally Nehardea, the earliest and most important centre of Babylonian Judaism; after its destruction in 259 by Odenathus its place was taken by Pumbeditha, which then became also known as Golah (v. R.H. 23a and Lewin, Methiboth I).]
(35) Rab, or Abba Arika,
(36) in amplification of the previous statement.
(37) Whether the testator wished the beneficiary to acquire possession by means of the receipt of the deed only.
(38) From Palestine. (12) He made two statements, the second of which explains the method of the investigation.
(39) A dying man who bequeathed his estate in his will to one person can cancel this by making a second will in favour of another person.
(40) Lit., '(they) see'.
(41) That the beneficiary shall have documentary proof of the gift.
(42) If the object of the deed was to make acquisition of the gift dependent upon the receipt of the deed by the beneficiary.
(43) For it is possible that the testator had since changed his mind.
(44) Since a person 'in good health' had been mentioned.
(45) Because a dying man's instructions must be scrupulously adhered to. How, then, could it be said above that his motive must be inquired into first?
(46) The beneficiary's.
Talmud - Mas. Baba Bathra 136a
- As R. Hisda said:1 [This is a case where the witnesses record,] 'And we have acquired [legal possession] of him,2 in addition to [the presentation of] this gift.3 [so] here also [the testator's motive may be known] when he declared, 'Also write, and sign, and deliver to him.'4
It was stated: Rab Judah said in the name of Samuel: The halachah is that [the deed of a gift] is written and delivered.5 And Raba in the name of R. Nahman said likewise: The halachah is that [the deed] is written and delivered.5
MISHNAH. IF A PERSON [DESIRES] TO GIVE HIS ESTATE IN WRITING TO HIS SONS,6 HE MUST WRITE, '[THIS ESTATE IS ASSIGNED]7 FROM THIS DAY AND8 AFTER [MY] DEATH';9 THESE ARE THE WORDS OF R. JUDAH. R. JOSE SAID: THIS10 IS NOT NECESSARY.11 IF A PERSON ASSIGNED HIS ESTATE, IN WRITING, TO HIS SON12 [TO BE HIS]13 AFTER HIS14 DEATH, THE FATHER MAY NOT SELL [IT]15 BECAUSE IT IS ASSIGNED IN WRITING TO THE SON, AND THE SON MAY NOT SELL [IT] BECAUSE IT IS IN THE POSSESSION OF THE FATHER. IF THE FATHER SOLD [THE ESTATE]. THE SALE IS VALID UNTIL HIS DEATH.16 IF THE SON SOLD [IT], THE BUYER HAS NO CLAIM WHATSOEVER UPON IT UNTIL THE FATHER'S DEATH.
GEMARA. [Of] what [avail] is it that he wrote, 'FROM THIS DAY, AND AFTER [MY] DEATH'? Surely we learnt, [if one inserts in a divorce]. 'from this day, and after [my] death', the divorce is valid and invalid;17 and if he dies she is subject to the law of halizah18 but not to that of the levirate marriage!19 - There20 it is doubtful whether it21 is a condition22 or a retraction.23 Here, however, [it is obvious that] he meant to say this to him.24 'Acquire the land itself25 today; the fruit after [my] death'.26
R. JOSE SAID: THIS IS NOT NECESSARY. Rabbah b. Abbuha was indisposed [and] R. Huna and R. Nahman came in [to see him]. 'Ask him', said R. Huna to R. Nahman,27 '[is] the halachah in accordance with [the view of] R. Jose or [is] the halachah not in accordance with [the view of] R. Jose?' - 'I do not [even] know R. Jose's reason, replied the other, '[shall] I ask him28 [about] the halachah?' 'You inquire of him,' said [R. Huna] 'whether the halachah [is according to R. Jose] or not; and as to his reason I will tell you [it later].' [Thereupon, R. Nahman] inquired of [Rabbah], who replied to him, 'Thus said Rab: The halachah [is] in accordance with [the view of] R. Jose'. When29 they came out, [R. Huna] said to him.30 'This is R. Jose's reason: He is of the opinion that the date of the deed proves its import,'31 Thus it was also taught [elsewhere]: R. Jose said, 'This is not necessary, because the date of the deed proves its import.'
Raba inquired of R. Nahman: What [is the law] in [the case of a deed of transfer?31 - He said to him: in [the case of] a deed of transfer this32 is not required. R. Papi said: There are deeds of transfer where [this32 is] required, and there are deeds of transfer where [this is] not required. [If the deed reads]. 'He conferred upon him33 possession', [concluding with], 'and we34 acquired it from him',35 there is no need [for this].36 [If, however, it reads], 'We acquired it from him' [concluding with], 'he gave him possession', this37 is required.38 R. Hanina of Sura demurred: Is there anything we do not know and the scribes would know?39 The scribes of Abaye were asked and they knew;40 the scribes of Raba, and they knew.40
R. Huna the son of R. Joshua said, whether [the order was]. 'He conferred upon him possession . . . and we acquired it of him', or, 'We acquired it of him . . . and he conferred upon him possession the insertion of 'from this day] is not required;41 and their dispute42 [has reference only to the case] where [the deed reads], 'a memorandum of the transaction that took place in our presence'.43
R. Kahana said: I mentioned the reported statements in the presence of R. Zebid of Nehardea, and he told me: You read thus,44 [but] we have the following version: Raba said45 in the name of R. Nahman, 'In [the case of] a deed of transfer this46 is not required whether [the formula was], 'He conferred upon him possession . . . and we acquired it of him' or, 'We acquired it of him . . . and he gave him possession'; their dispute [has reference only to the case] where [the formula is], 'a memorandum of the transaction that took place in our presence'.
IF A PERSON ASSIGNED HIS ESTATE, IN WRITING TO HIS [TO BE HIS] AFTER HIS DEATH. It was stated: If the son sold [the estate]47 during the lifetime of his father, and died while his father was still alive,
(1) Infra 152b.
(2) I.e., they had executed the legal formality of conveyance by means of a kinyan (v. Glos.) between the testator and the recipient.
(3) V. infra 152b.
(4) in which case the testator clearly indicated that the gift was independent of the written deed, the purpose of which was only to strengthen the beneficiary's claims.
(5) After the testator's death; if it was ascertained (as R. Johanan stated, supra) that the purpose of the deed was to strengthen the beneficiary's claim.
(6) I.e., a person in good health who desires, for example, to marry a second time, and wishes to protect the sons that were born from his first marriage from the possible seizure of his estate by his second wife, in payment of her kethubah.
(7) I.e., the land itself.
(8) The produce thereof also.
(9) If, 'from this day', is not specified, the gift is invalid, since a person cannot give possession after his death.
(10) The addition, 'from this day'.
(11) The reason is given infra.
(12) Inserting the formula, 'from this day and after my death'. The law that follows applies to a gift made to any other person.
(13) The son's.
(14) The testator's.
(15) The land and its produce.
(16) Lit., 'sold until he dies', Until then only, may the buyer have its usufruct.
(17) Lit., 'a divorce and it is not a divorce'. It is not certain whether by the first part of the expression he meant the divorce to be effective at once, in which case it is valid; or whether by the second part of the expression he withdrew the first, and desired the divorce to become effective after his death, in which case (since one cannot divorce after death) it is invalid.
(18) V. Glos. Since it is possible that the divorce was invalid and she is therefore the widow of a husband who died without issue.
(19) Since it is also possible that the divorce was valid, and a divorced woman may not be married by the brother of her former husband. Similarly, in the case of the will, the same doubt exists, why, then was it said that possession was definitely acquired?
(20) In the case of the divorce.
(21) The addition, 'and after death'.
(22) I.e., that when he dies the divorce shall be considered as having taken effect from now; and since the condition has been fulfilled, the divorce is valid.
(23) Asserting that the divorce was not to take effect from that day onwards, as the first part of the expression implied, but only after his death; and since one cannot give a divorce after death, the document is invalid.
(24) To the son.
(25) Lit., 'the body', i.e., the principal. capital, actual estate.
(26) In the case of a divorce, such a division in the meaning of the two parts of the expression is, of course, impossible.
(27) [R. Nahman was Rabbah b. Abbuha's son-in-law.]
(29) Lit., 'after'.
(30) R. Nahman.
(31) That the presentation of the gift is to begin on that day (though the expression 'from that day' was not inserted). Had it been intended to postpone the presentation till after death, there would have been no point in recording the date of the deed. (12) הקנאה 'giving', or 'transferring possession' of the gift, i.e., when it is recorded in the deed that the legal formality of conveyance, the kinyan, had been executed as between the testator and the recipient, which virtually places the gift in the possession of the recipient. Does R. Judah in such a case also require the specific insertion, 'from this day'?
(32) The insertion, 'from this day'?
(33) The donee.
(34) The witnesses.
(35) From the testator, by symbolic acquisition.
(36) For the insertion of 'from this day'. Since two distinct kinds of transfer of possession have been mentioned, (1) he conferred possession and (2) we acquired etc., the claim of the donee is thereby strengthened and he acquires ownership of the gift even though, 'from this day' has not been recorded.
(37) The addition of 'from this day'.
(38) Since the second part of the expression may be taken as an interpretation of the first. Thus: 'We acquired possession etc.' because 'he gave him possession'. Consequently, the two parts imply only one transfer of possession which, unless 'from this day' is inserted, cannot be effective or valid. (Rashb.)
(39) If most scholars do not know the difference between the one and the other formula, would the scribes be able to tell what this one or the other implied?
(40) The difference in the meaning and purport of the two formulae.
(41) In agreement with R. Nahman.
(42) Of R. Judah and R. Jose as to whether the insertion, 'from this day', is required.
(43) I.e., when the deed is not one recording a transfer of possession through the witnesses; but a memorandum of the transactions at which the witnesses were present. R. Jose holding that even in such a case the date of the memorandum proves its import.
(44) in the form of an enquiry: 'Raba inquired of R. Nahman' etc., supra.
(45) I.e., a statement of fact, not an inquiry.
(46) V. p. 575, n. 6.
(47) Assigned to him by his father for possession after his death.
Talmud - Mas. Baba Bathra 136b
R. Johanan said: The buyer does not acquire ownership;1 and Resh Lakish said: The buyer does acquire ownership.2 R. Johanan said [that] the buyer did not acquire ownership, [because] possession of usufruct is like the possession of the capital;3 and Resh Lakish said [that] the buyer did acquire ownership [because] possession of usufruct is not like the possession of the capital.4
But, surely, on this [principle]5 they have once disputed!6 For it was stated: If a person sells the usufruct of his field,7 R. Johanan said, [the buyer] must bring [the bikkurim]8 and recite [the declaration];9 and Resh Lakish said, he must bring but does not recite. R. Johanan said [that] he must bring and recite because he holds the opinion that possession of usufruct is like the possession of the capital.10 and Resh Lakish said [that ] he must bring but not recite [because in his opinion] the possession of usufruct is not like the possession of the capital!6 - R. Johanan [can] answer you: Although possession of usufruct is, generally, like the possession of the capital [itself], it was necessary [to re-state the principle] here; since it might have been supposed [that] a father would renounce his claims in favour of his son;11 so he taught us [that this is not so]. And R. Simeon b. Lakish [can] answer you: Although possession of usufruct is, generally, not like the possession of the capital [itself], it was necessary [to re-state the principle] here; since it might have been supposed [that] whenever [it is a matter] of self-interest a man considers himself first even where there is a son;12 so he taught us [that this is not so].
R. Johanan raised an objection against Resh Lakish: [If a person said]. 'I give my estate to you; and after you, X shall be [my] heir; and after X, Y shall be my heir', [when the] first dies, the second acquires the ownership; when the second dies the third acquires ownership. [If] the second dies in the lifetime of the first the estate reverts to the heirs of the first.13 Now, if it were [so],14 it should [revert] to the heirs of the [original] owner?15 - He replied to him: Rab. Hoshaia in Babylon16 has already explained this: It is different [when the expression], 'after you', [was used].17 Rabbah son of R. Huna pointed out the same incongruity in the presence of Rab, who [likewise] replied: It is different [when one used the expression] 'after you'.
But, surely, it was taught.18 [The estate] reverts to the heirs of the [original] owner!19
(1) Even after the father's death, since the estate has never come into the possession of the son.
(2) After the death of the father, as the representative of the son who, if alive, would have been entitled to the inheritance.
(3) Since the usufruct was in the ownership of the father, the capital, i.e., the soil also is regarded as being in his possession, and the son, therefore, is not entitled to transfer it to a buyer.
(4) The soil, therefore, was the undisputed property of the son who, consequently, was fully entitled to transfer it to a buyer.
(5) Whether possession of usufruct is like the possession of the capital.
(6) Why then dispute it again?
(7) Lit., 'his field for fruit'.
(8) First ripe fruit. V. Deut. XXVI, 2.
(9) Ibid. 3-10.
(10) Hence he may recite the declaration which contains the sentence, 'the land which thou hast given me'.
(11) And that, consequently, the soil is the son's despite the usufruct of the father.
(12) As the father retained for himself the usufruct so he also retained his rights in the soil.
(13) V. supra 129b.
(14) That possession of the usufruct is not like the possession of the capital itself.
(15) Lit., 'giver'. Since the first recipient enjoyed only the usufruct, the capital must have remained in the possession of the original owner; and, consequently when the second dies, the estate should revert to the heirs of him to whom the soil belonged.
(16) [A pupil of R. Johanan who hailed from Babylon, in contradistinction to R. Hoshaiah, the teacher of R. Johanan. Some MSS delete 'in Babylon' and may thus refer to the latter.]
(17) By the use of 'after you', the owner has clearly intimated that the first, while alive, was to have possession of both capital and usufruct. Elsewhere, however, acquisition of usufruct alone is not the same as the acquisition of the capital itself.
(18) Even in the case where 'after you' was used.
(19) Which shows that even in such a case the possession of usufruct is not at all like the possession of the capital, how then can R. Johanan maintain the view, contradictory to the Baraitha, that possession of usufruct is always like the possession of the soil itself?
Talmud - Mas. Baba Bathra 137a
This [law is a matter of dispute between] Tannaim.1 For it was taught: [If a person said.] My estate [shall be] yours, and after you [it shall be given] to X', and the first [recipient] went down [into the estate] and sold [it] and spent [the money],2 the second may reclaim [the estate] from those who bought it;3 [these are] the words of Rabbi. Rabban Simeon b. Gamaliel said: The second [may] receive only what the first had left.4
An incongruity was pointed out: [If a person said]. 'My estate [shall be] yours and after you [it shall be given] to X', the first [may] go down [into the estate], and sell [it] and spend [the money; these are] the words of Rabbi. Rabban Simeon b. Gamaliel said: The first has only [the right of] usufruct. [This, surely, presents] a contradiction [between one statement] of Rabbi and the other statement of his,5 and [between one statement] of Rabban Simeon b. Gamaliel and the other statement of his!6 - There is no contradiction between the two statements of Rabbi,7 [since] one8 [may refer] to the capital;9 and the other,10 to the usufruct.11 There is [also] no contradiction between the two statements of Rabban Simeon b. Gamaliel12 [since] one13 may speak of what is the proper thing;14 the other, of the law ex post facto.15
Abaye said: Who is a cunning rogue? - He who counsels16 to sell an estate,17 in accordance with Rabban Simeon b. Gamaliel.18
R. Johanan said: The halachah is according to Rabban Simeon b. Gamaliel, who [however], admits that if [the estate] was assigned19 as the gift of a dying person, the transaction is invalid.20 What is the reason? - Abaye said, [because] the gift of a dying person is acquired only after death, and [by that time] 'after you'21 had preceded him.22 But did Abaye say so? Surely it was stated: When is possession of the gift of a dying man acquired? Abaye said, 'at death', and Raba said, 'after death'!23 Abaye withdrew from that opinion.24 Whence [is it proved] that he withdrew from this view,24 perhaps he withdrew from that?25 - This cannot be entertained,26 for we have learnt: [If a dying man27 said to his wife] 'Here is thy divorce should I die'28 [or] 'Here is thy divorce [after] my present illness'29 [or] 'Here is thy divorce after [my] death', [the divorce in all these cases] is invalid.30
R. Zeira said in the name of R. Johanan: The halachah is according to Rabban Simeon b. Gamaliel and even if the estate contained slaves whom he liberated.31 [Is this not] obvious? - It might have been presumed [that] he could be told that it was not given to him for the purpose of doing what was prohibited,32 hence he taught us [that we do not say so].
R. Joseph said in the name of R. Johanan: The halachah is according to Rabban Simeon b. Gamaliel and even in the case where a dead man's shrouds were made of it.33 [This is surely] obvious! It might have been presumed that it was not given to him34 to turn35 into [something of which it is] forbidden to have any benefit36 so he taught us [that this is not so].
R. Nahman b. R. Hisda gave the following exposition. [If one said to another]. 'This ethrog37 is given to you as a gift, and after you38 [it shall be given] to X', [and] the first [recipient] took it and performed with it his duty,39 - this will be a point of dispute40 between Rabbi and Rabban Simeon b. Gamaliel.41 R. Nahman b. Isaac demurred: The dispute between Rabbi and Rabban Simeon b. Gamaliel can only extend as far as [the case] there42 because [one] Master is of the opinion [that] acquisition of usufruct is like the acquisition of the capital, and the other] Master is of the opinion [that] acquisition of the usufruct is not like the acquisition of the capital, but here,43
(1) The view of one of whom is advanced by R. Johanan.
(2) Lit., 'ate'.
(3) After the death of the first, who was entitled to usufruct only and had no right to sell the estate itself.
(4) According to this view, the first, being in possession of the usufruct, is regarded as being also in the possession of the capital itself, R. Johanan follows Rabban Simeon b. Gamaliel.
(5) Lit., 'on that of Rabbi'.
(6) Lit., 'on that of Rabban Simeon b. Gamaliel'.
(7) Lit., 'of Rabbi on that of Rabbi'.
(8) Allowing the second to reclaim what the first had sold.
(9) Which is not the possession of the first, and which he has, consequently, no right to sell. Hence it may rightly be reclaimed from the buyer.
(10) Which confers upon the first the right to sell.
(11) I.e., the fruit only, which certainly belongs to him and which he may certainly sell.
(12) Lit., 'of Rabban Simeon b. Gamaliel on that of R. Simeon etc.!
(13) According to which the first has only the right of usufruct.
(14) לכתחלה 'as at the commencement', 'for a start'. The proper thing is that the first shall respect the wishes of the testator (who obviously desired the second to have at least some of the estate), and dispose of the usufruct only, leaving the capital itself intact for the benefit of the second.
(15) דיעבד 'having been done', i.e., if the first had not come to inquire whether he is entitled to sell the land, but, acting on his own, has sold all, or part of it, the second can only receive what the first had left.
(16) [Rashb.; R. Gersh, renders, 'who takes counsel with himself.']
(17) Which was given to a person with the stipulation that after his death it shall be transferred to another person.
(18) Though the sale is morally wrong, since the original owner meant the second beneficiary to have the estate after the death of the first, it is legal in accordance with the view of Rabban Simeon b. Gamaliel. [According to the explanation of Rashb., it is only he who counsels, that is dubbed 'cunning rogue', since he derives no benefit therefrom.]
(19) By the first recipient.
(20) And the second beneficiary may reclaim it from the donee.
(21) I.e., the second beneficiary, with reference to whom the original owner and testator had said to the first beneficiary, 'after you it shall be given' etc.
(22) The second beneficiary acquires ownership of the estate, on the strength of the instructions of the original owner, at the very moment the first died. The owner, by his instruction, 'after you to X', has clearly intimated that the first was to have the estate only while alive. As soon, therefore, as he dies, X acquires possession. The person, however, to whom the first assignee has presented the estate, 'as the gift of a dying man', does not acquire possession until after the death of the donor. Hence, 'after you' had anticipated him,
(23) Since Abaye, here, holds the view that the gift of a dying man is acquired at death, how could it be said that according to him such a gift is acquired after death?
(24) That the gift is acquired at death.
(25) According to which ownership is acquired after death,
(26) Lit., 'It (should) not enter your mind',
(27) Desirous that his wife shall have the status of a divorced woman (to exempt her, e.g., from the levirate marriage), and not that of a widow.
(28) I.e., when he dies, the divorce shall become effective.
(29) I.e., after death will have brought it to an end.
(30) Lit., 'he said nothing'. because he meant that the divorce shall not become effective except when he died, but after death one cannot give a divorce similarly, in the case of the gift of a dying man, possession was meant to be acquired after and not in death.
(31) The liberation is valid.
(32) It is prohibited to liberate a heathen slave. Cf. Lev. XXV, 46.
(33) Lit., , 'he made them into a shroud for the dead', i.e., the gift or any part of its proceeds was used for the purpose.
(34) Lit., 'they (or we) did not give you'.
(35) Lit., 'to make them'.
(36) Lit., 'prohibitions of use'. A dead man's shroud may not be used for any other purpose, nor may any benefit be derived from it. (v. Sanh,. 47b).
(37) אתרוג a fruit of the citrus family used with the palm leaves, myrtle and willows on the Festival of Tabernacles. Cf. Lev. XXIII, 40.
(38) I.e., after his death.
(39) Lit., 'and he went out (from his obligation) by it', i.e., he used it in the prescribed manner and recited the proper benediction.
(40) Lit., we have arrived at the dispute'.
(41) According to Rabbi he has not properly performed his duty; since the commandment relating to ethrog requires the the fruit itself to be the property of him who makes liturgical use of it, while the ethrog, in this case, does not itself belong to him, he having received it for use only. According to Rabban Simeon R. Gamaliel, however, who allows the first recipient to sell the estate as his own property, the ethrog also is regarded as his own property, and may therefore be used for the performance of the commandment.
(42) Where the gift consisted of an estate which produced fruit.
(43) The case of the ethrog.
Talmud - Mas. Baba Bathra 137b
if [the first recipient] is not able1 properly to perform the precept2 therewith, for what [other purpose] was the thing given to him!3 But [it is obvious] that no one [can]4 dispute [the view] that [the first recipient] may properly perform the commandment with it;5 [as regards, however, the case where] he sold, or consumed it, this will be a point of6 dispute between Rabbi and Rabban Simeon b. Gamaliel.7
Rabbah son of R. Huna said: When brothers acquired an ethrog8 out of an [inherited] estate,9 [and] one of them used for its ritual purpose,10 if he is able to eat it,11 he has [also] properly acquitted himself of his ritual duty;12 but if not, he has not acquitted himself of his ritual duty.13 This, however, only in the case where an ethrog is available for everyone [of the brothers].14
Raba said: [If one said to another,] 'This ethrog is given to you as a gift on the condition that you return it to me', [and the recipient] used it for its ritual purpose,15 then if he [subsequently] returned it, he is exempt;16 [if] he did not return it, be is not exempt. [Hereby] we are taught that a gift [presented] on the condition that it be returned is regarded as a [proper] gift.17
A certain woman owned a palm-tree on ground belonging to R. Bibi b. Abaye. Whenever she went to cut it he showed resentment, [so] she made it over to him for life.18 He thereupon went and made it over to his little son.19 R. Huna the son of R. Joshua said: 'Because you are [yourselves] frail [beings] you speak frail words.20 Even Rabban Simeon b. Gamaliel gave his decision only [in the case where the original owner had assigned the estate] to another [person], but not when [it is to return] to [the owner] himself'.21
Raba said in the name of R. Nahman: [If one said to another], 'This ox is given to you as a gift on the condition that you return it to me', [and the recipient] consecrated, and returned it, both the consecration and the restitution are legally valid.22 '[But] what', asked Raba of R. Nahman, 'has he returned to him?'23 'And what', replied the other, 'has he taken away from him?'24 But, said R. Ashi, the matter is looked into: If he said to him, 'on condition that you return it' [he has no claim upon the donee, for] he had surely returned it, if, [however], he said to him, 'on condition that you return it to me', [he can claim compensation], since he implied [that the return must be of] a thing which he may use. Rab Judah said in the name of Samuel: [If a person] assigned his estate, in writing, to another, and the latter25 said, 'I do not want it', he acquires possession [of it] even if he stands and protests.26 R. Johanan, however, said: He does not acquire possession. R. Abba b. Memel said: There is [really] no difference of opinion between them;
(1) According to Rabbi.
(2) Lit., 'if to go out, he cannot go out'.
(3) Not being allowed to consume the fruit, the only other purpose for which one can use an ethrog is for the performance of the commandment.
(4) Lit., 'all the world do not'.
(5) Cf. n. 4, supra.
(6) V. p. 580, n. 12.
(7) according to Rabbi he does, nad according to Rabban Simeon he does not pay compensation to the second, the ethrog itself, through not productive of any usufruct, being treated as capital in relation to the ritual performed with it.
(8) Either as part of the estate or by purchase from its proceeds,
(9) Lit., 'that which belongs to the house'; i.e., before the division of the property had taken place.
(10) Lit., 'he took it and went out (from obligation) thereby'.
(11) I.e., if the brothers do not object to his consumption of the fruit.
(12) Lit., he went out'. Cf. n. 12, supra.
(13) Since an ethrog cannot be used for its ritual purpose unless it is in the exclusive possession of him who uses it, the ethrog of the inherited estate cannot be regarded as being in the undisputed possession of one of the brother unless it is known that the others do not object to his complete consumption of it.
(14) Some edd., 'but not a quince or a pomegranate'.
(15) V. p. 581, n. 12.
(16) I.e., he has properly performed his ritual obligation.
(17) I.e., it is considered for the time being the property of the recipient.
(18) On the understanding that after R. Bebai's death it would revert to her or her heirs
(19) So that, according to the view of Rabban Simeon b. Gamaliel, the woman could not claim it after his death.
(20) ממולאי ממוליאתא 'frail things', applied to both people and words. דאתו = because you. Others, משום דאתיתו ממולאי 'because you are descendants of short-lived people'. Abaye was a descendant of the house if Eli who were condemned to die young. V. I, Sam. II, 32. [Levias. HUC 1904, 155, connects the phrase with the Arabic 'to be foolish'.]
(21) Here, the woman stipulated that the tree shall revert to her. Hence, R. Bibi's transfer to his son is legally invalid.
(22) Lit., it is consecrated and returned'.
(23) The consecrated animal can no longer be used by him.
(24) The ox he presented has been returned bodily intact.
(25) Lit., 'that one'.
(26) Lit., 'cries'.
Talmud - Mas. Baba Bathra 138a
one refers to the case1 where he protested2 and the outset;3 the other,1 where he kept silent at first and then4 protested.5
R. Nahman b. Isaac said: [If a donor] transferred ownership to one through the medium of another and [the former] kept silent;6 and ultimately7 protested, we have arrived at a dispute8 between Rabban Simeon b. Gamaliel and the Rabbis. For it was taught: [If a person] had assigned to another, in writing, an estate of his, part of which consisted of slaves; and the latter9 said, 'I do not want them',10 they11 may, [nevertheless], if their second master12 was a priest, eat of the heave-offering.13 Rabban Simeon b. Gamaliel said: As soon as the donee14 had said , 'I do not want them', the heirs [of the testator] become their legal owners.15 And [when] we were discussing the subject [the question was raised, would] the first Tanna [consider the assignee legal owner] even if he stands and protests? - Raba, and some say R. Johanan, said: [in the case] where he protested from the outset, all agree16 that he does not acquire ownership. [If he first] kept silent and finally he protested. all agree16 that he does acquire ownership.'They are in disagreement only [in the case] where the [testator] transferred ownership to the donee through a third party,17 and [he at first] kept silent and finally he protested. [In such a case], the first Tanna holds the opinion [that] since he kept silent [at first] he acquired ownership, and that [the reason] why he protests [now is because] he has simply changed his mind. Rabban Simeon b. Gamaliel, however, holds the opinion [that] his final [act] proves what [he had in his mind] at the beginning, and that [the reason] why he did not then18 protest [is] because he thought. 'Why should I cry before they come into my possession!
Our Rabbis taught:19 If a dying man20 said, 'Give two hundred zuz to X, three hundred to Y, and four hundred to Z', it must not be assumed21 [that] whoever is [mentioned] in the deed first gains possession [first]. Hence, [if] a note of indebtedness was produced against him,22 [the debt] is to be collected from all of them.23 [If], however, he22 said, 'Give two hundred zuz to X, and after him [three hundred zuz] to Y, and after him [four hundred zuz] to Z', the law is24 [that] whoever is [mentioned] first in the deed acquires possession [first].25 Hence, [if] a note of indebtedness was produced against him,22 [the debt] is collected from the last [mentioned]. [If] he has not [enough], collection [of the balance] is made from the one [mentioned] before him. If the share of this one also does not suffice,26 collection [of the remaining balance] is made from the one mentioned first.27
Our Rabbis taught: If a dying man said,28 'Give two hundred zuz to X [who is] my firstborn son, in accordance with his due', he receives these as well as29 [the portion of] his birthright.30 If, [however], he said, 'As his birthright'.31 he32 is given the choice.33 He may, if he wishes, receive these;34 he may, if he prefers, receive the portion of his birthright. [If] a dying man said, 'Give two hundred zuz to X [who is] my wife, in accordance with her due', she receives these as well as35 her kethubah. If, [however], he said 'as her kethubah'36
(1) Lit., 'here'.
(2) Cf. n. 2, supra.
(3) When the deed of assignment was offered to him. Hence the opinion of R. Johanan that ownership is not acquired.
(4) Lit., 'at the end'.
(5) His first silence is interpreted as consent to his acquisition of the ownership. Hence the opinion of Rab Judah that, though he protested later, ownership is acquired by him.
(6) When the transfer took place.
(7) When the deed of assignment was offered him.
(8) As to whether ownership had been acquired by him who protested.
(9) Lit., 'that one'.
(10) He did not wish to have the responsibility of managing and maintaining slaves.
(11) The slaves.
(12) The donee who objects to have them.
(13) Terumah (v. Glos.) The slaves, having become his property, are allowed to eat of the heave-offering as any other member of a priest's household; v. Lev. XXII, 11.
(14) V, n. 1, supra.
(15) Ker. 24b; Hul. 39b.
(16) Lit., 'all the world do not dispute'.
(17) Lit., 'through another'.
(18) Lit., 'until now'.
(19) Git. 50b.
(20) Lit., 'a dying man who'.
(21) Lit. , 'we do not say'.
(22) The testator.
(23) All the three, being regarded as heirs who have acquired simultaneous right of possessions by his mere verbal instructions (supra 135b), must pay the debt in proportions equal to the shares they received.
(24) Lit.,m 'we say'.
(25) By definitely stating, after him he indicated the order of acquisition he desired.
(26) Lit., 'he has not'.
(27) Lit., 'from him who was before him'.
(28) V. n. 4, supra.
(29) Lit., 'and he receives'.
(30) It is assumed that this was the wish of the deceased. Had he wanted him to receive the specified two hundred zuz only, he would not have added, 'in accordance with his due'.
(31) I.e., that the two hundred zuz shall be given to his firstborn son as the portion of his birthright.
(32) The firstborn.
(33) Lit., 'his hand is upon the upper (part)', i.e., he has the advantage.
(34) If the portion of his birthright is less than two hundred zuz.
(35) Lit., 'and she receives'.
(36) I.e., that the two hundred zuz shall be given to her in payment of her kethubah.
Talmud - Mas. Baba Bathra 138b
she is to have the choice.1 She may, if she wishes, receive these, she may, if she prefers, receive her kethubah. [If] a dying man said, 'Give two hundred zuz to X [who is] my creditor, in accordance with his due', he2 receives these as well as his debt.'3 If, [however], he said, 'as his debt',4 he receives these in [payment of] his debt. Should he5 then, because he6 said, in accordance with his due', receive these and receive [also] his debt, when it is possible that he meant, 'in accordance with what is his due on account of the debt'? - R. Nahman replied: Huna has told me that this law represents the view of7 R. Akiba who draws inferences [from ] superfluous expression[s]. For we learnt:8 [He9 sold] neither the cistern nor the cellar, even though he has included in the contract10 depth and height.11 He12 must, however, buy for himself a passage [to these];13 these are the words of R. Akiba. But the Sages say: He12 need not buy for himself a passage. R. Akiba, however, admits that where he12 said to him, 'except these',14 he need not buy a passage for himself.15 From this it clearly follows [that] where [a person] mentioned [that] which was not necessary, his object was16 to add something; [so] here also, since he mentioned [that]17 which was not necessary, his object was to add something.18
Our Rabbis taught: If a dying man said, 'X owes me a maneh', the witnesses may write [it down].19 although they do not know [whether there is any truth in the statement].20 Consequently, when [the debt] is collected, proof21 has to be brought;22 these are the words of R. Meir. But the Sages say: [The witnesses must] not write unless they know [the statement to be true].23 Consequently, when [the debt] is collected, there is no need for proof to be produced.24 R. Nahman said: Huna told me [that] a tanna reported [the following]: R. Meir said, '[The witnesses] must not write', and the Sages say, 'They may write'; and even R. Meir said this25 only on account of26 a court [that might] err.27
R. Dimi of Nehardea said: The law is[ that] there is no need to provide against28 all erring court.29 And why [is this case] different from [that] of Raba? For Raba said30 : Halizah must not be arranged unless [the court] know [the widow and her brother-in-law], nor may a declaration of refusal31 be accepted unless [the court] know [the parties]. Consequently32 [it is permissible for witnesses]33 to write out a certificate of halizah34 as well as a certificate of refusal34 even though they do not know [the parties].35 [Has not this precaution36 been taken] in order to provide against an erring court!37 No;38 a court does not minutely examine [the decision of] another39 court;40 [that of]39 witnesses, [however], it does minutely examine.41
MISHNAH. A FATHER42 MAY PLUCK [THE FRIT] AND GIVE IT TO ANY ONE HE WISHES FOR CONSUMPTION; AND ANY PLUCKED [FRUIT] WHICH HE LEAVES [AFTER HIS DEATH] BELONGS TO [ALL] THE HEIRS.43
GEMARA. PLUCKED [FRUIT] only belongs to all the heirs,44 [but] not [fruit] that is still attached to the ground?45
(1) Cf. n. 3, supra.
(2) The creditor.
(3) V. p. 584, n. 13.
(4) I.e., the two hundred zuz shall be given to the creditor in payment of his debt.
(5) The creditor.
(6) The testator.
(7) Lit., 'who is this? It is , etc.'.
(8) Supra 63b, and 64a.
(9) Who sold a house.
(10) Lit., 'he wrote for him'.
(11) Of the house. A cistern and a cellar are not regarded as its indispensable parts.
(12) The seller.
(13) The sale of the house includes the area surrounding it. Hence, the seller, though retaining the ownership of the cistern and the cellar, has no claim upon the path that leads to them.
(14) Cistern and cellar.
(15) It was not necessary for the seller to specify, 'except these', if he wished to retain the cistern and the cellar only, since these are implicitly excluded from the sale. The addition of, 'except these', is, therefore, taken to imply the exclusion from the sale of the path that leads to them.
(16) Lit., 'he comes'.
(17) 'In accordance with his due'.
(18) I.e., that the sum shall be in addition to his debt.
(19) As a memorandum of what they heard.
(20) V., R. Gersh. a.l. and cf. Rashb.
(21) Of the defendant's liability.
(22) By the heirs.
(23) Because a memorandum signed by witnesses may sometimes lead a court to a wrong decision through the assumption that the witnesses had verified the statement.
(24) The existence of a written document is sufficient evidence that the witnesses had satisfied themselves of the veracity of the statements it contains.
(25) That the witnesses may not put the statements on record.
(26) Not because that was the law.
(27) V. n. 8, supra.
(28) Lit., 'to fear', 'apprehend'.
(29) Hence, witnesses may put on record the statements of a dying person (as R. Nahman above quoted in the name of the Rabbis), even though they had not satisfied themselves as to the veracity of the statements.
(30) Jeb. 106a.
(31) Heb. Mi'un, A minor who has been betrothed by her father may have the engagement annulled on declaring before a court that she refuses to live with the man.
(32) Since no court would allow halizah, or a declaration of refusal, unless the parties were known to it.
(33) Who were present during one or other of such ceremonies.
(34) Which would enable the woman to re-marry.
(35) Though they do not know, the court well knew.
(36) That a court must not arrange a halizah or accept a declaration of refusal unless the parties concerned are known to it.
(37) I.e., a second court that might be called upon to deal with the question of the remarriage of the parties, and that might wrongly assume that the previous court had satisfied itself as to their identity. Now, if here provision was made against an erring court, why is not such provision necessary in the case spoken of by R. Dimi?
(38) The case of a court is not to be compared with that of witnesses.
(39) Lit., 'after'.
(40) Hence, no court must arrange halizah or annul a minor's betrothal unless the parties are known to it.
(41) Hence, every document that would be brought before them, though attested by witnesses, would always be carefully scrutinised. Witnesses, therefore, nay put on record the statements of a dying man (as R. Dimi stated supra) even though they had not satisfied themselves as to whether the debt he mentioned was really due to him.
(42) Who directed that after his death his estate shall be given to his son, so that the land itself is acquired by the son at once while the right of usufruct remains with the father.
(43) And not only to that son to whom the estate had been assigned.
(44) Lit., 'yes'.
(45) Lit., 'joined'. Since our Mishnah stated that detached fruit belongs to all the heirs it seems to imply that fruit attached to the ground is regarded as the ground itself and belongs to the son to whom the estate was assigned.
Talmud - Mas. Baba Bathra 139a
Surely it was taught:1 the fruit attached [to the ground].2 is valued3 for the buyer!4 - 'Ulla replied: There is no difficulty Here5 [the law deals] with one's [own] son;6 there7 [it deals] with a stranger.8 [In the former case, attached fruit belongs to the son] because a person is favourably disposed towards his son.9
MISHNAH. [IF] ONE LEFT SONS10 [WHO WERE] OF AGE, AS WELL AS MINORS, THOSE WHO ARE OF AGE ARE NOT TO BE SUPPORTED11 AT THE EXPENSE OF12 THE MINORS,13 NOR ARE THE MINORS TO BE FED AT THE EXPENSE OF14 THOSE WHO ARE OF AGE,15 BUT ALL RECEIVE EQUAL SHARES] IN THE ENTIRE ESTATE].16 [IF] THOSE WHO WERE OF AGE MARRIED17 , THE MINORS [ALSO] MAY TAKE [A SIMILAR SUM TOWARDS THEIR MARRIAGE EXPENSES].18 IF THE MINORS, HOWEVER, CLAIMED,19 'WE DESIRE TO TAKE AS MUCH AS YOU HAVE TAKEN',20 THEIR REQUEST IS DISREGARDED21 BUT WHAT THEIR FATHER HAD GIVEN THEM22 IS REGARDED AS A GIFT.23 [IF] ONE LEFT DAUGHTERS [WHO WERE] OF AGE, AS WELL AS MINORS THOSE WHO ARE OF AGE ARE NOT TO BE SUPPORTED24 AT THE EXPENSE25 OF THE MINORS,26 NOR ARE THE MINORS TO BE FED AT THE EXPENSE27 OF THOSE WHO ARE OF AGE.28 BUT ALL RECEIVE EQUAL SHARES [IN THE DISTRIBUTION OF THE ESTATE]. [IF] THOSE [WHO WERE] OF AGE MARRIED,29 THE MINORS [ALSO] MAY TAKE [A SIMILAR SUM TOWARDS THEIR MARRIAGE EXPENSES].30 IF THE MINORS, HOWEVER, CLAIMED,31 'WE DESIRE TO TAKE AS MUCH AS YOU HAVE TAKEN',32 THEIR REQUEST IS DISREGARDED.33 IN THE FOLLOWING RESPECT34 DAUGHTERS35 ARE OF GRATER IMPORTANCE THAN SONS.36 FOR DAUGHTERS ARE FED AT THE EXPENSE OF THE SONS37 BUT NOT AT THE EXPENSE OF [OTHER] DAUGHTERS.38
GEMARA. Raba said: If39 the eldest of the brothers40 drew upon the general funds of the estate for his dress and outfit,41 his action cannot be disputed.42 But surely, we learnt, THOSE WHO ARE OF AGE ARE NOT TO BE SUPPORTED AT THE EXPENSE OF THE MINORS! - Our Mishnah [refers] to [those who are] without a calling.43 [In the case of] one without a calling, [is this not] obvious!44 - [Since] it might have been assumed that [the brothers] desire that he should not be disgraced45 it was necessary to teach us [that this is not so].
IF THOSE WHO WERE OF AGE MARRIED, THE MINORS ALSO MAY TAKE. What does this mean?46 - Rab Judah replied, it is this that was meant: IF THOSE WHO WERE OF AGE HAD MARRIED after the death of their father, THE MINORS [ALSO] MAY TAKE47 after the death of their father; if, however, those who were of age had married during the lifetime of their father, and the MINORS after the death of their father, CLAIMED, 'WE DESIRE TO TAKE AS MUCH AS YOU HAVE TAKEN', THEIR REQUEST IS DISREGARDED BUT WHAT THEIR FATHER HAD GIVEN THEM IS REGARDED AS A LEGAL GIFT.
[IF] ONE LEFT DAUGHTERS [WHO WERE] OF AGE, AS WELL AS MINORS. Abbuha b. Geniba sent to Raba: Will our Master teach us, [in the case of a woman who] took a loan and spent it, and thereupon48 married,49 [whether] the husband has [the legal] status of a buyer50 or that of an heir? Is he [regarded as] a buyer [and consequently he need not repay her debt] since a verbal loan cannot be collected from a buyer; or is he, perhaps, regarded as an heir, [who must pay her debt], since a verbal loan may be collected from heirs? - He replied to him: We have learned this in our Mishnah, [IF] THOSE [WHO WERE] OF AGE MARRIED, THE MINORS [ALSO] MAY TAKE; does not [this mean that] IF THOSE WHO WERE OF AGE [WERE] MARRIED to husbands, THE MINORS MAY TAKE [towards their marriage expenses] from the husbands?51 - No; [this may mean that] IF THOSE [WHO WERE] OF AGE [WERE] MARRIED to husbands, THE MINORS [ALSO] MAY TAKE52 [a similar sum towards the expenses of their marriage] to husbands. [But] this is not [so];53 for, surely, R. Hiyya taught: [If] those who were of age had married husbands,54 the minors may take [their due] from [those] husbands!55 - It is possible that maintenance56 is different,57 since such [an obligation] is generally known.58
R. Papa said to Raba:59 Is not this60 the very [case] which Rabin had sent in his letter?61 If a person died, [he wrote], and left a widow and a daughter, his widow is to receive her maintenance out of his estate.62 [If] the daughter married,63 his widow is [still] to receive her maintenance out of his estate. [If] the daughter died?64 Rab Judah, the son of the sister of R. Jose b. Hanina, said: I had [such] a case, and it was decided65 [that] his widow is to receive her maintenance out of his estate. [Now,] if it be granted66 that he67 is [regarded as] an heir,68 it is quite correct that his widow should be maintained out of his69 estate70 ; if, however, it is held66 that he67 is [regarded as] a buyer, why should she be maintained out of his estate!71
Abaye said: Would we not have known [this]72 if Rabin had not sent [his letter]? Surely we learnt:73 The following do not return in the Jubilee year:74 The [portion of] the birthright,
(1) Tosef. Keth. VIII.
(2) In a field that was sold by a son to whom his father had assigned it during his lifetime.
(3) After the death of the father.
(4) I.e., the buyer must pay the price, at which the fruit was valued, to the heirs. This proves that even attached fruit does not belong to him to whom the soil belongs but to the heirs. In the case, then, of our Mishnah also, attached fruit should belong to all the heirs.
(5) In our Mishnah.
(6) Where the estate was assigned by a father to a son, and the latter did not sell it to another person.
(7) Lit., 'here', i.e., the cited Tosefta of Kethuboth.
(8) When the son had sold the estate to a stranger, or the father had assigned it to a stranger as a gift, reserving the usufruct for himself during his lifetime.
(9) Hence he allows him not only the ground itself but also the fruit attached to it.
(10) And did not provide in a will for the disposal of his estate.
(11) I.e., provided with clothing and the like.
(12) Lit., 'through the hands of'.
(13) I.e., out of the general proceeds of the estate before it had been divided between the heirs. Sons who are of age require a greater allowance for their clothing than minors; and this they must provide out of their own shares.
(14) Lit., 'by'.
(15) Cf. n. 10, supra. Minors require less for clothing but more for food.
(16) I.e., before the estate has been divided, neither the minors, who require a greater allowance for food, nor those of age, who require more for their clothing, though less for their actual food, may draw for their extra requirements upon the common funds, which must be equally divided between all of them.
(17) After their father's death, defraying the marriage expenses out of the undivided estate.
(18) Out of the common funds of the estate.
(19) After their father's death.
(20) I.e., if the minors wish to spend on their marriages, out of the general funds of the estate, as much as the older brothers had spent on their marriages during their father's lifetime.
(21) Lit., 'they do not listen to them'.
(22) To the older brothers during his lifetime.
(23) Lit., 'given'.
(24) V. p. 588, n. 8.
(25) Loc. cit, n, 9.
(26) Loc. cit. n. 10.
(27) Loc. cit. n. 11.
(28) Loc. cit. n. 12.
(29) Loc. cit. n. 14.
(30) Loc. cit. n. 15.
(31) Loc. cit. n. 16.
(32) Loc. cit. n. 17.
(33) Loc. cit. n. 1.
(34) Lit., 'this'.
(35) Who inherited their father's estate in the absence of sons.
(36) Where there are born sons and daughters.
(37) in the case where the sons inherited a large estate, v. infra 139b.
(38) I.e., if older and younger daughters, in the absence of sons, inherited the estate, the latter are not to be fed from the general funds of the estate.
(39) Lit., 'This'.
(40) Who manages the estate.
(41) Lit., 'dressed and covered himself out of the house'.
(42) Lit., what he has done is done'. Though it is not proper for him to make personal expenses out of the common funds, the brothers cannot, after the amount had been spent, claim its return; since it is important for him, as the manager of the estate, to dress well.
(43) שדכא (edd. שרכא), 'a man at ease'; one who is not in any way engaged in the improvement of the estate or in the increase of its value.
(44) If he is of no use to the management or maintenance of the estate, what possible claim can he have upon the general funds in respect of his personal dress?
(45) Through the wearing of unbecoming clothes, and would thus agree to beat the expense.
(46) This, surely, seems to be in contradiction to the following clause, 'If the minors, however, claimed "we desire to take as much as you have taken", their request is disregarded'.
(47) A similar sum towards their marriage expenses.
(48) Lit., 'and ate it and stood up'.
(49) And thus transferred all her possessions to her husband.
(50) Of the property brought to him by his wife.
(51) Of the married sisters; which proves that the husbands are regarded as heirs, not as buyers. The claim of the minors is now assumed to have the same force as that of a verbal loan which cannot be collected from a buyer.
(52) Out of the residue of the estate; not from their sisters' husbands who are regarded as buyers, not as heirs.
(53) I.e., the husbands cannot be regarded as buyers.
(54) V. p. 590. n. 5.
(55) Had these been regarded as buyers, the minors who have the status of a creditor of a verbal loan, could not have taken anything from them.
(56) The right of the minors to be maintained out of their father's estate.
(57) From a verbal loan.
(58) Lit., 'it has a voice', i.e., people well know the fact that the deceased had left minors who are entirely dependent on his estate for their maintenance. Hence the husbands of the elder daughters are assumed to have known the fact. Consequently, the claim of the minors is not to be compared to that of a verbal loan but to one given under a written note of indebtedness, in which case it may be collected even from a buyer of the estate, v. infra 175a.
(59) Who had attempted to prove above, from R. Hiyya's statement, that a husband is regarded as an heir.
(60) That a husband has the status of an heir.
(61) From Palestine to Babylon
(62) in accordance with his undertaking in the kethubah which is given to one's wife.
(63) And thus transferred the estate into her husband's possession.
(64) And her husband inherited her possessions.
(65) Lit., 'they said'.
(66) Lit., 'you said'.
(67) The husband of the daughter, and so every husband.
(68) Of the property that his wife had brought to him; even during her lifetime.
(69) Her dead husband's, even if it passed into the possession of her daughter's husband.
(70) Since the amount required for the maintenance of a widow, may be collected from her husband's heirs.
(71) Surely a widow's maintenance cannot be collected from the buyers of her husband's property (Cf. Git. 48b)
(72) That a husband is regarded as an heir.
(73) Bek. 52b.
(74) When all landed property that has been sold returns to its original owner. V., Lev. XXV, 28, 31.
Talmud - Mas. Baba Bathra 139b
and that [which a husband] inherits [from] his wife!1 Raba said to him: And now that he did send [his letter] do we know [this]?2 Surely R. Jose b. Hanina stated:3 At Usha4 it was ordained [that if] a woman had sold during the lifetime of her husband, usufruct property,5 and died, the husband may seize them from the buyers?6 - But, said R. Ashi, the Rabbis have given a husband the status7 of an heir and [also the status of] a buyer; and whichever was better for him they gave him.8 In respect of the Jubilee year, the Rabbis gave him the status of an heir, in order [to prevent] loss to him.9 In the case of [the statement of] R. Jose b. Hanina, the Rabbis gave him the status of a buyer [also] in order [to avert] loss to him.10 In respect of [the statement of] Rabin, [however], in order [to avert] a loss to the widow, the Rabbis gave him the status of an heir.11 But, surely, in the case of R. Jose b. Hanina, where the buyers suffer12 loss, the Rabbis had yet given him the status of a buyer!13 - There,14 they15 caused the loss to themselves; for since [it was known that] a husband was involved,16 they should not have bought from a woman who is subject to a husband's jurisdiction.17
MISHNAH. [IN THE CASE OF] ONE WHO DIES AND LEAVES SONS AND DAUGHTERS, IF THE ESTATE IS LARGE,18 THE SONS INHERIT [IT], AND THE DAUGHTERS ARE MAINTAINED [FROM IT].19 [IF] THE ESTATE IS SMALL, THE DAUGHTERS ARE MAINTAINED [FROM IT], AND THE SONS SHALL GO BEGGING.20 ADMON SAID, 'AM I TO BE THE LOSER BECAUSE I AM A MALE!' R. GAMALIEL SAID: ADMON'S VIEW HAS MY APPROVAL.21
GEMARA. What is considered a large estate?22 - Rab Judah said in the name of Rab: Out of which both23 may be maintained for twelve months. When I recited this before Samuel,24 he said, 'This is the view of R. Gamaliel b. Rabbi, but the Sages say that [the estate must be large enough] to provide for the maintenance of both23 until they reach their majority'. [So] it was also stated [else. where]: When Rabin came,25 he said in the name of R. Johanan, (others say [that it was] Rabbah b. Bar Hanah [who] said it in the name of R. Johanan): When [the estate is large enough] to provide for the maintenance of both until they have reached their majority, It is [considered] large; if less, it is regarded as small. And if [the estate] does not suffice for both until they have reached their majority,
(1) This clearly proves that a husband is regarded as heir. For had he been regarded as a buyer of the property that was brought to him by his wife, he would have retained that status even after her death; and all her landed possessions, as all landed property bought, would have had to be returned in the Jubilee year to their original owner.
(2) V. note 2.
(3) Keth. 50a, 78b; B.K. 88b; B.M. 35a; 96b; supra 50a.
(4) V. p. 207, n. 3.
(5) Property which belongs to her, while the right of usufruct is enjoyed by the husband, v. p. 206, n. 7.
(6) Which proves that a husband has the status of a buyer. An heir could not seize property sold.
(7) Lit., 'they made him'.
(8) Lit., 'and they did as it was better for him'.
(9) That he shall not be compelled to return what he inherited from his wife to her family.
(10) So that he shall be entitled to seize the property from anyone who bought it.
(11) The husband's undertaking to provide for his wife's maintenance preceded the marriage. Hence her claim must receive priority.
(12) Lit., 'there is'.
(13) Why were not the interests of the buyers taken into consideration as much as those of the widow?
(14) In the case of R. Jose.
(15) The buyers.
(16) Lit., 'there is'.
(17) Lit., 'who dwells under a man', i.e., whose property is subject to the claims of a husband to whom it will finally pass over after her death. These buyers contrived to deprive him of his right by purchasing the property during her lifetime, hence they must stand the loss.
(18) Lit., 'possessions are many'.
(19) Until they marry or become of age.
(20) Lit., 'begging at the doors'.
(21) Lit., 'I see the words of Admon'.
(22) Lit., 'and how much (are) many'.
(23) Lit., 'these and these', the sons and the daughters.
(24) When, after the death of Rab, he joined for some time Samuel's academy.
(25) From Palestine to Babylon.
Talmud - Mas. Baba Bathra 140a
would the daughters receive all of it!1 - But, said Raba, [the amount, required for] the maintenance of the daughters until they reach their majority is drawn [from the estate] and the balance is given to the sons.
[It is] obvious [that, if the estate was] large2 and it depreciated,3 the heirs have already acquired ownership thereof.4 What [is the law, however, if the estate was] small5 and it appreciated;6 does it remain in the possession of the heirs7 and, consequently, has appreciated in their possession8 or are the heirs,7 perhaps, entirely disregarded here?9 - Come and hear: R. Assi said in the name of R. Johanan [that] if orphans anticipated [the daughters] and sold the estate where it was small,10 their sale is valid.11
R. Jeremiah sat before R. Abbahu, when he addressed to him [the following question].. Does one's widow12 , reduce [the value of] an estate?13 Do we assume [that] since she receives14 maintenance she [thereby] reduces [its value]; or perhaps, since she would receive none15 if she married [she is regarded as if] she has none even now?16 If you would find [some reason] for saying [that] since she would receive none if she married [she is regarded as if] she has none even now, [the question arises] whether his wife's daughter17 reduces [the value of] the estate?18 Do we say [that] since she would receive [her maintenance] even if she married, she does reduce [the value of the estate]; or, perhaps, since she would receive none if she died,19 she does not reduce [its value]? And if you would find [some ground] for saying that since she would receive nothing if she died, she does not reduce [its value], [the question arises] whether a creditor20 reduces the [value of the] estate.21 Do we say that he reduces [its value] since he22 would receive [his debt] even If he died,23 or perhaps, he does not reduce [it] since the debt still requires collecting?24 (Others25 [report that he] put the questions in the reverse order:26 Does a creditor reduce [the value of] the estate?
(1) Since such an estate is considered 'small', the sons, according to our Mishnah, would receive nothing. Should, then, the daughters get the surplus over and above the amount required for their maintenance
(2) At the time the father died.
(3) Lit. 'became less', i.e the estate had been damaged, or the cost of living had risen, so that the income does not suffice for the maintenance of the daughters.
(4) As soon as the death of their father took place, the estate passed over into their possession. Hence, the daughters acquired their share for maintenance and the sons the residue. Any loss, therefore is to be shared by both the sons and the daughters, in equal proportions.
(5) And was, consequently, reserved entirely for the maintenance of the daughters
(6) Lit., 'became large', i.e., the estate was bringing in a higher income, or the cost of maintenance fell.
(7) The sons.
(8) Hence the sons should receive any surplus above the amount required for the daughter's maintenance.
(9) Lit., 'removed from here.' And all the benefits of the appreciation goes to the daughters.
(10) Lit., 'in possessions that were few.' Before the court heard the claim of the daughters.
(11) And the sold property cannot be seized for the daughters maintenance. This proves that the estate remains in the possession of the sons. Hence, in case of appreciation, the surplus belongs to them.
(12) Who is entitled to receive maintenance from the estate during her widowhood.
(13) I.e., is the amount due to the widow for her maintenance deducted from the value of the estate which is thus reduced from a 'larger', to a 'smaller' estate, from which, if it just suffices for the maintenance of the daughters, the sons will receive nothing.
(14) Lit., 'she has'.
(15) Lit,.'she has not'. As soon as a widow re-marries she loses the right of receiving her maintenance from her dead husband's estate.
(16) And the estate is to be given to the sons who would provide for the maintenance of the daughters and the widow until she re-marries.
(17) A step-daughter of the deceased who, at the time of his marriage to her mother, had undertaken to maintain her for a period of years. Now that he died before that period elapsed it is the duty of his sons to provide for her maintenance out of the estate of their father.
(18) Cf. p. 595. n. 3.
(19) I.e., neither she nor her heirs.
(20) of the deceased.
(21) If it suffices only for the payment of the debt and the maintenance of the daughters.
(22) I.e., his heirs.
(23) And consequently the sons of the deceased debtor would receive nothing, (v. note ).
(24) And before collection the estate not only suffices for the maintenance the daughters but leaves also a surplus for the sons.
(25) Lit., 'and there are'.
(26) Lit., 'towards the other side'.
Talmud - Mas. Baba Bathra 140b
Does1 his wife's daughter2 reduce [its value]? Does3 his widow4 reduce [its value]?) [In the case of claims of] his widow and [her] daughter,5 who is to have the preference? - He said to him: Go away to-day and come to-morrow. When he came, he said to him: Solve at least one [problem]. For R. Abba said in the name of R. Assi [that] the relationship between6 a widow and [her] daughter, in the case of a small estate, has been put [on the same basis] as that of the relationship between7 a daughter and brothers. As [in the case of] the relationship between a daughter and brothers, the daughter is maintained [out of the estate] while the brothers have to go begging at [people's] doors, so [in the case of] the relationship of a widow and [her] daughter, the widow is maintained, and the daughter may go begging at [people's] doors.8
ADMON SAID, 'AM I TO BE THE LOSER BECAUSE I AM A MALE' etc. What does he mean?9 - Abaye replied: He means this: 'AM I TO BE THE LOSER BECAUSE I AM A MALE and am capable of engaging in the study of the Torah?' Raba said to him: Now, then, would he who is engaged in the study of the Torah be entitled to heirship, [and he who is not engaged in the study of the Torah not be entitled to be heir?10 - But, said Raba, he means this: 'AM I, BECAUSE I AM A MALE and am entitled to be heir in [the case of] a large, estate, TO BE THE LOSER [of my rights] in [the case of] a small estate?'
MISHNAH. [IF A MAN] LEFT SONS AND DAUGHTERS, AND ONE WHOSE SEX IS UNCERTAIN,11 THE MALES MAY, WHERE THE ESTATE IS LARGE,12 REFER13 HIM TO THE FEMALES.14 [IF] THE ESTATE, [HOWEVER], IS SMALL,15 THE FEMALES MAY REFER HIM TO THE MALES.16 IF A MAN SAID: SHOULD MY WIFE BEAR A MALE CHILD, HE SHALL RECEIVE A MANEH, [AND HIS WIFE] DID BEAR A MALE CHILD, HE RECEIVES A MANEH. [IF HE SAID: SHOULD MY WIFE BEAR] A FEMALE [SHE SHALL RECEIVE] TWO HUNDRED [ZUZ, AND] SHE BORE A FEMALE, SHE TAKES TWO HUNDRED [ZUZ]. [IF HE SAID]: SHOULD [SHE BARE] A MALE CHILD [HE SHALL RECEIVE] A MANEH [AND] IF A FEMALE SHE SHALL RECEIVE TWO HUNDRED [ZUZ], AND SHE GAVE BIRTH TO A MALE AND A FEMALE, THE MALE RECEIVES A MANEH [AND] THE FEMALE RECEIVES TWO HUNDRED ZUZ. [IF] SHE BORE A TUMTUM, HE17 RECEIVES NOTHING. IF, [HOWEVER], HE SAID: WHATEVER MY WIFE SHALL BEAR, SHALL RECEIVE [A CERTAIN PORTION]. HE17 RECEIVES [IT]. AND IF THERE IS NO [OTHER] HEIR BUT THIS ONE,17 HE INHERITS ALL. [THE ESTATE].
GEMARA [How can it be said that the males] REFER HIM [to the females] and he [presumably] receives [maintenance] as a daughter. Seeing that in the latter clause it states: IF SHE BORE A TUMTUM, HE RECEIVES NOTHING! - Abaye replied: THEY REFER HIM [to the females] and he receives nothing. Raba, however, said: THEY REFER HIM and he does receive [maintenance]; and the latter clause [of our Mishnah]18 represents the view19 of Rabban Simeon b. Gamaliel. For we learnt:20 [If an animal]21 gave birth to a tumtum or an androginos,22 Rabban Simeon b. Gamaliel said that the sanctity does not extend to [either of] them.23
An objection was raised: A tumtum inherits like a son and receives maintenance like a daughter. According to Raba24 this statement may well be explained [as follows]: He inherits like a son in [the case of] a small estate,25 and receives maintenance like a daughter [in the case of] a large estate;26
(1) If the answer to the first question is that a creditor does reduce the value of the estate, it may he argued that only he does it, since his debt may be collected even after his death.
(2) Whose right to maintenance she cannot transmit to her heirs since it ceases with her death.
(3) If it is answered that his wife's daughter reduces the value of the estate. It may he argued that this is so only in her case since she retains her rights to maintenance even after her marriage.
(4) Who loses her right to maintenance as soon as she re-marries
(5) both of whom claim maintenance, while the estate suffices only for one.
(6) Lit., 'at', 'at the side of'.
(7) Lit., 'at', 'at the side of'.
(8) Keth. 43a.
(9) What reason is there to assume that, as regards maintenance, a male should have any preference at all over a female?
(10) Surely no son could be deprived of a share in his father's inheritance for the sole reason that he was not able to engage in the study of the Torah!
(11) Heb., tumtum v. Glos.
(12) In which case the sons are entitled to inherit it, while the daughters receive only their maintenance until they marry or become of age.
(13) Lit., 'push'.
(14) I.e., to receive maintenance only as a daughter.
(15) And is, consequently, allotted entirely to the maintenance of the daughters.
(16) And he would thus receive nothing.
(17) The tumtum
(18) According to which the tumtum receives nothing.
(19) Lit., 'we arrive'.
(20) Ter. 24b; cf. Tosaf. Yeb. 83b. s.v., לא לכל
(21) Of which the male or female firstling was consecrated as a sacrifice before it was born.
(22) Gr. **, a hermaphrodite. having characteristics of both male and female.
(23) Thus it has been proved that in the opinion of Rabban Simeon b. Gamaliel a tumtum is regarded as a distinct species which is neither male nor female. This view is voiced by the author of the latter clause of our Mishnah, according to whom a tumtum receives neither a share like a son nor maintenance like a daughter.
(24) Who regards a tumtum not as a distinct species but as one of uncertain sex and that, accordingly, he is either male or female.
(25) I.e., nothing: since the daughters may refuse him maintenance on the ground that he has no proof that he is a female.
(26) He cannot claim the greater privilege of receiving a share like a son, because he has no proof that he is a male. He is entitled, however, to the lesser privilege of maintenance, since if he is not a male he is inevitably a female. Cf. p. 598. n. 8.
Talmud - Mas. Baba Bathra 141a
according to Abaye. however,1 what [is meant by], 'he receives maintenance like a daughter'? - Granted your argument is right [how will you explain], according to Raba, what [is the meaning of] 'he inherits like a son'?2 But, [you must explain it as meaning that] 'he is entitled to inherit but [actually] receives nothing', so here3 [it may be explained as] 'entitled to maintenance but [in fact] receives nothing'.
IF A MAN SAID: SHOULD MY WIFE BEAR A MALE CHILD etc. Does this imply that a daughter is dearer to him, than a son?4 Surely R. Johanan said in the name of R. Simeon b. Yohai: The Holy One, blessed be He, is filled with wrath against anyone who does not leave a son to be his heir, for it is said, And you shall cause his inheritance to pass unto his daughter,5 and by the expression of 'causing to pass'6 'wrath'7 is implied, for it is said, That day is a day of wrath!8 - As regards succession, a son has preference;9 as regards maintenance, a daughter is given preference.10
And Samuel said: We deal here11 with [the case of a mother] who gave birth for the first time, and [this12 is to be understand] in accordance with [a saying] of R. Hisda. For R. Hisda said: [If a] daughter [is born] first, it is a good sign for the children. Some say, because she rears her brothers; and others say. because the evil eye13 has no influence over them.14 R. Hisda said: To me, however, daughters are dearer than sons.15
If preferred it may be said that [the Tanna of our Mishnah] is in agreement16 [with the view of] R. Judah. Which [view of] R. Judah? If it is suggested, [that relating to the exposition] of 'in all';17 for it was taught.18 And the Lord blessed Abraham with all.17 R. Meir said, [the meaning is] that he had no daughter; [and] R. Judah said, [the meaning is] that he had a daughter whose name was 'Inall',19 it may be objected20 that [from this] one may only infer21 that, according to R. Judah, the All Merciful did not deprive Abraham even of daughter; this is no proof, however,22 that [a daughter] is better than a son! But [it is] this [saying of] R. Judah: It was taught:23 'It is a meritorious act to feed one's daughters; and how much more so one's sons' - since [the latter] are engaged in the study of the Torah, these are the words of R. Meir R. Judah said, 'It is a meritorious act24 to feed one's sons and how much more so one's daughters' - in order that they be not degraded.25
But how is one to understand that Baraitha which teaches,26 '[if] she gave birth to a male and a female, the male receives six [gold] denarii27 and the female receives two [gold] denarii'?28 - R. Ashi replied: I interpreted29 this reported tradition,30 before R. Kahana, [as dealing] with [the case of] one who inverted the order [of his first instruction] by making a statement like the following:31 '[If] a male [be born] first, [he shall receive] two hundred zuz32 , and the] female [born] after him [shall receive] nothing: [if a] female [be born] first, [she shall receive] a maneh, [and the] male [born] after her [shall receive] a maneh' ;and she gave birth to [both] a male and a female, and it is not known which of them was born33 first. The male does, [consequently]. receive a maneh [which is] in any case [due to him].]34 The other maneh [however] is money of doubtful ownership35 and is to be divided.36
And how is one to understand the Baraitha which teaches37 [that 'if] she gave birth to a male and a female, he only receives one maneh38 -Rabina replied: [This is possible] where [the promise of the sum of money was made by the father]. 'to him who will bring me tidings';39
(1) Who asserted that a tumtum receives nothing.
(2) Since the estate is small, 'inheriting like a son' really signifies 'receiving nothing'. How then, could the expression of inheriting8 be used?
(3) I.e according to Abaye.
(4) Since the bequest to her was two hundred zuz, while to a son it was a maneh only (i.e., one hundred zuz).
(5) Num. XXVII, 8.
(7) עברה of the same root (עבר) as ha'abara, denominative of weha'abartem.
(8) Zeph. I, 15. Wrath, עברה
(9) Lit., 'better to him', since he perpetuates the name of the tribe.
(10) It is more difficult for a woman to earn her living, and a father would naturally desire to make provision for her maintenance rather than for that of a son.
(11) In our Mishnah, where preference is given to a daughter.
(12) The preference of the father for her first daughter.
(13) V. Glos.
(14) The birth of a male child first may cause the envy of other mothers
(15) His daughters married husbands who were among the greatest of their generation. viz., Raba, Rami b. Hama: and Mar 'Ukba b. Hama (Tosaf.)
(16) Lit., 'this according to whom'?
(17) Gen. XXIV, 1.
(18) Tosef. Kid. V.
(19) בכל 'in all'; v. supra 16b.
(20) Lit., 'say'.
(21) Lit., 'you have heard him'.
(22) Lit., 'did you hear him?'
(23) Tosef. Keth. IV.
(24) Though there is no legal obligation after a certain age.
(25) In their search for a livelihood. From this it follows that, according to R. Judah, a father would provide for a daughter more than for a son. Hence it may be concluded that our Mishnah represents this view.
(26) Lit., 'but that which is taught . . . in what'.
(27) A gold denar = 25 zuz.
(28) Making a total of two hundred zuz. In an ordinary case, in view of the principle enunciated in our Mishnah, a daughter should receive the greater share [According to R. Gershom this Baraitha is not quoted as an argument, but for the purpose of obtaining information on its interpretation.]
(29) Lit., 'I said'.
(30) The Baraitha cited.
(31) Lit., 'when he said'.
(32) l.e., eight gold denarii.
(33) Lit., 'came out'.
(34) If he was born first, the maneh is certainly due to him, since in such a case, his father had really allotted him two hundred zuz. But even if he was born second he is still entitled by virtue of of the definite instructions of his father, to the one maneh
(35) Because it is not known to whom that second maneh belongs. Had it been certain that the son was born first he would have been entitled to that maneh also. Had it been certain, on the other hand , that the daughter was born first she would have been entitled to that maneh ; hence it is of doubtful ownership.
(36) Between the son and the daughter. The first maneh being due to the son in any case, is given to him in full( four gold denarii), with the addition of a half(two gold denarii) of the second maneh. Hence he receives a total of one maneh and a half (six gold denarii). The daughter, being entitled to half a maneh, receives, therefore, two gold denarii.
(37) Lit., 'but that which was taught...how do you find it'.
(38) The expression 'he only receives one maneh', implies that though it might have been assumed that he receives more than that sum, he receives only one maneh. Under what circumstances is this possible?
(39) Whether the child born was male or female.
Talmud - Mas. Baba Bathra 141b
as it was taught: '[If a person said]:"He who will bring me tidings whereby the womb of my wife was opened, shall receive, if the child be a male, a maneh", [then]. if she gave birth to a male he receives a maneh. [If. however.] he said: "[He will receive] a maneh if [he brings 'me tidings that she gave birth to] a female", [then] if she gave birth to a female, he receives a maneh, [and if ] she gave birth to a male and a female, he only receives a maneh'. But surely'. he did not speak of a 'male and a female'!1 - [This refers to the case] where he also said, 'He shall also receive a maneh if [he brings tidings that] a male and a female [were born]'. What. then. [did he mean] to exclude?2 To exclude a miscarriage.3
[Once] a certain [man] said to his wife: 'My estate shall be his with whom you are pregnant - R. Huna said, 'This is [a case of] making an assignment to an embryo through the agency of a third party. and whenever such an assignment is made, [the embryo does] not acquire possession. R. Nahman raised an objection against R. Huna's ruling: IF A MAN SAID: SHOULD MY WIFE BEAR A MALE CHILD, HE SHALL RECEIVE A MANEH, [AND HIS WIFE] DID BEAR A MALE CHILD, HE RECEIVES A MANEH!4 -He replied to him: [As to] our Mishnah. I do not know' who is its author.5 But should he not have replied to him [that] it6 [represents the view' of] R. Meir who stated [that] a man may convey possession of a thing that has not [yet] come into the world!7 -[It is possible to] say that R. Meir holds this view8 [only when possession is conveyed] to that which is [already'] in the world;9 [but] has he been heard [to hold the same view when possession is conveyed] to that which is not [yet] in the world!10 But let him reply to him that it11 [represents the view of] R. Jose who said [that] an embryo acquires [possession]! For we learnt:12 'An embryo disqualifies [his deceased father's slaves from eating the heave.offering[13 but does not confer the right of eating it [on his mother];14 these are the words of R. Jose'?15 - An inheritance which came to one under the ordinary laws of succession,16 is different .17 But let him reply to him [that] it18 [represents the view of] R. Johanan b. Beroka who said, that there was no difference between an inheritance and a gift! For we learnt:19 R. Johanan b. Beroka said: If [a person] said [it]20 concerning one who is entitled to be his heir,21 his instruction is legally valid22 -[It is possible to] say that R. Johanan b. Beroka has been heard [to hold the view only where possession is given] to that which is [already] in the world;23 [but] did he say [that the same law applies also] to that which is not in the world!24 And let him reply to him [that] it25 [represents the view of] R. Johanan b. Beroka and [that] he holds the [same] opinion as R. Jose!26 Who can say that he27 holds such an opinion!28 Let him then reply to him [that our Mishnah speaks of the case] where [the money was offered by a husband] 'to him who would bring me tidings'!29 - If so.30 [explain] the last clause wherein it is stated. AND IF THERE IS NO [OTHER] HEIR BUT THIS ONE, HE INHERITS ALL [THE ESTATE]. If [the Mishnah speaks] of a reporter31 what has he to do with heirship!32
Then let him reply to him [that our Mishnah speaks of the case] where she has [already] given birth [to the child]!33 -If so,34 the last clause is wherein it is stated. IF [HOWEVER] HE SAID: whatever MY WIFE SHALL BEAR, SHALL RECEIVE [A CERTAIN PORTION]. HE RECEIVES [IT] [instead of]. WHATEVER SHE SHALL BEAR, should have [read]. 'whatever she has born'!
(1) He only spoke of the birth of a male or a female; why then should he give the maneh when twins were born?
(2) If the maneh was promised to the reporter in the case of the birth of a male. a female or twins. i.e.. apparently in all possible cases. what need was there for the father to specify them, at all? It would have been sufficient for him, to say. that he would pay the maneh to him who would report'whereby the womb of my wife was opened'. Since the three apparently possible cases were specified the intention must have been to exclude' some other possible case.
(3) By specifying male, female and twins,he implied that the maneh would be paid only when he received a report of a living child.
(4) This shows that though the assignment was made while the child was still in embryo. possession is acquired by him.
(5) Lit., 'who taught it.' i.e.,its authorship is obscure and consequently unreliable.
(6) Our Mishnah.
(7) Why. then. did he say that he did not know who the author of our Mishnah was?
(8) Lit., 'that you heard.'
(9) I.e., though the object is not, the recipient is. in existence.
(10) The embryo, therefore, could not acquire possession even according to R. Meir. Hence, the authorship of our Mishnah remains unknown
(11) Our Mishnah.
(12) Yeb. 67a.
(13) The heave-offering. (terumah. v. Glos.). is forbidden to laymen (Israelites and Levites). but the wife and the non-Jewish slaves of a priest are allowed to eat of it. When the priest dies. his slaves, becoming the property of his sons who are themselves priests,are still allowed to eat terumah. If however the wife of the priest, who is the daughter of an Israelite, was pregnant when her husband died, the slaves are forbidden to eat of the terumah on account of the embryo who is not regarded as a priest and who is their partial owner. (The slaves of a layman are forbidden to eat terumah.
(14) If she is the daughter of an Israelite. Only a son that was born confers this right upon his mother: but not an embryo
(15) From this it clearly follows that the embryo is regarded as the owner of the slaves, which proves that according to R. Jose an embryo does acquire possession; why. then, could not our Mishnah be attributed to R. Jose's authorship?
(16) Lit., 'of itself'.
(17) From a gift.Consequently. while R. Jose may hold the view that an embryo acquires the ownership of an inheritance, it does not follow that be would grant the embryo the right of acquiring possession of a gift,which forms the subject of our Mishnah
(18) Our Mishnah.
(19) Supra 130a.
(20) That a certain individual shall inherit all his estate.
(21) Presumably even an embryo.
(22) Which proves that, according to R. Johanan b. Beroka, an embryo acquires possession even of that to which he would not have been entitled under the ordinary laws of succession.
(23) I.e., one of the sons already born.
(24) E.g., an embryo. Hence the authorship of our Mishnah remains unknown.
(25) Our Mishnah.
(26) Supra; that an embryo may acquire possession.
(27) R. Johanan b. Beroka.
(28) That of R. Jose.
(29) i.e. that the sum of money spoken if in our Mishnah was not assigned to an embryo but promised by a husband to anyone who would report to him, on the confinement of his wife as to the sex of child (cf. supra). The question of an embryo's right of acquisition would consequently be outside the scope of our Mishnah: and R. Huna would accordingly be able to maintain, against R. Nahman's assumption, that an embryo does not acquire possession.
(30) That our Mishnah deals with a promise to a stranger, and not with an assignment to an heir.
(31) Lit 'he who will report to me'.
(32) Lit., 'an heir, what is his work'. A reporter on the birth of one's child could not possibly he described as heir
(33) At the time the father had assigned to him the sum of money. An embryo, however, as R. Huna stated, would not acquire possession.
(34) That the Mishnah speaks of a child already born.
Talmud - Mas. Baba Bathra 142a
But let him reply to him [that our Mishnah speaks of the case] where he said, 'After she will have born [the child'!1 - R. Huna follows his own view. For R. Huna said: [A child] does not acquire ownership2 even [where the father had said].3 'after she4 , will have born [him]5 'For. [it was stated.] R. Nahman said: If a person conveys possession. through the agency of a third party. to an embryo.[the latter] does not acquire ownership. [If however, he said].]3 'After she will have born'.5 [the child] does acquire ownership. But R. Huna said: Even [where he said]. 'After she will have born'. [the child] does not acquire ownership. R. Shesheth however said: Whether he used the one, or the other expression.6 [the child] acquires ownership. Said R. Sheshet: Whence do I derive this? - From the following:7 If a proselyte died8 and Israelites plundered his estate; and [subsequently] they heard that he had a son or that his wife was pregnant. they must return [whatever they have appropriated].9 [If]. having returned everything they subsequently heard that his son died or that his wife miscarried,he who took possession the second [time]10 has acquired ownership;11 but [he who took possession] the first [time] has not acquired ownership. Now, if it could be assumed [that] an embryo does not acquire ownership why should they12 need to take possession a second time? They have, surely. already taken possession once!13 Abaye [however] said: An inheritance which comes [to one] under the ordinary laws of succession14 is different15 Raba said: There16 it is different,17 because at first18 they19 were really uncertain of the legality of their acquisition.20 What [practical difference is there] between them?21 There is [a difference] between them [in the case] where a report was brought22 that he23 died, while [in fact] he was not dead. and after that he died.24 Come and hear: 'A babe [who is] one day old inherits and transmits25 [From this it follows that only] one [who is] one day old [may inherit]26 but not an embryo!27 -Surely R. Shesheth had explained28 [this as meaning]: He29 inherits the estate of his mother to transmit [it]30 to his paternal brothers;31 hence, only [then when he is] one day old but not [when] an embryo.What is the reason?
(1) So that a born child, not an embryo, would acquire possession. Hence, no objection could be raised from our Mishnah against R. Huna's statement.
(2) Of a sum of money that his father had assigned to him before his birth, while still an embryo.
(3) That the child shall acquire possession.
(4) The mother.
(5) The child to whom the assignment was made.
(6) Lit., 'whether this or this'.
(7) Lit., 'for it was taught'.
(8) And, having left no children, his possessions become public property, and whosoever takes possession of them acquires ownership.
(9) Since the son or the embryo. as legal heir. acquired the ownership of the estate as soon as the proselyte died.
(10) After the death of the son or the miscarriage.
(11) Since at that time there were no legal heirs
(12) In the case where there was no born son, but an embryo.
(13) The existence of the embryo if it could not acquire possession, should not have made any difference to their right of ownership. Consequently it follows, as R. Shesheth had stated, that an embryo does acquire possession.
(14) Lit., 'of itself'.
(15) Though an embryo may acquire ownership of an estate which is due to him as the legal heir, it does not follow that it can also acquire the ownership of a gift or any other assignment.
(16) n the case of the estate of a proselyte.
(17) From other cases of acquisition.
(18) Before it was known whether there were any legal heirs.
(19) Who seized the estate.
(20) Lit., 'it was really loose in their hands at first'. While seizing the property, they were well aware that they might loose it at any moment should a legal heir appear. Hence, ownership cannot be acquired unless possession was taken after it had been ascertained that there were no legal heirs.
(21) In either case, whether the reason is that given by Abaye or that of Raba,the first acquisition is invalid.
(22) Lit., 'they heard'.
(23) The legal heir.
(24) In such a case, the plunderers, since they thought that the heir was dead, have from the very beginning taken definite and certain possession of the estate which, according to Raba, would consequently become their legal property. even if they did not take possession of it a second time. According to Abaye. however. their first acquisition is of no avail since the embryo was at that time the legal owner of the estate.
(25) Nid. 44a. 'Ar. 7a.
(26) Lit.. 'yes'.
(27) Had an embryo been able to inherit, there would be no need to specify the limitation,'one day old'. Now, if an embryo cannot acquire possession of a legal inheritance how much less could it acquire possession of a gift! How, then, could R. Shesheth maintain that an embryo can acquire possession of a gift?
(28) v.. Nid. loc. cit.
(29) An infant who Is one day old.
(30) When he dies.
(31) Born from the same father and not the same mother.
Talmud - Mas. Baba Bathra 142b
- Because [the embryo] dies first1 and no son in the grave2 may inherit from his mother to transmit [the inheritance] to his paternal brothers 'Do you mean to say that it3 dies first, surely there was a case when it made three convulsive movements?4 - Mar. son of R. Ashi, replied: Those were only [reflex movements] like those of the tail of the lizard which moves convulsively [even after it has been cut of].5
Mar the son of R. Joseph said in the name of Raba: This6 teaches7 that he8 causes a diminution in the portion of the birthright.9 [This] however [applies] only [to a child who is] one day old, but not to an embryo.10 What is the reason?-The All Merciful said, And they have born to him.11 For [so] said Mar, the Son of R. Joseph. in the name of Raba: 'A son who was born after the death of his father does not cause a diminution In the portion of the birthright. What is the reason? The All Merciful said, And they shall have born to him11 , which is not [the case here].12 Thus13 it was taught at Sura. At Pumbeditha. [however]. it was taught as follows:14 Mar. the son of R. Joseph, said in the name of Raba: A firstborn son who was born after the death of his father15 does not receive a double portion. What is the reason? The All Merciful said, He shall acknowledge,16 and, surely. he is not [alive] to acknowledge [him]. And the law is in accordance with all those versions which Mar the son of R. Joseph quoted in the name of Raba. R. Isaac said in the name of R. Johanan: If possession was given to an embryo [through the agency of a third party]. it does not acquire ownership. And if objection should be raised from17 our Mishnah,18 [it may be replied that there it is different] because a person is favourably disposed towards his son.19
Samuel said to R. Hana of Bagdad: 'Go. bring me a group of ten [people] and I will tell you in their presence20 [that] if possession Is given to an embryo [through the agency of a third party]. it does acquire ownership'. But the law is that if possession is given to an embryo [through the agency of a third party]. it does not acquire ownership. Once a certain man said to his wife, 'My estate [shall belong] to the children that I shall have from you'. His eldest son21 came [and] said to him, 'What shall become of me?'22 He replied to him, 'Go acquire possession as one of the [other] sons' .23 Those24 [can] certainly acquire no ownership.25 since they are not yet in existence; has [however]. this lad26 an [additional] share beside27 the [other] sons,28 or has the lad no [additional] share beside27 the [other] sons? - R. Abin and R. Measha and R. Jeremiah say: The lad receives an [additional] share beside the [other] sons. R. Abbahu and R. Hanina b. Papi and R, Isaac Nappaha say: The lad receives no [additional] share beside the [other] sons.
R. Abbahu said to R. Jeremiah. 'Is the law in accordance with our view29 or in accordance with yours?' He replied to him, 'It is obvious that the law' is in accordance with our view because we are older than you. and [that] the law' [can] not be according to your view because you are [only] juniors.' The other retorted, 'Does the matter then depend on age? [Surely] the matter depends on reason!' 'And what is the reason?' [R. Jeremiah asked.] 'Go to R. Abin,' [replied R. Abbahu.] 'to whom I have explained the matter
(1) Before the mother.
(2) I.e. after his death.
(3) An embryo.
(4) After the mother was dead.
(5) Such movements are no signs of life.
(6) The Mishnah of Niddah cited, wherein a child one day old is mentioned,implying the exclusion of an embryo.
(7) Lit.. 'to say'.
(8) A child who is one day old.
(9) I.e.,if there are, e.g.. two brothers exclusive of the child, the estate is divided not into three portions (two for the two ordinary portions of the two brothers and one for the birthright, but into four portions. Each brother, including the child, receives one such portion and the firstborn receives the additional fourth portion as his birthright. The firstborn thus receives, as the portion of his birthright, a quarter of the estate, and not,
(as would have been the case if the child were excluded). a third.
(10) An embryo. though receiving a portion of the estate, does not reduce the portion of the birthright. In the case mentioned, e.g., in the previous note. the estate would first be divided into three portions (as if the embryo did not exist) and the firstborn would receive as his birthright, one of these, i.e., a third of the estate. The remaining two thirds would then he divided into three equal shares, each of the three brothers receiving one, i.e., two ninths of the estate. The full portion of the firstborn would accordingly amount to 1/3+2/9=3/5) five ninths of the estate, while where the child was one day old, the firstborn's full portion would amount to half the estate only. i.e.,(5/9-1/2=1/18),one eighteenth less.
(11) Deut.,XXI,15 This implies that, as regards the birthright, the children must have been actually born. An embryo cannot come under this category and is, therefore, regarded as non-existent in this respect.
(12) The son having been born after his father's death. Thus, according to Mar the son of R. Joseph, it is possible to concede that an embryo may die after its mother and that consequently. as R. Shesheth maintained, it inherits her estate which it then transmits to its paternal brothers.
(13) The version just given.
(14) Lit., 'thus'.
(15) I,e,, where his widow bore twins or where he left two widows and both bore sons one of whom was the firstborn,
(16) Deut. XXI, 17.
(17) Lit., 'and if you will say'.
(18) From which it might be inferred, as R. Nahman suggested supra that an embryo does acquire ownership.
(19) Hence he wholeheartedly transfers ownership to the embryo. In the case of a stranger however, this principle is inapplicable.
(20) To give the matter due publicity.
(21) From his first wife.
(22) Lit.,of that man ,i.e., himself.
(23) That were to be born from the second wife
(24) The future children who at the time of the assignment were not even in embryo.
(25) Of the estate,merely by virtue of the father's assignment.
(26) The eldest son.
(27) Lit., 'in place'.
(28) When, in due course they inherit the estate by the right of succession would he, in addition to what is due to him as one of the sons, receive also a share by virtue of the special assignment made to him by his father?
(29) Lit., ' 'us'.
Talmud - Mas. Baba Bathra 143a
at the College,and he expressed his approval'.1 He went to him [when the other] explained2 Would anyone acquire possession if he were told, 'Acquire ownership as an ass'?3 For it was stated: [If one was told]. 'Acquire possession like an ass'. he does not acquire ownership. [If. however. one was told]. 'You and an ass [shall acquire possession].' R. Nahman said: He acquires the ownership of a half.4 And R. Hamnuna said: The statement is invalid '5 And R. Shesheth said: He acquires the ownership of all.
R. Shesheth said: Whence do I derive this?6 -For it was taught: R. Jose said: In cucumbers, the inner portion only' is bitter.7 Consequently. when a person is giving [a cucumber] as a heave-offering8 he [must]add9 to the external part of it,10 and [thus] gives the heave-offering. [But] why? [This is surely the same as the case of] 'You and the ass'!11 - There it is different; for Biblically it12 is perfect terumah,' for R. Elai said, 'Whence [is it inferred] that if one separates a heave-offering from an inferior quality for the [redemption of] a superior quality that his offering is valid? For it is said. And ye shall bear no sin by reason of it, seeing that ye have set apart from it the best thereof.13 [From this it is to be inferred that if you do not set apart from the best,but of the worst, you shall bear sin]; if, [however, the inferior quality] does not become consecrated, why should there be any bearing of sin!14 Hence [it follows] that if one separates a heave-offering from an inferior quality for [the redemption of] a superior quality, his offering is valid.'15 R. Mordecai said to R. Ashi: R. Iwya raised an objection [from the following Mishnah]: It once happened with five women, among whom there were two sisters. that a person gathered a basket of figs which were16 theirs and[which] were' [also of the fruit] of the Sabbatical year17 and said, 'Behold you are all betrothed18 unto me by this basket' ,19 and one of them accepted on behalf of all. The Sages said: The sisters are not betrothed.20 [From this it follows that] only the sisters were not consecrated. but the strangers were consecrated;21 but why? This [is surely the same case as] 'You and the ass'!22 - He said unto him: This is indeed [the reason] why I saw R. Huna b. Iwya in [my] dream: Because R. Iwya raised the objection. Have we not [however]. explained [the Mishnah23 as referring only to the case] where he said, 'She who is [legally] suitable among you for cohabitation shall be betrothed unto me'?24
A certain [person] said to his wife, 'My estate shall belong to you and to your children' - R. Joseph said: She acquires the ownership of half [of it]. R. Joseph. furthermore, said: Whence do I derive this?- For it was taught:25 Rabbi said: And it shall be for Aaron and his sons,26 half for Aaron [and] half for his sons.27 Abaye said to him: This28 is quite correct there;29 [since] Aaron was [in any case] entitled to receive a share, the All Merciful [must have] mentioned him explicitly in order [to indicate] that he is to receive a [full] half, [in the case of] a woman, [however], [who] is not entitled to be heir [at all]. it should be sufficient for her to receive like one of the children,30 [But] this is not [so] - For surely there was [such] a case at Nehardea where Samuel allowed her to receive a half; at Tiberias, and R. Johanan allowed her to receive a half. Furthermore, when R. Isaac b. Joseph came, he related [that] the Government31 once imposed crown money32 upon Bule33 and Startege33 [and] Rabbi said: Bule shall give a half and Startege a half!34 - What a comparison!35 There, when an order was issued36 on previous occasions it was directed to37 Bule, [yet] Startege contributed together with them, and the Government38 knew that they were assisting. Why. then, did they now direct the order to both Bule and Startege? [Obviously] to indicate that these [as well as ] those [shall each contribute] a half.
R. Zera raised an objection: If a person said; I undertake to bring a meal.offering [of] a hundred 'isaron39 in two vessels, he [must] bring sixty40 in one vessel, and forty in the other vessel,
(1) Lit., 'and he bowed his head concerning it,' i e.,'nodded assent'.
(2) Lit., said to him.'
(3) Surely not! the man would in such a case acquire as little possession as the ass: so in this case, just as the unborn brothers cannot acquire ownership of their shares, neither can the lad acquire the ownership of his share.
(4) The owner having implied by his statement that he wished the man and the ass to acquire equal shares.
(5) Lit., 'he said nothing'. Since the animal and the man were given simultaneous possession. the owner has thereby intimated his desire that one shall not acquire ownership without the other; and since the animal cannot acquire ownership. the man also cannot.
(6) That though the ass and the man were given possession simultaneously. the man acquires ownership of the whole.
(7) Lit., 'you have not bitter in a cucumber but the inner (portion) which is in it'.
(8) For another forty-nine cucumbers. The heave-offering (terumah, v. Glos.) must contain a fiftieth of the produce.
(9) The outer and sweet portion of another cucumber.
(10) Bitter produce cannot he consecrated as Terumah. Consequently without such an addition, the cucumber which he set aside as heave-offering might represent less than a fiftieth of the produce. should it happen to have a rather large bitter core.
(11) As here, though the sweet and the bitter portion of the cucumber are simultaneously included in the terumah, and though the latter is unfit for it,the former is, nevertheless, regarded as proper terumah, so in the case of possession given simultaneously to a man and an ass, though the latter cannot acquire possession. the former should well acquire it.
(12) The bitter portion of the cucumber.
(13) Num. XVIII, 32.
(14) Surely no wrong has been done, since his action is null and void, and he has to give another heave-offering.
(15) Supra 84b, B.M. 56a. Since, as has been proved, an inferior quality may be used as a heave-offering for the redemption of a superior quality,a bitter cucumber might well be used as a heave-offering. Hence this case cannot be compared to that of possession that was given to a man and an ass where the ass cannot possibly be regarded as qualified to acquire ownership.
(16) Lit 'was'. treating the figs as one unit, 'basket of figs'.
(17) Which are free to all.
(18) Lit,, 'consecrated', 'Consecration' in this formula implies 'marriage bonds',
(19) Betrothal is effected by the man's handing over to the woman a coin or an object of value,
(20) I.e., the betrothal is null and void.
(21) Kid. 50b.
(22) As here the betrothal of the strangers is valid though that of the sisters is not, so in the case of possession given to a man and an ass, the man should acquire ownership though the ass does not. The two cases are parallel, since in the one case the betrothal was simultaneous and in the other possession was given simultaneously. How, then, in view of the decision of the Sages in the case of the women. could it he held that in the case of the man and the ass the man does not acquire ownership?
(23) Declaring valid the betrothal in the case of the strangers.
(24) Since the sisters were accordingly excluded, the betrothal of the others could rightly he regarded as valid. In the case of the man and the ass both were included; as that of the ass must be invalid so may be that of the man.
(25) A.Z. 10b, San, 21a,Yomah 17b.
(26) Lev, XXIV, 9
(27) As the mention of Aaron at the side of his sons implies that his share shall be equal to the total of their shares, so the mention by the husband of his wife at the side of his sons implies that her share shall be equal to the total of theirs, i.e., half the estate for her and the other half for the sons,
(28) That an individual mentioned at the side of many receives a half of the whole.
(29) In the case of Aaron and his sons'
(30) Had not her husband specifically named her she would have received nothing, the mention of her can entitle her to one share only like any one of the other heirs.
(31) Lit.. 'the royal house'.
(32) Aurum coronarium;v. supra 34,n.I,
(33) 'Place names' (Goldschmidt). 'Men and governors' (Rashi.). 'Townsmen and villagers' (R. Gershom). 'City council', 'senate', (Gr.**). and 'city magistrate' (Gr.**') (Jast.). [The Bule and Startege were the two sections of the wealthy citizens who were held responsible to the Roman government for the full amount of different public burdens. Buchler, A. , The 'Political and Social Leaders of Sepphoris etc., 39ff.; see also Krauss, Synagogale Altertumer, p. 183.]
(34) Though one of these may have been wealthier or more numerous than the other. This proves that the mention of two names implies that the bearers of these names, whether consisting of many or few, give. or receive, collectively, equal shares. Hence, in the case of the estate given to one's wife and sons, the former should receive a share equal to the total received by the sons, i. e. a half!
(35) Lit., 'thus, now".
(36) Lit., 'they were writing'.
(37) Lit., 'they were writing on'.
(38) Lit., 'king'.
(39) A tenth part of an ephah.
(40) The largest quantity allowed.
Talmud - Mas. Baba Bathra 143b
and if he brought fifty in one vessel and fifty in the other, he has [also] fulfilled his duty. [From this it follows that only] if he had [already] brought, has he fulfilled his duty;1 but that this is not the proper thing to do.2 Now, if it could be assumed that in any such case 'half and half' [is meant]. this3 [should have been allowed] even at the outset! - What a comparison! There, we are in a position to testify4 that this person first intended [to bring as] big [an] offering [as possible],and that [the reason] why' he said, 'In two vessels' [was] because he knew that it was impossible to bring [all] in one vessel.5 [Hence] we order him to bring as much as it is possible.
And the law is in accordance with [the view] of R. Joseph6 in the case of 'Field',7 'Subject'8 and 'Half'.9 A certain [man] once sent home pieces of silk. R. Ammi said: Those which are suitable for the sons [belong] to the sons; [those] suitable for the daughters. [belong] to the daughters. [This,] however, has only been said [in the case] where he has no daughter-in-law, but if he has a daughter-in-law. [it is assumed that] he sent it for his daughter.in.law. If,however, his daughters were not married, [the gift belongs to them because] one would not neglect one's daughters10 and send to his daughter-in-law.
Once a certain [person] said. 'My estate [shall be given] to my sons' - He had a son and a daughter. [Do] people call a son. 'sons';11 or perhaps,they do not call a son. 'sons', and his intention was12 to include13 his daughter in the gift?-Abaye said, Come and hear: And the sons of Dan: Hushim,14 Raba said to him: Perhaps [this is to be explained]. in accordance with the Tanna of the School of Hezekiah, that they were as numerous as the leaves15 of a reed! But, said Raba. And the sons of Paliu: Eliab.16 R. Joseph said, And the sons of Ethan: Azariah.17
A certain [person] once said, 'My estate [shall be given] to my sons'. He had a son and a grandson. [Do] people call a grandson. son';18 or not? - R. Habiba said: People call a grandson 'son'.18 Mar son of R. Ashi said: People do not call a grandson. 'son'19 [A Baraitha] was taught in agreement with the view of Mar son of R. Ashi: He who is forbidden by a vow [to have any benefit] from [his] sons is allowed [to derive benefits] from [his grandsons].20
MISHNAH. HAD ONE LEFT SONS [WHO WERE] OF AGE AND MINORS, [AND] THOSE [WHO WERE] OF AGE IMPROVED THE ESTATE,21 THEY IMPROVED [IT] FOR THE COMMON GOOD.22 IF, [HOWEVER]. THEY23 SAID,24 SEE WHAT [OUR] FATHER HAS LEFT; WE DESIRE TO CULTIVATE [OUR OWN SHARES] AND TO ENJOY THE PROFITS.25 THE PROCEEDS26 BELONG TO THEM.27 LIKEWISE. [IN THE CASE WHERE] THE WIFE28 HAD EFFECTED IMPROVEMENTS IN THE ESTATE,29 SHE IMPROVED [IT] FOR THE COMMON GOOD.30 IF, [HOWEVER].SHE SAID, 'SEE WHAT MY HUSBAND HAS LEFT ME; I DESIRE TO CULTIVATE [MY SHARE] AND TO ENJOY31 THE BENEFITS', THE PROCEEDS BELONG TO HER.32
GEMARA. R. Habiba son of R. Joseph son of Raba said in the name of Raba: [The law of our Mishnah]33 is 'applicable34 only [to the case] where the improvement of the estate was effected out [of the funds] of the estate, but if it was improved at the expense of the elder brothers,35 the profits belong to themselves.36 [But] this is not [so]! For, surely. R. Hanina said,' Even if their father had left them37 nothing but
(1) Lit 'yes '.
(2) Lit.,'for the outset, not',
(3) The division of the meal-offering into two equal parts of fifty 'isaron each.
(4) Lit., 'witnesses'.
(5) The largest quantity that may be brought in one vessel as a meal.offering is sixty 'isaron., V. Men. 103b.
(6) Though throughout the Talmud the law is in agreement with the view of Rabbah whenever he disagrees with R. Joseph.
(7) When one of the heirs has a field near the field that is to be divided (supra 12b).
(8) V. supra 114a, 'so long as they are dealing with the same subject'.
(9) The case of a testator who expressed the wish that his estate be divided between his wife and his sons, supra 143a.
(10) Whom it is his duty to maintain.
(11) Hence all his estate was meant to be given to his son.
(12) Lit., 'he came'.
(13) Lit., 'to draw in'.
(14) Gen.XLVI. 23. The plural sons, is used. although the name of one son only is given.
(15) Or 'knots'. Hushim, חושים may also he rendered 'leaves' or 'knots'.
(16) Num. XXVI, 8. Cf. n. 5, supra.
(17) I Chron. II, 8.
(18) Hence the estate would he divided between the son and the grandson.
(19) And the whole estate would consequently be given to the son who, as mentioned above, might be called 'sons'.
(20) Which proves that grandsons are not regarded as sons.
(21) Before it was divided between the heirs.
(22) Lit., 'for the middle'. I.e, the profits are equally divided between all the heirs, adults and minors.
(23) The adults.
(24) To the minors, in the presence of a court or witnesses, or in public.
(25) Lit., 'eat'.
(26) If despite their wish the estate was not divided
(27) Lit., 'they have improved for themselves'.
(28) I.e., the widow.
(29) That was left by her husband.
(30) All the heirs receive equal shares in the profits.
(31) V.. supra note 5.
(32) Cf supra note 7.
(33) That the profits are to be equally divided between all the heirs.
(34) Lit., 'they taught'.
(35) Lit., 'through themselves'.
(36) V. supra note 7
(37) His children, adults and minors.
Talmud - Mas. Baba Bathra 144a
a covered cistern1 the proceeds2 are to be equally divided'; but [the proceeds of] a covered cistern [are surely] due to [the elder brothers] themselves!3 - A covered cistern is different, since It [only] requires watching4 and even minors can keep a watch over it. THEY SAID, 'SEE WHAT [OUR] FATHER HAS LEFT; WE DESIRE TO CULTIVATE [OUR OWN SHARES] AND TO ENJOY THE PROFITS'. THE PROCEEDS BELONG TO THEM. R. Safra's father left [some] money. He took it [and] carried on with it a business. [Then] came his brothers and sued him before Raba.5 He said to them. 'R. Safra is a great man; he [is] not [expected to] leave his studies in order to toil for others'.6 [WHERE] THE WIFE HAD EFFECTED IMPROVEMENTS IN THE ESTATE. SHE IMPROVED IT FOR THE COMMON GOOD- What has a wife to do with the property of orphans?7 -R. Jeremiah replied: [The Mishnah speaks] of a wife [who is] an heiress.8 [Is this not] obvious?9 , - It might have been assumed [that] since it is not usual for her to look after an orphan's estate10 [she is entitled to all the profits ],even where she did not [first] make a specific declaration.11 . as if she had [actually] made [it], hence it [was necessary to] teach us [that this is not so].
IF [HOWEVER] SHE SAID,' SEE WHAT MY HUSBAND HAS LEFT ME; I DESIRE TO CULTIVATE [MY SHARE] AND TO ENJOY THE BENEFITS.' THE PROCEEDS BELONG TO HER. [Is not this] obvious? It might have been assumed [that] since it is creditable to her when people say that she works for the orphans. she might [consequently] forego her claims,12 hence it [was necessary to] teach us [that this is not so]. R. Hanina said: If a person marries his adult son in a house [of his], he13 acquires its ownership. But this only [in the case of] one [who is] of age, and only [where he married] a virgin, and only [when she is] his first wife, and only- where he is the first [son] whom he married.14 It is obvious [that] where his father had set aside for him15 a house and [there is] an upper story [thereon], [the latter] acquired the ownership of the house [but] not [of] the upper story. What [is, however, the law in the case of] a house and an exedra?16 [Or in the case of] two houses one within the other?-This is undecided. An objection was raised: [If] his father had set aside for him a house and [it contains] furniture, he acquires possession of the furniture [but] not of the house! - R. Jeremiah replied: [This refers to a case] where, for instance, his father's store[s] were kept there.17 The Nehardeans say': Even [if only) a dove-cote.18 R. Judah and R. Papi say: Even [if only] a pot of fish-hash.19
Mar Zutra married his son and hung up20 for himself21 a sandal.22 R. Ashi married his son and hung up20 for himself21 a jug of oil.23
Mar Zutra said: The following three things have [been] enacted [by] the Rabbis as fixed law without [adducing any] reason. One [is] this.24 The other [is that] which Rab Judah said in the name of Samuel, [namely that]. a [dying] man [who] gave all his property to his wife, in writing. [thereby] only appointed her adminstratrix.25 [.And the] third26 [is that] which Rab had stated: [If one said] 'You owe me a maneh; give it to X' ,in the presence of the three parties,27 [X] acquires possession.28 MISHNAH
(1) Heb. אודײני, 'a cistern and its cover' (Rashb. and R. Gersh.): a sprinkling business' (Jast.): 'a watchman's post'
(R. Tam in Tosaf.. [For a full discussion of the term, v. Krauss, T,A. l, 273f. and III, 361]
(2) Out of the sale of its water.
(3) Since no expenses for its upkeep and protection are drawn out of the funds of the estate. And yet it is stated that the proceeds are to be equally divided. How then, could Raba say that if the improvement was at the expense of the elder brothers all the profits belong to them only?
(4) Lit., 'was made for watching', i.e., no expenses are involved. and all the elder brothers have to do is to watch that no water is stolen from it.
(5) Demanding a share in the profits.
(6) When an elder brother is an important person, he is entitled to all the profits which are due to his efforts. even though he did not first make the proper declaration that he desired the estate to be divided and that he intended keeping to himself any profits he would make.
(7) She either receives the amount of her kethubah(v. Glos.) after which she has no more claim upon the estate: or she looks after the property of the orphans in return for her maintenance. How, then, could she claim any profits resulting from improvements in the estate.
(8) In the case, e.g.. where the deceased gave instructions that the widow shall be co-heir with his sons (Rashb.).
(9) Why was it necessary for our Mishnah to restate it in the case of a widow, seeing that the law had already been stated in regard to brothers.
(10) Lit., 'to take the trouble'.
(11) Lit., 'specified'; that she desired the estate to be divided and that she intended to make the improvements in her interests alone.
(12) Even though she first declared that she would work in her interests alone.
(13) The son.
(14) In such cases the father's joy is so great that he willingly and wholeheartedly gives away the house to his son.
(15) His son: on the occasion of his marriage.
(17) Since he requires it for his own purposes he would not transfer its ownership to his son.
(18) Of the father is kept in the house, the son does not acquire ownership of the house.
(19) Cf. n 6.
(20) In the house where the marriage took place.
(21) To indicate to his son that the house was not to become his property.
(22) The sandal, like any of the other objects mentioned above is regarded for this purpose as a store.
(23) Cf. n. 10
(24) The ruling just mentioned, that a son acquires the ownership of a house of his father in which his marriage took place, even if the father did not explicitly present it to him.
(25) V. .supra 131b.
(26) Lit.. 'other'.
(27) I..e., the debtor, the creditor, and X, the assignee.
(28) Though there were no proper witnesses and no legal form of acquisition, the transfer of the claim is valid. This rabbinic law, which is declared to be arbitrary and based on tradition alone, recognises the transfer of claims to a third party, though this is not provided for by Biblical Law.
Talmud - Mas. Baba Bathra 144b
IF ONE OF THE BROTHERS WHO ARE PARTNERS [IN THE INHERITED ESTATE]1 WAS APPOINTED2 TO A GOVERNMENT POST3 THE INCOME FROM THE APPOINTMENT IS TO BE EQUALLY DIVIDED BETWEEN ALL THE BROTHERS.4 [IF ONE OF THEM] CONTRACTED A DISEASE AND HAD HIMSELF CURED, THE [EXPENSES OF THE] CURE [MUST BE DEFRAYED] OUT OF HIS OWN.
GEMARA. A Tanna taught: The appointment5 [in our Mishnah means] a government appointment.6
Our Rabbis taught: [In the case where] one of the brothers was appointed [tax] collector or overseer,7 if [the appointment was] due to the brothers8 [the income9 belongs] to the brothers; if [the appointment was] due to himself10 [the income belongs] to himself. 'If [the appointment was] due to the brothers', [it was said). [the income belongs] to the brothers'; [is not this] obvious! - This is required only [in the case] where he is exceptionally' smart [since] it might have been said [that] his smartness had caused him [to receive the appointment].it was necessary to teach us [that this is not so]. Our Rabbis taught: [If] one of the brothers took [from an inherited estate]11 two hundred zuz to study Torah or to learn a trade. the brothers can tell him:12 'If you are with us you [can] have [your] maintenance; if you are not with us. you [can] have no maintenance'. But let them give [it] to him wherever he is? - This [is proof] in support of R. Huna. For R. Huna said, 'The blessing of a house [is proportionate] to its size'13 Then let them give him according to the blessing of the house!14 -That is so15 . [IF ONE OF THEM] CONTRACTED A DISEASE AND HAD HIMSELF CURED, THE [EXPENSES OF THE] CURE [MUST BE DEFRAYED] OUT OF HIS OWN. Rabin sent in the name of R. El'a: This applies only16 [to the case] where he contracted the disease through [his own] negligence. but [if] by accident the [cost of the] cure is [defrayed] from the common funds. What is meant by negligence?-As R. Hanina [taught]. For R. Hanina said:17 Every' thing is in the power of heaven except [illness through] cold [or] heat; for it is said, Cold [and] heat18 are in the way of the froward. he that keepeth his soul holdeth himself far from them.19
MISHNAH. IF SOME OF THE BROTHERS HAVE BESTOWED GIFTS AS GROOMSMEN20 IN THE LIFETIME OF [THEIR] FATHER21 [WHEN] THE WEDDING GIFTS ARE RECIPROCATED22 THEY REVERT TO THE COMMON FUNDS OF THE ESTATE; FOR [THE RECIPROCATION OF] WEDDING GIFTS MAY BE CLAIMED THROUGH A COURT OF LAW23 . IF, HOWEVER, ONE HAS SENT TO HIS FRIEND JARS OF WINE OR JARS OF OIL24 ,HE CANNOT CLAIM THEM25 THROUGH A COURT OF LAW, BECAUSE [THE PRESENTATIONS OF] SUCH [GIFTS] ARE [MERE ACTS OF] LOVINGKINDNESS.26
GEMARA A contradiction was raised: [If] his father had sent [through] him27 a wedding gift. the reciprocated gift returns to him.27 [If] a wedding gift was sent28 to his father, the reciprocated gift29 is to be returned30 from the common funds!31 - R. Assi replied in the name of R - Johanan: Our Mishnah also speaks32 [of the case where the gift] was sent to his father. But, surely it was stated, IF SOME OF THE BROTHERS ACTED AS GROOMSMEN!-Read, 'TO SOME'.33 But. Surely. it was taught. [WHEN] THE WEDDING GIFTS ARE RECIPROCATED! - It means this: [When] it has to be reciprocated, it is returned from the common funds. R. Assi said: There is no difficulty:34 Here35 [it is a case] where [the father] did not specify36 ; here37 [it refers to the case] where he did specify; as It was taught: If his father sent wedding gifts [through] him,38 the reciprocated gift belongs to him.39 If his father. [however.] sent wedding gifts without specifying [which son was to take them],the reciprocated gift reverts to the common estate.40 And Samuel explained: Here41 it is a case of a levir42 who is not [entitled] to receive the prospective possessions43 of his dead brother' as those which he already possessed44 . Does this then imply that the other45 must repay;46 [why could] he [not] say. 'Give me my. shoshbin and I will rejoice with him'?47 Has it not been taught. 'Where it is the custom to return48 the [token of] betrothal49 it [must] be returned, [and] where the custom is not to return. it [need] not [be] returned'; and R. Joseph b. Abba said in the name of Mar 'Ukba in the name of .Samuel,'This applies only to the case50 where she died but [where] he died it [need] not [be] returned. What is the reason? Because she can say:
(1) I.e., before the estate has been divided between them.
(2) Lit., 'fell'.
(3) אומנות Lit., 'handicraft', 'trade' . 'workmanship' : a form of compulsory service exacted by the Roman government from different households in turn. Barth, J., Etym.Studies 60,connects the word with Assyrian umanate, 'troop'. 'army'.
(4) Lit., 'he fell for the middle or common funds .Since his appointment is due to his membership of the family all its members are entitled to its benefits, (v. however n. 7 and 9 infra).
(5) V. note 3.
(6) In the case. however, of a private appointment,the earnings belong to himself.
(7) פולמוסטום. Polemostus Thus Rashb. and R. Gersh. 'soldier' (R. Han.). 'Manager' or 'commissioner (Jast.) reading epimletes. אפימליחים Gr.**[The word is also explained as Politeuomenos=Decurio, and we have here a reference to the heavy expenses which were attached to the office of Boule under the Roman government,the question under consideration being in the case when a brother is called upon to represent his brothers, living with him on the common estate of their father, on the Boule, whether the expenses involved are to he borne by all or by the brother thus nominated alone. V. Buchler, op.cit., 40.]
(8) I.e., if such government appointments are made from every family in turn.
(9) Or expenses involved
(10) To his own merits or attainments.
(11) Before it had been divided.
(12) If he expects maintenance from them while he is away from home in pursuit of his studies or trade.
(13) Keth. 101a. The more the members of a household the cheaper the cost of living. The absent brother has consequently saved little by his departure while the amount he requires for his maintenance is incomparably higher than what would have been the case had he remained with the family.
(14) l.e.,if the full cost of his maintenance has not been saved by his departure. let that portion of it which is being saved be given to him.
(15) He does get that portion.
(16) Lit., 'they did not teach but'.
(17) B.M. 107b; A.Z. 3b: Keth. 30a.
(18) Heb., Pahim. פחים (Cf. פחם, coal). Others render zinim pahim. צנים פחים, 'blowing cold winds'. (Cf. צנן and פוה
(19) Prov. XXII,5 E.V., Thorns and snares are in the way etc.
(20) Groomsmen (shoshbinin). in addition to acting as best men or companions of the groom, also brought him presents (shoshbinuth). Their services and gifts were reciprocated on the occasion of their marriages. [On shoshebin, V. Krauss, TA. II, 458. He connects it with שבשא 'twig' and 'branch', alluding to the myrtles which formed a feature of marriage ceremonies. and which were entrusted to the shoshebin. Cf. Gr. **.]
(21) Who defrayed the cost of the presents.
(22) On the occasion of the marriage of one of the sons after their father's death.
(23) The gifts are consequently regarded as a loan and as part of the common estate.
(24) As an ordinary gift: not as that of a shoshbin.
(25) Lit.. 'they cannot he collected'.
(26) The recipient does not incur any liability'.
(27) His son who was a shoshebin.
(28) By a shoshbin.
(29) That is sent after the father's death on the occasion of that groomsman's marriage.
(30) A reciprocated wedding gift being regarded as a loan. (V supra note 3), it is the duty of the orphans to repay it as any other of the debts of their father.
(31) From the first part of this Baraitha it follows that a reciprocated wedding gift belongs to the son through whom the father had sent the original gift; how, then, could it be stated in our Mishnah that a reciprocated gift reverts not to the son but to the common estate?
(32) Lit., 'when we learnt'.
(33) I.e., when a gift sent in return for the one made by their father reached them.
(34) Even if the meaning of the Mishnah is taken as it is read.
(35) In our Mishnah.
(36) Which son was to act as shoshbin (R. Gersh.) Hence. the reciprocated gift reverts to the common estate.
(37) In the cited Baraitha.
(38) One of his sons.
(39) The son who acted as shoshbin.
(40) Though one of the sons had acted as the shoshbin and carried the presents.
(41) Our Mishnah according to which the reciprocated gift reverts to the common estate.
(42) The husband's brother, who, in accordance with Deut. XXV, 5, married the widow of his brother who died childless and who, had he been alive, would have been entitled as shoshbin to the reciprocated gift.
(43) The reciprocated gift is the prospective property of the dead brother, which the brother who married his widow cannot inherit, though he inherits all property that was in his brother's possession prior to his death.
(44) Hence the gift reverts to the common estate.
(45) The original recipient of the gifts from the dead brother.
(46) To the heirs of him who presented him with the gifts.
(47) He should only be expected to reciprocate, i.e., to act as best man for his friend as the latter had acted for him, but not to send presents to heirs who have no claims on him.
(48) In the case where the bride died before the marriage took place (as explained infra).
(49) The token of betrothal, consisting of money or any object of value, which the man gives to the woman at betrothal, whereby the union was legalised.
(50) Lit., 'they did not teach but'.
Talmud - Mas. Baba Bathra 145a
'Give me my husband I will rejoice with him';1 here also he2 could say. 'Give me my shoshbin and I will rejoice with him'!3 R. Joseph replied: We deal here with a case where4 he5 rejoiced with him6 the seven days of the [wedding] feast7 but had no opportunity of repaying him6 before he died.8 May it be suggested [that the question whether a betrothed woman may advance the plea] . 'Give me my husband and I will rejoice with him' [is a matter of dispute between] Tannaim? For it was taught: '[In the case where] a person betrothes a woman,9 [if] a virgin she is entitled to two hundred [zuz] and [to] a maneh10 [if] a widow, Where it is the custom to return the [token of] betrothal11 it [must] be returned; where it is the custom not to return the [token of] betrothal [it is] not [to be] returned; [these are] the words of R. Nathan. R. Judah the Prince said, in truth [the Sages] said: Where it is the custom to return, it [must] be returned; where it is the custom not to return, it [need] not [be] returned'. [Does not] R. Judah the Prince [say exactly the same thing] as the first Tanna: [Must it] not then [be explained]12 that [the difference] between them lies in [the admissibility of the plea]. 'Give me my husband and I will rejoice with him,' and that there is a lacuna [in the text] which should read13 thus: '[In the case where] a person betrothes a woman, [if] a virgin she is entitled to two hundred [zuz, and [to] a maneh [if] a widow. This applies only to the case where he has retracted but [if] she died, [the token of betrothal] is to be returned where it is the custom to return; where it is the custom not to return, it [need] not be returned - This, [furthermore.] applies only [to the case] where she died, but [where] he died.it [need] not [be] returned.' What is the reason? Because she can plead. 'Give me my husband and I will rejoice with him' And [with reference to this statement] R. Judah the Prince said14 'In truth [the Sages] stated [that] whether he died. or she died. it Is to be returned where it is the custom to return; where it is the custom not to return.it [need] not [be] returned';15 and she cannot say, 'Give me my husband and l will rejoice with him'!16 -No; all17 [may agree that] she may advance the plea. 'Give me my husband and I will rejoice with him'; and [in the case] where he died no one [in fact] disputes [this].18 Their dispute has reference only19 [to the case] where she died; their [point of) disagreement [centering] here on [the question whether a token of] betrothal is unreturnable.20 R. Nathan holds the opinion that [a token of] betrothal is not unreturnable,20 and R. Judah the Prince holds the opinion that [a token of] betrothal is unreturnable. But surely it was taught. 'Where it is the custom to return. it [must] be returned'!21 -He means this: And [as regards the] gifts.22 they [must] certainly be returned where it is the custom to return [them]. These Tannaim [differ on the same principle]23 as the following Tannaim - For it was taught: If one betrothes a woman24 with a talent,25 [if] a virgin she is entitled to two hundred [zuz]26 and [to a] maneh [if] a widow; these are the words.of R. Meir. R. Judah said: A virgin is entitled to two hundred [zuz] and a widow [to] a maneh. and the remainder27 she returns to him. R. Jose said: [If] he betrothed her with twenty [shekels].28 he gives her, [in addition,] thirty halves; [if] he betrothed her with thirty [shekels]. he gives her, [in addition]. twenty halves. Now, of what case is it spoken here?29 If it is suggested [of that] where she died; does she, [in such a case, it may be asked]. receive her kethubah.30 But [in the case] where he died? Why, [it may be argued again.] does she31 return to him the remainder? Let her advance the plea.'Give me my husband and I will rejoice with him'! If. however, [it be suggested that we deal] with [the case of] the wife of an Israelite who committed adultery,32 'then, it may be queried.in what [circumstances. did this happen]? If with [her] consent, does she [in such a case] receive [her]kethubah?33 And if under duress, she is surely permitted to [continue to live with] him!34 Hence [the Baraitha] must [deal] with [the case of] the wife of a priest who [committed adultery] under duress35 and the [point of] disagreement between them36 is [the question of] whether [a token of] betrothal is unreturnable. R. Meir holds the opinion [that a token of] betrothal is unreturnable;37 and R. Judah holds the opinion [that a token of betrothal is] not unreturnable,38 while R. Jose is doubtful [as to] whether it is returnable or not, and, consequently. [if] he betrothed her with twenty [shekels]39 he gives her,40 [in addition].thirty halves,41 [and if] he betrothed her with thirty [shekels]42 he gives her twenty halves.43 R. Joseph b. Manyumi said in the name of R. Nahman: Wherever It Is the custom to return.44 it [must] be returned. And the explanation is Nehardea45 What [is the practice in] the rest of Babylon? - Both Rabbah and R. Joseph stated: Presents46 are returned;47 [tokens of] betrothal are not returned. R. Papa said: The law [is that] whether he died or she died or he retracted., presents46 are to be returned, [tokens of] betrothal are not to be returned . If she retracted, even [tokens of) betrothal [must] also be returned. Amemar said: [A token of] betrothal [must] not be returned. [This is] a preventive measure against the possibility' of assumption that betrothal would take effect in the case of her sister.48 R. Ashi said: Her bill of divorce [would] prove her [status]49 But [the statement] of R. Ashi is to be rejected '50 for there [may] be some who heard of the one51 and did not hear of the other.52 FOR [THE RECIPROCATION OF] WEDDING GIFTS MAY BE CLAIMED THROUGH A COURT OF LAw'. Our Rabbis taught: Five things were said in respect of [reciprocation of a] wedding gift: It may be claimed through a court of law; it is to be reciprocated at its proper time;53 and it is not subject to [the restrictions of] usury;54
(1) I.e., since it is not her fault that the marriage was not consummated she is entitled to retain, the money or the object that was given to her at the betrothal.
(2) The original recipient of the gifts.
(3) It is not his fault that his friend died and that he cannot, consequently. reciprocate his services and gifts. How, then, can it he assumed above that the heirs are entitled to the reciprocation of the gifts?
(4) Lit., 'here, in what case are we engaged?- As for instance'.
(5) The original recipient.
(6) His shoshebin, on the occasion of the latter's own marriage.
(7) And has thus become liable to present the gifts in reciprocation of those he had received.
(8) Hence he must return the gifts to the dead bridegroom's heirs.
(9) And he died or divorced her before the wedding took place.
(10) One hundred zuz.
(11) V. p. 620 n. 14, supra
(12) Lit., 'but not'.
(13) Lit., 'it teaches'.
(14) Lit., 'came to say'.
(15) V. B.M. 601.
(16) May it. consequently. be assumed that only the first Tanna does, but that R. Judah does not allow the plea 'Give me husband etc.'?
(17) Lit.. 'all the world', i.e.. even R. Judah.
(18) Cf. n. 4; even R. Judah agrees that the plea is eligible.
(19) Lit., 'when do they dispute'.
(20) Lit, 'given for sinking'. i.e., 'that it be not returned under any conditions whatsoever.
(21) And, as was stated above, even R. Judah agrees on this point
(22) The Sablonoth, dona sponsalitia (v. infra p. 628, n. 6). which the groom gives to the bride after betrothal, not forming part of the legal token of betrothal.
(23) Viz. the irrevocability of the token of betrothal.
(24) Lit., 'her'.
(25) Sixty maneh (cf. R. Gersh. a.I.).
(26) As her kethubah, in addition to the talent (the token of betrothal) which she received. This shows that R. Meir holds that a token of betrothal is unreturnable under any circumstances. (R.Gersh.).
(27) Of the talent, after the amount of the kethubah had been deducted. This shows that according to R. Judah a token of betrothal is returnable under certain conditions.
(28) Jose's statement is explained infra.
(29) Lit., 'in what are we engaged', in the Baraitha cited.
(30) Surely she does not.
(31) According to R. Judah.
(32) In consequence of which she has been divorced by her husband from whom she now claims her kethubah.
(33) A woman who played the harlot is certainly not entitled to it.
(34) So that the question of a kethubah could not arise. And if he were to insist on divorcing her, despite her misfortune, she would undoubtedly be entitled to her kethubah.
(35) And a priest. being forbidden to live with such a wife, must divorce her,
(36) The Tannaim of the Baraitha.
(37) Hence he stated that the amount of the kethubah must he given to her in addition to the talent which she received as the token of her betrothal.
(38) Consequently she must in such circumstances return the difference between the talent (given to her as token of betrothal) and the amount of her kethubah.
(39) Or eighty zuz (a shekel==four zuz).
(40) If she is a widow.
(41) Of a shekel, viz. , sixty zuz. The twenty shekels with which he betrothed her, being of a doubtful ownership (R. Jose not being certain whether a token of betrothal is unreturnable) is divided, and she accordingly retains ten shekels, viz., forty zuz. Since a widow is entitled to a kethubah of a maneh, or a hundred zuz he must give her in addition sixty zuz (thirty halves of a shekel).
(42) In which case she retains fifteen shekels or sixty zuz.
(43) Of a shekel viz., forty zuz, thus completing the total amount of the kethubah of a hundred zuz.
(44) The token of betrothal, and gifts.
(45) Nehardea was a place where it was customary to return both the token of betrothal and gifts.
(46) Such as jewels which the bridegroom sends the bride after betrothal.
(47) If she died or was divorced.
(48) Since it might be assumed that the return of the token of betrothal implied that the betrothal was invalid, the man might In consequence be allowed to marry his first wife's sister.
(49) That her betrothal was valid. Had It been invalid there would have been no need for a divorce. Hence a token of betrothal may be returned.
(50) ברותא, outside', or בדתא. 'invention', 'fiction;,v. B.M. 9a..
(51) Lit., 'this', i.e., of the return of the token.
(52) I.e, of he divorce.
(53) I.e., at the marriage of the shoshbin ,and not earlier.
(54) The reciprocated gift may be of a higher value than the original one.
Talmud - Mas. Baba Bathra 145b
and the Sabbatical year1 does not cause Its cancellation;2 and the firstborn does not receive of it a double portion.3 'It may be claimed through a court of law'; what is the reason? - It is like a loan. 'And it is not subject to [the restrictions of] usury' - because he4 did not give it to him with this intention5 'And the Sabbatical year does not cause Its cancellation' - because the Scriptural [injunction] . he shall not exact,6 cannot be applied to it.7 'And the firstborn does not receive a double portion' - because it is prospective.8 and a firstborn does not receive [a double portion] in prospective [property] as in that which was in [his father's] possession [at the time of his death]. R. Kahana said, [This is] the rule of groomsmanship: [If] he9 was In town,10 he should have come.11 [If] he12 [could] hear the sound of the [wedding] bells,13 he should have come.11 [If] he [could] not hear the sound of the bells,14 the [other]15 should have informed him. He has , therefore, a grievance [against him] ,16 but [must] nevertheless repay him. And up to how much?17 -Abaye said: Wedding guests18 are in the habit of putting in their stomachs up to the value of a zuz brought in their hands;19 up to four [zuz].a half [of the value of the gifts] is paid;20 in case of any higher values,21 every man according to his importance.22 Our Rabbis taught: If a person rendered service [to a bridegroom]23 at a public24 [wedding] and he25 [now] desires [the latter] to reciprocate his services26 at [a] private [wedding] he27 may tell him, 'At a public [wedding] l will act for you as you have acted for me.28 If he rendered service to one29 [who married] a virgin. and he [now] desires [the latter] to reciprocate'' [on the occasion of his marriage] with a widow he" can say to him, '[At your marriage] with a virgin I will act for you as you acted for me'28 If he rendered service to one29 on [the occasion of his] second [marriage] and he [now] desires [the latter] to reciprocate30 on [the occasion of his own] first [marriage]. he31 can say to him, 'When you will marry a second wife l will reciprocate'28 If he rendered service to one29 [on the occasion of his marriage] with one [woman] and he [now] desires [the latter] to reciprocate'' [on the occasion of his marriage] with two, [the latter] can say to him, '[On the occasion of your marriage] with one I will act for you as you acted for me.'28 Our Rabbis taught: Rich in possessions32 [and] rich in pomp33 - that is a master of aggadoth.34 Rich in money35 [and] rich in oil36 - that is a master in dialectics.37 Rich in products38 [and] rich in stores39 - that is a master of traditions.40 All. [however]. are dependent on32 the master of wheat. [i.e.] Gemara.41 R. Zera said in the name of Rab: What [character is meant] by the Scriptural text, All the days of the poor are evil?'42 - A master of Gemara;43 but he that is of a merry heart hath a continual feast'' refers to44 a master of the Mishnah45 Raba reversed the order; and this is what R. Mesharsheya stated in the name of Raba: What [characters are referred to] in the Scriptural text, Whoso quarrieth stones shall be hurt therewith; and he that cleaveth wood is warmed up thereby?46 is He that quarrieth stones shall be hurt therewith, has reference to47 the masters of the Mishnah;48 and he that cleaveth wood is warmed up thereby, has reference to47 the masters of Gemara49 R. Hanina said: All the days of the poor are evil.42 refers [to him]44 who has a wicked wife; but he that is of a merry heart hath a continual feast,42 refers'44 [to him] who has a good wife. R. Jannai said: All the days of the poor are evil42 refers to44 one who is fastidious; but he that is of a merry heart hath a continual feast50 refers to one of a robust constitution. R. Johanan said: All the days of the poor are evil,50 refers to one who is compassionate; but he that is of a merry heart hath a continual feast,50 refers to one who is cruel. And R. Joshua b. Levi said: All the days of the poor are evil,50 refers to an impatient51 man; but he that is of a merry heart hath a continual feast,50 refers to a contented man.
(1) If it occurred before the gift had been reciprocated.
(2) Though it causes the cancellation of debts (cf. Deut. XV,.2ff).
(3) Where the gift reverted to the common estate of the heirs.
(4) The shoshbin.
(5) That the reciprocated gift shall be of a higher value than the original one. It might just as well have been worth less.
(6) Deut. XV, 2.
(7) Since it cannot be exacted at the .Sabbatical year, reciprocation not being due until the groomsman celebrates his marriage. (Cf. Mak. 3b).
(8) The reciprocated gift was never in the possession of the first-born's father; and all he inherited was only a claim for the future.
(9) The man who has to reciprocate the wedding gift.
(10) When his shoshbin celebrated his own marriage.
(11) With the gift. And since he did not, it may be claimed through a court of law.
(12) Being out of town.
(13) Heb. tabla, טבלא, Gr, **, an instrument from which bells were suspended, used at bridal and other processions. [Others, 'drum', 'tambourine'; v. Krauss, op cit 92ff.]
(14) (Either he was not within hearing distance (R. Gersh.): or, the custom had fallen into desuetude in the locality
(Krauss. op. cit. II, 41).]
(15) The bridegroom.
(16) For failing to inform him.
(17) I.e., when the reciprocated gift is claimed through a court or when it is repaid in any other way, in the case where the giver of it did not participate in the wedding festivities, how much may he deduct from the value of the gift in lieu of the food and refreshments he would have consumed had he attended the festivities?
(18) Lit., 'the children of the bridechamber'.
(19) l.e.,if they bring gifts not exceeding one zuz in value they consume refreshments and food, at the wedding festivities, to the full value of their gift. Consequently, if the present bridegroom (the former shoshbin) had brought a gift not exceeding one zuz in value, the first bridegroom (to whom it was brought and from whom the reciprocated gift is now claimed) need not now return anything; since be saved the claimant (the present bridegroom) the value of a zuz by absenting himself from his wedding.
(20) Guests who bring gifts worth more than a zuz but not exceeding four zuz receive greater attention, and their entertainment is worth half the value of their gifts. Hence, half the value of the reciprocated gifts may be deducted in lieu of the food and refreshments saved.
(21) Lit., 'from here onwards'.
(22) The more important the man and the more costly his gifts, the more the expense of his entertainment. Such a person. if he could not attend the festivities, may' consequently deduct a proportionate sum from the value of his reciprocated gift.
(23) Lit., 'he did with him', i.e., acted as shoshbin and brought the customary gifts.
(24) Gr. **,' (Lat. pompa), 'attended with pomp and a public procession'.
(25) The first mentioned.
(26) Lit., 'to do with him'.
(27) The latter.
(28) I.e., a person need only reciprocate under conditions similar to those under which service was rendered to him. If, therefore, he is asked to act under different conditions he may refuse, and there is no obligation on his part either to reciprocate the gifts or to come to the wedding.
(29) V.supra n. 4,
(30) V. supra n. 7'
(31) V.. supra n.8,
(32) Such as fields and vineyards.
(33) E.g., cattle that wander about, and are exposed to public view.
(34) Who preaches to large audiences and is thus able to give public display to his knowledge.
(35) Lit., sela'im.
(36) Heb.. Tekoa', תקוע, a Palestine town famous for its oils. Others, 'rich in the ownership of houses.'
(37) [Who by his creative powers is continually able to establish new points and evolve new principles. thus making his knowledge as continually productive as the possession of money and choicest oils.]
(38) Lit., '(things that are) measured',
(39) Lit., 'cellar', 'store-room'.
(40) (Who keeps his store of traditional teachings in readiness for guidance whenever the occasion arises.]
(41) The discussions and interpretations of the Mishnah and Baraithoth, and the decisions arrived at, which are indispensable for right practice and conduct.
(42) Prov. XV.15.
(43) [Who is often in difficulty in finding his way through the maze of the involved and intricate argumentation.]
(44) Lit., 'this',
(45) Where the teachings are given clearly and precisely.
(46) Eccl. X,9, . Heb. yissaken, 'is warmed up'. (E.V. 'endangered').
(47) Lit., 'these'.
(48) [The study of the Mishnah alone, in the absence of the principles underlying the teaching thereof', affords no competence for the giving of decisions, V. Sotah 22a.]
(49) The study of the Gemara affords a sensible appreciation of the principles of the teaching of the Mishnah and thus enables the student to make practical application of his learning.]
(50) Prov. XV. 15
(51) Others, 'greedy.
Talmud - Mas. Baba Bathra 146a
R. Joshua b. Levi further stated: 'All the days of the poor are evil? Surely there are Sabbaths and Festivals!1 - [The explanation, however, is] according to Samuel. For Samuel said: A change of diet is the beginning of sickness'2 It is written in the Book of Ben Sira: All the days of the poor are evil; Ben Sira says : The nights also. Lower than [all] roofs is his roof, [and] the rain of other roofs [pours down] upon his roof; on the height of mountains is his vineyard. [and] the earth of his vineyard [is washed down] into the vineyards [of others] .3
MISHNAH. IF A PERSON HAD SENT WEDDING PRESENTS TO THE HOUSE OF HIS FATHER-IN-LAW,4 EVEN IF HE SENT A HUNDRED MANEH AND ATE THERE A BRIDEGROOM'S MEAL, [ EVEN IF IT WERE ONLY OF THE VALUE] OF ONE DENAR, THEY5 [CANNOT [ANY MORE] BE RECLAIMED.6 [IF. HOWEVER]. HE DID NOT EAT THERE A BRIDEGROOM'S MEAL THEY5 MAY BE RECLAIMED. [IF] HE SENT MANY PRESENTS WHICH WERE TO RETURN WITH HER TO THE HOUSE OF HER HUSBAND.7 THESE MAY BE RECLAIMED.8 [IF. HOWEVER, HE SENT A] FEW PRESENTS WHICH SHE WAS TO USE AT THE HOUSE OF HER FATHER, [THESE MAY] NOT BE RECLAIMED.
GEMARA. Raba said: Only [when the meal9 was worth] a denar,10 but not [when it was worth] less than a denar. [Is not this] obvious? We have, [surely], learnt, ONE DENAR! - It might have been assumed that the same law [applies] even [to the case where it was worth] less than a denar, and that [the reason] why a denar was mentioned11 [was because that] was the usual cost,12 hence [it was necessary to] teach us [that we do not say so]. We learnt, HE ATE; what [is the law if] he drank? We learnt, HE; what [is the law in the case of] his representative?13 We learnt, THERE; what [if] it14 was sent to him?15 -Come and hear what Rab Judah said in the name of Samuel: It once happened with a' certain man who had sent to the house of his father-in-law a hundred wagons of jars of wine and jars of oil, and vessels of silver and of gold and silk garments while he [himself]. in his joy. came riding. and stopped at the door of the house of his father-in-law. They brought out a cup of something warm and he drank and died. This practical question16 was brought up by R. Aha. the 'Governor of the Castle' ,17 before the Sages at Usha , and they decided, 'Gifts which were intended18 to be used up19 cannot be reclaimed; and such as are not intended to be used up19 may be reclaimed. ' From this it may be inferred [that] even if he [only] drank; from this it may [also] be inferred [that ] even [if the meal was worth less than a denar.20 R. Ashi asked: 'Who can tell us that they did not crush a pearl21 for him which was worth a thousand zuz and gave him to drink! [May] it be inferred, [however that] even if [it] was sent to him?22 - [No;] it is possible [that] anywhere [near] the door of the house of one's father-in-law is [the same] as the house [itself]. The question was raised: Has he23 to pay24 in proportion?25 [Further:] Is he entitled to26 the appreciation of the gifts?27 [Do we say that ] since if they28 are available they are returned to him, the appreciation took place in his possession; or, perhaps. since if they were lost or stolen she29 has to make compensation. the appreciation took place in her possession?-This is undecided. Raba inquired: What [is the law in the case of] gifts intended to be used up that were not used up?30 -Come and hear: 'And this practical question was brought up by R. Aha, the governor of the castle, before the Sages at Usha and they decided [that] gifts intended to be used up [can] not be reclaimed, and such as are not intended to be used up may be reclaimed' - Does31 not [this refer] even [to the case] where they were not used up! - No; where they were used up. Come and hear: [IF, HOWEVER, HE SENT A] FEW PRESENTS WHICH SHE WAS TO USE AT THE HOUSE OF HER FATHER, [THESE MAY] NOT BE RECLAIMED!32 - Raba interpreted [the Mishnah as referring to] a veil or a hair-net.33 Rab Judah said in the name of Rab: It once happened that a certain person sent to the house of his father-in-law new wine and new oil and garments of new linen34 at [the] Pentecost season. What does [this]35 teach us? - If you wish I would say: The praise of the land of Israel.36 And if you prefer [it] I would say: That if he advances [such] a plea it is accepted.37 Rab Judah said in the name of Rab: It once happened that a certain person was told [that] his wife was defective in the sense of smell38 He followed her into a ruin to test her39 He said unto her, 'I sense the smell of radish40 in Galilee.'41
(1) During which days, at least, the poor were provided with wholesome and substantial meals.
(2) For a poor man, who is in the habit of consuming all the week nothing but dry bread, the meat and the other expensive foodstuffs, with which he is supplied on Sabbaths and Festivals, cause indigestion.
(3) [Not in our texts].
(4) On the morning after the betrothal it was customary for the bridegroom to send to the house of his father-in-law, in honour of the bride, jewels and various kinds of wine or oil. [These gifts were known as Sablonoth, סבלונות, dona sponsalitia, derived according to Kohut from Gr, ** and according to Maimonides from סבך 'to carry', as משאת 'gift' from נשא.]
(5) The presents.
(6) Even in the case where he or she died, or where he desired to divorce her. It is assumed that the bridegroom, thanks to his joy and satisfaction with the company and the meal, however small the latter might have been. has definitely determined to present the gifts wholeheartedly and permanently.
(7) As the wife's property.
(8) Cf. p. 628, n. 8.
(9) Which the bridegroom had in the house of his father-in-law.
(10) Only then may the gifts be reclaimed.
(11) Lit., 'taught'.
(12) Lit., 'thing'.
(13) Who had a meal of the value of a denar at the house of his father-in-law.
(14) The meal.
(15) To his own house.
(17) [Cf Neh. VII, 2. Here probably an hereditary title].
(18) Lit., 'made',
(19) Before the wedding.
(20) The drink he had could not have been worth a denar.
(21) For medicinal purposes (Rashb.). A pearl was regarded as a life.giving substance. Cf. M. A. Canney. JMEOS. XV, 43ff.
(22) Since the drink was brought to the door.
(23) A bridegroom who consumed a meal of less value than a denar.
(24) In a case where the gifts are reclaimed,
(25) According to Raba who stated that if the value of the meal was less than a denar the gifts may he reclaimed, has the bridegroom to pay at least for what he has consumed? (Cf. Tosaf. a.I., s,v., איבעיא).
(26) Lit., 'what',
(27) That took place during the time they were at the bride's house.
(28) The gifts themselves.
(29) The bride.
(30) Are they to be returned or not?
(31) Lit., 'what'.
(32) Since here, unlike the wording of the previous citation, the expression. 'intended to be used up'. does not occur, it is assumed to refer to all cases, even to those where they were not used up.
(33) I.e., articles of little value, the return of which one does not expect. Hence, even if they were not used up they need not be returned.
(34) Of flax that grew in that year.
(35) The mention of Pentecost.
(36) That its harvests are earlier than those of other countries.
(37) Lit. , 'his plea is a plea'. i.e., if he reclaims such gifts. asserting that he had sent them at the Pentecost season, he is believed. Though that season is too early for the harvest in other countries it is not so in Palestine.
(38) תותרנית. 'in the habit of sniffing'.
(39) A husband who finds his wife to be affected with a hidden defect is entitled, under certain conditions, to divorce her without a kethubah.
(40) He had with him a radish. According to others, a date.
(41) The incident occurred near that district; and the object of his test was to ascertain whether she could sense the smell of the radish. According to the other interpretation. he expected her to reply that she sensed the smell of a date and not that of a radish,
Talmud - Mas. Baba Bathra 146b
She said to him, 'Would that one gave me of the dates of Jericho and l would eat with it.'1 [Thereupon] the ruin fell upon her and she died. The Sages decided:2 Since he only followed her in order to test her,3 he is not [entitled to be] her heir [if] she died [during the test]4 FEW PRESENTS WHICH SHE WAS TO USE AT THE HOUSE OF HER FATHER, ETC. Rabin the elder sat before R. Papa and stated [the following]: Whether she died, or he died, [or] he retracted,5 the wedding gifts are to be returned, foodstuff[s] and drink[s]6 are not to be returned. If [however] she retracted, even a bundle of vegetables [must be returned]. R. Huna the son of R. Joshua said: And it is valued for them7 at the cheap[er] price of meat,8 Up to how much is [considered] cheap?-Up to a third.9
MISHNAH. IF A DYING MAN GAVE ALL HIS PROPERTY IN WRITING, TO OTHERS, AND LEFT [FOR HIMSELF] SOME [PIECE OF] LAND10 HIS GIFT11 IS VALID12 . [IF, HOWEVER,] HE DID NOT LEAVE [FOR HIMSELF] SOME [PIECE OF] LAND, HIS GIFT IS INVALID13
GEMARA. Who is the Tanna [that holds the view] that the assumed motive14 is a determining factor?15 -R. Nahman replied: It [is the view of] R. Simeon b. Menasya. For it was taught: In the case of [a person] whose son went to a distant country16 and having heard that the latter had died. assigned all his property, in writing. to a stranger. though his son subsequently appeared. his gift is. [nevertheless]. legally] valid.17 R. Simeon b. Menasya said: His gift is not [legally] valid; for had he known that his son was alive, he would not have given it away.18 R. Shesheth said: It [is the view of] R. Simeon Shezuri.19 For It was taught : At first it was held [that] when one who was led out in chains20 ,said, 'Write a bill of divorce for my wife', It is to be written and delivered [to her];21 later, however, It was held22 [that the same law applies] also [to] one who goes out [to sea] or on a caravan [journey]. R. Simeon Shezuri said: [The same law] also [applies to one] who is dangerously [ill]23 For what reason, however, does not R. Nahman establish it24 in accordance with [the view of] R. Simeon Shezuri?-There [the case is] different, since he said, 'write'.25 And why does not R. Shesheth establish it24 in accordance with [the view of] R. Simeon b. Menasya?-A well grounded assumption26 is different.27 Who is the author of the following ruling28 which was taught by our Rabbis? 'If a person was lying ill in bed, and was asked, "To whom [shall] your estate [be given]? and he replied
(1) Jericho was famous for its dates which were so sweet that radishes had to he eaten with them to mitigate their excessive sweetness.
(2) Where the husband claimed her possessions as her heir.
(3) And had he found her to he defective, as he suspected, he would have insisted on divorcing her, he forfeited thereby his rights to be her heir. As soon as one determines to divorce his wife, if she were found to be suffering from some defect, he loses the privileges of an heir unless a reconciliation between them subsequently took place.
(4) Since in that case there was no time for their reconciliation before death took place.
(5) And divorced her.
(6) Sent by the bridegroom to the bride.
(7) Where foodstuffs are returned,
(8) Or any other foodstuff.
(9) Below the current market price.
(10) The size is given in the Gemara infra.
(11) Even if he recovers from that illness.
(12) Since he left for himself some land it is assumed that he did not intend the gift to be conditional upon his death, and it is. therefore, regarded as having been given by a man in good health. It is, consequently. valid even if he recovered from his illness.
(13) If he recovered. Since he left nothing for himself it is obvious that at the time he made the gift he did not expect to live any longer. Had he hoped to recover from his illness he would not have given away all his landed property. leaving himself destitute.
(14) אומדנא, lit., assumption'. 'estimation'.
(15) Lit., 'that we go after assumption', i.e., that the assumed motives and intentions of a testator are to be taken into consideration when deciding the legality of his 'statements In our Mishnah, the assumed motive and intention are obviously the determining factors (V., notes 3 ,4) ;who is its author?
(16) Lit., 'country of (i.e., beyond) the sea'.
(17) Since it was not specifically made conditional upon his son's death.
(18) Lit., 'write them'. Thus it has been shown that R. Simeon b. Menasya takes the assumed motive and intention into consideration,
(19) Others, 'of Shezar', [Sedschut between Akko and Kefar 'Anan, in Gallilee. v. Klein, NB. p' 7.]
(20) קולר 'collar'. the chain, or iron band round a prisoner's neck.
(21) Though he only authorized the writing of the divorce, and not its delivery, it is assumed that he had forgotten to mention the latter owing to the perturbed state of his mind
(22) Lit., 'they returned to say'.
(23) Because it is assumed that his motive and intentions were to have his wife divorced so that she might be exempt from the levirate marriage and from halizah.. Since the same principles of motive and intention underlie the law of our Mishnah,, it may be taken to represent the view of R. Simeon Shezuri.
(24) Our Mishnah.
(25) By this instruction It was made clear that he wished his wife to be legally divorced; and since this cannot be done without the delivery of the bill of divorcement, his instruction must he taken to, extend to, the delivery also. For the case of our Mishnah, however,this argument cannot be applied.
(26) In the case of the father who gave all his property to a stranger. since he did not give it away so long as he believed his son to he alive, it is clear that the sole reason why he gave it away subsequently was the reported death of his son.
(27) From the case of our Mishnah Since most ailing persons recover, there is not necessarily any reason for the assumption that the gift was due to the testator's belief that he would not recover.
(28) Lit., 'who taught that'.
Talmud - Mas. Baba Bathra 147a
'l thought I had a son; now, [however] that I have no son, [let] my estate [be given] to X'; [or] if a person was lying ill in bed, and on being asked to whom his estate [shall be given]. he replied, 'I thought my wife was with child; now' [however] 'that my wife is not with child, [let] my estate [be given] to X'; and it [subsequently] transpired that he had a son or that his wife was pregnant, his gift is invalid,'1 Is it to be assumed that this [statement represents the view of] R Simeon b. Menasya and not [that of] the Rabbis?2 - It may even be said [to represent the view of] the Rabbis, [but] 'I thought' is different.3 And what did he that raised the question imagine?4 - It might be suggested that he5 was merely mentioning his grief,6 hence [it was necessary] to teach us [that this is not so]. R. Zera said in the name of Rab: Whence [is it proved] that the gift of a dying man7 [is considered valid] by the Torah?-For it is said, Then ye shall cause his inheritance to pass to his daughter8 [which9 implies that] there exists another transfer which is [the same] as this [one]. And which is it? It is the gift of a dying man.10 R. Nahman in the name of Rabbah b. Abbuha said: [It may be derived] from the following.11 Then shall ye give his inheritance unto his brethren,12 [which13 implies that] there exists another giving which is like this [one]. And which is it? It is the gift of a dying man.14 Why does not R. Nahman derive it from , Then ye shall cause to pass?14 - He requires that [expression] for [the following] ' according to Rabbi. For it was taught: Rabbi said, In [the case of] all [the relatives15 the expression of] 'giving' is used but here16 [the expression] used is that of 'causing to pass',17 [in order to teach] you that no other but a daughter causes an inheritance to pass from one tribe to [another] tribe, since [in her case] her son and her husband are her heirs.18 And why does not R. Zera derive it from, Then shall ye give?19 - This is the usual [expression] of Scripture.20 R. Menashya b. Jeremiah said: [It21 may be derived] from the following:22 In those days was Hezekiah sick unto death ; and Isaiah the prophet the son of Amoz came to him, and said unto him, ' Thus saith the Lord; Set thy house in order for thou shalt die, and not live',23 by mere verbal instruction.24 Rami b. Ezekiel said: [It21 may be derived] from the following: And when Ahitophel saw that his counsel was not followed. he saddled his ass and arose, and got him home into his city and set his house in order, and strangled himself.25 by mere verbal instruction.26
Our Rabbis taught: Ahitophel advised his sons three things: Take no part27 in strife, and do not rebel against the government of the House of David, and [if] the weather on the Festival of Pentecost is fine sow wheat28 Mar Zutra stated: It was said, 'cloudy'29 The Nehardeans said in the name of R. Jacob: 'Fine' [does] not [mean] absolutely fine, nor does 'cloudy' mean completely overcast, but even [when it is] 'cloudy' and the north wind blows [the clouds], it is regarded as 'fine'.30 R. Abba said to R. Ashi: We rely upon [the weather information] of R. Isaac b. Abdimi. For R. Isaac b. Abdimi said: [At] the termination of31 the last day of Tabernacles , all watched the smoke of the wood pile.32 [If] it33 inclined towards the north, the poor rejoiced and landowners34 were distressed because [that35 was an indication] that the yearly rains would be heavy36 and the crops would decay.37 [If] it inclined towards the south, the poor were distressed and landowners rejoiced because [that38 was an indication] that the yearly rains would be scanty and the crops could be preserved39 ' [If] it inclined towards the east,all were glad;40 towards the west ,. all were distressed.41 A contradiction was raised: The east [wind] is always beneficial; the west [wind] is always harmful; the north wind is beneficial for wheat that reached42 [the stage of] a third [of its maturity].43 and harmful for olives in blossom; and the south wind is injurious' for wheat that reached42 [the stage of] a third [of maturity] . and beneficial for olives in blossom. And R. Joseph.
(others say Mar Zutra and others say. R. Nahman b. Isaac), said: Your mnemonic is , 'Table in the north and candelabra in the south ;44 the one45 Increases Its own46 and the other47 increases Its own.48 -There is no difficulty: This49 for us,50 and that51 for them52 It was taught: Abba Saul said: Fine [weather at] the Festival of Pentecost is a good sign53 for all the year. R. Zebid said: If the first day of the New Year is warm, all's the year will be warm; if cold, all54 the year will be cold. Of what [religious] significance is this55 [weather information]?
(1) Because it is assumed that if he had known the facts he would not have given his estate to X but to his son or his wife.
(2) Since the Rabbis, as has been shown above, do not admit the principle of assumed motive.
(3) In such a case as this, where the testator specifically said that he thought he had no son and that only because he was told that he had no son his estate was to be given to a stranger. even the Rabbis admit that motive which need no longer be merely assumed is the determining factor.
(4) Lit., 'and he that threw (i.e.. argued) what did he throw?' How could he even for one moment assume that the' Rabbis would not in such a case hold the same view as R. Simeon h. Menasya, when the difference between the two cases is so self evident?
(5) The testator,
(6) The mention of the death of his son might not have been due at all to his desire to indicate the cause of his giving away his estate to strangers. It might have been a mere expression of sorrow at having no son to survive him, a fact which the disposal of his estate had brought to his mind.
(7) Even if made verbally, is as binding as if attended by a legal symbolic acquisition.
(8) Num. XXVIII, 8.
(9) The superfluity of the expression of את or, according to others, of והעברתם
(10) As the transfer of a father's estate to a daughter takes place without symbolic acquisition so does the transfer of the gift of a dying man.
(11) Lit, 'from here'.
(12) Ibid, v.9.
(13) The superfluous, ונתתם or את
(14) Cf. supra, n. 8.
(15) That were enumerated in Num XXVII,9-11
(16) In the case of a daughter.
(17) Ibid. v. 8.
(18) V. supra 109b.
(19) Num.XXVII, 9
(20) The expression is not in any way superfluous.
(21) The validity of a verbal gift made' by a dying man.
(22) Lit.,'from here'.
(23) II Kings,XX 1
(24) I.e., Hezekiah was to set his house in order (Heb..Zaw צו, lit., command) by nothing more than his verbal instruction,
(25) II Sam. XVII, 23 .
(26) Ahitophel set his house in order, (Heb., wa-yezav, ויצו, 'and he commanded') by his verbal instructions only.
(27) Lit., 'be not '
(28) Fine weather at that season is an indication of a good wheat harvest for that year.
(29) I.e. , cloudy weather at Pentecost is an indication of a good harvest for that year. Cloudy, Heb. balul, בלול, is easily interchangeable with barrur, ברור, clear.
(30) And the wheat harvest of that year will be successful.
(32) On the Temple altar.
(33) The column of smoke.
(34) Lit., masters of houses'.
(35) The prevalence of the South wind which caused the column of smoke to incline towards the North.
(36) Lit., 'many'.
(37) And as they could not be stored away for long. prices would fall.
(38) The north wind. Cf. p' 635 ,n.18 i
(39) Consequently prices would rise.
(40) The west wind by which it was driven would cause a moderate rainfall and plentiful crops.
(41) The east wind by which it was driven towards the north would cause a scanty rainfall and meagre crops; and prices would consequently rise.
(42) Lit.. 'when they brought'.
(43) When it requires no more rain.
(44) In the Temple.
(45) The north where stood the table on which was placed the shewbread.
(46) Crops of wheat which are required for the shewbread.
(47) The south where stood the candelabra, for the lighting of which olive oil was used. is beneficial to olives.
(48) At any rate, it has been stated in this Baraitha that 'the east wind is always beneficial and the west wind is always harmful', how, then, was the reverse stated in the previous Baraitha, reported by R. Isaac b. Abdimi? (V., notes 5 and 6).
(49) The latter Baraitha which states that the east wind is beneficial and the west wind harmful.
(50) Refers to Babylon which is situated in a valley and has an abundance of water. A heavy yearly rainfall, there, is harmful; a light one beneficial.
(51) The first Baraitha.
(52) Palestine, which is a dry highland country. There the west wind with its heavy rains is beneficial while the dry east wind is harmful.
(53) V. supra p. 635. n. 11
(54) I.e., 'most of it' (Rashb.).
(55) Lit., 'as to what comes out of it'.
Talmud - Mas. Baba Bathra 147b
- In respect of the prayer of the High Priest [on the Day of Atonement]1 Raba,2 however, said in the name of R. Nahman: The [validity of a verbal] gift of a dying man is a mere [provision] of the Rabbis3 lest his mind become affected.4 ; But did R. Nahman say so?5 Surely R. Nahman said: Although Samuel had stated that if a person sold a bond of indebtedness to another and subsequently6 remitted [the debt] it is remitted,7 and that even an heir may remit,8 Samuel, [nevertheless]. admits that if he presented it to him as the gift of a dying man, he cannot [subsequently] remit it.9 [Now]. if it is agreed'10 that [this11 is] Biblical, one can well understand the reason why one cannot remit [the debt]; if, however, It is maintained10 that [this is merely] Rabbinical, why should he not be able to remit [it]? - It is not Biblical; but was given12 [the same force] as [a law] of the Torah.13 Raba said in the name of R. Nahman: If a dying man said, 'Let X live14 in this house' , or,'Let X eat the fruit of this date-tree', his Instructions are to be disregarded15 unless he used the following expression:16 'Give this house to X that he may live in it', or 'Give this date-tree to X that he may eat of its fruit'17 Does this mean to imply18 that R. Nahman holds the opinion that [only] the rights19 that a man in good health may confer,20 may also be conferred by21 a dying man, [while those] which a man in good health cannot confer,21 can neither be conferred by a dying man?21 Surely Raba said in the name of R Nahman:
(1) When he offered up a special prayer for rain. If the signs indicated heavy rains. his prayer had to be modified.
(2) At this point is resumed the discussion of the theme introduced by R. Zera (p. 634).
(3) Biblically the gift would not be valid unless attended by actual or symbolic acquisition.
(4) As a result of any resistance which might be offered to his instructions. Hence, legal force was given to his verbal and informal instructions as if legal acquisition had taken place.
(5) That the validity of the verbal gift of a dying man n only Rabbinical.
(6) Lit., 'and he returned'.
(7) And the buyer cannot claim the debt from the borrower. He only bought the rights of the creditor which now exist no more. He can, however, reclaim from the creditor (the seller) the sum he paid him for the bond.
(8) A debt he inherited.
(9) B.K. 92a; B.M. 201; Kid. ,38a.
(10) Lit., 'you said'.
(11) The validity of the verbal gift of a dying man.
(12) Lit., 'and they made it'.
(13) For the reason given supra, viz., lest his mind become affected.
(14) Lit., 'shall dwell'.
(15) Lit., 'he said nothing'. X cannot acquire the right of living in the house or that of eating the dates. since the former is abstract, while the dates are nol yet in existence. As such rights cannot be given away by one in good health, even by means of symbolic and legal transfer, the acquisition of the object itself (the house or the tree) being required, a dying man also cannot by his mere verbal instructions (though valid in the acquisition of concrete and existing objects), confer such rights.
(16) Lit., 'until he would say'.
(17) By transferring the possession of the concrete object. the abstract or the yet non-existing. may also simultaneously he transferred.
(18) Lit., 'to say'.
(19) Lit., 'thing'.
(20) Lit., 'there is'.
(21) Lit.. 'there is not', i.e.,that the only difference between the rights of a healthy, and those of a dying man consists in the privilege of the latter to transfer possession by a mere verbal instruction, while in the case of the former, actual or symbolic acquisition must take place.
Talmud - Mas. Baba Bathra 148a
If a dying man said, 'Give my loan to X' ,1 his loan is [immediately] acquired by X;2 although a man in good health has no3 [such power]!4 -R. Papa replied: Since an heir inherits it.5 R. Aha the son of R. Ika replied: A loan is also transferable6 in [the case of] a man in good health; and [this is) in accordance with [the statement] of R Huna in the name of7 Rab. For R. Huna said in the name of Rab: [If one said] . 'You owe me a maneh, give it to X', in the presence of the three persons.8 ,X acquires possession. The question was raised: [If dying man gave instructions for his] date-tree [to be given] to one [person] and the fruit thereof to another, what [is the law.]? Has he [in such a case]. left [for himself] the place of the fruit9 or did he not leave?10 If [some reason] be found for the decision11 [that if the fruit were given] to another [person, the dying man does] not reserve [their place, the question may be asked]: What [is the law if] he said,12 except its fruit'?13 ; Raba said in the name of R. Nahman: [Even] if [some reason] be found for the decision14 [that in the case where the] date-tree [was given] to one [person] and the fruit thereof to another, the place of the fruit is not [regarded as] reserved, [if he specifically added,] 'Except its fruit', he [thereby] reserved the place of the fruit; and [this is] in accordance with [the view of] R, Zebid15 who stated that if he wished to attach mouldings to it he may do [so]. From this it clearly follows that because he reserved the upper storey he also reserved the place of the mouldings. [so] here also, since he said, 'Except its fruit'. he reserved the place of the fruit. R. Abba said to R. Ashi: We learnt it16 in connection with [the following statement] of R. Simeon b. Lakish. For R. Simeon b. Lakish stated: When someone, in selling a house to another, told him, 'On condition that the upper storey [remains] mine', the upper storey [remains] his.17
(1) I.e. - the verbal loan which someone owes him shall he paid by that person to X.
(2) Through the mere verbal instruction of the testator. Had he been in good health. he could not transfer in this way a verbal loan, which, since a person usually spends the money he borrows, is not In existence.
(3) Lit., 'it is not'.
(4) He cannot transfer an abstract thing (cf. p. 637 n. 16). How', then, could it be said that. apart from only one difference (v. note 6), there was no distinction between the power of a healthy, and those of a dying man?
(5) I.e.. the verbal loan; it is considered to be in the possession of the dying man who accordingly has the power to transfer it as gift to another person. since the gift of a dying man is treated as an inheritance, v. infra 149a. This, however, does not apply to a man in good health, since his gift is not regarded as an inheritance.
(6) Lit., 'it is'.
(7) Lit., 'said',
(8) The creditor, borrower and X; v. 147b-148a .
(9) On the branches; and since the branches are attached to the tree they are regarded as ground. Consequently it is a case of one who left for himself some ground, and who, in accordance with our Mishnah, cannot withdraw his gift. even if he recovers.
(10) And when he gave the tree to the first, he gave him the branches also. Hence he left for himself no ground at all, and can withdraw the gift if he recovers.
(11) Lit., 'to say'.
(12) The text and interpretation here adopted (cf. Rashb. second version; R. Gersh. first versionl; and Bah, a.I.) differ from the version in the current editions and from its rather difficult interpretation to which commentators had recourse. A translation of that version would run somewhat as follows: (If he left the fruit) for himself (giving away the tree) except its fruit, what (is the law)? (Is it assumed that for oneself one makes liberal reservation and, consequently. he left for himself the place of the fruit also, and the gift is. accordingly, valid; or is there no difference between reserving for oneself and for another)? Raba said in the name of R. Nahman: If (some reason) could be found for the decision (that where a person gave) a date-tree to one (man) and its fruit to another, the place of the fruit is not reserved; (if he gave) a date-tree to one and reserved the fruit for himself, he did reserve the place of the fruit. What is the reason?-Wherever it is a case of personal interests one makes liberal reservation.
(13) In addition to, 'Give him the date tree'. Does the superfluous addition, 'except etc.', imply that he wished to reserve for himself the place of the fruit and, consequently, he cannot anymore withdraw? (V. note l).
(14) V. note 3'
(15) V. notes on R. Zebid's statement, infra 148b.
(16) The enquiry above, and R, Nahman's statement.
(17) Supra 63a, 64,a.
Talmud - Mas. Baba Bathra 148b
The question was [accordingly] raised: [If one sold] a house to one and [its] upper storey to another, what [is the law']? Is it [assumed that he] reserved [some air space in the courtyard]1 or not? If [some reason] could be found [for the decision that if] a house [was sold] to one and [its] upper storey' to another [the seller] reserved nothing [of the air space of the courtyard], what [is the law when he specifically added]. 'Except its upper storey'? Raba said in the name of R, Nahman: If you can find [a reason] for the decision [that he who sold] a house to one and [its] upper storey to another has not reserved [anything from the air space of the courtyard, if he specifically added]. 'Except [its] upper storey', he did reserve [a portion of the air space of the courtyard]. And [this is] in accordance with [the view] of R. Zebid who stated that if he2 wished to attach3 mouldings to it,4 he may do so.5 From this it clearly follows [that] because he [specifically] reserved [for himself] the upper storey. he has also reserved the place of the mouldings. R, Joseph b. Manyumi said in the name of R. Nahman: If a dying man gave all his property in writing. to strangers ,6 [the following] should be noted: If he did it by way of distribution,7 [then if] he died all of them acquire possession;8 [if] he recovered he may withdraw in [the case of] all of them.9 If, [however,] he did it after consideration,10 [then if] he died, all of them acquire possession;8 [if] he recovered, he may only withdraw in [the case of] the last,11 But is it not possible that he merely considered the [matter]12 and then gave [the further gifts]? - It is usual for a dying man carefully' to consider [the whole matter] first and subsequently to distribute [the gifts].13 R. Aba b. Manyumi said in the name of R. Nahman: If a dying man gave all his property. in writing, to strangers and [then] recovered, he may not withdraw [the gifts], since it may be suspected that he has possessions in another country14 Under what circumstances, however, is [the case of] our Mishnah, where it is stated [that if] he did not leave some ground his gift was invalid,possible? - R. - Hama replied: [In the case] where he said, 'All my possessions'.15 Mar son of R. Ashi replied: [In the case] where it is known to us that he has none.16 The question was raised: Is partial withdrawal17 [considered] complete withdrawal18 or not?19 - Come and hear: [If a dying man gave] all his possessions20 to the first, and a part of them21 to the second, the second acquires ownership [and] the first does not. Does not [this refer to the case] where [the testator] died?22 - No; where he recovered.23 Logical reasoning also supports this [view];24 , since the final clause reads: [If he gave] a part of his possessions25 to the first and all of them26 to the second, the first acquires ownership [and] the second does not.27 [Now,] if [the Baraitha] is said [to refer to the case] where he28 recovered, one can well understand why the second does not acquire possession;29 if, however, it is said [to refer to the case] where he28 died, both should have acquired ownership!30 R. Yemar said to R. Ashi: Even if it31 be explained32 [as referring to the case] where he33 recovered [the following objection may be raised].34 If it is said [that] partial withdrawal is [considered] complete withdrawal, one can at least understand why the second acquires possession;35 if, however, It is said [that] partial withdrawal is not [considered] complete withdrawal, [the testator] should be [regarded] as one who distributes [his possessions]36 and none of them should acquire ownership!37 And the law [is that] partial withdrawal is [considered] complete withdrawal. [Hence.] the first clause [of the Baraitha] may be applicable either [to the case] where he died or [to that] where he recovered:38 the final clause can only be applicable [to the case] where he recovered.39 The question was raised: [If a dying man] consecrated all his possessions and [subsequently] recovered, what [is the law]?40 ; Is it assumed that whenever it is a case of consecrated objects the transfer of possession made is unqualified41 or, perhaps. when it is a matter of personal interests one does not transfer unqualified possession? [If the answer is in the affirmative, the question arises] what [is the law in the case where] he renounced the ownership of all his property'?42 Is it assumed that since [ownerless property may be seized] by the poor43 as well as by the rich, he transfers [therefore] unqualified possession41 or, perhaps, whenever it is a matter of personal interests one does not transfer unqualified possession? [If the answer is in the negative.]44 what, [it may be asked. is the law where] he distributed all his possessions among the poor? Is it assumed [that in a matter of] charity he has undoubtedly transferred unqualified possession or, perhaps, wherever it is a matter of personal interests one does not transfer unqualified possession? - This is undecided. R. Shesheth stated: 'He shall take', 'acquire', 'occupy' and own'45 [used by a dying man]46 are all [legal] expressions denoting gift. In a Baraitha it was taught: [The expressions of] 'he,shall receive the bequest'47 and 'he shall be heir' [are] also [legal] in [the case of] one who is entitled to be his heir; and this is [in accordance with the view of] R. Johanan b. Beroka.48 The question was raised
(1) For the projection of mouldings from the upper storey.
(2) The seller of the house.
(3) Lit., 'to bring out',
(4) The upper storey which he retained for himself by specifying when selling the house, 'except its upper storey'.
(5) L.it., 'brings out'.
(6) In succession. one after the other.
(7) l.e., if his intention from the very beginning was to distribute all his estate among these.
(8) Even if no legal acquisition took place. since the verbal gift of a dying man is legally valid.
(9) Because he left nothing for himself, in which case, as stated in our Mishnah, he may withdraw the gifts he made in the expectation of death.
(10) I.e., if his intention at first was not to give away all his estate, and only after giving a portion to one he reconsidered the matter and made the gifts to the others.
(11) Because with the last gift, the dying man left nothing for himself. In the case of all the previous gifts there was always something over.
(12) When pausing to think, he may not have been considering whether to give or not but only what to give. In which case his mind was made up from the beginning to distribute all his estate and, consequently. he should he able to withdraw all the gifts he made.
(13) And since the man was pausing for reflection, after every gift he made. it is obvious that it was not his first intention to distribute all his estate.
(14) And consequently he was not left destitute.
(15) He did not present specified portions but all his possessions wherever they may be situated.
(16) No other possessions than those of which he had disposed.
(17) If a dying man presented all his estate to one person and then, in accordance with his rights (v. supra 135b). withdrew a part of the gift, and presented that part to another person.
(18) Of the entire gift made to the first. The question is whether it is assumed that by his withdrawal of that part, presenting it to the second person. he also indicated the complete withdrawal of the entire gift he made to the first and that, therefore, when he made the gift to the second he was in possession of the rest of his estate; and, consequently, if he recovered he cannot withdraw the gift from the second; while if he died. his heirs may claim from the first the return of bis gift.
(19) And the second acquires possession of whatever was given to him, while the first retains the ownership of the rest. If the testator subsequently recovers he may consequently withdraw both gifts (since when disposing of the estate he had left himself nothing), whereas if he dies the heirs would have no claim at all upon either of the donees.
(20) Lit., 'all of them',
(21) Which he withdrew from the first,
(22) And if so, it may be proved from here that the withdrawal of a part is the same as the withdrawal of the whole,
(23) And desires to withdraw the gifts. The first cannot retain possession because when the gift was made to him the testator was left with nothing. The right of ownership on the part of the second is discussed in the Gemara infra.
(24) That the Baraitha cited refers to a case of recovery.
(25) Lit., 'of them'.
(26) [I.e., the remaining part of the estate (Alfasi).]
(27) Ned. 43b.
(28) The testator.
(29) Because when he received the gift the testator had left for himself nothing.
(30) Since in such a case possession is acquired by the recipients whether the testator had left anything for himself or not. Consequently it must he concluded that the final clause refers to the case where the testator recovered; and since the final clause refers to a case of recovery the first clause also must refer to such a case.
(31) The first clause of the Baraitha cited.
(32) Lit., 'and let it be also',
(33) V note 9
(34) To the argument that the Baraitha supplies no proof to the statement that the partial withdrawal is considered complete withdrawal,
(35) Because when the part was given to him, the rest of the estate having been withdrawn from the first, the testator was in possession of some property.
(36) Since the first is retaining the remainder of the estate while the second acquires possession of its part.
(37) Owing to the fact that the testator in distributing his estate had left nothing for himself.
(38) The second donee acquires ownership because when the gift was given to him the testator (having withdrawn the gift from the first) was in possession of property. The first does not acquire ownership because the gift has been withdrawn from him in favour of the testator (if he recovers) or his heirs (if he dies).
(39) The first acquires ownership because when he was given the gift the testator was still in possession of some of his estate. The second does not acquire ownership because when the gift was given to him the testator had left for himself nothing. Had the testator died both would have acquired ownership.
(40) May he withdraw his donation?
(41) Without any reservation in case of recovery.
(42) Placing them at the disposal of anyone who would take possession of them.
(43) So that it is possible for the property to fall into the hands of some poor man.
(44) Because the property may happen to fall into the hands of a rich man.
(45) These expressions, some of which are synonymous, cannot be exactly rendered into English.
(46) In making a gift to anyone.
(47) V. p. 643, n. 8.
(48) Who maintained supra 130) that a person may appoint one of his heirs to be the sole inheritor of all his estate.
Talmud - Mas. Baba Bathra 149a
What [if he1 said]. 'Let him2 have the benefit of them'?3 Does he, [thereby] imply that they all shall be [treated as] a gift4 or, perhaps, he [only] meant that he5 shall have some benefit from them? What [is the law where he6 said]. 'He5 shall see them', 'Stand in them', 'Recline upon them' ?7 - This is undecided, The question was raised: What [is the law' in a case where a dying man] has sold all his possessions?8 - Rab Judah said in the name of Rab: If he recovered he may not withdraw; sometimes, however, Rab Judah said in the name of Rab [that] if he recovered he may withdraw. But there is no contradiction [between the two statements]. The one9 [refers to the case] where the money is [still] available;10 the other9 [to the case] where he paid away for his debt.11 The question was raised: What if a dying man [spontaneously] admitted [a debt]?12 -Come and hear: The proselyte Issur13 had twelve thousand zuz: [deposited] with Raba. The conception of his son R. Mari was not in holiness,14 though his birth [was] in holiness, and he was [then] at school. Raba said: How could Mari gain possession of this money? If as an inheritance; [surely] he is not entitled to [it as] an heir.15 If as a gift; the gift [surely] of a dying man has been given16 by the Rabbis [the same legal force] as [that of] an inheritance, [and consequently]. whosoever is entitled17 to an inheritance is [also] entitled to a gift [and] whosoever is not entitled to an inheritance is not entitled to a gift [either]. If by pulling;18 they are [surely] not with him. If by exchange;19 a coin [can] not be acquired by 'exchange'.20 If on the basis of land;21 he has no land. If In the presence of the three of us;22 if he [were to] send for me I would not go.23
R. Ika son of R. Ammi demurred: Why?24 Let Issur acknowledge that that money belongs to R. Mari and [the latter] would acquire it by [virtue of this] admission! Meanwhile,25 there issued [such] an acknowledgement from the house of Issur.26 [Whereupon] Raba was annoyed [and] said,'They teach people what to say27 and cause loss to me'.28
(1) The testator.
(2) The person named.
(3) Of the possessions bequeathed.
(4) For the donee.
(5) The donee.
(6) V. note 3
(7) Do these expressions legally ratify a gift?
(8) May he, if he recovers, cancel the sale as he may withdraw a gift?
(9) Lit., 'that'.
(10) In such a case it is obvious that he kept the purchase money in readiness for the purpose of returning it should he recover and decide to cancel the sale.
(11) In such a case he cannot, on recovery, cancel the sale.
(12) Or that the property he possessed belonged to another person. Is this spontaneous admission sufficient to entitle the person named to the ownership of the sum or objects mentioned?
(13) Issur, while still a heathen, had married Rachel, one of Mar Samuel's captive daughters. (Cf. Keth. 23a). While she was in her pregnancy and before she gave birth to the child (the future R. Mari). Issur embraced Judaism; and Mari was accordingly born from parents both of whom professed the Jewish faith, while his conception took place when one of them was still a heathen.
(14) l.e., while his father was still a heathen.V. n. 15. Hence he was not entitled to the heirship of his father's estate (v. Kid. 18a).
(15) V. p. 644, n. 16,
(16) Lit., 'made'.
(17) Lit., 'where he is'.
(18) Meshikah, v. Glos., supra.
(19) Heb., halifin (V. Glos.). whereby possession may be gained though the object to be acquired is kept elsewhere.
(20) Cf. B.M. 46a.
(21) That might be presented to him at the same time. (V. Kid. 26a). One may acquire a movable object (including money) by the acquisition of land that was sold or presented simultaneously with it though the former may not actually be delivered at that time.
(22) Issur, Mari and Raba. Lit., 'three of them', v. supra 144a. A person may instruct another from whom he claims anything to give it to a third party; and, if all the three are present at the time the instruction was given, the transfer is immediately binding even though the object itself was not with them.
(23) And thus the money would remain in Raba's possession. who held the view that he was entitled, as anyone else, to retain the sum of money which, on the death of Issur who was a proselyte, would become ownerless and free to anyone who would first gain possession of it.
(24) Surely there is a way by which R. Mari could obtain the twelve thousand zuz!
(25) The discussion at the academy having been reported to Issur.
(26) And R. Mari thus acquired ownership of the twelve thousand sins.
(27) Lit., 'plea', 'argument'.
(28) It is possible that Raba had no intention whatsoever to appropriate Issur's money and that the whole discussion of the possible legal means whereby R. Mari could acquire possession of his father's money was only the master's method of impressing these subtle laws upon his students' minds. No one at the academy suspected for one moment that the master would in all earnestness desire to retain the money he held as a deposit from one who obviously confided in him. Had Raba been in earnest he would not have spoken publicly about such a matter when he well knew that Issur was still alive and could easily find legal means whereby to transfer possession to his son, if not to reclaim the deposit himself. Raba's pretended annoyance and ironical exclamation, 'They teach people what to say and cause me loss', must have been just a mild chiding to the students or their friends who deprived him of the satisfaction of passing on the money to R. Mari as a generous gift rather than as something legally due to him. The mention of the fact that R. Mari was בי רב 'at the master's house', i e 'school', which according to the ordinary interpretations has not much point (cf. Strashun a.l.) receives a new significance. It was discussed by Raba publicly despite the fact that R. Mari was himself at the school (perhaps Raba's very own school) and would well be aware of the whole discussion and could, if he chose, report it himself to his father and give him the necessary legal advice. The mention of R. Mari's presence at the school is probably the key to the indication of Raba's integrity and honour.
Talmud - Mas. Baba Bathra 149b
AND LEFT FOR HIMSELF SOME [PIECE OF] LAND, HIS GIFT IS VALID. And how much is SOME?- Rab Judah said in the name of Rab: Land sufficient for his maintenance, while R. Jeremiah b. Abba said [even if only] movables [that are] sufficient for his maintenance.
R. Zera exclaimed: 'How accurate are the reported traditions of the elders!1 What is the reason [in the case of the reservation of] land?2 [Because] he depended on it [for his maintenance] if he should recover; [in the case of] movables also [it may be assumed that] he depended on them if he were to recover'. R. Joseph demurred: Where is the accuracy? [Against him] who said, 'movables',3 [it may be objected that] we learned, land; [while against him] who said, 'sufficient for his maintenance', [it may be objected that] we learnt, 'whatsoever'!4 - Abaye replied to him: [Do you suggest that] wherever 'land' is stated, land only [is meant]? Surely we learnt: If one gave all his property to his slave, in writing. [the latter] goes forth [as] a free man. [If] he left [for himself] any land whatsoever,5 [the slave] does not go forth [as] a free man.6 R. Simeon said: [The slave] is always7 free8 unless [the master] said, 'All my possessions are given to my slave X, except a ten thousandth part of them'.9
(1) Rab Judah and R. Jeremiah b. Abba.
(2) I.e , why is the gift of a dying man valid in such a case, even if he recovered?
(3) That even the reservation of some movables renders the gift valid.
(4) כל שהוא kol shehu, lit., 'any so ever'. (5) Since the slave himself is part of the property the master gave him.
(5) Not specifying which.
(6) A slave is regarded as 'land', (real estate), and it is possible that by the reservation of 'some land' his master may have meant to exclude him. Hence, (since the property or a slave belongs to his master), the slave acquires nothing.
(7) Even if the master had reserved some land.
(8) Since people do not describe a slave as 'land'.
(9) By which expression he may rightly have meant the exclusion of the slave. Git. 8b; Pe'ah III, 8.
Talmud - Mas. Baba Bathra 150a
And R. Dimi b. Joseph said in the name of R. Eleazar: Movables1 in the case of a slave were regarded2 as a reservation; but movables in the case of a kethubah3 were not regarded as a reservation!4 - There,5 [R. Joseph retorted,] it would have been proper that [the term] 'land', should not have been used [at all]; only because in the first part [of the Mishnah] it was stated, 'R. Akiba said: Land of any size is liable to [have the ears at its] corner[s left for the poor], and to [the bringing of its] first ripe fruit [to Jerusalem]; a prosbul6 may be written in connection with it;7 and movable property8 may be acquired in conjunction with it by means of money, deed9 and possession',10 [the term] 'land' was in consequence used [in the second part of this Mishnah also].11
And [do you suggest. Abaye again asked R. Joseph,12 that] wherever 'whatsoever'13 was taught no [minimum] size is required?14 Surely we learnt: R. Dosa b. Horkinas said: Five ewes which supply15 [fleeces of the weight of] a maneh and a half each,16 are subject to [the law of] 'the fist of the fleece'.17 But the Sages said, '[Even] five ewes [which] supply any [quantity] whatsoever [of wool]'18 . And to the question,19 how much [was meant by] any [quantity] 'whatsoever',13 Rab replied: A [total of a] ,maneh and a half, provided each supplies [no less than] a fifth [of the total quantity]!20 - There, [R. Joseph retorted], it would have been proper that [the expression] 'any [quantity] whatsoever' should not have been used [at all]; only because the first Tanna speaks21 of a large quantity.22 [the Sages] also speak21 of a small quantity,23 which is described [as] 'any quantity whatsoever'.24
[It is] obvious [if a person] said, 'My movables [shall be given] to X', [the latter] acquires possession of all the things he used except wheat and barley. [If he said], 'All my movables [shall be given] to X'.[the latter] acquires possession even of wheat and barley and even of the upper millstone,25 except the lower millstone.26 [If he said], 'All that can be moved',[the latter] acquires possession even of the lower millstone.27 The question. [however]. was raised: Is a slave regarded as real estate or as movables!28 - R Aha son of R. Awia said to R. Ashi, Come and hear: He who sold a town has [also] sold [its] houses, ditches and caves, [its] bath houses, olive presses and irrigation works, but not the movables [that it contains]. In the case, however,29 where he said, 'It and all that it contains', all its contents,30 even if it consisted of31 cattle or slaves, are sold.32 [Now.] if it is granted [that slaves are] like movables, one can well understand why they are not included in the sale in the first [case];33 if, however, it is assumed [that] they are like real estate, why are they not included in the sale? - What, then, [is it suggested, that] they are like movables? Why 'even'?34 All, however, that can be said in reply35 [is that] movables which [can] move [of themselves]36 are different from movables that [can] not move;37 so also it may be said38 [that slaves] are like real estate [but that] real estate that moves is different from real estate that does not move.39
Rabina said to R. Ashi, Come and hear:40 If one gave all his property to his slave, in writing, [the latter] goes forth [as] a free man. [If] he left [for himself] any land whatsoever [the slave] does not go forth [as] a free man. R. Simeon said: [The slave] is always free unless [the master] said, 'All my possessions are given to my slave X, except a ten thousandth part of them'. And R. Dimi b. Joseph said in the name of R. Eleazar: Movables in the case of a slave are regarded as a reservation,41 but movables in the case of a kethubah are not regarded as a reservation.42 And Raba asked R. Nahman, 'What is the reason?' [To which the latter replied.] 'A slave is [regarded as] movables, and [in the case of] movables,43 movables44 are regarded as a reservation; the kethubah of a woman, however, is [payable from] real estate,45 and [in the case] of real estate, movables44 [are] not [regarded as] a reservation.46
(1) Though this Mishnah speaks only of 'land', 'movables' are included.
(2) Lit., 'they made'.
(3) If a person allotted to his wife a share in his lands when he distributed them to his sons, she loses thereby the claims of her kethubah (v. supra 132a). If, however, he gave her a share in movables only. her rights are not impaired.
(4) From the fact that, in the case of a slave, 'movables' are regarded as 'land', though the latter term only is used, it follows that the expression 'land' may include movables; how, then, could R. Joseph urge that since our Mishnah spoke of 'land', movables could not have been included?!
(5) In the case of a slave.
(6) V. Glos.
(7) V. p. 324. n. 8.
(8) Lit., property which has no security , i.e., from which creditors cannot collect their debts.
(9) Confirming the sale of the land.
(10) By performing some kind of work on the estate. V. Supra 42a; 77b.
(11) In this case only, for the reason given, R. Joseph maintains, could the term 'land' include movables. Elsewhere, however, 'land' implies real estate only.
(12) Who objected (supra, 149b) to the interpretation that 'some' in our Mishnah meant, 'sufficient for one's maintenance'. V. Rashb.
(13) כל שהוא
(14) Lit., 'it has not'.
(15) Lit., 'shear'.
(16) Lit., 'maneh and a half' (bis).
(17) Which has to be given to the priest. Deut. XVIII, 4.
(18) Hul. 137b.
(19) Lit., 'and we said'.
(20) Which shows, contrary to R. Joseph's argument, that even where the expression, 'any (quantity) whatsoever' is used, a minimum is required
(21) Lit., 'said'.
(22) A maneh and a half per ewe.
(23) A fifth of the first Tanna's quantity.
(24) Elsewhere, however, where 'any quantity whatsoever' (kol shehu), is mentioned no minimum is required. Hence R. Joseph's objection (supra 149b), against the interpretations of the elders is well founded.
(25) Since It is sometimes removed from its place, it is included in the movables.
(26) Which is always kept in its place on the ground.
(27) It can be removed from its place since it is not actually fixed to the ground.
(28) Though, as regards Biblical laws, slaves are regarded as 'land' or 'real estate' as, e.g., in the case of oaths and acquisition by means of money, deed and possession, the question here is whether in the course of ordinary conversation people describe a slave as 'real estate' or as 'movables'.
(29) Lit., 'and at the time'.
(30) Lit., 'all of them'.
(31) Lit., 'they were in it'
(32) Supra 88a.
(33) Where the town only was sold, and all movables were, consequently, excluded.
(34) 'Even', suggests that they are not in fact like 'movables'.
(35) Lit., 'but what have you to say'.
(36) I.c., 'slaves'.
(37) And this is the reason why 'even' was used.
(38) Lit., 'you may even say'. in relation to the first case.
(39) Hence slaves who can move about could not have been in the mind of the person who sold 'a town' that cannot move. In other cases, however. where no particular kind of real estate was mentioned, slaves also may have been included, while in the ease where only 'movables' were specified, slaves may have been excluded.
(40) V. supra 149b, for notes on the following citation.
(41) As the slave does not gain his freedom where his master has reserved some real estate so he does not gain his freedom when his master reserved some movables.
(42) v. p. 647. n. 8.
(43) I.e., when the master reserved for himself 'any movables' whatsoever.
(45) A woman can collect her kethubah from real estate only (v. infra 150b) and not from movable objects.
(46) It has thus been proved from R. Nahman's statement that a slave is regarded as movables; and not as real estate.
Talmud - Mas. Baba Bathra 150b
He1 replied to him:2 We explain this3 as being due to [the fact4 that the freedom] certificate is not complete.5
Raba said in the name of R. Nahman: [In] five [cases] it is necessary6 that all one's possessions shall be given away in writing;7 and they are the following:8 [The case of a] dying man; one's slave; one s wife, one's sons; [and] a woman who keeps her husband away from her estate.9 'A dying man' - for we learnt: IF A DYING MAN GAVE ALL HIS PROPERTY, IN WRITING, TO OTHERS, AND LEFT [FOR HIMSELF] SOME [PIECE OF] LAND, HIS GIFT IS VALID. [IF, HOWEVER], HE DID NOT LEAVE [FOR HIMSELF] SOME [PIECE OF] LAND, HIS GIFT IS INVALID.10 'One's slave' - for we learnt: If one gave all his property to his slave, in writing. [the latter] goes forth [as] a free man. [If] he left [for himself] some lands [the slave] does not go forth [as] a free man.11 'One's wife' - for Rab Judah said in the name of Samuel: If [a dying man] gave all his property to his wife, in writing. he [thereby] only appointed her administratrix.12 'One's sons' - for we learnt: If [a person] assigns all his property to his sons in writing, and he has assigned [also] to his wife [a piece of] land of any size whatsoever, she loses [the claims of] her kethubah.13 'A woman who keeps her husband away from her estate' - for a Master said: A woman who [desires to] keep [her husband] away [from her estate],14 must give away all her estate, in writing.15 In all these [cases]16 movables are [also regarded as] a reservation,17 except [in that] of a kethubah since [in respect to it] the Rabbis have enacted [that a woman has a claim] upon lands, [but] have not provided [her with the right of collecting it]18 from movables.19
Amemar said: Movables that are entered in the kethubah and are [also] available, are [regarded as] a reservation.20
[If a person]21 said, 'My property [shall be given] to X', slave[s] are included,22 for we learnt: If one gave all his property to his slave in writing, [the latter] goes forth [as] a free man.23 Land is described [as] property; for we learnt: Property which has a security24 may be acquired by means of money, deed and possession.25 A cloak is called property, for we learnt:26 And that which has no security27 can only be acquired by means of pulling.28 Money is called property; for we learnt: And that which has no security may be acquired in conjunction with property which has a security. [bought jointly with it,] by means of money, deed and possession;29 as in the case of30 R. Papa [who] had a [money claim of] twelve thousand zuz at Be-Huzae, [and] he passed them over into the possession of R. Samuel b. Aha by virtue of the threshold of his house, [and] when the latter came [back] he went out to meet him as far as Tauak.31 A deed is called property; for Raba b. Isaac said: There are two [kinds] of deeds. [If a person says.] 'Take possession of the field on behalf of X, and write for him the deed', he may withdraw the deed but not the field. [If. however, he says. 'Take possession of the field] on condition that you write for him the deed', he may withdraw both the deed and the field. But R. Hiyya b. Abin said in the name of R. Huna: There are three [kinds of] deeds. Two have just been described. [And the] third is one which the seller writes before [the sale] in accordance with the law we have learnt that
(1) R. Ashi.
(3) The reason why the reservation of some movables deprives the slave of his freedom.
(4) And not to use reason given by R. Nahman.
(5) Lit., 'cut'. In order that the slave may procure his freedom it is essential that the master should present him, with a writ 'of emancipation which definitely severs (cuts off) all connections and all relationships between master and slave. Where, however, the master reserves for himself in the writ something, whether in land or in movables, the separation between them effected by it is not complete. Furthermore, it may also be assumed that by that reservation the slave himself may have been intended. In other cases, however, R. Ashi maintains, it is possible, contrary to R. Nahman (Rashb.), or even R. Nahman would agree (R. Tam), that a slave is spoken of as 'land' or 'real estate'.
(6) Lit., 'until'.
(7) Otherwise, the laws stated are inapplicable.
(8) Lit., 'these'.
(9) Lit., 'causes to flee'.
(10) Supra 146b; Pe'ah III,7.
(11) V. supra 149b.
(12) Supra 131b (q.v. for notes). 144a, Git. 14a.
(13) Supra 132a, q.v. for notes, Pe'ah, ibid.
(14) I. e., that it shall not pass over into his possession by virtue of his becoming her husband.
(15) To a stranger, if she did so she may, on the death of her husband, or if divorced, reclaim her estate. Since no sane person would give away all his possessions and leave for himself nothing, it is obvious that the sole purpose of her presentation of the whole of her estate must have been the prevention of her husband from acquiring ownership thereof. IF, however, she left some portion of the estate for herself, this law does not apply, the gift is valid and she is not entitled ever to reclaim it.
(16) Lit., 'and in all of them', i.e. the four out of the five cases.
(17) Though in every case the term, 'land' was used.
(18) The kethubah.
(19) That is in accordance with Talmudic Law. In virtue, however, of a Gaonic enactment ascribed to R. Hunai (8th century), a Kethubah is payable also out of movables; v. Eben ha-'Ezer, 100. 1.]
(20) Because from such movables a kethubah may be collected as from real estate, v. Keth. 55a. If the husband, therefore, reserved these for her, she loses her rights to the kethubah as if he had reserved for her real estate.
(21) Either a dying man, or one in good health where symbolic acquisition took place.
(22) Lit., 'is called property'.
(23) Supra 149b.
(24) I.e., land.
(25) Kid. 26a.
(26) The conclusion of the previous citation, loc. cit.
(27) Movables, such as garments.
(28) V. Glos., Meshikah.
(29) Kid., l.c.
(30) Lit., 'that'.
(31) Supra 77b, q.v. for notes. The case of R. Papa quoted as an example of 'property which has no security', clearly proves that money is also called 'property'.