Babylonian Talmud: Tractate Baba Bathra

Folio 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 administratrix.
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.

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.