Babylonian Talmud: Tractate Baba Bathra

Folio 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 Halachoth,¹⁵  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 heirship,²⁹  and the exemption of his wife from levirate marriage.³⁰

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. [H] plur. of Halachah, [H]
16. [H] plur. of Aggada, [H]
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. [H] 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.

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. supran 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.