Babylonian Talmud: Tractate Baba Bathra

Folio 49a

accepted. Also if the witnesses to a deed [of sale] say, We only wrote [under reservation of] a moda'ah¹  their word is not accepted!²  — This is the case where they make a verbal statement to this effect, because a verbal statement cannot invalidate a written deed, but if they write a deed,³  then one deed can invalidate another.

The preceding text states that R. Nahman said: If the witnesses [to a bond] say, We only wrote it [under cover of] an amanah, their word is not accepted, and if the witnesses [to a deed] say, We wrote [it under the reservation of] a moda'ah, their word is not accepted. Mar son of R. Ashi, however, says that if they say, We only wrote [it] under cover of an amanah, their word is not accepted, but if they say, We wrote [under the reservation of] a moda'ah, their word is accepted. The reason is that it is proper to commit to writing a moda'ah, but it is not proper to commit to writing an amanah.⁴

THE HUSBAND HAS NO HAZAKAH IN THE PROPERTY OF HIS WIFE. Surely this is self-evident? Since he has a right to the produce [of the wife's field,⁵  therefore, however long he occupies it we say that] he is merely taking the produce?⁶  — The rule required to be stated for the case in which he has made a written declaration that he has no right or claim to her property.⁷  But suppose he has done so, what difference does it make, seeing that it has been taught, If a man says to another, I have no right or claim to this field, I have no concern in it, I totally dissociate myself from it, his words are of no effect?⁸  — In the school of R. Jannai the answer was given that the Mishnah here [is referring to the case] where the husband made this declaration to the wife while she was still only betrothed to him; [and such a declaration would be valid] in virtue of the dictum of R. Kahana

1. I.e., before signing the deed, we ascertained that the seller was selling under duress and intended to annul the sale.
2. And the bond or deed of sale is still valid.
3. As here, where the moda'ah was recorded in writing before the sale took place.
4. An amanah was looked upon by the Rabbis as contrary to equity, and they therefore denounced anyone who kept a bond of this kind in his house for twenty-four hours. Hence if the witnesses say they wrote a bond of amanah, their word is not accepted, since a man is not allowed to condemn himself. To write a moda'ah, however, is perfectly legitimate, and therefore if they say they signed the deed of sale under reservation of a moda'ah, their word is accepted.
5. Even though the wife remains legal owner of the field itself.
6. And he cannot plead that she sold it to him.
7. And therefore if we see him in occupation of a field that was hers, the presumption is that he bought it.
8. V. Supra 43a.

that a man is at liberty to renounce beforehand¹  an inheritance which is likely to accrue to him from another place;²  and this rule again is based on the dictum of Raba, that if anyone says, I do not desire to avail myself of a regulation of the Rabbis of this kind, we comply with his desire.³  To what was Raba referring⁴  when he said 'of this kind'? — He was referring to the statement made by R. Huna in the name of Rab: A woman is at liberty to say to her husband, You need not keep me and I will not work for you.⁵

[Since the Mishnah says that a husband has no hazakah in the property of his wife, we infer that] if he has proof [that she sold it to him],⁶  the sale is effective. [Yet why should this be?] Cannot she say [in this case also], I merely wished to oblige my husband?⁷  Have we not learnt: If a man buys [a field] from the husband⁸  and then buys it again from the wife, the purchase [from the wife] Is void?⁹  This shows that she can say: I merely consented in order to oblige my husband, and cannot she say here also that she merely wished to oblige her husband? — The truth is that this [Mishnah] has been qualified by the gloss of Rabbah son of R. Huna: The rule really required to be stated in reference to those three fields [that are specially allotted to her]¹⁰  — one that the husband inserted In the kethubah,¹¹

1. Lit., 'to stipulate'.
2. I.e., from a distant relative, to whom he becomes next-of-kin according to the regulations of the Rabbis. But inheritance from a next-of-kin mentioned in the Torah cannot be so renounced.
3. The regulation that a man should become heir to a distant relative in certain cases was made for his own benefit, and therefore he is at liberty to reject it. The statement of R. Kahana is adduced to show that the formula 'I have no right or claim to this property' is effective when applied to property which will hereafter accrue to a person but is not yet in his hands, e.g., the produce of the field of the betrothed woman, which will only accrue to the husband after marriage.
4. I.e., what subject was being discussed in the Beth Hamidrash.
5. It was a regulation of the Rabbis that a husband should maintain his wife in return for her labour. As this regulation was made on behalf of the wife, she was not bound to accept it.
6. E.g., a document or witnesses.
7. By consenting to the sale, but I did not really wish to part with the field.
8. In order to release himself from the lien which the wife has on all her husband's property for the recovery of her kethubah.
9. Git. 55b.
10. If she refuses to sell these, the husband cannot reasonably take offence, and therefore but for the rule just stated we might think that if she does give her consent the sale is valid. — The argument runs on, and the reply to the question comes at the end.
11. As a special security for her kethubah, apart from the general security effected on the whole of his property.