Babylonian Talmud: Tractate Gittin

Folio 51a

or is it sufficient that it should be definite even without being written down? — Come and hear: It has been stated: If a man dies and leaves two daughters and a son, and if the first [daughter] took her tenth of the property¹  before the son died but the second had not time to take her tenth before the son died, R. Johanan says that the second has forfeited [her tenth].²  R. Hanina remarked to him: The [Rabbis] went even further than this by laying down that payment may be enforced for [marriage] provision³  though not for maintenance, and how can you say then that the second forfeits her tenth?⁴  Now [marriage] provision is a definite sum but it is not written down, and we see [that R. Hanina says that] it is enforceable? — There is a special reason in the case of [marriage] provision; it gets talked about and therefore it is as good as written.⁵  R. Huna b. Manoah raised an objection [from the following]: 'If [both husbands] died,⁶  the daughters⁷  are maintained from free assets, but she⁸  is maintained [also] from mortgaged property, because she is in the position of a creditor'?⁹  — We presume that in this case there was a formal transfer.¹⁰  If that is the case, then the daughters⁷  also should draw on mortgaged property]? — We presume that the transfer was made on behalf of the one but not of the others. On what ground do you decide thus? — Because the daughter of his wife who was already born at the time of the transfer can benefit from the transfer, but his own daughter who was not yet born at the time of the transfer cannot benefit from it. But are we not to assume that both had already been born at the time of the transfer, [and if you ask how can this be, I answer,] supposing he had divorced her and then taken her back?¹¹  — No; what we must say is that his own daughter who is entitled to maintenance on the strength of the stipulation of the Beth din¹²  derives no benefit from the transfer, whereas his wife's daughter who is not entitled to maintenance on the strength of the stipulation of the Beth din does derive benefit from the transfer.¹³  Is then his own daughter to be in an inferior position? — No; since his daughter is entitled to maintenance on the strength of the stipulation of the Beth din, we presume that [at his death] he gave her a purse of money.¹⁴  Come and hear: R. Nathan says: When [does this rule about consumable produce etc. apply]? When the purchase of the second¹⁵  preceded the betterment of the first. But if the betterment of the first preceded the purchase of the second, [the former] can recover from property on which there is a lien. We see therefore that the reason is because he did not improve the field first [and not because the produce is not mentioned in the deed or is not a definite sum]? — This is a point on which Tannaim also differed, as it has been taught: Indemnification for produce consumed and for betterment of land and [outlay] for maintenance of widow and daughters cannot be enforced from property on which there is a lien, to prevent abuses, since they are not written in any deed.¹⁶  R. Jose said: What prevention of abuses is there here,¹⁷  seeing that they are not definite?¹⁸

THE FINDER OF A LOST ARTICLE CANNOT BE REQUIRED TO TAKE AN OATH. R. Isaac said: [If a man says to another], 'You found two purses tied together,' and the other says, 'I found only one,' he can be forced to swear, [If he says,] 'You found two oxen tied together,' and the other says. 'There was only one,' he cannot be forced to swear. Why this difference? Because oxen can get loose from one another, but purses cannot.¹⁹  [If he says.] 'You found two oxen tied together,' and the other says. 'I did find, and I restored to you one of them,' he has to take an oath.²⁰  Does then R. Isaac not accept the rule that A FINDER OF A LOST ARTICLE CANNOT BE REQUIRED TO TAKE AN OATH, TO PREVENT ABUSES?

1. The rule was that an orphan daughter was entitled to a tenth of her father's property on becoming of age or marrying, apart from her maintenance up to that time.
2. Because she now becomes joint heiress to the whole property.
3. I.e. from anyone who should have bought property from the brother.
4. If she can recover from others, how can we ask her to give up what is already in her hands?
5. Hence we may still maintain that R. Hanina requires both written and definite.
6. The case is one in which a woman with a daughter marries a man with the stipulation that he will maintain her daughter for a definite period, and within the period he divorces her and she marries another man with the same stipulation. Each husband has then to give the full allowance for the daughter's maintenance according to stipulation, v. Keth. 101b.
7. Which this woman bore to them.
8. The woman's daughter.
9. Because the term of years was definite, although there was no written contract. This contradicts 'Ulla.
10. A Kinyan, v. Glos. Which would naturally he recorded in writing.
11. And afterwards made the agreement along with the transfer. Hence the transfer cannot be the reason.
12. The rule that an unmarried orphan daughter is entitled to maintenance, v. Keth. 52b.
13. An thus the transfer is after all the reason.
14. In settlement of her maintenance dues, and this is why the transfer does not apply to her.
15. I.e., one who bought a second field from the robber on which the first purchaser wishes to distrain.
16. And no-one would buy land if he was afraid it might be claimed on account of obligations not recorded in writing.
17. Why introduce here this consideration?
18. This alone is sufficient to debar enforcement from mortgaged property, which shows that R. Jose holds that even if they were written they would not be enforceable.
19. Hence in the case of the purses the claimant could be positive, but not in the case of the oxen, and the oath is administered only if the claimant is positive.
20. That he has restored one of them, since he has admitted part of the charge, which was that he found two. There is another reading (preferred by Tosaf.) 'It has also been taught to the same effect, (If a man says,) 'You found two oxen together' and the other says, 'I only found one,' he does not take an oath. If the first says, 'You found two purses tied together' and the other says. 'I did, and I gave you back one of them,' he has to take an oath.' V. p. 281, n. 4.

— He adopted the view of R. Eliezer b. Jacob, as it has been taught: R. Eliezer b. Jacob says, There are times when a man has to take an oath on account of his own plea. For instance: If a man says, 'Your father lent me a maneh and I returned him half of it,' he has to take an oath, this being the kind of person who has to take an oath on account of his own plea. The Sages, however, say that he is on the same footing as one who restores a lost article, and he is exempt [from an oath].¹  But does R. Eliezer b. Jacob not hold that one who restores a lost article is exempt? — Rab said: [He speaks of a case] where the claim is made by a minor.²  Does any weight attach to the claim of a minor, seeing that we have learnt, 'An oath is not administered on the claim of a deaf-mute, an idiot or a minor'?³  — By 'minor' R. Eliezer means here a grown-up, and the reason why he calls him 'minor' is because in respect of the affairs of his father he is no better than a minor. If that is the case, why does he say, 'on account of his own plea'? It is the plea of someone else? — He means, the plea of someone else and his own admission. But all charges can be called 'the plea of someone else and his own admission'? — The truth is that they [R. Eliezer and the Rabbis] differ over the point raised by Rabbah; for Rabbah said: Why did the Torah lay down that one who admits part of the charge against him should take an oath [that he is not liable for the rest]?⁴  The presumption is that a man will not be brazen enough in the presence of his creditor [to deny a debt outright]. Now this man would like to deny the whole, and the reason why he does not deny the whole is because he is not brazen enough.⁵  On the other hand, he would also like to admit the whole, and the reason why he does not do so is to gain time, as he thinks to himself, When I have money I will pay him.⁶  The All-Merciful therefore said: Impose an oath on him, so that he will admit the whole. Now R. Eliezer was of opinion that whether he is dealing with [the lender] himself or with his son, [the debtor] would not be brazen enough [to deny the debt outright], and therefore in neither case is he like one who restores a lost article.⁷  The Rabbis, however, were of opinion that he would not be brazen enough [to deny the debt to the creditor] himself but he would to his son. Hence since he is not so brazen, he is regarded as one restoring a lost article.⁸

1. Shebu. 42a; Keth. 18a.
2. Which he calls 'his own plea'.
3. Shebu. 38b.
4. V. Ex. XXII, 10.
5. Hence when he acknowledges part, he is not trusted in regard to the rest.
6. Hence we are willing to trust his oath.
7. Against whom no claim is brought in the first instance.
8. Because he acts spontaneously. For fuller notes on this passage v. Shebu. (Sonc. ed.) pp. 258-9, and B.M. pp. 8 and 9. [R. Eliezer b. Jacob will accordingly also accept the ruling of the Mishnah that no data are required of a restorer of a lost article. Consequently he cannot be in agreement with R. Isaac, who in turn will have to fall back on the Baraitha cited above for his sole support. This argument leads Tosaf. to give preference to the reading cited supra p. 230, n. 1.]