Babylonian Talmud: Tractate Kethuboth

Folio 80a

R. Abba: At the school of Rab it was stated, Even the refuse¹  of dates.²

R. Bibi enquired: What [is the ruling in respect of] a mash of pressed dates?³  — This stands undecided.⁴

What [is the ruling if] he did not eat it⁵  in a dignified manner?⁶  'Ulla replied: On this there is a difference of opinion between two Amoraim in the West.⁷  One says, The value of an issar;⁸  and the other says, The value of a denar.⁸

The judges of Pumbeditha⁹  stated: Rab Judah gave a practical decision¹⁰  in [a case where the husband used up some] bundles of vine-shoots,¹¹  Rab Judah acting here in accordance with his own principle; for Rab Judah ruled: If he¹²  ate thereof [during one of the three years] only 'uncircumcised'¹³  produce,¹⁴  [the produce of] the Sabbatical year,¹⁵  or the produce of mingled seed,¹⁶  this counts [towards the three years of] hazakah.¹⁷

R. Jacob stated in the name of R. Hisda: If a man has incurred expenses on the melog property of his wife who was a minor¹⁸  [he is in the same legal position] as one who incurred expenses on the property of a stranger.¹⁹  What is the reason? — The Rabbis have enacted this measure²⁰  in order that he should not allow her property to deteriorate.²¹

A woman once came into the possession of four hundred zuz²²  at Be-Hozae.²³  Her husband went thither, spent six hundred [on his journey] and brought with him the four hundred. While he was on his way back he required one zuz and took it out of these. When he came before R. Ammi²⁴  the latter ruled: What he has spent he has spent and what he used he has used.²⁵  Said the Rabbis to R. Ammi: Does not this²⁶  apply only where he consumes the produce, whilst here he used up the capital which [constituted a part of] the expenditure? — If so, he replied,²⁷  he is one who SPENT BUT DID NOT CONSUME, then HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE HIS COMPENSATION.

HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE COMPENSATION. Said R. Assi: This applies only where the appreciation corresponds to the expenditure. What exactly is the object of this²⁸  law?²⁹  — Abaye replied: That if the appreciation exceeded the expenditure be receives the sum of his outlay without an oath. Said Raba to him: If so,³⁰  one might be induced to act cunningly!³¹  — [The object of the law] however, said Raba, was that if the outlay exceeded the appreciation he is only entitled to receive that amount of his outlay which corresponds to the appreciations and [even this can be obtained only] by an oath.³²

The question was raised: What is the legal position where a husband has sent down³³  arisin³⁴  in his place?³⁵  Does [an aris] go down [into melog fields] in his reliance on the rights of the husband, [and, consequently,] when the husband forfeits his claim³⁶  they also³⁷  lose theirs, or does an aris possibly go down [into the melog fields] in his reliance on the [yield of] the land, and land, surely is usually entrusted to arisin?³⁸  To this Raba son of R. Hanan demurred: Wherein does this case essentially differ from that of a man who went down into a neighbour's field and planted it without the owner's authority where an assessment³⁹  is made and he is at a disadvantage?⁴⁰  — In that case⁴¹  there was no other person to take the trouble;⁴²  but here there is the husband who should have taken the trouble.⁴³  What then is the decision on the matter? — R. Huna the son of R. Joshua replied: We must observe [the conditions of each case]: If the husband is an aris,⁴⁴  the arisin lose all claim to compensation wherever the husband loses his claim;⁴⁵  if the husband is not an aris [they are entitled to compensation, since] all land is usually entrusted to arisin.⁴⁶

The question was raised: What is the ruling where a husband sold [his wife's melog] land for usufruct?⁴⁷  Do we say that whatever he possesses⁴⁸  he may transfer to others, or is it possible that the Rabbis have by their enactment granted the usufruct to the husband only

1. [H] (rt. [H] 'to flow', 'to cast').
2. After all the juice and sweetness has been pressed out, when they are practically valueless.
3. V. Jast. s.v. [H].
4. Teku, v. Glos.
5. The 'dried fig', supra.
6. I.e., what minimum quantity must one eat in such a case to he regarded as having CONSUMED LITTLE?
7. Palestine.
8. V. Glos.
9. The reference is to R. Papa b. Samuel (v. Sanh. 17b).
10. In favour of the wife who was divorced.
11. Of his wife's melog property, with which he fed his cattle. Though the shoots were hardly suitable for the purpose, Rab Judah regarded their consumption as sufficient reason for denying the husband all rights to compensation for his expenses.
12. A person who occupied a field for three years.
13. 'Orlah (v. Glos. and cf. Lev. XIX, 23).
14. I.e., the shoots, since the fruits of 'Orlah are forbidden for all uses.
15. Which is common property and the consumption of which is no proof of ownership.
16. Kil'ayim (v. Glos. and cf. Lev. XIX, 19 and Deut. XXII, 9). Only the shoots are permitted in this case also (cf. supra n. 15).
17. V. Glos. This shews that right of ownership may be established not only by the consumption of proper produce but also by that of mere shoots. Similarly, here, the improper feeding of one's cattle with vine-shoots is also regarded as proper consumption to exempt the woman from all responsibility for the expenses her husband had incurred on her melog property.
18. Who might leave him at any time by exercising her right of mi'un (v. Glos.).
19. The minor on exercising mi'un must compensate her husband for any improvements he may have effected in her property, paying him at the rate given to an aris (v. Glos.) in that country.
20. Conferring upon the husband of a minor the rights of an aris in respect of any expenses on her melog property that he may incur.
21. Had no provision been made for enabling him to recover his expenses he, knowing that the minor might leave him at any moment by exercising her right of mi'un, would exploit her property to the full, spending nothing on its improvement.
22. V. Glos.
23. A town in Khuzistan, S.W. Persia.
24. Claiming his expenses.
25. Cf. our Mishnah. The benefit he has derived from the one zuz ('CONSUMED LITTLE') deprives him of the right to recover the six hundred zuz for his expenses ('HE SPENT MUCH').
26. That If HE HAS SPENT MUCH AND CONSUMED LITTLE he cannot recover his expenses.
27. So BaH.
28. Lit., 'concerning what'.
29. Of R. Assi, i.e., does he lay the emphasis on TAKE AN OATH or on RECEIVE? In other words: Is it implied that the husband must swear Only where the appreciation just corresponds with his outlay, hut is to receive his outlay without any oath where the appreciation exceeds the outlay; or is the implication that he is to receive for his outlay no more than the value of the appreciation, and where the former exceeds the latter, he is not entitled to receive the difference even though he is willing to swear?
30. That in the circumstances mentioned one may obtain a sum of money without affirming his claim by an oath.
31. However small the outlay, one might claim the full value of appreciation minus a fraction, and receive it for the mere asking.
32. Confirming the amount he claims.
33. Into his wife's melog lands.
34. Pl. of aris (v. Glos.).
35. Do these arisin, when the woman is divorced, receive the full value of their amelioration?
36. Where, e.g., he consumed any part of the produce.
37. If they consumed any of it.
38. Had not the husband sent them, the wife would have done it herself. The arisin should consequently he entitled to the full refund of their share.
39. Of the appreciation.
40. B.M. 101a. He is repaid the amount he spent or is allowed the value of the appreciation whichever is the less. The two cases being essentially analogous, why was the question of the arisin at all raised?
41. That of the man who entered his neighbour's field.
42. Of planting the field. The man who undertook the work in the absence of other cultivators, and thus benefited the owner, is therefore, justly entitled to some compensation.
43. And since he would not have been entitled to any compensation if he consumed anything of the produce so also, it may well he argued, should not the arisin, who stepped into his place, be entitled to any compensation. Hence the enquiry.
44. Capable of attending to the field himself as any experienced aris.
45. Since the wife might well plead that, if they had not interfered, her husband would himself have done the work. As they have only done what the husband would have done they cannot expect any higher privileges.
46. Cf. supra p. 505, n. 9.
47. Sc. that the buyer cultivated the land and enjoys its produce while the land itself remains the property of its original owner.
48. [H] of cur. edd. in brackets is wanting in Alfasi. Cf. Asheri.

in order to provide for the comfort of his home but not so that he should sell it? — Judah Mar b. Meremar replied in the name of Raba: Whatever he has done is done. R. Papi¹  in the name of Raba replied: His act has no validity. Said R. Papa: The ruling reported²  by Judah Mar b. Meremar was not explicitly stated³  but was arrived at by inference. For a woman once brought to her husband⁴  two bondwomen,⁵  and the man went and married another wife and assigned to her one of them. [When the first wife] came before Raba and cried, he disregarded her. One who observed [the incident] formed the opinion [that Raba's inaction] was due to his view that whatever the husband did⁶  is valid;⁷  but in fact, it is not so.⁸  [Usufruct has been allowed to a husband] in order to provide for the comfort of his house and here, Surely, comfort was provided.⁹

And the law is that if a husband sold [his wife's melog] field for its usufruct¹⁰  his act has no legal validity. What is the reason? Abaye replied: Provision must be made against the possible deterioration of the land.¹¹  Raba explained: In order [to safeguard] the comfort of his house.¹²  What is the practical difference between them?¹³  — The practical difference between them is the case of land that was adjoining a town;¹⁴  or else where the husband [himself] was [acting as] aris,¹⁵  or else where [the husband] receives money¹⁶  and trades therewith.¹⁷

MISHNAH. IF A WOMAN AWAITING THE DECISION OF THE LEVIR¹⁸  CAME¹⁹  INTO THE POSSESSION OF PROPERTY, BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY, AND THAT HER ACT IS LEGALLY VALID.²⁰  IF SHE DIED, WHAT SHALL BE DONE WITH HER KETHUBAH²¹  AND WITH THE PROPERTY THAT COMES IN AND GOES OUT WITH HER?²²  BETH SHAMMAI RULED: THE HEIRS OF HER HUSBAND²³  ARE TO SHARE IT²⁴  WITH THE HEIRS OF HER FATHER;²⁵  AND BETH HILLEL RULED: THE [ZON BARZEL]²⁶  PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS,²⁷  THE KETHUBAH²⁸  IS TO REMAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND, AND THE PROPERTY WHICH GOES IN AND COMES OUT WITH HER²⁹  REMAINS IN THE POSSESSION OF THE HEIRS OF HER FATHER.

IF HIS³⁰  BROTHER³¹  LEFT MONEY, LAND SHALL BE BOUGHT THEREWITH AND HE³²  SHALL ENJOY ITS USUFRUCT.³³  [IF THE DECEASED LEFT] PRODUCE THAT WAS DETACHED FROM THE GROUND, LAND SHALL BE BOUGHT [OUT OF THE PROCEEDS] AND HE³²  SHALL ENJOY ITS USUFRUCT. [IF IT WAS STILL] ATTACHED TO THE GROUND, THE LAND³⁴  IS TO BE ASSESSED, SAID R. MEIR, AS TO HOW MUCH IT IS WORTH³⁵  TOGETHER WITH THE PRODUCE AND HOW MUCH IT IS WORTH WITHOUT THE PRODUCE, AND WITH THE DIFFERENCE LAND SHALL BE BOUGHT,³⁶  AND HE³⁷  SHALL ENJOY ITS USUFRUCT. THE SAGES, HOWEVER, RULED: PRODUCE WHICH IS [STILL] ATTACHED TO THE GROUND BELONGS TO HIM,³⁸  BUT THAT WHICH IS DETACHED FROM THE GROUND PASSES INTO THE OWNERSHIP OF HIM WHO SEIZES IT FIRST.³⁹  IF HE [SEIZED IT] FIRST HE ACQUIRES OWNERSHIP; AND IF SHE [SEIZED IT] FIRST LAND SHALL BE BOUGHT THEREWITH AND HE³⁷  SHALL ENJOY ITS USUFRUCT. IF [THE LEVIR] MARRIED HER SHE IS REGARDED AS HIS WIFE IN ALL RESPECTS³⁸  SAVE THAT HER KETHUBAH REMAINS A CHARGE ON HER FIRST HUSBAND'S ESTATE. HE CANNOT SAY TO HER, 'BEHOLD YOUR KETHUBAH LIES ON THE TABLE', BUT ALL HIS PROPERTY⁴⁰  IS PLEDGED TO HER KETHUBAH.⁴¹  SO, TOO, A MAN MAY NOT SAY TO HIS WIFE, BEHOLD YOUR KETHUBAH LIES ON THE TABLE, BUT ALL HIS PROPERTY IS PLEDGED TO HER KETHUBAH. IF HE DIVORCED HER⁴²  SHE IS ENTITLED ONLY TO HER KETHUBAH.⁴³  IF HE SUBSEQUENTLY REMARRIED HER SHE IS [TO ENJOY THE SAME RIGHTS AS] ALL OTHER WIVES, AND IS ENTITLED ONLY TO HER KETHUBAH.³⁸

GEMARA. The question was raised: If a woman awaiting the decision of a levir⁴⁴  died, who is to bury her? Are her husband's heirs to bury her because they inherit her kethubah⁴⁵  or is it possibly the heirs of her father who must bury her because they inherit the property that comes in and goes out with her? — R. Amram replied, Come and hear what was taught: If a woman awaiting the decision of a levir died,

1. So MS.M. and Bail. Cur. odd., 'Papa'.
2. Lit., 'that'.
3. By Raba.
4. On marriage.
5. As melog property.
6. Even if he sold moles property.
7. Hence the statement of Judah Mar.
8. A husband has no right to sell such property. It was only in that particular case that the husband acted within his rights for the reason that follows.
9. Since the bondwoman would even now attend to general household duties.
10. V. supra note 4.
11. Lit., 'we fear lest it will deteriorate'. The buyer of the usufruct, having no interest in the land itself, would exploit it to the full, neglecting its proper cultivation and use. The husband, however, who, in addition to his right to usufruct, might also, in the event of his surviving his wife, become the owner of the land itself, may well be relied upon to give it proper attention.
12. The sale of the usufruct to a stranger would deprive the household of the enjoyment of it.
13. Abaye and Raba. Is not the sale of the usufruct equally forbidden whatever the reason?
14. Where it is possible to watch the treatment meted out to the land by the buyer and to take in good time the necessary steps for its protection. In such a ease Raba's reason is applicable; Abaye's is not. According to the latter the husband would he entitled to sell the usufruct.
15. He himself was looking after the land, delivering to the buyer the harvested produce. In this case also Raba's reason is applicable, but not Abaye's (cf. supra note 4).
16. From the buyer.
17. In this case Abaye's reason applies: but not Raba's, since the income from the trading provides for the comfort of the house. According to Raba the sale of usufruct in such a case is permitted.
18. [H] the widow of a deceased brother during the period intervening between the death of her husband and her halizah or marriage with the levir.
19. During this waiting period (Rashi. Cf., however, Rashi on the parallel Mishnah s.v. [H] Yeb. 38a).
20. As melog property (v. Glos.) she has the right to dispose of it in the way she thinks fit.
21. V. Glos. Here it denotes the sum corresponding in value to the wife's dowry which is conveyed under terms of tenancy to the husband, who enters it in the marriage contract and accepts full responsibility: v. Glos. s.v. zon barzel.
22. I.e., her melog property, the capital of which remains in the legal possession of the wife, the husband, who enjoys Only the usufruct, accepting no responsibility for it.
23. Who is heir to his wife. 'Husband' in this context _ levir.
24. I.e., the melog property, not the kethubah concerning which Beth Shammai are of the same opinion as Beth Hillel that follows. The discrepancy between the first clause in the Mishnah, where the melog property is declared definitely hers, whereas in this second clause it is considered doubtfully so, is explained in Yeb. 38a.
25. Since it is a matter of doubt whether the marital bond with the levir constitutes such a close relationship as that of actual marriage, the right of heirship as between her husband's heirs and her father's cannot he definitely determined. The property must, therefore, he equally divided between them.
26. V. Glos.
27. The question whether these are the heirs of the husband who had undertaken responsibility for the property, or the heirs of the wife whose capital it was originally, is dealt with 10 B.B. 158b.
28. Here (unlike supra p. 507, n. 11) it has its usual connotation; (a) the statutory sum of a hundred zuz for a widow and two hundred zuz for a virgin which is entered in all marriage contracts irrespective of any property that the wife may bring with her on marriage and (b) the amount which the husband adds to it over and above the value of the property which she brought to him.
29. V. supra note 1,
30. The levir's (v. supra p. 507, n. 11).
31. The deceased (v. l.c.).
32. The levir, if he contracted the levirate marriage with the widow.
33. The capital being pledged to the woman for her kethubah which remains a charge upon the estate of her first husband, the deceased. According to this opinion even movable possessions, such as money. are also pledged for the kethubah.
34. Read [H] with BaH a.l. Cur. edd. [H] refers to [H] and conveys no sense.
35. [H] (so BaH). Cur. edd. [H] (cf. previous note).
36. R. Meir holding the view that whatever the land yielded while it was in the possession of the deceased (i.e.. during his lifetime) is mortgaged for the wife's kethubah.
37. The levir, if he contracted the levirate marriage with the widow.
38. This is discussed in the Gemara infra.
39. [H] lit., 'whoever is first gains possession'. The same ruling applies also to money, since movables, in the opinion of the Sages, are not pledged for the kethubah unless the wife had seized them (cf. Infra 84b).
40. Which he inherited from his deceased brother.
41. I.e., he cannot pay her out her kethubah and sell the rest, hut must hold the whole of the deceased brother's estate as mortgaged to her kethubah; v. infra p. 512, n. 21.
42. After he had duly consummated the levirate marriage.
43. And he is at liberty to dispose of the rest of the property (v. supra n. 6) as he may desire.
44. Cf. supra p. 507, n. 8.
45. Which should compensate for burial expenses (cf. supra 47b).