Babylonian Talmud: Tractate Kethuboth

Folio 84a

could Rab, however, [it may be retorted,] hold the opinion that one's condition [though contrary to what is written in the Torah] is valid? Has it not in fact been stated: If a man says to another, '[I sell you this object] on condition that you have no claim for overreaching against me' [the buyer]. Rab ruled, has nevertheless a claim for overreaching against him,¹  and Samuel ruled, He has no claim for overreaching against him?²  — [It is this] then [that was meant;] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that IF A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, 'but not because of the reason he gave', for whereas R. Simeon b. Gamaliel is of the opinion that WHEN SHE DIES HE IS HER HEIR, Rab maintains that when she dies he is not her heir.³  But is not this in agreement with his reason⁴  and not with his ruling?⁵  — This then [it is that was meant:] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave' for, whereas R. Simeon b. Gamaliel is of the opinion that only a condition that is contrary to a Pentateuchal law is null but one that is contrary only to a Rabbinic law⁶  is valid, Rab maintains that even a condition contrary to a Rabbinic law⁶  is also null.⁷

But this would be in agreement, would it not, with both his reason⁸  and his ruling.⁹  Rab only adding [greater force to it]?¹⁰  This then [it is that was meant:] 'The halachah is in agreement with R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave', for, whereas R. Simeon b. Gamaliel holds that a husband's right of heirship is Pentateuchal and that [it is invalid because] WHEREVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab maintains that a husband's right of heirship is only a Rabbinic enactment and [that the condition is nevertheless null because] the Sages have imparted to their enactments the same force as that of Pentateuchal laws.

But [could it be said,] that Rab is of the opinion that a husband's right of heirship is only Rabbinical when in fact we have learned:¹¹  R. Johanan b. Beroka ruled, 'If a husband is the heir of his wife he must [when the Jubilee year¹²  arrives] return [the inheritance] to the members of her family and allow them a reduction of price';¹³  and, in considering this statement, the objection was raised: What is really his¹⁴  opinion? If he holds that a husband's right of heirship is Pentateuchal, why [it may be asked] should he return [the inheritance at all]?¹⁵  And if [he¹⁶  holds it to be only] Rabbinical, why [it may be objected] should [even a part of] its price be paid?¹⁷  And Rab explained: He¹⁶  holds in fact the opinion that a husband's right of heirship is Pentateuchal but¹⁸  [here it is a case of a man], for instance, whose wife bequeathed to him a [family] graveyard, [and it is] in order [to avoid] a family taint¹⁹  that the Rabbis have ruled, Let him take the price and return it; and by²⁰  'allow them a reduction in price' [was meant a deduction of] the cost of his wife's grave;²¹  [the return of a family graveyard being] in agreement with what was taught: If a person has sold his [family] grave, the path to this grave, his halting place.²²  or his place of mourning, the members of his family may come and bury him perforce,²³  in order [to avert] a slight upon the family!²⁴  — Rab spoke here in accordance with R. Johanan b. Beroka's point of view but he himself does not uphold it.

MISHNAH. IF A MAN DIED AND LEFT A WIFE,²⁵  A CREDITOR,²⁶  AND HEIRS²⁷  AND HE ALSO HAD A DEPOSIT OR A LOAN IN THE POSSESSION OF OTHERS, THIS, R. TARFON RULED, SHALL BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.²⁸  R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT²⁹  SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS³⁰  MUST TAKE AN OATH³¹  THE HEIRS NEED NOT TAKE ANY OATH.³²  IF HE LEFT PRODUCE THAT WAS DETACHED FROM THE GROUND, THEN WHOEVER³³  SEIZES IT FIRST ACQUIRES POSSESSION. IF THE WIFE TOOK POSSESSION OF MORE THAN THE AMOUNT OF HER KETHUBAH, OR A CREDIT OR OF MORE THAN THE VALUE OF HIS DEBT, THE BALANCE, R. TARFON RULED, SHALL. BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.³⁴  R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS³⁰  MUST TAKE AN OATH³¹  THE HEIRS NEED NOT TAKE ANY OATH.³²

GEMARA. What was the object of specifying both A LOAN and a DEPOSIT?³⁵  [Both were] required. For if A LOAN only had been mentioned it might have been presumed that only in that case did R. Tarfon maintain his view, because a loan is intended to be spent,³⁶  but that in the case of a deposit which is in existence³⁷  he agrees with R. Akiba.³⁸  And if the former³⁹  only had been mentioned it might have been assumed that only in that case did R. Akiba maintain his view⁴⁰  but that in the other case⁴¹  he agrees with R. Tarfon.⁴²  [Hence both were] necessary.

What is meant by TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE? — R. Jose the son of R. Hanina replied: To the one who is under the greatest disadvantage in respect of proof.⁴³  R. Johanan replied: [The reference is] to the kethubah of the wife⁴⁴  [who was given this privilege] in order to maintain pleasantness⁴⁵  [between her and her husband].⁴⁶  [This dispute is the same] as that between the following Tannaim: R. Benjamin said, To the one who is under the greatest disadvantage in respect of proof.⁴³  and this is the proper [course to take]; R. Eleazar said.[The reference is] to the kethubah of the wife⁴⁴  [who was given this privilege] in order to maintain pleasantness⁴⁵  [between her and her husband].⁴⁶  IF HE LEFT PRODUCE THAT WAS DETACHED. As to R. Akiba,⁴⁷  what was the point in discussing the BALANCE when⁴⁸  the entire estate belongs to the heirs?⁴⁹  — The law is so indeed,⁵⁰  but since R. Tarfon spoke of the BALANCE, he also mentioned the BALANCE.

1. Because the condition is contrary to the Pentateuchal injunction of [H] (Lev. XXV, 24).
2. Now, since Rab recognizes the invalidity of a condition that is contrary to Pentateuchal law of overreaching, how could he be said to regard a similar condition elsewhere as valid?
3. The condition being 'and because a husband's right of heirship is, in Rab's opinion, a Rabbinical enactment which has not the same force as that of a Pentateuchal law.
4. I.e., that a condition which is contrary to a Pentateuchal law is null.
5. That WHEN SHE DIES HE IS HER HEIR. The answer being in the affirmative, the facts are directly opposite to the statement made supra by Rab.
6. Such, e.g. as a renunciation by a husband of his rights to the usufruct of his wife's property.
7. Because in his opinion the Sages have impaired to their enactments the same force as that of a Pentateuchal law.
8. V. supra note 2.
9. Cf. supra note 3.
10. Viz., and extending R. Gamaliel's principle to a Rabbinic enactment applies it also to the usufruct. This being the case, how is Rab's statement supra to be understood?
11. Bek. 52b.
12. Cf. Lev. XXV, 8ff.
13. This, it is at present assumed, is the meaning of [H].
14. R. Johanan b. Beroka.
15. An inheritance to which one is Pentateuchally entitled does not return in the Jubilee Year (cf. Bek. 52b).
16. R. Johanan b. Beroka.
17. By the members of the wife's family. Lit., 'what is their doing?' Since the husband's right is only in Rabbinic law the members of the wife's family, who are the original owners Pentateuchally, should be entitled to the return of the inheritance to them without any monetary payment on their part.
18. In explanation of the difficulty as to why such all inheritance should be restored in the Jubilee Year.
19. It is derogatory for a family that strangers should be interred in their graveyard while their own members should have to seek burial in another family's graveyard.
20. Lit., 'and what?'
21. Since it is a husband's duty to bury his dead wife.
22. The place where, on returning from burial, the funeral escort halts to offer, with due ceremonial, consolation to the mourners. On returning from a burial the funeral escort halted on the way at a certain station where seven times they stood up and sat down on the ground, to offer comfort and consolation to the mourners or to weep and lament for the departed.
23. They may force the buyer to take back the purchase price and so cancel the sale.
24. B.B. 100b, Bek. 52b. Cf. supra p. 530. n. 9. Now since Rab specifically stated here that 'a husband's right of inheritance is Pentateuchal' how could he be said to hold that such a right is only Rabbinical.
25. Who claims her kethubah.
26. Claiming the repayment of his debt.
27. Expecting their inheritance.
28. This is explained infra.
29. The deposit or the loan
30. Widows and creditors.
31. Before they are authorized to seize any portion of the estate.
32. The inheritance passes into their possession as soon as the parson whose heirs they are dies. Since they are the legal possessors, the others, whose claims have yet to be substantiated by an oath, cannot deprive them of their possessions, for the movables of orphans are not pledged to the creditors of their father.
33. The heirs, the widow or the creditor.
34. This is explained infra.
35. Could not the law of the one be inferred from the other?
36. The amount of the loan not being in existence at the time the man died it cannot pass into the possession of his heirs before it had been collected from the debtor.
37. At the time the depositor died, since a deposit must never be spent by the bailee.
38. That, since it is in existence, it passes into the possession of the heirs.
39. A DEPOSIT.
40. Cf supra note 4.
41. A loan.
42. Cf. supra note 2.
43. Sc. the holder of the last dated bond by which such landed estate only may be seized as had been sold after that date.
44. Who, being unable to exert herself like a man in the search for any possible possessions of her husband, is regarded as 'THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE'.
45. [H], lit., 'grace'.
46. While he is alive. Her uncertainty in respect of her settlement after his death might have led to quarrels and strife. Aliter; That women may readily consent to marriage. Had they not been assured that they would have the first claim upon their husband's estate they might refuse all offers of marriage (cf. Rashi). Aliter; That women may be attractive to their husbands by their attachment and devotion which would result from the sense of security they would feel in the provision of their future (cf. T.J., Aruch and R. Han. in Tosaf. s.v. [H] a.l.).
47. Who regards the heirs as the possessors because WHEREAS OTHERS MUST TAKE AN OATH THE HEIRS NEED NOT.
48. For the very same reason (cf. previous note).
49. The seizure on the part of the widow or a creditor of any movable portion of such property would consequently be invalid.
50. Lit., yes, so also', even if the creditor or the widow has seized any portion of the estate the heirs' right to it is in no way affected and the seized property must be returned to them in its entirety.

But would R. Akiba¹  maintain that seizure²  is never legally valid?³  Raba replied in the name of R. Nahman: Seizure⁴  is valid where it took place during the lifetime [of the deceased].⁵

Now according to R. Tarfon,⁶  where [must the produce] be kept?⁷  — Both Rab and Samuel replied: It must be heaped up and lie in a public domain, but [if it was kept] in an alley⁸  no [seizure is valid]. Both R. Johanan and Resh Lakish, however, said: Even [if the produce lay] in an alley [seizure is valid].

Certain judges once gave their decision in agreement with R. Tarfon, and Resh Lakish⁹  reversed their verdict. Said R. Johanan to him, 'You have acted as [if R. Akiba's ruling were a law] of the Torah'!¹⁰  May it be assumed that they¹¹  differ on this principle; One Master upholds the view that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed¹²  and the other Master upholds the view that if a law cited in a Mishnah had been overlooked the decision need not be reversed?¹³  — No; all agree that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed, but this is the point at issue between them:¹⁴  One Master holds that the halachah is in agreement with the opinion of R. Akiba [only when he differs] from a colleague of his but not from his master,¹⁵  while the other Master holds that the halachah [is in agreement with him] even [if he differs] from his master. If you prefer¹⁶  I might say; All agree that the halachah agrees with R. Akiba [only when he differs] from a colleague of his but not from his master. Here, however. the point at issue is this: One Master holds R. Tarfon to have been his¹⁷  master and the other Master holds him to have been his colleague. Alternatively it might be said: All agree that he¹⁸  was his¹⁹  colleague; but the point at issue between them²⁰  is this: One Master maintains that the statement²¹  was that 'The halachah [agrees with R. Akiba]'²²  and the other Master maintains that the statement²¹  was that 'one should be inclined [in favour of a ruling of R. Akiba]'.²³

R. Johanan's relatives seized in an alley a cow that belonged to orphans. When they appeared before R. Johanan, he said to them, 'Your seizure is quite lawful'. R. Simeon b. Lakish, however, before whom they subsequently appeared, said to them. 'Go and return it'.²⁴  'What can I do', said R. Johanan to whom they came again, 'when one of equal authority²⁵  differs from me?'

[A creditor] once seized an ox from the herdsman of [his debtor's] orphans. The creditor said, 'I seized it during the lifetime [of the debtor]'²⁶  and the herdsman said, 'He seized it after the debtor's death'.²⁷  They appeared before R. Nahman who asked the herdsman, 'Have you witnesses that [the creditor] has seized it?' — 'No', the other replied. [R. Nahman thereupon] said to him: Since he could have said, 'It came into my possession through purchase'²⁸  he is also entitled to say. 'I seized it during the lifetime [of the debtor]'. But did not Resh Lakish state; The law of presumptive possession is inapplicable to living creatures?²⁹  — The case of an ox that was entrusted to a herdsman is different [from that of other living creatures].³⁰

The people of the Nasi's³¹  household once seized in an alley a bondwoman belonging to orphans. At a session held by R. Abbahu, R. Hanina b. Papi and R. Isaac Nappaha in whose presence sat also R. Abba they³²  were told, 'Your seizure is quite lawful'. 'Is it', said R. Abba to them,³³  'because these people are of the Nasi's household that you are favouring them? Surely, when certain judges once gave a decision in agreement with R. Tarfon Resh Lakish reversed their decision'.³⁴

Yemar b. Hashu had a money claim against a certain person who died and left a boat. 'Go', he said to his agent, 'and seize it'. [The latter] went and seized it, but R. Papa and R. Huna the son of R. Joshua met him and told him, 'You are seizing [the ship] on behalf of a creditor and thereby you are causing loss to others,³⁵  and R. Johanan ruled: He who seizes [a debtor's property] on behalf of a creditor and thereby causes loss to others³⁵

1. V. supra note 1.
2. Cf. note 3.
3. This is a mere enquiry (v. Rashi). R. Tan, regards it as an objection. the assumption of the invalidity of seizure being contradictory to the Mishnah supra 80b, where the woman awaiting levirate marriage, who was first to take possession of the detached produce, is declared to have acquired it; (v. Tosaf. s.v. [H] a.l.).
4. Of chattels.
5. So that the chattels had never for one moment passed into the possession of the heirs.
6. Who maintains that WHOEVER SEIZES IT FIRST ACQUIRES POSSESSION, because the heirs do not become its possessors as soon as the man dies.
7. That the seizure should be valid.
8. Which is frequented by few people. In such a spot where meshikah (v. Glos.) is valid (cf. B.B. 84b) the produce, even according to R. Tarfon, passes into the possession of the heirs as soon as its original owner dies, and seizure by any other person is invalid.
9. Who follows the ruling of R. Akiba.
10. An expression of disapproval. Only a decision which is contrary to the Torah must be reversed. A Rabbinical ruling, however, has no such force, and though a judge may be expected to act according to a certain ruling, his decision must not be reversed if he differed from it.
11. R. Johanan and Resh Lakish.
12. Though R. Akiba's ruling is not explicitly contained in a Mishnah, but reported by Amoraim, it is considered a Mishnaic ruling since the law is in agreement with his opinion whenever it is opposed by no more than one individual. Cf. Sanh. 33a.
13. Is it likely, however, that any authority would uphold the latter view?
14. R. Johanan and Resh Lakish.
15. R. Tarfon was sometimes regarded as the master of R. Akiba (v. infra).
16. Since the last mentioned view seems unlikely.
17. R. Akiba's.
18. R. Tarfon.
19. R. Akiba's.
20. R. Johanan and Resh Lakish.
21. On the reliability of R. Akiba's rulings.
22. Hence the action of Resh Lakish in reversing the decision of the judges mentioned.
23. I.e., a ruling of his has not the force of an halachah though a judge is expected to follow it rather than that of any other individual who is opposed to it. Since, however, a decision has been given to the contrary the decision must stand. Hence R. Johanan's objection to the action of Resh Lakish (v. supra n. 11).
24. In agreement with R. Akiba that seizure of movables for debt after the death of the original owner is invalid, the property having passed, at the moment he died, into the possession of his heirs.
25. V. Rashi. Lit., 'who is corresponding to me'.
26. So that it never came into the possession of the orphans.
27. Cf. supra note 3 mutatis mutandis.
28. And his statement could not be disproved on account of the absence of witnesses to testify to the seizure.
29. [H] lit., 'those kept In the fold', since (a) they stray into other people's folds and (b) are sometimes taken accidentally from the pasture lands by a shepherd to whom they do not belong. (v. B.B. 36a. Cit. 20b). Now, since the creditor's right to the retention of the animal can only be based on that of presumptive possession, which is here inapplicable, why did Rash Lakish allow the creditor to retain it?
30. A herdsman is presumed to take good care that his flock stray not into other people's folds, or be seized by other shepherds.
31. Judah II.
32. The people of the Nasi's household.
33. R. Abbahu and his colleagues.
34. Supra.
35. Other creditors.