Babylonian Talmud: Tractate Kethuboth

Folio 100a

Raba in the name of R. Nahman replied: An agent [has the same status] as judges,¹  but R. Samuel b. Bisna replied in the name of R. Nahman: As a widow.²  'Raba in the name of R. Nahman replied: An agent [has the same status] as judges', for as judges do not act in their [personal interests] so does an agent not act in his [personal interests], thus excluding a widow who acts in her [own personal interests]. 'R. Samuel b. Bisna replied in the name of R. Nahman: As a widow', for as the widow is a single individual so is an agent a single individual; thus excluding members of a court, who are many. — And the law is that an agent [has the same legal status] as a widow. But why [should this case be] different from that concerning which we learned: If a man tells his agent, 'Go and give terumah' the latter must give the terumah in accordance with the disposition of the owner, and if he does not know the owner's disposition, he should separate terumah in a moderate manner, viz. one fiftieth. If he reduced [the denominator by] ten or added ten to it his terumah is, nevertheless, valid?³  — There⁴  [the circumstances are different], for, since someone might give his terumah in a niggardly manner while some other might give it liberally, [the agent]⁵  might tell the owner, 'I deemed⁶  you to be of such [a disposition]';⁷  but here, since it was clearly an error, [the owner] might well say, 'You should have made no error'.⁸

R. Huna b. Hanina stated in the name of R. Nahman: The halachah is in agreement with the ruling of the Sages.⁹  [Can it be said,] however, that R. Nahman does not hold [that the act of a court is invariably valid since, otherwise,] of what advantage would the power of a court be,¹⁰  when R. Nahman, in fact, ruled in the name of Samuel:¹¹  If orphans came to take their shares in their father's estate, the court must appoint for [each of] them a guardian and [these guardians] choose for [each of] them a proper share, and when [the orphans] grow up they may enter a protest [against the settlement]; but R. Nahman in his own name, laid down: Even when they grow up they may enter no protest since, otherwise, of what advantage would the power of a court be? — This is no difficulty, the former¹²  [referring to a case] where the guardians made a mistake while the latter¹³  [deals with one] where no error was made. If no error was made, on what grounds could [the orphans] enter their protest? — On that of the adjacent fields.¹⁴

When R. Dimi came¹⁵  he stated: It once happened that Rabbi¹⁶  acted in agreement with the ruling of the Sages⁹  when Perata, the son of R. Eleazar b. Perata, grandson of R. Perata the Great, asked him, 'If so, of what advantage would the power of a court be?'¹⁰  And [as a result] Rabbi reversed his decision. Thus it was taught by R. Dimi. R. Safra, however, taught as follows: It once happened that Rabbi¹⁶  desired to act in agreement with the ruling of the Sages,⁹  when Perata, the son of R. Eleazar b. Perata, grandson of R. Perata the Great, said to him, 'If so, of what advantage is the power of a court?' And¹⁷  [as a result] Rabbi did not act as he intended.¹⁸  Must it be assumed that they¹⁹  differ on this principle: One master²⁰  holds the view that if [in giving a decision] a law cited in a Mishnah²¹  has been overlooked the decision must be reversed, and the other Master²²  upholds the view²³  that it cannot be reversed?²⁴  — No; all¹⁹  agree that if [in giving a decision] a law cited in a Mishnah has been overlooked the decision must be reversed, but one Master holds that the incident occurred in one way²⁵  while the other holds that it occurred in the other way.²⁵

R. Joseph stated: If a widow sold [any of her deceased husband's estate]²⁶  the responsibility for the indemnity falls upon the orphans,²⁷  and if the court sold [any such property]²⁸  the responsibility for the indemnity again falls upon the orphans.²⁹  [Is not this ruling] obvious?³⁰  — It was not necessary [indeed in respect of] the widow,³⁰  but was required [in respect of] the court; for it might have been assumed

1. The sale is valid if the error did not amount to a sixth (v. our Mishnah).
2. The slightest error renders the sale invalid (cf. the Mishnah supra 98a.)
3. Ter. IV, 4 and supra 99b q.v. for notes. This then shews, contrary to what was laid down above as law (cf. supra n. 5)' that a slight error does not render an agent's act invalid.
4. In the case of an agent giving terumah for the owner.
5. Who gave more, or less, than the owner was inclined to give.
6. Lit., 'estimated'.
7. Niggardly or liberal as the case might be.
8. Hence the invalidity of the sale however slight the error may have been.
9. The first mentioned ruling in our Mishnah.
10. I.e., the view of R. SIMEON B. GAMALIEL.
11. V. Kid. Sonc. ed. p. 210, notes.
12. Lit., 'that', R. Nahman's ruling in the name of Samuel (cf. supra n. 2).
13. R. Nahman's ruling in his own name (cf. supra, n. 3)'
14. Lit., 'on (the ground of) the sides', sc. the unsatisfactory situation of their allotted fields owing to their distance from other fields which they already possessed.
15. From Palestine to Babylon.
16. R. Judah I, the Patriarch, compiler of the Mishnah.
17. So MS.M. (wanting in cur. edd.).
18. Lit., 'the act'.
19. R. Dimi and R. Safra.
20. R. Dimi.
21. Sc. that of R. Simeon b. Gamaliel, which, unlike that of the first Tanna, is also supported by a reason.
22. R. Safra.
23. Which is, however, most unlikely.
24. Had then Rabbi acted in agreement with the Sages' ruling, he would not have been able to reverse his decision.
25. Lit., 'thus'.
26. To reimburse herself for her maintenance or kethubah, guaranteeing indemnity to the buyer.
27. Because they are responsible for the widow's kethubah and maintenance, and she, in selling the estate, was merely acting as their agent.
28. For the maintenance of a widow or daughter. Cf. also supra n. 10 mutatis mutandis.
29. Cf. supra n. 10 mutatis mutandis and 97a.
30. Cf supra n. 11.

that whoever buys from the court does so in order that he may have the benefit of a public announcement,¹  hence we were informed [that the responsibility for the indemnity still remains upon the orphans].

R. SIMEON B. GAMALIEL RULED etc. To what limit [of error]?²  — R. Huna b. Judah replied in the name of R. Shesheth: To a half.³  So it was also taught: R. Simeon b. Gamaliel ruled, If the court sold for one maneh what was worth two hundred zuz, or for two hundred zuz what was worth one maneh, their sale is valid.

Amemar laid down in the name of R. Joseph: A court that sold [one's estate] without a [previous] public announcement are deemed⁴  to have overlooked a law cited in a Mishnah and [their decision]⁵  must be reversed. [You say] 'Are deemed'?⁴  Have they not in actual fact overlooked one,' we learned:⁶  The assessment [of the property] of the orphans⁷  [must be accompanied by a public announcement for a period of] thirty days, and the assessment of consecrated land⁸  [for a period of] sixty days; and the announcement must be made both in the morning and in the evening?⁹  — If [the ruling¹⁰  were to be derived] from that [Mishnah alone] it might be presumed that it applied only to an agent¹¹  but not to a court; hence we were taught¹⁰  [that the law applied to a court also].

R. Ashi raised an objection against Amemar: IF AN ASSESSMENT OF JUDGES WAS BY ONE SIXTH LESS, OR ONE SIXTH MORE [THAN THE ACTUAL VALUE OF THE PROPERTY], THEIR SALE IS VOID, but [it follows] if it corresponded to the actual worth of the land¹²  their sale is valid. Does not this¹³  [apply even to a case] where no public announcement was made?¹⁴  — No; [it applies only to one] where an announcement was made. But since the final clause [refers to a case] where an announcement was made [must not] the first clause¹⁵  [refer to one] where no announcement was made; for in the final clause it was taught: IF A BILL FOR INSPECTION,¹⁶  HOWEVER, HAS BEEN DRAWN UP, THEIR SALE IS VALID EVEN IF THEY SOLD FOR TWO HUNDRED ZUZ WHAT WAS WORTH ONE MANEH, OR FOR ONE MANEH WHAT WAS WORTH TWO HUNDRED ZUZ?¹⁷  — The fact indeed is [that the first clause refers to a case] where no announcement was made, and [yet¹⁸  there is] no difficulty, for one ruling¹⁹  refers to objects concerning which public announcements must be made, while the other²⁰  refers to objects concerning which no public announcements are made, such as²¹  slaves, movables and deeds. (What is the reason [why no announcement is made in the case of] slaves? — [Because if one were made] they might hear It and escape. Movables and deeds? — Because they might be stolen.) If you wish I might reply:²²  One ruling²³  refers to a time when an announcement is made while the others refers to a time when no announcement is made, the Nehardeans having laid down that for poll-tax,²⁴  maintenance²⁵  and funeral expenses [an estate]²⁶  is sold without a public announcement.²⁷  And if you prefer I might reply:²²  One ruling²³  applies to a place where announcements are made while the other²⁰  applies to one where no announcements are made, R. Nahman having stated: Never was a bill for inspection²⁸  drawn up at Nehardea.²⁹  From this [statement]³⁰  one implied that [the reason³¹  was] because they³²  were experts in assessments; but R. Joseph b. Minyomi stated: It was explained to me by R. Nahman [that the reason is] because they³³  were nicknamed 'consumers of publicly auctioned estates',³⁴

Rab Judah ruled in the name of Samuel: Orphans' movables must be assessed³⁵  and sold forthwith.³⁶  R. Hisda ruled in the name of Abimi: They are to be sold³⁷  in the markets.³⁸  There is, however, no difference of opinion between them.³⁹  One speaks of a place⁴⁰  in the proximity of a market,⁴¹  while the other deals with one⁴⁰  from which the market is far.⁴²

R. Kahana had in his possession some beer that belonged to the orphan R. Mesharsheya b. Hilkai. He kept it until the festival,⁴³  saying, 'Though it might deteriorate,⁴⁴  it will have a quick sale.'⁴⁵

Rabina had In his possession some wine belonging to the orphan Rabina the Little, his sister's son, and he had also some wine of his own which he was about to take up to Sikara.⁴⁶  When he came to R. Ashi and asked him, 'May I carry [the orphan's wine] with my own'⁴⁷  the other told him, 'You may go; it is not superior to your own.

MISHNAH. [A MINOR] WHO EXERCISED THE RIGHT OF MI'UN,⁴⁸  A FORBIDDEN RELATIVE OF THE SECOND DEGREE,⁴⁹  OR A WOMAN WHO IS INCAPABLE OF PROCREATION IS NOT ENTITLED EITHER TO A KETHUBAH⁵⁰  OR TO THE BENEFITS⁵¹  [OF HER MELOG⁴⁸  PROPERTY]⁵²  OR TO MAINTENANCE,⁵³  OR TO HER WORN OUT ARTICLES.⁵⁴  IF THE MAN, HOWEVER, HAD MARRIED HER AT THE OUTSET ON THE UNDERSTANDING THAT SHE WAS INCAPABLE OF PROCREATION SHE IS ENTITLED TO A KETHUBAH. A WIDOW WHO WAS MARRIED TO A HIGH PRIEST,⁵⁵  A DIVORCED WOMAN OR A HALUZAH⁴⁸  WHO WAS MARRIED TO A COMMON PRIEST,⁵⁶  A BASTARD OR A NETHINAH⁴⁸  WHO WAS MARRIED TO AN ISRAELITE. OR THE DAUGHTER OF AN ISRAELITE WHO WAS MARRIED TO A NATHIN,⁴⁸  OR A BASTARD IS ENTITLED TO A KETHUBAH.⁵⁷

GEMARA. Rab taught: A minor who is released by means of a letter of divorce is not entitled to a kethubah⁵⁸  and, much less so, [a minor] who exercises the right of mi'un⁴⁸  Samuel taught: [A minor] who exercises the right of mi'un⁴⁸  is not entitled to a kethubah,⁵⁹  but a minor who is released by a letter of divorce is entitled to her kethubah.⁶⁰  Samuel⁶¹  follows his [previously expressed] principle; for he laid down: [A minor] who exercises the right of mi'un⁶²  is not entitled to a kethubah⁶³  but a minor who is released by a letter of divorce is entitled to her kethubah,'⁶⁴  [a minor] who exercises the right of mi'un⁶²  is not [through this act] disqualified from marrying the brothers [of her husband],⁶⁵  nor is she thereby disqualified from marrying a priest,⁶⁶  but [a minor who] is released by a letter of divorce is [through this act] disqualified from marrying the brothers [of her husband]⁶⁷  and also from marrying a priest;⁶⁸  [a minor] who exercises the right of mi'un need not wait three months⁶⁹

1. Lit.,'it is with the intent that a voice may be brought out for him that he buys'. Since any sale by a court must be preceded by a public announcement. it is conceivable that if any person had a claim upon the land in question he would advance it as soon as the announcement had been made. A buyer who is presumably aware of these considerations might. therefore, be assumed to feel so secure in his purchase as to surrender his guarantee for indemnity. [Aliter: Whoever buys from the Beth din buys for the purpose that he might gain publicity as a man of means, without necessarily expecting any guarantee of indemnification; Strashun].
2. Is the sale valid.
3. Of the actual value.
4. Lit., 'are made'.
5. Unlike an erroneous decision that does not conflict with a Mishnah, which remains in force and compensation is paid by the court.
6. In a Mishnah.
7. That is put up for sale to meet the claims of their father's widow or daughters.
8. Sold by the Temple treasurer.
9. 'Ar. 21b.
10. Laid down by Amemar in the name of R. Joseph.
11. Who sells orphans' property.
12. Lit., 'worth for worth', or 'equal for equal'.
13. The implied ruling that the sale is valid.
14. Is this then an objection against Amemar?
15. Since two adjacent clauses would not repeat the same law.
16. Which involves. of course, a public announcement (v. supra p. 632, n. 12).
17. Is this then an objection against Amemar?
18. Despite the deduction which is apparently in contradiction to Amemar's ruling.
19. Lit., 'here', the ruling of Amemar.
20. The first clause of our Mishnah.
21. Lit., 'and these are objects concerning which no public announcement is made'.
22. To the objection against Amemar that was raised supra.
23. Lit., 'here', the ruling of Amemar.
24. On behalf of orphans.
25. Of one's widow or daughters.
26. Of a deceased, inherited by his orphans.
27. Since in all these cases money is urgently needed no time can be spared for the usual public announcement that must precede other sales ordered by a court; v. supra 8a.
28. Cf. supra p. 632, n. 12.
29. Cf. supra p. 222, n. 8.
30. Of R. Nahman.
31. For dispensing with a bill of inspection at Nehardea.
32. The Nehardeans.
33. Who bought orphans' estates that were offered for sale after a public announcement.
34. A description of contempt. At such enforced sales the buyers usually made exorbitant profits at the expense of the helpless orphans.
35. Immediately on their father's death.
36. In order to prevent their deterioration.
37. [Read with MS.M.: They are taken to the markets, [H]
38. Or 'on market days' (cf. Rashi, s.v. [H]).
39. Rab Judah and R. Hisda.
40. Lit., 'that'.
41. Aliter: A time when market day is near (cf. Rashi loc. cit.).
42. Aliter. 'When market day is a long way off' (cf. I.e.).
43. Though beer must be classed as movables.
44. [H], 'depreciation in the market' or 'deterioration of quality' (cf Jast.) Aliter: 'Though it might become sour', (cf. Rashi).
45. Lit., 'will bring quick money', I.e., there will be no need to sell on credit. Cash sales, though at a comparatively small price, are preferable to sales on credit that might command a higher price.
46. [A town on the Tigris near Mahuza. Obermeyer. p. 186].
47. Sc. may a trustee undertake the risk of sea transport [The wine could be taken from Matha Mehasia (Sura) the home of Rabina to Sikara, either overland or by boat. The former journey, though shorter, was the more expensive and involved greater risk of breakage to the earthenware barrels in which the wine was transported, v. Obermeyer, p. 188ff.]
48. V. Glos.
49. Who is forbidden by Rabbinic, though not by Pentateuchal, law (cf. Yeb. 21a).
50. Cf. Yeb. 113a, B.M. 67a; the first mentioned because her separation may be affected even against her husband's will, the second was penalized for contracting an unlawful marriage (cf. Yeb. 85b) while in the case of the last her marriage is regarded as a contract under false pretences.
51. Lit., 'fruit'. Aliter: Usufruct.
52. Sc. her husband is under no obligation to pay her ransom if she is taken captive, though in the case of a legal and normal marriage a husband must assume such obligation (in return for the usufruct of his wife's melog property). As this woman is not entitled to a kethubah she is also deprived of the right to be ransomed which is one of the terms of a kethubah. Aliter; Her husband need not refund the usufruct.
53. Cf. supra note 5 mutatis mutandis. The limitations of this ruling are dealt with infra 107b.
54. The articles which she brought to her husband on marriage and the value of which was included in her kethubah. If her husband has used these articles he need not compensate her for their wear or loss when she leaves him.
55. V. Lev. XXI, 13.
56. V. ibid. 7.
57. Yeb. 84a.
58. Since the marriage of a minor, n his opinion, has no validity and her status is that of one seduced.
59. Cf. supra note 3.
60. Because a divorce can be given with the husband's consent only.
61. In his ruling just cited.
62. V. Glos.
63. Cf. supra p. 639, R. 3.
64. V. p. 639, n. 13.
65. V. p. 639, n. 11.
66. Since she has not the status of a divorced woman, mi'un dissolving the union retrospectively.
67. Because it is forbidden to marry a woman whom ones brother had divorced.
68. V, Lev. XXI, 7'
69. After mi'un, before contracting a second marriage, though such a period must be allowed to pass in the case of any other divorced woman or widow. Cf. supra n' 5.