Babylonian Talmud: Tractate Kethuboth

Folio 69a

Rah inserted¹  [the following enquiry] between the lines²  [of a communication³  he sent] to Rabbi: What [is the law] where the brothers have encumbered [the estate they inherited from their father]?⁴  [When the enquiry reached him] R. Hiyya [who] was sitting before him asked, '[does he mean:] They sold it or pledged it?' — 'What difference call this make?'⁵  the other retorted. Whether they sold it [he continued] or pledged it, [the estate] may he seized [to meet the obligation] of marriage outfit but may not be seized for that of maintenance

As to Rab, however, if his enquiry [related to brothers] who sold [the estate], he should have written to him, 'sold'; and if his enquiry [related to brothers] who pledged it, he should have written to him, 'pledged'! — Rab wished to ascertain the law concerning both cases and he thought: If I write to him 'sold' [I shall get] satisfaction If he were to send [in reply] that 'the estate may be seized', since the same ruling would apply with even greater force to the case where they pledged [the estate]. If, however, he were to send me in reply that 'it may not be seized', the question [in respect of brothers] who pledged [the estate] would still remain. If, [again]. I were to write to him, 'pledged' then if he sent in reply that 'the estate may not be seized' this ruling would apply with even greater force [to the case where] they sold it. Should he, however, send a reply that 'it may be seized', the question [in respect of brothers] who sold It would still remain. I will, therefore, write to him, 'encumbered' which might mean the one⁶  as well as the other⁷

R. Johanan, however, ruled: [An estate]⁸  may not be seized either [to meet the obligation of the] one or of the other.⁹

The question was raised: Did not R. Johanan hear the ruling of Rabbi, but if he had heard it he would have accepted it? Or is it possible that he heard it and did not accept it? — Come and hear what has been stated: If a man died and left two daughters and one son, and the first forestalled [the others] and took a tenth of the estate while the other did not manage to collect [her share] before the son died,¹⁰  R. Johanan ruled: The second¹¹  has surrendered her right.¹²  Said R. Hanina: Something that is even more striking than this has been said, [viz.. that an estate] may be seized¹³  [to meet the obligation] of a marriage outfit though it may not be seized for that of maintenance, and you nevertheless state, 'The second has surrendered her right'?¹⁴  Now, if that were the case,¹⁵  he¹⁶  should have asked him 'who said it?'¹⁷

— But is it not possible that he in fact did not hear it [at first]¹⁸  and when he [finally] heard he accepted it, but there¹⁹  [the circumstances are] different, since the house [of the second daughter] has now ample provisions?²⁰  Said R. Yemar to R. Ashi: Now then,²¹  if she²²  found anything at all, so that her house is amply provided for, would we in such a case also not give her a tenth of the estate? — The other replied: I said, A house amply provided for from the same estate.²³

Amemar ruled: A daughter²⁴  has [the legal status of] an heiress. Said R. Ashi to Amemar: Should it be desired to settle her claim²⁵  by means of a money payment such a settlement cannot be effected for the same reason?²⁶  — 'Yes', the other replied. 'Should it be desired [the first asked] to settle her claim by [giving her] one plot of land, such a settlement cannot be effected for the same reason?'²⁶  — 'Yes', the other replied.²⁷  R. Ashi, however, ruled: A daughter²⁸  has [the legal status of] a creditor.²⁹  And Amemar also withdrew his former opinion. For R. Minyomi son of R. Nihumi stated: I was once standing before Amemar and a woman who claimed a tenth of [her deceased father's] estate appeared before him, and I observed [that it was his] opinion that if [her brothers] desired to settle with her by means of a money payment he would have agreed to the settlement.³⁰  For he heard the brothers say to her, 'If we had the money we would settle with you³¹  by a cash payment', and he remained silent and told them nothing to the contrary.

Now that it has been said that [a daughter in her claim to her tenth]²⁸  has the legal status of a creditor [the question arises whether she is the creditor] of the father or of the brothers. In what respect can this matter? — In respect [of allowing her] to collect [her tenth] either from their medium³²  land and without an oath,³³  or of their worst land with an oath.³⁴  Now what [is the law]? — Come and hear [of the decision] of Rabina: He allowed the daughter of R. Ashi to collect [her tenth] from Mar³⁵  the son of R. Ashi out Of his medium land, without an oath, but from the son of R. Sama³⁶  the son of R. Ashi out of his worst land with an oath.³⁷

R. Nehemiah the son of R. Joseph sent the following message to Rabbah the son of R. Huna Zuta³⁸  of Nehardea:³⁹  When this woman⁴⁰  presents herself to you, authorize her to collect a tenth part of [her deceased father's] estate even from the casing of handmills.⁴¹

R. Ashi stated: When we were at the college of R. Kahana we authorized the collection [of a daughter's tenth] from the rent⁴²  of houses also.

R. Anan sent [this communication] to R. Huna, '[To] our colleague Huna, greetings.⁴³  When this woman⁴⁰  presents herself before you, authorize her to collect a tenth part of [her father's] estate'. [When the communication arrived,] R. Shesheth was sitting before him. 'Go', [R. Huna] said to him,⁴⁴  'and convey⁴⁵  to him⁴⁶  [the following message]-and he⁴⁷  who does not deliver the message⁴⁸  to him shall fall under the ban — "Anan, Anan, [is the collection to be made] from landed, or from movable property? And who presides at the meal in a house of mourning?"'⁴⁹  R. Shesheth went to R. Anan and said to him: The Master⁵⁰  is a teacher,⁵¹  and R. Huna is a teacher of the teacher,⁵²  and he pronounced the ban against anyone who would not convey⁵³  [his message] to you;⁵⁴  and had he not pronounced the ban I would not have said, 'Anan, Anan, [is the collection to be made] from landed, or movable property, and who presides at the meal in a house of mourning?'⁵⁵  Thereupon, R. Anan went to Mar 'Ukba and said to him: See, Master, how R. Huna addressed⁵⁶  me as 'Anan, Anan';⁵⁷  and, furthermore, I do not know what he meant by the message he sent me on marziha.⁵⁸  The other said to him: Tell me now

1. Lit., 'suspended'.
2. [H] perhaps from [H] 'to dig'. 'scratch' hence a line drawn with a stylus (cf Rashi and last.). Aruk renders 'stitches' (cf [H] 'thread'), and this is apparently the interpretation adopted by Tosaf (s.v. [H] a.l.), the meaning being that 'among the documents that were sewn together one containing the enquiry was appended'; or, 'among the stitches holding the documents together the one containing the enquiry was inserted'.
3. A friendly,' letter (Rashi).
4. May it be seized by the daughter for their marriage outfit?
5. Lit.,'what goes out (results) from it?'
6. Lit., 'thus'.
7. Sold or pledged. And should there be a difference in law between the two cases, Rabbi in his reply would naturally indicate it.
8. Which the brothers sold or pledged. Cf. supra.
9. I.e., maintenance or marriage outfit.
10. And the entire estate fell to the lot of the daughters.
11. Since she did not collect her tenth while the son was alive, i.e., before she and her sister became the sole heirs,
12. A daughter may claim a tenth of the estate from a son only but not from a daughter whose rights are equal to hers.
13. Though it has been pledged or sold.
14. To her marriage outfit, even in an estate which had been neither sold nor pledged. The first sister, surely, cannot possess a stronger claim upon the estate than a buyer or a creditor, V. Git. 51a.
15. That R. Johanan never heard Rabbi's ruling.
16. R. Johanan.
17. Since he did not ask him this it may be inferred that R. Johanan did hear Rabbi's ruling but did not accept it. For this reason also he did not withdraw his ruling in the case of the two daughters.
18. Rabbi's ruling.
19. The case of the two daughters which was discussed after he had heard Rabbi's ruling and accepted it.
20. At first she was entitled to a tenth only and now she gets a half. In such circumstances she may well be expected to surrender her claim to the tenth. Rabbi, however, deals with a case where the brothers are alive, and the daughters ate entirely dependent on their tenths,
21. If the argument of additional provision is admissible.
22. The second sister.
23. From which she was to receive her tenth.
24. In respect of her right to a tenth of her father's estate.
25. To the tenth of the estate. Lit., 'to remove her'.
26. Because she has the status of an heiress, Lit., 'thus also'.
27. As heiress she has the right to claim a share in the actual property her father left and in every portion of it.
28. In respect of her right to a tenth of her father's estate.
29. Her claim may, therefore, be met by a money payment or by the allotment of any plot of land of the value of a tenth of the estate that is due to her.
30. Lit., 'he would have removed (sc. dismissed) her',
31. So MS.M. adding [H] after [H].
32. Land is classified as [H] best [H], medium or [H] worst, and payments are made from these respective qualities in accordance with the strength and validity of any particular claim. Cf. e g., Git. 48b.
33. That she had never taken anything from the estate. This would be the law if she were regarded as the creditor of the brothers.
34. If she is regarded as the father's creditor. In the latter case she would be subject to the restrictions imposed on a creditor who claims his debt from the debtor's orphans (v. Get. 48b).
35. Who survived his father and from whom his sister claimed a portion of her tenth.
36. Who predeceased R. Ashi and whose son, on the death of his grandfather (R. Ashi), inherited his father's (R. Sama's) share and was now sued by his aunt to give her the portion of her tenth that his father as a son of R. Ashi owed her (Rashi). [Ritba and others: R. Sama died shortly after R. Ashi, before his daughter managed to collect her tenth share in the estate].
37. According to Rabina, then, the daughter was regarded as the debtor of her brothers (Mar and R. Sama). From the former, therefore, who was alive she consequently collected of the best and without an oath (cf. supra p. 425, n. 11). From the latter, however, she could only collect through his son as the creditor of has father's and was therefore subject to the restrictions of a creditor who collects from orphans (cf. supra. note I).
38. Var. lec., 'Zuti' (cf. B.B. 66b)
39. V. supra p. 222, n. 8.
40. The bearer, whose case R. Nehemiah had investigated.
41. The casing being regarded as landed estate from which her tenth may be collected.
42. The yield of the houses being legally regarded, like, the houses themselves, as landed property (cf. supra n. 8').
43. Lit., 'peace.
44. To R. Shesheth.
45. Lit., 'say'.
46. To R. Anan.
47. I.e., 'If you do not deliver the message etc.', the third person being used for euphemism.
48. I.e., using exactly the same words, lit., 'say'.
49. R. Huna was apparently offended by the tone or wording of R. Anan's communication. Hence the abusive reply.
50. R. Anan.
51. A complimentary introduction to the unpleasant message that follows
52. I.e., R. Anan. An excuse for carrying out his instructions though they were offensive to R. Anan.
53. Lit., 'say'.
54. Lit., 'to him'.
55. The seat of honour at the meal in a house of mourning was given to the greatest scholar in the company
56. Lit., 'sent'.
57. Without the title of 'R.'
58. [H], rendered supra, 'a house of mourning'.

how the incident actually occurred. 'The incident', the first replied, 'happened in such and such a way'. 'A man', the other exclaimed, 'who does not know the meaning of marziha should [scarcely] presume to address¹  R. Huna as, "our colleague Huna".'

What [is the meaning of] marziha. — Mourning; for it is written in Scripture, Thus saith the Lord: Enter not into the house of mourning²  etc.³

R. Abbahu stated: Whence is it deduced that a mourner sits at the head [of the table]?⁴  [From Scripture] wherein it is said, I chose out their way, and sat at the head,⁵  and dwelt as a king in the army, as one that comforteth⁶  the mourners.⁷  But does not yenahem⁸  mean [one who comforts] others?⁹  R. Nahman b. Isaac replied: The written form is YNHM.¹⁰  Mar Zutra said: [The deduction¹¹  is made] from here: We-sar marzeah seruhim,¹²  he who is in bitterness and distracted¹³  becomes the chief¹⁴  of those that stretched themselves.¹⁵

Raba stated: The law [is that payment may be exacted] from landed property, but not from movable property, whether in respect of maintenance, kethubah or marriage outfit.¹⁶

MISHNAH. IF A MAN DEPOSITED¹⁷  A SUM OF MONEY FOR HIS [UNMARRIED] DAUGHTER WITH A TRUSTEE,¹⁸  AND [AFTER SHE WAS BETROTHED]¹⁹  SHE SAYS, 'I TRUST MY HUSBAND',²⁰  THE TRUSTEE MUST ACT IN ACCORDANCE WITH THE CONDITION OF HIS TRUST;²¹  SO R. MEIR. R. JOSE, HOWEVER, SAID: WERE [THE TRUST] ACTUALLY²²  A FIELD²³  AND SHE WISHED TO SELL IT, WOULD IT NOT BE DEEMED²⁴  SOLD FORTHWITH!²⁵  THIS APPLIES TO ONE WHO IS OF AGE.²⁶  IN THE CASE OF A MINOR, HOWEVER, THERE IS NO VALIDITY AT ALL IN THE ACT OF A MINOR.

GEMARA. Our Rabbis taught: If a man deposited for his son-in-law with a trustee a sum of money wherewith to buy a field for his daughter, and she says, 'Let it be given to my husband', she is entitled [to have her wish fulfilled, if it was expressed] after her marriage²⁷  but if only after her betrothal the trustee must act according to the conditions of his trust;²⁸  so R. Meir. R. Jose, however, said: A woman who is of age has a right [to obtain her desire] whether [it was expressed] after her marriage or only after betrothal, but [in the case of] a minor [whether her wish was expressed] after marriage or after betrothal, the trustee must act in accordance with the conditions of his trust.²⁹  What is the practical difference between them?³⁰  If it be suggested that the practical difference between them is the case of a minor after her marriage, R. Meir holding the opinion that [even] she is entitled [to have her wish] and R. Jose comes to state that even after marriage [It is only] a woman who is of age that is entitled to have her wish³¹  but not a minor, [in that case] what of³²  the final clause,³³  IN THE CASE OF A MINOR, HOWEVER, THERE IS NO VALIDITY AT ALL IN THE ACT OF A MINOR. Who [it might be asked] could have taught this? If it be suggested [that the author was] R. Jose, [it could be objected:] This, surely, could be inferred from the first clause; for, since R. Jose said, WERE [THE TRUST] ACTUALLY A FIELD AND SHE WISHED TO SELL IT, WOULD IT NOT BE DEEMED SOLD FORTHWITH! [it follows³⁴  that only] one that is of age, who is eligible to effect a sale, was meant,³⁵  but not a minor who is ineligible to effect a sale.³⁶  Consequently it must be R. Meir [who was the author of] it, and a clause is in fact missing [from our Mishnah], the proper reading being as follows:³⁷  'THE TRUSTEE MUST ACT IN ACCORDANCE WITH THE CONDITIONS OF HIS TRUST. This applies only [to a woman whose desire was expressed] after her betrothal, but if after her marriage she is entitled [to have her wish]. THIS [furthermore] APPLIES TO ONE WHO IS OF AGE. IN THE CASE OF A MINOR, HOWEVER, THERE IS NO VALIDITY AT ALL IN THE ACT OF A MINOR.'³⁸  — [The fact]. however, is that the practical difference between them is the case of one who is of age [whose wish was expressed] after her betrothal.³⁹

It was stated: Rab Judah said in the name of Samuel. The halachah is in agreement with R. Jose. Raba ion the name of R. Nahman said, The halachah is in agreement with R. Meir. Ilfa⁴⁰  reclined⁴¹  upon a sail mast⁴²  and⁴³  said: 'Should any one come and submit to me any statement [in the Baraithoth] of R. Hiyya and R. Oshaia⁴⁴  which I cannot make clear to him [with the aid] of our Mishnah I will drop from the mast⁴⁵  and drown myself'. An aged man came and recited to him [the following Baraitha:]⁴⁶  If a man⁴⁷  said, 'Give my children⁴⁸  a shekel a week',⁴⁹  and they require a sela',⁵⁰  a sela' is to he given to them.⁵¹  But if he said, 'Give them no more than a shekel', only a shekel is to he given to them.⁵²  If, however, he gave Instructions that if these died others⁵³  shall be his heirs in their stead, only one shekel [a week] is to be given to them, irrespective of whether he used the expression of 'give' or 'give no [more]',⁵⁴  [Ilfa] said to him: [Do you wish to know] whose ruling this⁵⁵  is?

1. Lit., 'sent'.
2. [H], Heb. from Aram. [H]
3. Jer. XVI, 5
4. At the meal in a house of mourning.
5. E V., as chief. [H] may bear both renderings.
6. This is explained by R. Nahman anon.
7. Job. XXIX, 25.
8. [H] Imperf. Piel of [H].
9. How then could the text be said to refer to the mourner who is himself to be comforted?
10. [H], which may be vocalized as the Pus form Yenuham, 'one who is comforted'. Though the text must retain its obvious meaning with the M.T. vocalization of [H], the possibility of reading ojbh as ojbh also permits of the Midrashic exposition (Tosaf. s.v. [H]).
11. That the mourner is to sit at the head of the table at the meal in a house of mourning.
12. [H], Amos, VI, 7. Midrashically, rx = ra (chief, I.e., 'sits at the head'), jzrn is divided into [H] (bitter) and [H] (rt. [H] distracted), and [H] is taken to refer to the comforters who stretch themselves on their couches or on the ground at the feet of the mourner. (Cf. Golds.). E.V., And the revelry of men that stretched themselves shall pass away.
13. I.e., the mourner.
14. I.e., sits at the head of the table during the meal.
15. Before him, sc. those, who came to offer their condolence.
16. A Gaonite provision, [H], empowers also the seizure of movable property to meet any of these obligations (cf Tosaf. supra 51a. s.v. [H]). [This Takkanah has been ascribed to Hunai Gaon and dated 787, v. Epstein, L. The Jewish Marriage, p. 255 and Tykocinski, Die Gaonaischen Verordnungen, p. 35ff].
17. Lit., 'he who made a third', i.e., appointed a third person as trustee.
18. Cf. supra n. 12, instructing him to use the money after his death for the benefit of his daughter, e.g., to buy for her a field.
19. So Tosaf (s.v. [H]) contrary to Rashi's 'married', v. Gemara infra.
20. 'And desire the money to be given to him',
21. Lit., 'what was put in his hand as a third party'. The daughter's wish is to be disregarded and the trustee buys a field with it.
22. Lit., 'was not but'.
23. Not merely a sum of money with which to buy one.
24. Lit., 'behold it'.
25. Lit., 'from now', sc. from the moment she expressed her desire to sell it, and the same should apply where the trust consisted of a sum of money. The sum of money must consequently be at her disposal and she may gave it to her husband if she desires to do so.
26. The point of this limitation is discussed in the Gemara infra.
27. The assumption being that the father wished the trustee to act only until his daughter's marriage.
28. V. supra p. 428, n. 16.
29. Tosef. Keth. VI. Cf. supra p. 428, n. 16.
30. R. Meir and R. Jose, i.e., does R. Meir in the Baraitha refer to a minor also or only to one who is of age?
31. Lit., 'yes'.
32. Lit., 'say'.
33. Of our Mishnah.
34. Since R. Jose gave as the reason for his ruling the consideration that she could have sold the field if she wished
35. Lit., 'yes'.
36. The final clause, then, would be superfluous
37. Lit., and thus he taught'.
38. Now, since R. Meir also admits that the act of a minor has no validity, his statement in the Baraitha cited that after marriage she is entitled to have her wish must refer to one who is of age and not to a minor. What, then, is the practical difference between R. Meir and R. Jose?
39. According to R. Meir her wish is to be ignored; according to R. Jose it is to be granted. Cf. supra p. 428, n. 14. As to a minor both agree that bet request is not to be granted even if she makes it after her marriage.
40. Scholar and merchant, a contemporary of R. Johanan. When the latter was appointed to the presidency of the college the former was away from his home town, engaged in the pursuit of his commercial enterprises. What follows happened on his return when he was told that had he devoted more time to his studies and less to commerce the presidency would have been offered to him. V. Ta'an. 21a.
41. Lit., suspended himself' (cf. Rashi Git. 32b, s.v. [H] Pesah. 68b, s.v. [H] ).
42. Or sail-yard. Cf. Rashi. Other renderings: 'Sail, or mast of a boat', 'mastyard', [H], GR. [G], (perhaps from rt. [H], 'to espy', hence 'espying place') 'mast' or 'yard' (v. Jast.) [H] cf. Assyr. makua, a kind of 'boat', 'mast' or 'sail-yard' (v. Rashi, a.l. and Git. 36a, Rashb. B.B. 161b); 'a ship' (Aruk). In the parallel passage. Ta'an 21a, the reading for [H] is [H] (of a ship).
43. To prove that despite has commercial undertakings he had not forgotten his studies.
44. These were regarded as the most authoritative of the Baraitha collections
45. Cf. p 430, n. 9.
46. Demanding Mishnaic authority for its rulings V. infra note 12.
47. Lying on his death bed, or setting out on a long journey.
48. Out of the estate he leaves behind.
49. For their maintenance
50. A sela' two shekels
51. Their father's mention of the smaller coin. it is assumed, was not meant to exclude the bigger one. All that he implied was that his children should be given no more than their actual weekly requirements.
52. Though they may be in need of more.
53. Whom he named.
54. Because in this case it is evident that it was his intention to economize as much as possible on the weekly maintenance of his children in order that the heirs he nominated might in due course receive as large an inheritance as possible.
55. That, though the children need more than their father had allowed them, the instructions of the deceased must be carried out.