Babylonian Talmud: Tractate Kethuboth

Folio 83a

CHAPTER IX

MISHNAH. IF A HUSBAND GIVES TO HIS WIFE A WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER¹  UPON YOUR ESTATES', HE MAY NEVERTHELESS ENJOY ITS USUFRUCT DURING HER LIFETIME AND, WHEN SHE DIES, HE IS HER HEIR. IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES'? THAT IF SHE SOLD THEM OR GAVE THEM AWAY HER ACT MIGHT BE VALID. IF HE WROTE, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE, HE MAY NOT ENJOY THEIR USUFRUCT DURING HER LIFETIME BUT, WHEN SHE DIES, HE IS HER HEIR. R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE UNLESS HE WROTE OUT FOR HER [THE FOLLOWING UNDERTAKING]: 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE AND SO ON WITHOUT END.

IF HE WROTE, 'I HAVE NO CLAIM UPON YOUR ESTATES, THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE DURING YOUR LIFETIME AND AFTER YOUR DEATH', HE MAY NEITHER ENJOY THEIR PRODUCE DURING HER LIFETIME NOR CAN HE BE HER HEIR WHEN SHE DIES. R. SIMEON B. GAMALIEL RULED: WHEN SHE DIES HE IS HER HEIR BECAUSE [BY HIS DECLARATION] HE IS MAKING A CONDITION WHICH IS CONTRARY TO WHAT IS ENJOINED IN THE TORAH²  AND WHENEVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID.³

GEMARA. R. Hiyya taught:⁴  If a husband said⁵  to his wife.⁶

And if he gave her such an undertaking in writing,⁷  what does It matter? Was it not taught: If a man says⁸  to another,⁹  'I have no claim whatsoever on this field, I have no concern in it and I entirely dissociate myself from it',¹⁰  his statement is of no effect?¹¹  — At the school of R. Jannai it was explained, [we are dealing here with the case] of a man who gave the undertaking to his wife¹²  while she was still only betrothed to him,¹³  [the ruling¹⁴  being] in agreement with that of R. Kahana, that a man is at liberty to renounce beforehand an inheritance¹⁵  which is likely to accrue to him from another source;¹⁶  and [this ruling, furthermore, is] in agreement with a dictum of Raba, that if anyone says. 'I do not desire [to avail myself] of a regulation of the Rabbis of this kind', his desire is granted.¹⁷  What [is meant by the expression] 'of this kind'? As [that referred to in the statement made by] R. Huna in the name of Rab: A woman is entitled to say to her husband, 'I do not wish either to be maintained by you or to work for you'.¹⁸  If so,¹⁹  should not [the same ruling apply to] a married woman also?²⁰  Abaye replied: In the case of a married woman the husband's rights have the same force as the wife's.²¹  Raba said: His rights are superior to hers. This²²  is of practical significance in the case of a woman who was awaiting the decision of the levir.²³

The question was raised: What is the ruling if symbolic kinyan was executed²⁴  [at the time of the renunciation]?²⁵  — R. Joseph replied: [The kinyan is invalid since] it related to an abstract renunciation.²⁶  R. Nahman replied: [The kinyan is valid because] it related to land itself.²⁷  Said Abaye: R. Joseph's statement is reasonable

1. Lit., 'no right nor claim'.
2. According to the Torah it is the husband who is the heir of his wife (v. B.B. 111b).
3. It is only the produce which was granted to the husband by a Rabbinical measure, that he may renounce.
4. In reference to the rulings in our Mishnah.
5. Emphasis on said, sc. he can waive his rights by a mere verbal declaration.
6. Infra 102b.
7. Much less if it was only verbal.
8. Either verbally or in a written document (v. Rashi).
9. Sc. to his partner.
10. Lit., 'and my hand is removed from it'.
11. Infra 95a. Git. 77a, B.B. 43a, 49a; because no man can renounce his rights by a mere verbal declaration unless by way of a gift or sale, but since there was no expression such as, 'I make the field over to you'. or words to the same effect denoting a gift, the waiver is ineffective. Now since a written undertaking that omitted such an expression is invalid, bow much more so would that be the case with a mere verbal utterance? An objection thus arises against R. Hiyya.
12. Lit., 'when he writes for her'.
13. When he has as yet no right to her property.
14. Which allows renunciation in such a case.
15. Lit., 'stipulate that he shall not inherit'.
16. Sc. from a stranger to whom he becomes next of kin through an act of his (such as marriage) and whose heir he becomes thereby in accordance with Rabbinic law. It is only an inheritance from a next-of-kin, or property that is already in one's possession, the rights of which cannot be waived by mere renunciation but requires (v. supra n. 8) the specific expressions of 'giving'. [This statement of R. Kahana is on the view that the law that the husband inherits his wife is a Rabbinic provision. v. supra p. 528, cf. supra p. 522, n. 2].
17. Since the regulation was made for his benefit, he is at liberty to reject it.
18. Since her maintenance by her husband in return for her handiwork is a Rabbinic regulation made in favour of the woman, she is at liberty to reject it. A husband (cf. supra nn. 13 and 14) is similarly entitled to renounce his rights as heir to his wife, without any further formality.
19. That the husband's right to renounce his claim upon his wife's property is due to the fact that it was for his benefit that her property was assigned to him.
20. Of course it should. Why then was it necessary for the school of R. Jannai supra to explain the ruling as referring to an undertaking that was given 'while she was still only betrothed to him'?
21. Lit., 'his hand is like her hand'. Since he is consequently legal possessor of the property he cannot (cf. supra p. 523, n. 13) waive his rights to it by mere renunciation.
22. The difference of opinion between Abaye and Raba, which does not in any way affect our present discussion since in either case a husband is regarded as the possessor of his wife's property and cannot, by a mere verbal renunciation, legally transfer it.
23. If such a woman died and left property which came into her possession either (a) while her husband was still alive or (b) after his death while she was awaiting the levir's decision, the respective rights of her heirs and her husband's heirs to such property depend on, and vary according to, the respective views of Abaye and Raba as fully discussed in Yeb. 39a, q.v.
24. Lit., 'they (sc. witnesses) acquired from him (on behalf of his partner)'. Cf. Rashi.
25. Of his share in his partner's property. spoken of in the Baraitha quoted supra in objection to R. Hiyya. Does, or does not such kinyan, it is asked, effect the legal transfer of the land despite. or because of the fact, that no expression of 'giving' (v. supra p. 523. n. 8) was used. [According to Tosaf. s.v. [H] the query refers to the waiving of rights by a husband to the property of his wife after marriage].
26. Lit., 'they acquired from him (a mere verbal expression) of right and claim', which are not in his power to waive.
27. Lit., 'of the body of the land', which is, of course, a concrete object that may well be acquired by symbolic kinyan.

where [the partner]¹  lodged his protest forthwith,²  but if he delayed,³  the kinyan must be regarded as relating to the land itself,⁴  Amemar said, the law is that the kinyan is taken to refer to the land itself.⁵  Said R. Ashi to Amemar: [Do you speak] of one who lodged his protest forthwith or of one who delayed it? 'In what respect [the other asked] does this matter?' — In respect of [determining whether the law is] in agreement with the view of R. Joseph.⁶  'I did not hear this',⁷  the other replied. 'by which I mean that I do not accept it.'

IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING etc. But⁸  why should she not be able to say to him, 'You have renounced all your claims'?⁹  — Abaye replied: The holder of a deed is always at a disadvantage.¹⁰  But might it not be suggested [that he renounced his claim] upon the usufruct?¹¹  — Abaye replied: A young pumpkin [in hand] is better than a full-grown one [in the field].¹²  But may it be suggested [that his renunciation related] to his heirship?¹³  Abaye replied: Death is a common occurrence but the sale [of property by a wife] is not common;¹⁴  and whenever a person renounces his claims [he does so] in respect of what is not a common occurrence but he does not do it in respect Of that which is a common occurrence. R. Ashi replied:¹⁵  [The husband's renunciation was] 'UPON YOUR ESTATES',¹⁶  but not upon their produce; 'UPON YOUR¹⁷  ESTATES', but not after your death.¹⁸

R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE [etc.]. Our Rabbis taught: The following are regarded as produce and the following as the yield of the produce respectively. If a woman brought to her husband¹⁹  a plot of land and it yielded produce, such yield is regarded as produce. If he sold the produce and purchased land with the proceeds and that land yielded produce, such yield is regarded as the yield of the produce.

The question was raised: According to R. Judah, [is the expression] THE PRODUCE OF THEIR PRODUCE²⁰  the essential element,²¹  or is rather WITHOUT END²²  the essential element,²³  or is it possible that both expressions are essential?²⁴  But should you find [some ground] for deciding [that the expression] THE PRODUCE OF THEIR PRODUCE is the essential element,²⁵  what need was there [it might be asked, for the mention²⁶  of] 'WITHOUT END'? — It is this that we were taught: So long as he renounced in her favour, in writing, the yield of the produce it is as if he had expressly written in her favour, 'without end'. But should you find [some reason] for deciding that WITHOUT END is the essential element,²⁷  what need was there [it might be asked, for the mention²⁶  of] THE PRODUCE OF THEIR PRODUCE? — It is this that we were taught; Although he renounced in her favour, in writing, the yield of the produce [the renunciation] is valid only²⁸  if he also wrote 'without end' but is invalid²⁹  if he did not [write it]. But if you should find some argument for giving the decision that both expressions are essential [it could he asked]. what need is there for the specification³⁰  of both? Both are necessary. For if only the 'yield of the produce' had been written in her favour and 'without end' had been omitted, it might have been assumed that he loses thereby his right to the enjoyment of the yield of the produce only but that he is still entitled to enjoy the produce of the yield of that produce, hence it is necessary for the expression 'without end' [to be included in the renunciation]. And if only 'without end' had been written in her favour and the 'yield of the produce' had not been specified,³⁰  it might have been assumed that 'without end' referred to the first produce only,³¹  hence it is necessary to specify also the 'yield of the produce'.³²

The question was raised: May a husband who wrote, in favour of his wife, the renunciation 'I have no claim whatsoever upon your estates and upon the yield of their produce', enjoy the produce itself? Has he renounced the yield of their produce only but not the produce [itself] or is it possible that he renounced all his claim? But it is quite obvious that he has renounced all his claims. For should you suggest that he only renounced his claim upon the yield of the produce but not upon the produce itself, whence [it might be objected] would arise a yield of the produce if the man had consumed the produce itself?³³

[No, for even] according to your view, [how will you explain] the statement in our Mishnah, R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE etc. [Where it may equally be objected,] whence would there be a yield of the produce if she³⁴  has consumed the produce itself? [Your explanation,] however, [would be that the reference is to a case] where the woman had allowed [the produce] to remain;³⁵  here also [it may be a case] where the husband has allowed the produce to remain.³⁵

R. SIMEON B. GAMALIEL RULED etc. Rab said: The halachah is in agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave. What is meant by 'the halachah is In agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave'? If it be suggested: 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' in respect of his statement 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 if A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab holds that such a condition³⁶  is valid³⁷  and [his acceptance of the ruling³⁸  is solely due to] his opinion that a husband's right of inheritance is a Rabbinical enactment and that the Sages have imposed upon their enactments greater restrictions than upon those of the Torah;³⁹

1. Who waived his rights.
2. As soon as the partner came to take possession of the field, he declared that he never intended to give away his share and that his renunciation was merely a way of escape from a quarrel with his partner.
3. Lit., 'when standing', the protest being made sometime after his partner had taken possession of the field.
4. Cf. p. 524, n. 9; it being obvious that this belated protest was only the result of an afterthought, and that his original intention was to give away his share to his partner.
5. V. p. 524, n. 9.
6. Supra 83a ad fin.
7. The ruling of R. Joseph. Cf. MS.M.
8. If the husband's renunciation is sufficiently valid to confer legality on his wife's sale or gift.
9. I.e., even his rights to usufruct and heirship.
10. Should his claims ever conflict with those of the person in possession in whose favour the deed is always to be interpreted. In the case under discussion the wife is regarded as the 'holder of the deed' and the husband as the possessor of the rights of (i) usufruct, (ii) heirship and (iii) the seizure of any property she has sold or given away. Since his renunciation can be interpreted as referring to one of these rights only, the woman has no legal footing on which to claim 'You have renounced all your claims'.
11. And not upon his other rights (cf. note 7) including that of seizure of the property his wife has sold or given away.
12. Cf. 'a bird in hand is worth two in the bush' (Eng. prov.). The right to usufruct, which can be enjoyed at once, though it is of less value than the land itself, is more advantageous to a husband than the right of the seizure of property that his wife may possibly sell at some future time. The former is a certainty, the other is an eventuality.
13. Cf. supra n. 9 mutatis mutandis.
14. A woman as a rule does not sell her ancestral possessions.
15. To the two objections just dealt with by Abaye.
16. Emphasis on ESTATES.
17. Emphasis on the pronoun.
18. When they are no longer hers.
19. On marriage.
20. And not that of WITHOUT END. (Rashi); cf. note 8 ad fin.
21. In the wording of the renunciation spoken of by R. Judah; and, if it was omitted, the renunciation, as far as the yield of produce is concerned, is invalid even though the expression 'without end' had been used. Aliter. And the renunciation is valid even though 'without end' was omitted (Tosaf. s.v. [H]).
22. And not 'the produce of the produce'.
23. Cf. supra n. 7, mutatis mutandis.
24. And if one of them was omitted the renunciation is invalid.
25. V. supra note 7.
26. In our Mishnah.
27. Cf. supra note 5.
28. Lit., 'yes'.
29. Lit., 'not'.
30. In the renunciation.
31. That it is this produce, but not its yield, that he renounces for ever
32. [All of which justifies the query as to which expression is regarded as essential according to R. Judah. The query is left unanswered, v. infra p. 528. n. 2].
33. Obviously there could be none Hence it may be concluded that the husband renounced 'all his claims'.
34. The wife. Cf. Rashi. Cur. edd., [H].
35. It had for some reason remained unconsumed and a produce-yielding object had been purchased with the proceeds. [Here, too, the question remains unanswered, v. supra p. 527. n. 5].
36. If it relates to monetary matters.
37. In agreement with R. Judah, supra 56a.
38. Of R. Simeon b. Gamaliel, that the condition is invalid in the case of the husband's heirship.
39. Not being Pentateuchal, people might be lax in their observance. Greater safeguards were, therefore, required.