Talmud zu Bava Batra 8:10

Rav⁴⁴This is the correct text from the parallel in Baba batra 8:6 (from a different editorial team). Rav Jeremiah was a contemporary of Rav, Rebbi Jeremiah lived about 100 years later. Jeremiah in the name of Rav: Practice follows Rabban Simeon ben Gamliel⁴⁵This also is Rav’s position in the Babli, 83b, but with a reasoning diametrically opposed to that of the Yerushalmi., but not in the matter of words⁴⁶Rosh has a slightly different text:
רִבִּי יִרְמְיָה בְשֵׁם רַב. הֲלָכָה כְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל. שֶׁאִם מֵתָה יְרוֹשְׁתָהּ אֲבָל לֹא לְעִנְייָן דְּבָרָיו שֶׁאָמַר מִפֻּנֵי שֶׁהִתְנָה עַל מַה שֶׁכָּתוּב בַּתּוֹרָה. וְכָל־הַמַּתְנֶה עַל מַה שֶׁכָּתוּב בַּתּוֹרָה תְּנָאוֹ בָטֵל. בִּתְנָאֵי גּוּף. וְהָכָא בִּתְנָאֵי מָמוֹן אָנוּ קַייָמִין. וְלָמָּה אָֽמְרוּ תְּנָאוֹ בָטֵל. שֶׁבְּסוֹף הוּא זָכָה בָהֶן.
Rav Jeremiah in the name of Rav: Practice follows Rabban Simeon ben Gamliel, that if she dies he inherits from her, but not because of his words, "since he made a condition contradicting what is written in the Torah, and anybody's condition contradicting what is written in the Torah is invalid," in personal matters. But here we deal with money matters! Why did they say that the condition is invalid? Because in the end he acquired it.. Practice follows Rabban Simeon ben Gamliel for he said, if she dies he inherits from her, but in matters of words, “since he made a condition contradicting what is written in the Torah, and anybody’s condition contradicting what is written in the Torah is invalid,” in personal matters. But in money matters, one’s stipulations are valid⁴⁷A generally agreed principle in the Yerushalmi, cf. Qiddušin 1:2 (59c 1.43), Baba meṣi‘a 7:10 (11c 1.11); in the Babli accepted with reservations in the name of R. Jehudah, 57a. and that is a money matter! Why did we say that the condition is invalid? Because in the end he acquired it⁴⁸In Baba batra 8:6, the reason is given the practice follows R. Joḥanan ben Baroqa who holds that wills can be written only in favor of people who could be heirs (if a number of closer relatives had died.) Then the law of inheritance is compulsory and falls under the category of personal matters.. Rebbi Immi in the name of Rebbi Joḥanan: The law should have been that if she⁴⁹The definitively married wife should retain the right of disposal of her paraphernalia property since she retains sole ownership. sold or gave it away it should be valid, for [the buyer] acquired it. Why did they say it is invalid? That a wife should not sell her husband’s property and say, it is mine⁵⁰She could claim that mortmain property was really hers to dispose of..

⁶⁷The first sentences are quoted by Naḥmanides in מלחמות ה׳ (in the Wilna edition of Alfassi, Yebamot 22a). Rebbi Hillel bar Pazi asked before Rebbi Yose: If he sold and then she died⁶⁸The husband sold of his wife’s paraphernalia property during her lifetime. Since he was not the owner, he could not sell; the sale is void even when he becomes the heir.? He said to him, his sale⁶⁹Naḥmanides writes מכרו; that may have been a correct ms. or it may be his (obvious) correction of the text. In these details, a medieval quote is not a witness to the text. is invalid; it is as if a son sold during his father’s lifetime and then the father died⁷⁰While a son can legally sell his right of inheritance to a speculator (who would take the risk that the son might die before the father and his investment become worthless), the son cannot sell his father’s property before his father’s death; such a sale is void even after the son becomes the heir.. If she sold and then he died⁷¹She sold of her paraphernalia properties, of which she is the owner, and her husband died during her lifetime. She sold irregularly since her husband had the administration of her properties during his lifetime but after her husband’s death the sale is valid.? He said to him, her sale is valid; it is as if a father sold during his son’s lifetime and then the son died⁷²The father is not required to inconvenience himself to leave his properties for his heirs.. Rebbi Ḥiyya bar Marius asked before Rebbi Jonah: What is the situation if she sold to her husband? He said, since Ḥizqiah said, practice follows Rebbi Judah⁷³The reference is not to R. Jehudah (bar Illaï) mentioned in the Mishnah but to Rebbi, R. Jehudah ben Rabban Simeon, quoted in the baraita later in this paragraph., this implies that her sale is a sale⁷⁴As explained at length later, the temporary owner is a total owner and may sell at will. The question why she would want to sell is addressed below.. It was stated⁷⁵A similar text in Tosephta Baba batra 8:4 (fragmentary), Yerushalmi Baba batra 8:9 (16c 1.19); Babli Baba batra 136b/137a (cf. R. Rabbinowicz, דקדוקי סופרים בבא בתרא. p. 374, Note ח).: “If somebody says, my property should be given to X, if X died to Y, [if Y died to Z]⁷⁶This clause appears in all texts mentioned in the preceding Note; it is necessary to introduce the third beneficiary of the will.. If the first one died the properties should be given to the second, if the second died they should be given to the third. If the second one died during the first’s lifetime; since the second never acquired them, the third cannot acquire them⁷⁷In the language of the Babli: If the second died while the first is alive, the properties should return to the first’s legal heirs (in Yerushalmi Baba batra: to the testator’s legal heirs)..” He said to him, so did Rebbi Hoshaia⁷⁸In the Babli (Baba batra 136b), he is called “Rav Hoshaia in Babylonia”., the father of the Mishnah, explain: After him to X, after him to Y; it is as if stated: if the third died during the second’s lifetime, since the second one did not acquire his heirs cannot acquire, one really could say: After him to X, after him to Y⁷⁹As the Babli explains in the name of Rav Hoshaia, for him there is a difference between “it should be given to X, then to Y, then to Z” and “you should inherit, after you Y, after him Z.” In the first case, the properties are given in usufruct but have to be preserved. In the second case, the properties are given in possession; the owner receives title. The only claim the successor has is to the real estate which still is in the preceding heir’s hand at his death; Y cannot complain if X sells the properties. This is made clear in the following baraita.. It was stated: “Rebbi says, the first one may sell the real estate and buy movables. Rabban Simeon ben Gamliel says, he has only the usufruct.^75,A similar text in Tosephta Baba batra 8:4 (fragmentary), Yerushalmi Baba batra 8:9 (16c 1.19); Babli Baba batra 136b/137a (cf. R. Rabbinowicz, דקדוקי סופרים בבא בתרא. p. 374, Note ח).⁸⁰In the Babli, the position of Rabban Simeon ben Gamliel is modified to mean that a sale is a breach of trust but not that it is void. Since a baraita which forces the Babli to its conclusion is not mentioned in the Yerushalmi, one has to assume that in its opinion for Rabban Simeon ben Gamliel there is no difference in the language of the will; in any case in which a succession of heirs is noted only usufruct is transferred and any sale of real estate is void.” Ḥizqiah said, practice follows Rebbi. Rebbi Mana said, since Ḥizqiah said, practice follows Rebbi, that implies that he cannot dispose of it by a death-bed will⁸¹In Baba batra, the text reads: “R. Yannai said, Rebbi agrees that he cannot dispose of it by a death-bed will. R. Joḥanan said, not even as a gift between the living.” The statement of R. Mana (I)/R. Yannai simply means that X, the first heir, cannot give the properties away in a will since the will becomes active only after X’s death and at that moment the real estate is already Y’s property (as explained in the Babli, loc. cit.). R. Joḥanan’s statement is explained by R. Eliahu Fulda, that X may sell for his own needs because he is the owner, but he cannot give away since the original will prescribes that after X it must be given to Y.. So said Rebbi Mana⁸²R. Mana II. before Rebbi Yose: Since this woman’s upkeep is her husband’s responsibility, is it not like a gift of sick persons⁸³Why should the wife have the power to sell the real estate whose proceeds go to her husband? Is it not that she received the properties on condition that after her, they should be given to her husband or children?? He said to him, her upkeep is what is necessary for her: food, oil, and salt. But she wants to sell and buy chickens⁸⁴She may sell for expenses which the husband is not required to cover.. This means that if the first one wanted to sell and buy chickens, he may sell⁸⁵X may sell real estate only for his personal needs but the definition of personal need has to be very generous.. Rebbi Jacob bar Aḥa said, her burial is equal to her upkeep. Since you said there⁸⁶In the Tosephta from Baba batra. The wife may also sell some of her property and buy herself a burial plot (which, if used, becomes forbidden for all usufruct.), he may sell real estate and buy food, so he may sell real estate and buy a burial.

There⁶⁵Mishnah Baba Batra 8:7., we have stated: “If somebody writes his property over to his sons, he has to write: From today and after death⁶⁶By a positive biblical rule, an inheritance has to be divided evenly among the male heirs (Num. 27:6–11) except that the firstborn male in rabbinic interpretation receives a double portion (Deut. 21:17). If the father wants to distribute his property unevenly, or leave real estate to his daughters, he has to execute a will which has to become valid during his lifetime since nobody can act in law after his death.. Rebbi Yose says, this is unnecessary.” What is Rebbi Yose’s reason? The date of the document is its proof⁶⁷Since everybody knows that a will has to be activated during the testator’s lifetime, the date of the will automatically becomes the date of its validation except if this is disclaimed in the document itself. The same statement is in the Babli, Baba Batra 136a.. The colleagues in the name of Rebbi Joḥanan: This is no condition⁶⁸Perhaps compare Greek ὕστερος “later, subsequent” as in combination τῇ ὑστέρῃ προσβολῇ “later, subsequent, conditions added to a document.” (E. G.) Less likely is a relation between the hapax איסרטה and Arabic شرطة “stipulation, clause” which might be Aramaic שטר, Accadic šeṭrum,šaṭārum “document”.. Rebbi Ze‘ira in the name of Rebbi Joḥanan: It applies neither to bills of divorce nor to gifts⁶⁹This is a reformulation of the colleague’s statement: R. Yose’s statement about wills is applicable neither to divorces nor to gifts.. Rebbi Ila⁷⁰He disagrees with R. Ze‘ira. said, for a gift; since he said “from today”, the gift is irrevocable. Why did he write “after death”? To reserve the yield to himself⁷¹During his lifetime.. But in bills of divorce, since he wrote “from today” in the bill, it would be a separation⁷²If it is a divorce, the wife will be able to marry another man.. Why did he write “after death”? To reserve her body⁷³The use of prothetic א for אל, על is Babylonian. He wants to prevent his wife from remarrying during his lifetime. Therefore, the mention of “after death” contradicts the statement “from today” and there is no divorce. Rashba (Novellae ad 72b) reads: “the bill of divorce is unclear” (He also reads לְשַׁייֵר לוֹ גוּפָהּ, a better Yerushalmi style). to himself. Rebbi Bibon⁷⁴Rashba reads: R. Bun. [Compare the Latin adjective vivus “alive” as equivalent of חַיִים; cf. also the Roman name Bibulus. (E.G.)] bar Cahana said before Rebbi Ilai, not to reserve her earnings for himself⁷⁵Then the divorce would be absolute and the wife entitled to remarry during her first husband’s lifetime.? He answered, we do not find a woman married to one man and her earnings belonging to another. Rebbi Ze‘ira praised him for this and called him “son of the Torah.”

MISHNAH: Rebbi Simeon says, in the circumstances where he was empowered at her entrance he was disabled at her exit, and in the circumstances where he was disabled at her entrance he was empowered at her exit. What was connected to the ground at her entrance is his and at her exit is hers, what was cut from the ground at her entrance is hers and at her exit is his³⁸He follows the Sages in the previous Mishnah that produce she brings into the marriage as capital and real estate is given over to his administration. He adds that at a divorce (if she exits the marriage) he has to deliver the field as is at the moment the bill of divorce is delivered, with all the grain standing if it was not cut before the divorce but that all produce harvested before the moment of divorce is his; cf. Yebamot 15:5, Notes 67–68..

¹⁵⁷This baraita also appears in Baba Batra 8:9, 16c.“If somebody says, I freed my slave Ṭabi¹⁵⁸For Ṭabi (m.), Ṭabitha (f.) as names of slaves cf. Niddah 1:5, Note 103., I shall free him, he is free, he acquired¹⁵⁹The slave acquired the right to be freed..” Rebbi Inaia¹⁶⁰In Baba Batra: R. Ḥiyya. in the name of Rebbi Joḥanan: But only by a document¹⁶¹The slave cannot acquire freedom by the simple declaration of his owner; he only can acquire the right to a document of manumission.. “He should be freed¹⁶²The owner said that the slave should be freed, but did not say it in the context of a last will and testament. The Sages hold that this is a not binding promise; Rebbi holds that this kind of promise is binding., Rebbi says, he acquired, but for the Sages he did not acquire. Give this document of manumission, and he died, Rebbi says, he did not acquire but the Sages say, he did acquire; one forces the heirs to fulfill the instructions of the deceased.” Rebbi Ze‘ira said, they disagree¹⁶³In the case of the owner who gave instructions to write a document for his slave. if he did not specify. How do we hold? If he said, “free him”, Rebbi will agree¹⁶⁴Since the heirs are required to follow the wishes of the testator, they have to free the slave.. If he said, “write and deliver,” the Sages will agree¹⁶⁵This is the case of the Mishnah; if the owner instructed to write the document and deliver it in his name, the instruction becomes void at his death.. But we deal with the case that he said “give”. Rebbi says, one who says “give” is like one who said “write and deliver,” but the Sages say, one who says “give” is like one who said “free him”.

“He who curses by a charm.” Like those Nabateans who curse “your creator, your smith, your acquisition⁷¹Explanation of J. Levy in his Dictionary, based on Arabic קני “to acquire, to create”, קינ “smith; any craftsman”; a similar but Hebrew formulation in the Babli 81a. He also notes that the words might be substitutes for others, similar to קונם, קונח, קונס used for קָרְבָּן in vows (cf. Mishnah Nedarim 1:2)..

²²⁶This sentence has been discussed in great detail by M. A. Friedman, Jewish Marriage in Palestine, A Cairo Geniza Study, Tel-Aviv and New York 1980, vol. 1, Chapter V,A: The Wife’s Right to Demand Termination of the Marriage, pp. 312–346.
The stipulation referred to is quoted in part in Halakhah 7:7, Note 96. The full text has been recovered by Friedman (loc. cit., pp. 328–329) from Geniza ketubot: “If X, the groom, hates this Y, does not desire her, and wants to separate from her, he shall pay all that is written and specified in this marriage contract, completely. And if this Y hates this X, her husband, and desires to leave his home, she shall lose her ketubah money, and she shall not take anything but only that which she brought from her father’s house and she shall go out by the mouth of the court (עַל פֻּם בֵּית דִּינָה) and with the consent of our masters, the Sages.”
The sentence about the husband hating his wife does not bring anything new. The sentence about the wife hating the husband states first that the husband does not have to pay the promised ketubah sum, then that she takes the rags with her (following R. Ismael ben R. Yose in the preceding paragraph), and, finally, that she is to be divorced “by the mouth of the court,” i. e., that the court will direct the husband to divorce his wife. Even though biblical law, as interpreted by all Jewish sects, does grant the husband the exclusive power to divorce, to the exclusion of any right of the wife to force a divorce, R. Yose (the Amora) holds that if the divorce is forced as consequence of a monetary settlement, the stipulation regards monetary, not religious, obligations and is enforceable in court.
The essence of this prenuptial agreement, which allows a woman to buy her freedom from an intolerable marriage, was adopted in Babylonia by the Saboraim Rav Rabba and Mar Rav Huna as a taqqanah, a rabbinic ordinance, which instructed the husband to divorce his rebellious wife while granting him the monetary advantages of the Yerushalmi agreement. This ordinance was in fact disestablished by R. Asher ben Ieḥiel, Rosh, in the 14th Century, when he interpreted the rule as a recommendation, not obligatory on the husband. Cf. I. Szczepansky, The Takkanot of Israel, Jerusalem-New York; Vol. 3, Chapter 13 (1992) (Hebrew). The dependency of the Saboraïm on the Yerushalmi is studied by Dr. Eliahu Raḥamim Ziani, רבנן סבוראי וכללי ההלכה, Haifa 1992. Rebbi Yose said: Those who write: “If he hates, if she hates”, that is a monetary condition and these conditions are valid²²⁷In the Babli, this is asserted as R. Jehudah’s opinion: Qiddušin 19b. In the Yerushalmi it is a generally accepted principle transmitted anonymously: Below 9:1 (32d 1. 51); Baba meṣi‘a 7:10 (11c 1. 11), Baba batra8:6 (16b 1. 28), 8:8 (16c 1. 37)..