תלמוד על בבא בתרא 8:9

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.”

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)..