תלמוד על כתובות 9:10

But are her garden and her courtyard not subject to her husband’s having the usufruct⁶In the absence of a contract to the contrary, the wife’s dowry, brought into the marriage, becomes the husband’s property as mortmain subject to his obligation to restitute the full value at the termination of the marriage. Property coming to the wife during the marriage is paraphernalia property about which the husband assumes the duty of administration and from which he has the usufruct. In any case, it is impossible to say that (in the absence of a contract of separation of properties) the wife’s properties were in her actual possession during her marriage. Cf. Yebamot 7:1, Note 1.? Rebbi Joshua⁷No R. Joshua is known among Amoraïm. One has to read with Tosaphot (s.v. מה, 77b): R. Joḥanan. in the name of Rebbi Yannai: Only if he writes to her, “I have nothing to do with your properties⁸Cf. Mishnah Ketubot 9:1 (Notes 1–4) about the different formulations of separation of properties..” Rebbi Isaac bar Ḥaqulah in the name of Rebbi Hoshaiah: Even if he did not write to her, “I have nothing to do with your properties.⁹In the words of the Babli, 77a: In a divorce, her bill of divorce and her entering into full possession of her properties are simultaneous. Even if the husband had the administration of the properties when he dispatched the bill of divorce, the moment the latter landed on his wife’s property he has lost the administration, and all property rights revert to his ex-wife.” It turns out that Rebbi Yannai follows the rabbis and Rebbi Hoshaiah follows Rebbi Meїr¹⁰In the Babli (Qiddušin 23b), the attributions are switched: R. Meїr holds that neither slave nor wife have powers of acquisition separate from husband or master, and the rabbis disagree.. Rebbi Yannai follows the rabbis, for the rabbis say, even though the slave’s hand is his master’s hand, he can acquire his document of manumission from [his master’s] hand¹¹While anything the slave acquires automatically becomes his master’s property, the master by delivering the bill of manumission empowers the slave to own property, in particular, himself.. But her garden and her courtyard are subject to her husband’s having the usufruct unless he writes to her, “I have nothing to do with your properties.” It is difficult for the rabbis: since the slave’s hand is his master’s hand, how can he acquire his document of manumission from [his master’s] hand¹²This is a rhetorical question; the answer was already given, cf. Note 11.? Rebbi Hoshaiah follows Rebbi Meїr, for Rebbi Meїr said since the wife’s hand is not her husband’s hand, she can acquire her bill of divorce from her husband. Her garden and her courtyard will not be subject to her husband¹³The husband possibly is the administrator but not the owner., even if he has the usufruct, even if he did not write to her, “I have nothing to do with your properties.” If he inherited properties together with her, even if he wrote it is as if he did not write; [for example] if he had married his brother’s daughter, even if he wrote it is as if he did not write¹⁴The right to joint property can be renounced only by transfer of property rights, not by a disclaimer.. If another person gave her a gift and told her, on condition that your husband have no rights to it, but it is for you to trade on your own account, then even if he did not write it is as if he wrote¹⁵If the husband never had any rights of administration, he does not have to disclaim them. It is a recognized way of giving property to one’s daughter to shield it from the son-in-law; Mishnah Nedarim 11:8 (Notes 69,70)..

¹⁰Different versions of the following discussions are in the Babli, 83a/b, Tosephta 7:1–5, Sifry Deut. 269. After Rebbi Eliezer’s death, four Elders assembled to object to Rebbi Eliezer’s words: Rebbi Eleazar ben Azariah, Rebbi Yose the Galilean, Rebbi Tarphon, and Rebbi Aqiba. Rebbi Joshua told them, one does not contradict the lion after his death¹¹He rejects all the following arguments (as does the Babli, except an argument attributed to R. Eleazar ben Azariah not mentioned in the Yerushalmi.). Rebbi Tarphon objected: If he said to her, you are permitted to any man except Mr. X; she went and married [the latter’s brother who]¹²Missing in the text; to be added from the parallel attributed to R. Jeremiah. died childless; how can she contract the levirate marriage¹³If the prohibited man was the only brother of the deceased husband, the widow should have to marry him but she is prohibited by the former husband’s stipulation. In the Babylonian sources (Note 10) the conclusion is stated explicitly that “this is no cutting loose” (referring to the bill of divorce which in Deut. 24:1 is called “scroll of cutting loose” the wife from the husband’s power. This really refers to the rabbis’ argument, Note 9.)? Does it not turn out that he¹⁴The first husband would in effect stipulate that his ex-wife cannot fulfill the commandment of the levirate marriage. stipulated against what is written in the Torah, and anybody’s condition contradicting what is written in the Torah is invalid. Then nobody should be permitted to marry his brother’s daughter, lest he come to stipulate against what is written in the Torah¹⁵If the uncle married to the niece died childless, the widow clearly is forbidden to marry her own father in levirate. But the possibility of a marriage of the niece to the uncle is one of the doctrines of Pharisaic Judaism, in contrast to the Sadducees (cf. Introduction to Tractate Yebamot.). Rebbi Yose ben Rebbi Abun said, one understands the reason. There, the Torah forbade her to him¹⁶In fact, the greater part of Tractate Yebamot is devoted to cases where levirate marriage is impossible.. But here, he forbids to him¹⁷The first husband forbids levirate marriage to the brother of the second husband.! Rebbi Ḥananiah objected in the name of Rebbi Phineas: Should one not state “sixteen women” following Rebbi Eliezer¹⁸Mishnah Yebamot 1:1 enumerates 15 categories of women who are forbidden levirate and, in the opinion of the House of Hillel, automatically free their co-wives from levirate. According to R. Eliezer, should one not add the woman who married the brother of a man forbidden to her by divorce stipulation?? Rebbi Mana said, the reason was already explained: there, the Torah forbade her to him. But here, he forbids to him¹⁷The first husband forbids levirate marriage to the brother of the second husband.! Rebbi Jeremiah¹⁹It seems that this has to read “R. Simeon ben Eleazar” (Tosephta 7:5.) asked: If he said to her, you are permitted to any man except Mr. X; she went and married the latter’s brother who died childless, how can the latter permit what the first forbade²⁰This is a non sequitur. It seems that one has to read with the Tosephta: “She went and married an unrelated person who then divorced her unconditionally”, i. e., the second husband by his divorce annulled the condition of the first divorce.? His words imply that death and divorce permit what the first [husband] prohibited²¹The condition “except Mr. X” according to R. Eliezer refers only to the next marriage of the divorcee. If the divorcee married according to the stipulation and then the second marriage is dissolved either by divorce or by the husband’s death, the widow or divorcee is free to marry anybody she wishes. The Babli agrees with this interpretation, 83a, which shows that R. Tarphon’s objection cannot be sustained.. Rebbi Jeremiah said, he said only death and divorce; therefore, not marriage²²R. Eliezer, who declares the divorce valid, will insist that the first remarriage satisfy the first husband’s condition..

Does our Mishnah follow the House of Shammai, since the House of Shammai say, “she takes her ketubah but does not drink”¹³Mishnah 4:3. If the husband died after she was in a secluded place with her paramour but before she could drink.? Rebbi Yose said, there the reason of the House of Shammai is that she may say, bring me my husband, then I shall drink¹⁴Since the verse requires the husband to bring his wife to the Temple, she can claim that it is not her fault that she could not cleanse herself.. But here, she knew that the preliminarily married cannot drink¹⁵It is clear that the House of Shammai also hold that women have to study all the rules (and texts) of the oral law; cf. Berakhot Chapter 3, Note 181. If R. Eliezer in Halakhah 3:4 excludes women from the study of Torah, he can mean only the study of the Pentateuch, not that of the oral tradition.; why did she bring herself into that great doubt? In order to disqualify herself from receiving her ketubah¹⁶For the preliminarily married woman, this refers only to pre-talmudic times, when the ketubah was given at the time of qiddušin. But later practice was to deliver the document only at the time of the actual marriage (cf. Ketubot5:1)..

Samuel said, if two men acted as judges, their judgment stands, but they are called an insolent court³⁶Babli 3a,5b,30a,87b; Ketubot 22a. Cf. Berakhot 7:1, Note 18.. Rebbi Joḥanan and Rebbi Simeon ben Laqish both are instructing: Even³⁷Even if the parties accepted them as judges. if two men acted as judges, their judgment is no judgment³⁸In the Babli, this opinion is represented by Rava (5b) and R. Abbahu (87b), the student of R. Johanan and R. Simeon ben Laqish.. There, we have stated³⁹Mishnah Bekhorot 4:4. The Mishnah refers to a person who did not pass the required examinations and was not formally qualified as a judge.: “If he rendered judgment, acquitted the guilty and condemned the innocent, declared the pure impure or the impure pure, what he did is done but he has to pay from his own pocket.” Rebbi Abba in the name of Rebbi Abbahu: if they told him, we accept you as if you were two⁴⁰Since R. Abbahu follows his teachers and holds that any judgment passed by a court of two judges is void, as well as from the following quote, it is clear that one has to read “three” in place of “two”.. What are we dealing with? If his error was that he judged them on his discretion⁴¹If there exists no clear precedent for the case; different schools promulgate different rules and he followed a minority opinion because it seemed to him to be the correct one, his judgment is valid but there is no reason why he should have to pay. The Babli, 33a, declares a judgment against a clear majority of opinions as an error in law., then what he did is done. If his error was that he judged them by Torah law⁴²If his judgment contradicted a Mishnah or a clear precedent, in Israel a judgment of the Patriarch’s court or in Babylonia a concurrent judgment of both Yeshivot, his judgment is void (cf. Ketubot 9:2, Note 100). If any money changed hands as a consequence of the erroneous judgment, it has to be returned., why should he pay from his own pocket? Rebbi Abba in the name of Rebbi Abbahu: if they told him, we accept you as if you were three on condition that you judge us by Torah law. He erred and judged them on his discretion. What he did is done, but since he erred and judged them on his discretion, he has to pay from his own pocket⁴³As a fine. because he was presumptuous to judge alone by Torah law, as we have stated⁴⁴Mishnah Avot 4:8.: “Do not judge sitting alone, for only One judges sitting alone.”

MISHNAH: One does not collect from encumbered property⁴⁵“Encumbered property” is property sold when there was a lien on it. If the lienholder cannot get satisfaction from the debtor, he can have regress on the buyer. But as long as the debtor has any real estate left in his possession, it has to be foreclosed before any claim can be raised against a buyer. as long as there is free property, even if the latter is of lowest quality. One may collect from orphans’⁴⁶As long as the orphans are underage. property only from the lowest quality.

HALAKHAH: “If somebody lease a cow from another person,” etc. ²⁷This paragraph is a fragment from a lengthy discussion in Ketubot9:5, Notes 128–145; Qiddušin 1:4, Note 451. But does he have permission to lend it? Did not Rebbi Ḥiyya state: “The borrower cannot lend, nor the lessee lease, nor the borrower lease, nor the lessee lend, unless he received permission from the owners.” Rebbi La said in the name of Rebbi Yannai: Only if he gave permission to lease. And here, only if he gave permission to let him be a steward²⁸This sentence does not belong here; it refers to the question in Ketubot whether a wife who has been entrusted by her husband with the care of his properties may delegate her duties to her sons.. Rebbi Abbahu asked: If the owners borrowed it and it died of natural causes, should the lessee swear that it died a natural death and the borrower pay the renter²⁹If the owner is the borrower, the rule of the anonymous majority leads to a paradoxical result.? Rebbi Abinna said, if they ate it, they ate their own property. “Rebbi Yose said, how can this one treat another person’s cow as his merchandise? But [the value of] the cow shall be returned to its owner³⁰Therefore, practice has to follow R. Yose..”

MISHNAH: A widow can be paid from the orphans’ property only by an oath⁵⁵If the widow continued to live in her husband’s house, she is suspected to have taken from her husband’s property more than was necessary for her guaranteed support and, therefore, if she decides to leave that house she cannot collect her ketubah without swearing that nothing of her ketubah already came into her hand, similar to a woman who had received a down payment on her ketubah, cf. Ketubot 9:8,9.. When they avoided letting her swear⁵⁶The rabbis became worried that the widow while caring for the orphans took things which she thought were payment for her work but which legally should be counted as part payment of the ketubah; if she then swore that she had received nothing, the widow involuntarily transgressed the prohibition of false oaths and the rabbis the prohibition of “putting a stone in the path of the blind.”, Rabban Gamliel the Elder instituted that she should make a vow⁵⁷A vow that she would prohibit on herself the use of anything (food, vessel, place) chosen by the orphans if she had received any down payment for her ketubah. For these “vows of mortification”, see Introduction to Tractate Nedarim. on the instruction of the orphans for anything they would decide on and collect her ketubah, and that witnesses sign the bill of divorce because of the public good. Hillel instituted prozbol for the public good⁵⁸Prozbol is a document which turns a private debt (subject to the laws of revocation in the Sabbatical year) into a public debt (exempt from these laws) in order to maintain an operating banking system; cf. Ševi‘it 10:3 ff..

So is the Mishnah: The seeds on the stem of arum¹³⁸This is the reading and interpretation of Maimonides. The other interpretations (R. Isaac Simponti, R. Simson) have to rearrange the sentence except for R. Isaac Simponti’s second explanation, “the seeds of the thorns of arum,” which does not fit reality since arum, an aracea, has no thorns.. Some woman had heave purslain on a block. They fell into a garden and sprouted. The case came before Rebbi Joḥanan who permitted. Rebbi Ḥiyya bar Abba said to him, is this not the Mishnah: “And these may be eaten if their father was heave?” He said to him, Babylonian, when you cleared a potsherd for yourself, you found a pearl! You said, is that not the Mishnah!

One objects from the Mishnah; sometimes one objects in support of Rebbi Joḥanan⁷⁰In his dispute with R. Hoshaia; Note 67., sometimes one objects in support of Rebbi Simeon ben Laqish⁷¹It is not known to which statement or disagreement this refers. It seems that one refers to the question whether carrying from one domain to another is forbidden on the Day of Atonement since it is forbidden on the Sabbath (even though this opinion is characterized in the Babli, Keritut 14a, as “stupidity”).. ⁷²Mishnah Keritut 3:4; quoted partially Šabbat 1:1, 2c l. 43.“A person may eat once and be liable for four purification and one reparation sacrifices: An impure person who ate suet which was leftover sacrifice on the Day of Atonement⁷³Three purification offerings are due for the inadvertent eating of sacrificial meat by an impure person (Lev. 7:20), suet (v. 23), and leftover sacrificial meat (v. 18), a fourth for eating on the Day of Atonement (Lev.23:29). A reparation sacrifice is due for the unauthorized use of sancta(Lev.5:15).. Rebbi Meïr said, if it was a Sabbath and he took it out⁷⁴He put the meat in his mouth in one domain, went out and ate it in another domain. on the Sabbath. They told him, it is not from that category⁷⁵This sin is committed by carrying, not eating..” When they objected in support of Rebbi Joḥanan: If he took it out on the Sabbath, there is no putting down⁷⁶If the person ate in walking, the piece of meat disappears without coming to rest.. Why did they say, it is not from that category⁷⁷According to R. Joḥanan, eating the piece is putting it down. Since for him transporting on the Sabbath is not punishable without bringing the object being transported to rest, the liability is triggered not by carrying outside but by eating. This would be in the same category as the other transgressions.? When they objected in support of Rebbi Simeon ben Laqish: Why is he not liable if he took it out on the Day of Atonement⁷⁸Why could R. Meïr not mention transporting on the Day of Atonement? The E text has here an addition:
הוֹצִיאוֹ [בַּשַׁבָּת וְהִנִיחוֹ. וְלָמָּה אָמְרוּ אֵינוֹ הַשֵׁם, אֵימַר תִּיפְתָּר בְּשֶׁאָכְלָהּ. וַאֲכִילָה הַנָחָה הִיא. לא מִסְתַּבְּרָה וְלֹא הוֹצִיאוֹ בַּשַׁבָּת חַייָב. הֲרֵי שֶׁהוֹצִיאוֹ] בְּיוֹם הַכִּיפּוּרִים יְהֵא פָטוּר.
If he took it out [on the Sabbath and put it down. Why did they say: "it is not from that category"? I would say in explanation that he ate it. Is eating not putting it down? Therefore, it is only reasonable that if he took it out on the Sabbath, he be liable. Then if he took it out] on the Day of Atonement why should he not be liable?
The additional text is between the brackets, [ ]. It seems that the scribe of L lost the text between הוציאו and שהוציאו. But since the text does not add anything to the discussion, the addition might be a gloss that entered the text.? Rebbi Yose ben Rebbi Abun said, Rebbi Meïr follows Rebbi Aqiba, as it was stated⁷⁹Sifra Emor Parašah 9(8); Babli Ḥulin 101a (with R. Yose the Galilean instead of R. Ismael); Tosephta Keritut2:17 (attributions switched).: From where that if one unintentionally worked on a Day of Atonement which fell on the Sabbath, he is liable for each one separately? The verse says, “it is Sabbath⁸⁰Lev. 23:3.,” “it is the Day of Atonement.⁸¹Lev. 23:28. In this opinion, R. Meïr details obligation of 6 purification offerings.” Rebbi Ismael said, he is liable only once⁸²Since there is only one punishment in case of willful transgression, there can be only one sacrifice in case of inadvertent sin..
If he took it out] on the Sabbath and put it down. Why did they say: “it is not from that category”? I would say in explanation that he ate it. Is eating not putting it down? Therefore, it is only reasonable that if he took it out on the Sabbath, he be liable. Then if he took it out [on the Day of Atonement why should he not be liable?

Rebbi Mana asked before Rebbi Yudan: If he said “I am obligated for the sacrifices of a nazir,” might he⁸⁵The person B whose sacrifices A just has vowed to pay. make the vow of nazir in the future?If he made the vow without explaining⁸⁶A did not put any condition on his vow; when he comes to pay for it, he simply pays for any needy nazir whose sacrifices are due on that day., he may shave any nazir, whether he already made the vow or whether he would make it in the future. If he explained⁸⁷May he specify that his vow is valid only for a nazir who was not yet a nazir at the time of his vow?? It can be compared to the following, as Rebbi Levi ben Ḥayyata asked: If he wrote to her⁸⁸A husband, who normally would have the administration of his wife’s property, writes a disclaimer to his wife in which he renounces all interest in her property. The details of this question are given in Ketubot 9:1, Notes 22–23., “I shall have nothing to do with the properties which you might inherit in the future.” May a person make a condition on things not yet in existence⁸⁹Since Talmudic law does not admit futures contracts on produce which does not yet exist, there can be no valid vow for obligations that do not yet exist.?

Rebbi Isaac said: About those who write, if she should die without children, all that was hers shall revert to her father. This is a stipulation about money; the stipulation is valid¹³¹This is repeated from Ketubot 9:1, Note 87..

If someone said, field X I gave to Y, it is given to him, it should be his, Y should inherit my property, Y should take possession of my property, he did not say anything¹⁷¹Title to property cannot be transferred by simple declaration; cf. Mishnah Qiddušin 1:5. The Tosephta disagrees, 9:12. The Tosephta text is explained away by the Babli, Giṭṭin40b.. It should be given to him as a gift, Rebbi says, he acquired¹⁷²If this was a death-bed declaration., but the Sages say, he did not acquire; but one forces the heirs to fulfill the deceased’s words.¹⁷³Babli Giṭṭin 14b,15a,40a; Ketubot 70a. It was stated¹⁷⁴Tosephta 9:14.: Rebbi Simeon ben Gamliel says, also if one writes διέθεμεν¹⁷⁵“I disposed by will”, from Greek “to dispose” (H. M. Pineles). A. Gulak, Tarbiz 1 fasc. 4 (1931) 144–146 has noted that the expression τάδε διεθέμην is used in Egyptian Greek deeds; also cf. R. Taubenschlag, The Law of Greco-Roman Egypt in the Light of the Papyri, New York 1944, p. 143. Since the expression is a legal Greek term, its use characterizes a valid deed even though the corresponding use of the past in Hebrew was declared invalid as statement of a deed. (S. Lieberman, Tosefta kiFshutah Bava batra p. 441, wants to infer that Rabban Simeon ben Gamliel validates also the Hebrew נָתַתִּי; this seems unjustified.) in Greek it is a gift. Rebbi Ḥanin in the name of Rebbi Joshua ben Levi: I turned to all linguists to know what is διέθεμεν and nobody told me anything¹⁷⁶They were not acquainted with Greek legalese..