Arakhin 23a (כג.) — the Talmud in English

Mishna:

One who consecrates his property, and his wife’s marriage contract was incumbent upon him

and he had not yet divorced her,

Rabbi Eliezer says:

Since the woman is entitled to collect her marriage contract even from consecrated property [as his property was liened to her], therefore:

when he divorces her, he must prohibit himself by a vow from deriving

benefit

from the woman, so that he will never be able to remarry her, because we are concerned that perhaps he is divorcing her as a deception concerning the consecrated property, so that she will collect her marriage contract from the consecrated property, and afterward he will remarry her, and both of them will benefit from what she extracted.

Rabbi Yehoshua says: He need not

prohibit himself from deriving benefit from her.

Similarly, Rabban Shimon ben Gamliel said: Also, in the case of one who guaranteed a woman’s marriage contract

that is, also a woman whose marriage contract had a guarantor,

and her husband was divorcing her, he must impose upon her [

prohibit himself from deriving benefit from her]

benefit,

so that he will never be able to remarry her. For we are concerned

that he might perform [

that is, the husband performs]

a deception [

a ruse]

concerning the property of

this guarantor

him,

by divorcing his wife so that she will go and collect her marriage contract from the guarantor,

and he will remarry

the husband, afterward,

his wife,

and both of them will benefit from what she extracted from the guarantor.

Gemara:

With regard to what do they disagree,

Rabbi Eliezer and Rabbi Yehoshua?

Rabbi Eliezer holds: A person performs—

that is, he is likely to perform—

a deception concerning consecrated property,

and therefore he must impose the prohibition upon her, due to the concern that he is performing a deception.

And Rabbi Yehoshua holds: A person does not perform a deception concerning consecrated property!

And we challenge this:

But with regard to that which Rav Huna said: In the case of a dangerously ill person who consecrated all his property and said, “So-and-so has one hundred dinars of mine,”

that I owe him [Rashi, Shevuot 42:]

he is deemed credible,

and that person collects the money from the consecrated property. We are not concerned that he is lying so that the other person will give him the money that he extracted from the consecrated property, because

there is a presumption

that a person does not perform a deception concerning consecrated property.

And now, according to what we explained—that Rabbi Eliezer and Rabbi Yehoshua disagree over whether a person performs a deception concerning consecrated property—

let us say that Rav Huna, who said that a person does not perform a deception concerning consecrated property,

who said that a person does not perform a deception concerning consecrated property,

stated his ruling in accordance with a dispute between tanna’im

that he stated his teaching [

his ruling depends upon a dispute between tanna’im]?!

And we answer:

No,

Rav Huna’s ruling is not dependent upon the dispute between the tanna’im.

Rabbi Eliezer and Rabbi Yehoshua disagree only

in the case of

a healthy person,

when there is concern that he is acting deceptively for his own benefit [as he had initially agreed with the woman that she would give him part of her marriage contract]; and it is in this regard that Rabbi Eliezer said that there is concern.

But in the case of a dangerously ill person,

who himself gains nothing from what that person extracts from the consecrated property, since he is going to die,

everyone agrees that a person does not perform a deception concerning consecrated property

so that his heirs will benefit from the money that he leaves them, which that person extracted from the consecrated property [Rashi, Shevuot 42:],

What is the reason? A person does not sin if it is not for his own benefit

but the benefit of his heirs would result from his sin.

There are those who say

another explanation of the dispute between Rabbi Eliezer and Rabbi Yehoshua in our Mishna:

In the case of a healthy person,

who benefits from his deception,

everyone

that is, both Rabbi Eliezer and Rabbi Yehoshua—

agrees,

and both hold

that a person performs a deception concerning consecrated property,

and according to everyone, we should have instituted a measure to prevent him from deceiving concerning the consecrated property. However, Rabbi Yehoshua holds that the institution of the vow is not effective, since he can have his vow annulled by a Sage; whereas Rabbi Eliezer holds that he must impose the vow upon her publicly, in which case a Sage can no longer annul it.

And here they disagree concerning a vow made publicly: One [

Rabbi Yehoshua]

holds that

even in such a case

it can be annulled —

that is, he can have it annulled by a Sage—and the institution is not effective; therefore, he need not impose the vow.

And the other [

Rabbi Eliezer]

holds: It cannot be annulled,

and the institution is effective; therefore, he must impose the vow publicly so that he will not remarry her.

And if you wish, say instead

another explanation of the dispute between Rabbi Eliezer and Rabbi Yehoshua as to whether the institution is effective:

everyone

holds that

a vow made publicly can be annulled [

by annulment], and even Rabbi Eliezer did not say that he must impose the vow publicly, since this measure is not effective. Rather, he must impose the vow on the condition that a group of people consent, as they tell him: “Make a vow!” In that case, he can no longer have his vow annulled.

And here they disagree concerning a vow made on the condition that

a group of people consented:

Rabbi Yehoshua holds that even in this case he can have his vow annulled, and this measure too is ineffective; while Rabbi Eliezer holds that he cannot have it annulled, and the measure is effective.

And we challenge these explanations, according to which the dispute concerns a vow made publicly or a vow made on the condition that a group of people consented, as to whether it can be annulled:

But with regard to that which Ameimar said: A vow made publicly can be annulled,

and

one made on the condition that a group of people consented cannot be annulled! Let us say

that Ameimar

stated his teaching in accordance with a dispute between tanna’im!

For either the first part of Ameimar’s statement depends upon the dispute between Rabbi Eliezer and Rabbi Yehoshua, or the latter part of his statement depends upon their dispute.

Furthermore,

we challenge these explanations, which say that according to Rabbi Yehoshua as well, it would have been necessary to institute a measure to prevent him from performing a deception concerning the consecrated property, except that he holds that the measure is ineffective: If so, why does it say

“Rabbi Yehoshua says: He need not”,

which implies that there is no concern at all?

“It is ineffective”

the measure

should have been stated

instead!

Rather,

they explain the dispute differently: Rabbi Yehoshua holds that although in the case of a healthy person there is concern about deception, here there is no concern that he is performing a deception concerning the consecrated property through the divorce, since if he wished to do so, he could ask a Sage about the essence of his consecration, and the Sage would annul the consecration.

And here they disagree concerning asking about the consecrated property,

whether this is effective to remove its consecrated status,

they disagree:

Rabbi Yehoshua holds that he can ask and have it annulled, and consequently there is no concern about deception. Rabbi Eliezer holds that he cannot ask and have his consecration annulled; and if he wishes to benefit from what he consecrated, he must act deceptively and divorce her, and therefore he must prohibit himself from deriving benefit!

And we support this latter explanation:

And it was taught in a baraita: One who consecrates his property, and his wife’s marriage contract was incumbent upon him—Rabbi Eliezer says: When he divorces her, he must prohibit himself from deriving benefit. Rabbi Yehoshua says: He need not. And Rabbi Elazar, son of Rabbi Shimon, said: These are the words of Beit Shammai; these are the words of Beit Hillel,

that is, the dispute between Rabbi Eliezer and Rabbi Yehoshua parallels the dispute between Beit Shammai and Beit Hillel,

as Beit Shammai say: An erroneous consecration

such as when he said, “The white ox that emerges from my house shall be consecrated,” but a black one emerged—

is consecrated.

And all the more so, they hold that any consecration made without an error, such as “This ox is consecrated,” cannot be transformed into non-sacred property by a Sage through any regret, since the Sage who annuls it does so on the grounds of an erroneous consecration [Rashbam, Bava Batra 120:], and this corresponds to Rabbi Eliezer, who holds that one cannot ask about consecrated property.

And Beit Hillel say: An erroneous consecration is not consecrated,

and according to their view, asking about consecrated property is effective to transform it into non-sacred property; and this corresponds to Rabbi Yehoshua, who holds that one can ask about consecrated property.

And the baraita provides proof for what we explained: The dispute between Rabbi Eliezer and Rabbi Yehoshua concerns whether asking about consecrated property is effective.

We learned in the Mishna:

And similarly, Rabban Shimon ben Gamliel would say, and so on. Moses bar Atzrei was the guarantor for his daughter-in-law [

he had guaranteed the marriage contract of his son’s wife],

and his son,

of Moses,

was a Torah scholar [

he was a Torah scholar],

and he was hard-pressed [

Rav Huna was short of money].

Abaye said: There is no one who will give Rav Huna the advice [

there is no one who will offer advice]

to divorce his wife [

so that he should divorce his wife]

and she should claim

the woman

her marriage contract from his father

of her husband, who had guaranteed it,

and afterward he would remarry her [

and Rav Huna would remarry his wife afterward], and they would benefit from this marriage contract.

Rava said to Abaye

to Abaye:

But we

have learned in our Mishna: “In the case of one who guaranteed a woman’s marriage contract, and her husband was divorcing her,

he must prohibit himself from deriving benefit”—

we learned;

and if Rav Huna divorces her, how can he remarry her?!

And we answer:

And Abaye,

when he said this, intended:

Is it the case that everyone who divorces, divorces in court [

must he divorce only after they tell him to prohibit himself from deriving benefit? He can go secretly and divorce her without imposing the prohibition upon her.

Ultimately, it was revealed that he was a priest—

Rav Huna—and it was impossible for him to remarry his wife after divorcing her!

Abaye said: Poverty pursues the poor [

poverty pursues the poor], as he could not benefit or profit even from this advice.

And we question Abaye concerning the advice to divorce her and cause the guarantor, his father, to suffer a loss:

But did Abaye actually say this? Didn’t Abaye say: Who is an evil, clever person? One who gives advice

to someone who received property from one who said at the time of his death, “My property is given to you, and after you die [when you die], to so-and-so,” and the adviser says to the recipient:

Sell this property

and benefit from the money. By selling it, he causes a loss to that so-and-so who comes after him,

in accordance with the opinion of Rabban Shimon ben Gamliel,

who holds that if the first recipient sells the property, the second receives only what the first left over, and thus suffers a loss. Therefore, he is called “evil,” because he involves himself in a quarrel that does not concern him and nullifies the giver’s intention—for the giver wished that the first recipient not sell the property to others [as he wanted it to reach the second recipient]. And he is “clever,” because he nevertheless succeeds, and what he did is effective, since the giver did not protest at the time of the gift [Rashbam, Bava Batra 175:].

And now we question: If so, this person who gives advice to divorce her, when the husband’s sole intention in divorcing is that the guarantor pay his guarantee, is acting wickedly and cunningly by giving this advice. How, then, could Abaye himself give this advice?!

And we answer: In this case there are two reasons for the good, and therefore [Yad Ramah, Bava Batra 175:, and Shulchan Arukh] the law is different!

His son

of the guarantor—in this case, the guarantor would be paying in order to benefit his son [and the father would not give him what was properly due to him—Yad Ramah, Bava Batra 175…; and according to Rabbeinu Gershom: ultimately, he is properly entitled to inherit it; see Rabbeinu Gershom, Bava Batra 175:]—

is different! And a Torah scholar

such as Rav Huna

is different!

It is a mitzva to give him advice so that he will have property and engage in Torah study—Rabbeinu Gershom.

We further challenge Abaye’s advice:

And let it follow

that even if Rav Huna had not been a priest, his divorce would not have enabled him to collect from the guarantor,

as

Moses bar Atzrei

was a guarantor

ordinary

he

and not a contractor-guarantor,

and a guarantor of a marriage contract is not obligated

to pay anything at all.