Arakhin 23a — the Talmud in English

Mishna:

One who consecrates his assets, and there is upon him a woman's marriage contract

and he has not yet divorced her,

Rabbi Eliezer says:

since the woman's legal right is to collect her marriage contract even from consecrated property—for his assets became encumbered to her—therefore:

when he divorces her, he shall vow

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 ruse against the consecration, 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 does not need

to vow that he will not derive benefit from her.

Similarly, Rabban Shimon ben Gamliel said: Also, one who became guarantor for a woman concerning her marriage contract

that is, also a woman for whose marriage contract there was a guarantor,

and her husband was divorcing her, he shall impose a vow upon her [

he shall vow not to derive benefit from her]

of benefit,

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

lest he make [that is, the husband makes]

that is, the husband performs]

a kinunya [

a ruse]

against the assets of

the

this guarantor,

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

and afterward he will remarry

the husband

his wife,

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

Gemara:

With regard to what do Rabbi Eliezer and Rabbi Yehoshua disagree

Rabbi Eliezer and Rabbi Yehoshua?

Rabbi Eliezer holds: a person makes—

that is, is likely to make—

a kinunya against consecrated property,

and therefore he imposes the vow upon her, out of concern that he is making a kinunya.

And Rabbi Yehoshua holds: a person does not make a kinunya against consecrated property!

And we raise an objection:

But as for that which Rav Huna said: If a person dangerously ill consecrated all his assets and said, “A maneh belonging to so-and-so is in my possession”

that I owe him [Rashi, Shevuot 42b],

he is believed,

and that so-and-so collects it from the consecrated property; and we are not concerned that he is lying so that that person will give him from the maneh that he extracted from the consecrated property, because

there is a presumption

that a person does not make a kinunya against consecrated property.

And now it is difficult, according to what we explained—that Rabbi Eliezer and Rabbi Yehoshua disagree over this principle, whether a person makes a kinunya against consecrated property or not—

shall we say that

Rav Huna, who said that a person does not make a kinunya against consecrated property,

stated his teaching in accordance with a dispute between תנאים

that his ruling depends upon a dispute between תנאים?!

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

And we answer:

No,

Rav Huna’s ruling is not subject to the dispute between the תנאים,

for Rabbi Eliezer and Rabbi Yehoshua disagree only

Rabbi Eliezer and Rabbi Yehoshua

with regard to a healthy person,

whether we are concerned that he is acting deceitfully for his own benefit—for he agreed with the woman from the outset that she would give him part of her marriage contract—and it is in this regard that Rabbi Eliezer said that we are concerned.

But with regard to a dangerously ill person,

who himself has no gain from what that so-and-so will extract from the consecrated property, since he is going to die,

everyone agrees that a person does not make a kinunya against consecrated property

in order that his heirs should profit from what he leaves them from the maneh that the so-and-so extracted from the consecrated property [Rashi, Shevuot 42b],

What is the reason? A person does not sin when the benefit is not for him,

the benefit of his sin being for others, but for his heirs.

There are those who say

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

with regard to a healthy person,

who benefits from his kinunya,

everyone—

both Rabbi Eliezer and Rabbi Yehoshua—

does not disagree,

and both hold

that a person makes a kinunya against consecrated property,

and according to everyone we ought to institute a measure preventing him from acting deceitfully against the consecrated property. However, Rabbi Yehoshua holds that the measure of the vow is not effective, since he can have his vow annulled by a sage; while Rabbi Eliezer holds that he should impose the vow in public, and then the sage will no longer be able to annul it.

And here they disagree concerning a vow made in public: one [

Rabbi Yehoshua]

holds:

even so

it can be annulled —

that is, annulment by a sage— and the measure is not effective; therefore he need not vow.

And the other [

Rabbi Eliezer]

holds: it cannot be annulled,

and the measure is effective; therefore he must make the vow in public that he will not remarry her.

And if you wish, say

another explanation of the dispute between Rabbi Eliezer and Rabbi Yehoshua concerning whether the measure is effective:

everyone

holds,

a vow made in public can be annulled [

annulment], and even Rabbi Eliezer did not say that he should impose the vow in public, since this measure is not effective. Rather, he should impose the vow with the consent of the many, who say to him: “Vow!” and then he will no longer be able to annul his vow.

And here they disagree concerning a vow made with the consent of

the many:

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

And we raise an objection to the explanations that the dispute concerns a vow made in public or a vow made with the consent of the many, whether it can be annulled:

But as for that which Ameimar said: A vow made in public can be annulled,

and

a vow made with the consent of the many cannot be annulled! Shall we say that

Ameimar

stated his teaching in accordance with a dispute between תנאים?!

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 raise an objection according to these explanations, which say that even according to Rabbi Yehoshua it “was necessary” to institute a measure preventing him from making a kinunya against consecrated property, except that he holds that the measure “is not effective”: If so, why is it written:

Rabbi Yehoshua says, “He does not need”,

which implies that we have no need to be concerned about anything?

“It is not effective,”

the measure,

he should have said

to say!

Rather,

we explain another interpretation of their dispute: Rabbi Yehoshua holds that although with regard to a healthy person we are concerned about a kinunya, here there is no need to be concerned that he is making a kinunya against the consecrated property through the divorce, since if he wished, he could ask a sage concerning the consecration itself, and the sage would annul the consecration.

And here they disagree concerning asking about consecrated property,

whether this is effective to remove its consecrated status,

they disagree:

Rabbi Yehoshua holds that he can ask and annul it, and consequently there is no need to be concerned about a kinunya. Rabbi Eliezer holds that he cannot ask and annul his consecration, and if he wishes to benefit from what he consecrated, he must act deceitfully and divorce her; therefore he must vow not to derive benefit!

And we support this latter explanation:

And it was taught in a beraita: One who consecrates his assets and there is upon him a woman's marriage contract—Rabbi Eliezer says: When he divorces her, he shall vow not to derive benefit. Rabbi Yehoshua says: He does not need to. And Rabbi Elazar son of Rabbi Shimon said: These are the words of Beit Shammai, and these are the words of Beit Hillel,

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

for Beit Shammai say: Consecration made in error

such as when he said, “The white ox that comes out of my house shall be consecrated,” and it turned out to be black—is

consecrated property,

and all the more so they hold that any consecrated property consecrated without error, such as “this ox is consecrated,” cannot be made non-consecrated property by a sage through any regret, since the sage who annuls it does so because of consecration made in error [Rashbam, Bava Batra 120b]. This is in accordance with Rabbi Eliezer, that there is no asking concerning consecrated property.

And Beit Hillel say: Consecration made in error is not consecrated property,

and according to their view, asking concerning consecrated property is effective to make it non-consecrated property; this is in accordance with Rabbi Yehoshua, that there is asking concerning consecrated property.

And from the beraita there is proof for what we explained: that the dispute between Rabbi Eliezer and Rabbi Yehoshua is whether asking concerning consecrated property is effective.

We learned in the Mishna:

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

he was guarantor for his daughter-in-law concerning his son’s marriage contract],

and his son Rav Huna

of Moshe

was a Torah scholar [

he was a Torah scholar],

and the matter was difficult for him [

Rav Huna was pressed for money].

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

there is no one who will offer advice]

to Rav Huna, that he should divorce his wife [

that he should divorce his wife]

and she should demand

the woman

her marriage contract from the father

of her husband, who had become her guarantor,

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 him

to Abaye:

But we

in our Mishna: “One who became guarantor for a woman concerning her marriage contract, and her husband was divorcing her,

he shall vow not to derive benefit”—

we learned,

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

And we answer:

And Abaye,

who said this, intended:

Does everyone who divorces divorce in court [

he must divorce] until they tell him, “Vow not to derive benefit”? He should go privately and divorce her without imposing the vow upon her.

In the end, it became clear that he was a koen—

Rav Huna— and he cannot remarry his wife once he divorces her!

Abaye said: Poverty follows the poor [

poverty pursues the poor], for he cannot benefit or profit even from this advice.

And we wonder at Abaye, concerning the advice to divorce her and cause his father, the guarantor, to lose:

And did Abaye say this? But Abaye said: Who is a cunning wicked person? One who gives advice

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

Sell these assets

and benefit from the money. But by his sale he causes that so-and-so who comes after him to lose,

in accordance with Rabban Shimon ben Gamliel,

who holds that if the first recipient sold, the second has only what the first left, and he has suffered a loss. Therefore he is called “wicked,” because he interferes in a quarrel that is not his and nullifies the giver’s intention, for the giver wished that the first recipient not sell to others [since he wished it to come into the possession of the one after him]. And he is cunning, because nevertheless he succeeds, and what he did is effective, since the giver did not protest at the time of the gift [Rashbam, Bava Batra 174b].

And now we wonder: If so, this person too, who gives advice to divorce, when the intention of the divorcer is only that the guarantor pay his guarantee, is giving wicked and cunning advice. How, then, did Abaye himself say to give this advice?!

And we answer: In this act there are two factors for the good, and therefore [Yad Ramah, Bava Batra 174b, and Shulchan Arukh] the law is different!

His son

of the guarantor; in this act the guarantor would pay in order to benefit his son [and the father would not give him properly—Yad Ramah, Bava Batra 174; and in Rabbeinu Gershom: ultimately, he is fit to inherit him; see Rabbeinu Gershom, Bava Batra 174]

is different! And a Torah scholar

like Rav Huna

is different!

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

We further raise an objection against Abaye’s advice:

And let it emerge for him

that even if Rav Huna were not a koen, his divorce would not be effective for collecting from the guarantor,

for

Moshe bar Atzrei

was an ordinary guarantor

merely

he

and not a co-signer,

and a guarantor for a marriage contract does not become obligated

to pay at all.