Gittin 51a (נא.) — the Talmud in English

Or perhaps

Rabbi Ḥanina

is stating: They are fixed, even though they are not written

in a document.

Come and hear

that Rabbi Ḥanina holds that writing is unnecessary:

A. If a father died and left a son to inherit from him and a daughter, the court assesses his intention: how much he had intended to give her for her support, meaning for her dowry when she marries, and they give it to her. And if the court does not know how to assess his intention, they give her one-tenth of his assets for her support.

B. If he left several daughters, whenever one comes to marry, she is given one-tenth of the estate; and the daughter after her receives one-tenth of what the first daughter left.

For it was stated: If one died and left two daughters and a son,

the son inherits, while the daughters do not inherit; rather, they receive one-tenth of the estate when they marry.

And

if

the first daughter married first

and

took one-tenth of the estate, but the second did not manage to collect

her support, because she had not married,

until the son died

childless, and the entire inheritance fell to the two daughters.

Rabbi Yoḥanan said: The second daughter

forfeited her one-tenth of the estate, as though she had

waived

it; and we do not say that she should first collect one-tenth of the estate and that they should divide the remainder of the inheritance equally.

For the Sages instituted the provision of “one-tenth of the estate” only so that the daughters would have support for marriage. Once the son died and they inherited everything, they already had ample support for marriage.

And Rabbi Ḥanina said to him:

Is it because this daughter married first that the other daughter forfeits her entitlement? But

in a stronger case

[concerning liens on property]

they said

that she collects and does not suffer a loss; all the more so when both daughters are before us.

For

they collect

the one-tenth of the estate from the purchasers

for support

for marriage,

and

even though

they do not collect

from them

for the sustenance of

the daughters.

And you say that the second daughter waived her entitlement!?

And from here the Gemara proves:

But

the one-tenth of the estate for

support is fixed

[it is a fixed amount], but

it is not written

in a document,

and yet

you say that she

collects

from purchasers.

Conclude from this that according to Rabbi Ḥanina, “fixed” obligations may be collected from liened property even though they are not written in a document.

And we reject this:

Support is different,

because

once it is public knowledge,

since from the time of the father’s death everyone knows that the daughter receives one-tenth of the estate, therefore

it is considered as though it were written.

Rav Huna bar Menoaḥ raised an objection

from a beraita against Ulla, who holds that one does not collect from liened property in the case of “fixed” obligations that are not “written”:

If a man married a woman and undertook to support her daughter, whom she had from a previous marriage, for five years, and he divorced her within those five years, and she married another man and also made him undertake to support her daughter for five years,

both men are obligated to provide the daughter’s sustenance. Therefore, one provides her with actual sustenance, and the other provides her with the monetary value of sustenance.

And if

they died,

then

their daughters—

those born to them, either from her or from another woman—are not

sustained

except

from unencumbered property,

as we learned: “One does not collect the sustenance of a wife or daughters from liened property.”

But

if

she

[that daughter of his wife]

is sustained from liened property, because she is like a creditor.

Even though no document was written concerning this, since the debt is fixed.

Conclude from this that the halakha is in accordance with Rabbi Ḥanina, and this is difficult for Ulla!?

And we answer: This is not difficult for Ulla, because

here, with what are we dealing? With a case where he effected a formal acquisition from him,

through a kinyan sudar, concerning his undertaking to his wife’s daughter.

And since it is customary to write a document for whatever was acquired through a kinyan sudar, there is consequently a document recording his undertaking, and it is considered “written,” and therefore she is sustained from liened property even according to Ulla.

And we challenge this:

If so,

that he effected a formal acquisition from him,

their daughters

as well

should

be sustained from liened property, since they are “written” as well!?

And we answer: The beraita is speaking

in

a case

where they effected a formal acquisition for this one

[his wife’s daughter],

but did not effect a formal acquisition for that one

[his daughter].

And we challenge this:

What precedent is there—that is, why should we distinguish between them? Is it an absolute rule that ordinarily, when one undertakes to provide sustenance for his wife’s daughter, they effect a formal acquisition from him, whereas for his own daughter they do not!?

And we answer: Even if they effected a formal acquisition for his daughter, it would not help, because

his wife’s daughter, who was

[already]

in the world

at the time of the

formal acquisition

that he performed when he married her,

the formal acquisition benefits her,

but

his daughter, who was not present at the time of the formal acquisition,

since she had not yet been born,

is not benefited

[is not effective]

by the formal acquisition.

This is still difficult:

Do

[perhaps]

we not deal

with every circumstance, including a case

where both of them were present

[his daughter and his wife’s daughter]

at the time of the formal acquisition—and what are the circumstances?

For example,

he divorced her

after she had borne him daughters,

and then remarried her,

and at that point he stipulated these conditions with her. Why, then, would the formal acquisition not benefit his daughter as well!?

And we answer:

Rather,

the distinction is as follows:

his daughter, who eats by virtue of the conditions of the court,

since the Sages obligated the father to provide sustenance for his daughters,

she eats

[she is sustained], and

the formal acquisition does not benefit her; his wife’s daughter, who does not eat by virtue of the conditions of the court,

but only because of his undertaking,

the formal acquisition benefits her.

And we wonder:

And is it so

that because the Sages instituted this provision for her,

she is diminished,

so that the formal acquisition is ineffective!?

And we conclude:

Rather,

the distinction is as follows:

his daughter, who eats by virtue of the conditions of the court,

and he also effected a formal acquisition from him, he takes care to complete her allotted support, and therefore

perhaps

[we say], perhaps

a purse of money

was delivered to her

[he gave it into her possession], before his death, so that she could be sustained from it,

but with regard to his wife’s daughter, who does not eat by virtue of the conditions of the court, we are not concerned that she may have received a purse of money. Therefore, his wife’s daughter collects even from liened property, whereas his daughter does not collect from such property, because with regard to this matter

we are concerned about the possibility of a purse having been given to her.”

Come and hear,

to challenge both Ulla and Rabbi Ḥanina:

Rabbi Natan said: When

did they say: “One does not collect the proceeds of produce or the improvement of land from liened property”?

Consequently, the “first purchaser”—the purchaser of stolen land, which the victim subsequently reclaimed from him—does not collect the proceeds of the produce or the improvement from the “second purchaser,” the purchaser who bought from the robber land that had become subject to a lien for the first purchaser’s acquisition.

When the second purchaser’s acquisition preceded the first purchaser’s improvement,

meaning that the “first purchaser” had not yet improved the stolen land and no produce had grown in it before the “second purchaser” bought it, the second purchaser therefore became subject to a lien only to the extent of the land itself, and not for the value of its improvement and produce.

But if the first purchaser’s improvement preceded the second purchaser’s acquisition,

so that at the time he purchased it, he knew that the land was also subject to a lien for its improvement and produce,

he collects

everything

from liened property.

Apparently

[we see] that the reason is

because it did not precede,

and not because the obligation was “written” or “fixed.” For even if the first purchaser’s improvement preceded the second purchaser’s acquisition, the debt was nevertheless neither written nor fixed at the time the property became subject to the lien, namely, when the first purchaser acquired it!?

And we answer: Indeed, this beraita is not in accordance with Ulla and not in accordance with Rabbi Ḥanina. Rather,

it is a dispute among

[the]

tannaim

and it is taught in accordance with the tannaim in the following beraita.

As it is taught in a beraita: One does not collect the proceeds of produce, the improvement of land, or the sustenance of a wife and daughters, because of the betterment of society, since they are not written.

Rabbi Yosei said: What betterment of society is there in this?

That is, what is the need to mention “the betterment of society,” a rationale stated concerning an obligation that is not public knowledge, so that purchasers can buy fields without concern that they may be encumbered?

But

even without the consideration of “the betterment of society,” the law should dictate that one cannot collect from liened property, because

they are not fixed,

and purchasers cannot take precautions and leave land with the seller from which the debt can be collected.

And this is what we should say: One does not collect the proceeds of produce, the improvement of land, or the sustenance of a wife and daughters because they are not written.

It follows that Ulla holds in accordance with the Sages, while Rabbi Ḥanina holds in accordance with Rabbi Yosei.

We learned in the Mishna:

And one who finds a lost item

and returns it, but the owners say that he did not return all of it, does not take an oath.

Although by strict law we should say that he must take the oath required of one who admits part of a claim, nevertheless, because of the betterment of society, he does not take an oath.

For otherwise, a person would not want to return a lost item, as he would say: Perhaps the owner will claim from me more than I found, and I will become liable to take an oath.

Rabbi Yitzḥak said:

A. If one lost two purses tied to one another, and another person came and announced that he had found a purse, and the owner gave the identifying marks of the purse and said to the finder: Since you found this purse, it is clear to me that

you found the two purses tied together that I lost.

And the other

[the finder]

says: I found only

one purse,

one.

He has thus admitted part of the claim, and

he takes an oath.

B. But if one says to another:

I lost two oxen tied together,

and

you found them for me,

since you admit that you found one of them, and I gave its identifying marks, and the second was tied to it,

and the other says: There was only one, he does not take an oath.

And we explain:

What is the reason

that the laws differ in these cases?

Because

oxen,

even if they were tied together,

can break away from one another

[it is normal for them to become detached and separate from one another]. Consequently, the loser is claiming only, “Perhaps I found two,” and there is no obligation to take an oath concerning an uncertain claim.

But

purses cannot break away from one another,

and consequently he is making a definite claim against him.

C. An oath also applies in the case of oxen, for example, when one says to him:

You found two oxen tied together

that belonged to me, and you owe me two.

And the other says:

Indeed,

I found

both of them,

and

afterward

I returned one of them to you, and I owe you only one.

He takes an oath,

since the loser makes a definite claim against him: He admits that he found them, and the only issue is whether or not he returned one of them.

And we challenge this:

But Rabbi Yitzḥak—

does he

not have

what we learned in the Mishna:

One who finds a lost item does not take an oath,

the oath of one who admits part of a claim,

because of the betterment of society!?

But the Mishna was taught concerning one who makes a definite claim, since one does not take an oath concerning an uncertain claim even without the consideration of “the betterment of society.”