Gittin 51a — the Talmud in English

Or perhaps

Rabbi Hanina

means fixed, even though they are not written

he says.

Come and hear

that Rabbi Hanina holds that writing is unnecessary:

A. If the father died and left a son to inherit him and a daughter, they assess his intent—how much he had intended in his heart to give her for support, that is, for her dowry when she marries—and they give it to her, and if the court did not know how to assess his intent, they give her from his property one-tenth for her support.

B. If he left many daughters, whenever one comes to marry, they give her one-tenth of the estate, and to the one after her, one-tenth of what the first left over.

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

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

And

if

the first preceded

her

sister in marrying and took one-tenth of the estate, and the second did not manage to collect

her support, because she did not marry,

until the son died

without sons, and the entire inheritance fell before the two of them.

Rabbi Yohanan said: The second

lost her one-tenth of the estate, and it is as though she

relinquished

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

For the Sages instituted “one-tenth of the estate” only so that the daughters would have support for marriage; and since the son died and they inherit everything, they have abundant support for marriage.

And Rabbi Hanina said to him:

Is it because this one preceded that one that this one lost her entitlement? Is it not the case that

in a greater matter [

with regard to liens on property]

they said:

that she collects and does not lose, and all the more so when they are before us?

For

they remove

one-tenth of the estate from the purchasers,

for support

for marriage,

and

even though

they do not remove

from them

for food

for the daughters.

And you say that the second relinquished her entitlement!?

And from here the Gemara proves:

But

one-tenth of the estate is

for support, which is fixed [

it is fixed] , but

is not written

in a document,

and yet

you say that one

collects

from purchasers.

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

And we reject this:

Support is different,

because

since it has publicity,

from the time of the father’s death everyone knows that the daughter takes one-tenth of the estate; therefore

it is considered as though it were written.

Rav Huna bar Menahhem objected

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

If one marries a woman and stipulates with her to support her daughter, who was born to her from a previous marriage, for five years, and he divorced her within five years, and she married another, and she also stipulated with him to support her daughter for five years.

Both of them are therefore obligated to give the daughter food; consequently, one gives her food and one gives her the monetary value of food.

And if they

died,

then

their daughters—

who were born to them, from her or from another woman—do not

receive food

except

from unencumbered property, as we learned: “One does not remove food for the wife and daughters from liened property.”

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

And

if

she [

that wife’s daughter]

were nourished from liened property, because she is like a creditor,

even though no document was written concerning it, since the debt is fixed.

Infer from this like Rabbi Hanina, and it is difficult for Ulla!?

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

here, with what are we dealing? With a case where he acquired it from him,

with a kinyan sudar, regarding his undertaking toward his wife’s daughter.

And since it is customary to write a document concerning what they acquired through a kinyan sudar, it follows that there is a document concerning his undertaking, and they are “written,” and therefore she is nourished from liened property even according to Ulla.

And we challenge this:

If so,

that he acquired it from him,

their daughters

of theirs

also

should be nourished from liened property, for they are “written”!

And we answer: The beraita is speaking

of

a case

where they acquired it for this one [

his wife’s daughter],

and did not acquire it for that one [

his daughter].

And we refute this:

What is the fixed distinction?

That is, why should we distinguish between them? Is it a fixed and absolute matter, that ordinarily one who stipulates food for his wife’s daughter acquires it from him, whereas for his daughter they do not acquire it from him!?

And we answer: Even if they acquired it for his daughter, the acquisition would not be effective, because

his wife’s daughter, who was [

who was] in the world

at the time of

the

acquisition

that he performed when he married her,

the acquisition is effective for her,

but

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

for she had not yet been born,

it is not effective [

it is not effective]

for her, the acquisition.

And it still remains difficult:

Are we [

whether]

not dealing

in every case, including a case

where both of them were [

his daughter and his wife’s daughter]

present at the time of the acquisition, and what are the circumstances?

For example,

he divorced her

after daughters had been born to him from her,

and took her back,

and then she stipulated these conditions with him; why should the acquisition not be effective for his daughter as well!?

And we answer:

Rather,

the distinction is as follows:

his daughter, who eats by virtue of a court-enacted condition,

for the Sages obligated the father to feed his daughters,

she eats [

she eats],

the acquisition is not effective for her; his wife’s daughter, who does not eat by virtue of a court-enacted condition,

but because of his undertaking,

the acquisition is effective for her.

And we wonder:

And is it so

that because the Sages enacted it for her,

she is diminished,

so that the acquisition is not effective!?

And we conclude:

Rather,

the distinction is as follows:

his daughter, who eats by virtue of a court-enacted condition,

and he also acquired it from him, he takes care to complete her entitlement; therefore

say [

we say], perhaps

a money bundle

was delivered to her

he deposited with her

[he gave her into her custody], before his death, so that she would be nourished from it,

but his wife’s daughter, who does not eat by virtue of a court-enacted condition, we do not suspect that he deposited a money bundle with her. Therefore, his wife’s daughter collects even from liened property, but his daughter does not collect from it, because with regard to this we are concerned about a “money bundle.”

Come and hear,

to challenge both Ulla and Rabbi Hanina:

Rabbi Natan said: When

did they say, “One does not remove payment for the consumption of produce and for the improvement of land from liened property”?

And therefore, the “first purchaser”—the purchaser of a stolen field, which the robbed owner subsequently reclaimed and took from him—does not remove the produce and the improvement from the “second purchaser,” the purchaser who bought from the robber a field 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,

so that the “first purchaser” had not yet improved the stolen land, and produce had not yet grown in it, before the “second purchaser” bought it; therefore, the second purchaser became subject to a lien only up to the value of the land itself, and not for the value of its improvement and produce.

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

so that it was known to him at the time of his purchase that the land was also subject to a lien for the improvement and produce,

he collects

everything

from liened property.

Apparently [

we see] that the reason is

because it did not precede,

and not because they are “written” or because they are “fixed,” for even if the first purchaser’s improvement preceded the second purchaser’s acquisition, nevertheless this debt was neither written nor fixed at the time the property became subject to a lien, namely, at the time of the first purchaser’s acquisition!?

And we answer: Indeed, this beraita is not according to Ulla, and not according to Rabbi Hanina, but

a dispute among the [

in a dispute among the]

is

it stated, and they hold like the tannaim in the following beraita.

For it was taught: One does not remove payment for the consumption of produce, for the improvement of land, or for the food of the wife and daughters, for the betterment of society, because they are not written.

Rabbi Yose said: What betterment of society is there in this,

that is, what need is there to mention “the betterment of society,” which is said concerning a matter lacking publicity, so that purchasers could buy fields without concern lest they be encumbered?

But

even without “the betterment of society,” the law should not permit collection from liened property, because

they are not fixed,

and it is impossible for purchasers to take care and leave land with the seller in order to collect the debt from it.

And thus we should say: One does not remove payment for the consumption of produce, for the improvement of land, or for the food of the wife and daughters, because they are not written.

It follows that Ulla holds according to the view of the Sages, and Rabbi Hanina holds according to Rabbi Yose.

We learned in the Mishna:

And one who finds a lost object

and returns it, while the owners say that he did not return all of it, does not swear.

And even though, according to the law, we should have said that he must swear the oath of one who admits part of the claim, nevertheless, “for the betterment of society,” he does not swear.

For otherwise, a person would not wish to return a lost object, because he would say: Perhaps the loser will claim from me more than I found, and I will become obligated to swear.

Rabbi Yitzhak said:

A. One who lost two pouches [wallets] tied to each other, and someone came and announced that he had found a pouch, and the loser gave the identifying marks of the pouch and said to the finder: Since you found this pouch, it is therefore clear to me that

you found for me two tied pouches.

And the other [

the finder]

says: I found only

one pouch

one.

He has therefore admitted part of the claim, and

he swears.

B. But one who says to his fellow:

I found for you two tied oxen

that I had lost,

you found

for me, for you admit that you found one, and I gave its identifying marks, and the second was tied to it.

And the other says: There was only one; he does not swear.

And we explain:

What is the reason

that these laws differ from one another?

For

oxen,

even if they were tied,

can break away from one another [

it is their way to become detached and separate from one another], and it follows that the loser claims only, “Perhaps I found two,” and there is no obligation to swear on a doubtful claim.

But

pouches cannot break away from one another,

and it follows that he claims from him with a definite claim.

C. And even with oxen an oath applies, for example, when he says to him:

You found two tied oxen

for 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.

This person swears,

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

And we refute this:

And Rabbi Yitzhak,

does he

not have

what we learned in the Mishna:

One who finds a lost object does not swear,

the oath of one who admits part of the claim,

for the betterment of society!?

But the Mishna was taught concerning one who makes a definite claim, for with a doubtful claim he does not swear even without “the betterment of society.”