Ketubot 84a (פד.) — the Talmud in English

And we challenge this:

And

for

did Rav hold

that in every case where one stipulates contrary to what is written in the Torah,

his stipulation stands?

But it was stated

a statement in the beit-midrash:

“One who says to another: ‘

This object is sold to you

‘on the condition that you have no claim of exploitation against me,’” that is, on the condition that you cannot sue me if it becomes clear to you that I sold it to you at a price more than one-sixth above its value].

Rav said: He does have a claim of exploitation against him.

Since he stipulated contrary to what is written in the Torah, and in such a case his stipulation is void.

And Shmuel said: He has no claim of exploitation against him.

And he held that when one stipulates contrary to what is written in the Torah with regard to a monetary matter, his stipulation stands.

And if so, it is clear that Rav held that in every case where one stipulates contrary to what is written in the Torah, his stipulation is void .

Rather,

Rav’s intention in his statement, “The halakha is in accordance with Rabban Shimon ben Gamliel, but not for his reason,” is:

“The halakha is in accordance with Rabban Shimon ben Gamliel,”

who says that when one stipulates contrary to what is written in the Torah, his stipulation is void.

“But not for his reason”—

for whereas Rabban Shimon ben

Gamliel held

that if she

dies, he inherits her,

since the husband’s inheritance is mandated by Torah law,

Rav held that if she dies, he does not inherit her.

Since he held that the husband’s inheritance is rabbinic. And the Sages did not reinforce their words as they did matters of Torah law.

And we challenge this:

Is this not for his reason,

that when one stipulates contrary to what is written in the Torah, his stipulation is void,

but not according to his halakha,

that if she dies he does not inherit her? Yet Rav said the opposite: the halakha is like him, but not for his reason.

Rather,

Rav’s intention is:

“The halakha is in accordance with Rabban Shimon ben Gamliel,”

who says that if she dies, he inherits her.

“But not for his reason”—

for whereas Rabban Shimon ben Gamliel held

specifically

that in a matter of Torah law the stipulation is void, but in a rabbinic matter,

such as with regard to eating the produce,

the stipulation stands.

But Rav held—

even in a rabbinic matter, the stipulation is void.

And even the stipulation he made concerning eating the produce is ineffective .

And we challenge this:

Is this not both for his reason and according to his halakha, and Rav

only

adds

that even in a rabbinic matter, such as regarding the eating of produce, one cannot stipulate?

Rather,

Rav’s intention is:

“The halakha is in accordance with Rabban Shimon ben Gamliel,”

who says: If she dies, he inherits her.

“But not for his reason”—

for whereas Rabban Shimon ben Gamliel held

that the husband’s inheritance is mandated by Torah law, and that in every case where one stipulates contrary to what is written in the Torah, his stipulation is void,

Rav held—

that the husband’s inheritance is rabbinic, and that the Sages reinforced their words as they did matters of Torah law.

And we challenge this:

And

if

Rav held

that the husband’s inheritance is rabbinic?

But

we learned

in tractate Bekhorot:

Rabbi Yohanan ben Beroka says: One who inherits his wife’s property must return the field to her family

’s

at

the Jubilee,

and deduct the value from the money,

and the Gemara currently understood that he returns the field to them for a small sum .

And we inquire about this:

What does

Rabbi Yohanan ben Beroka

hold?

If he holds that

the husband’s inheritance is mandated by Torah law, why must he return

the field to them at the Jubilee? He is a full-fledged heir.

And if

he holds that the husband’s inheritance is

rabbinic, what are the payments doing here?

Why must they pay him for returning the land to them? By law, he returns it to them at the Jubilee .

And Rav said: In fact, he holds

Rabbi Yohanan ben Beroka

that the husband’s inheritance is mandated by Torah law,

and

this is not difficult: If so, why does it return at the Jubilee, since he is a full-fledged heir?

Since this concerns

a case where his wife bequeathed to him a cemetery.

Therefore, although strictly speaking he need not return it to them, nevertheless

because of family disgrace,

since it is a disgrace for them not to be buried with their ancestors,

the Sages said—

he should assess its value and return it .

And what is the meaning of “and he deducts from the money”?

That is, why does he sell them the field for a small sum?

This money is

the burial expenses of his wife,

which the husband is personally obligated to pay. And he deducts this sum from the price of the field.

And

as it was taught:

the Sages instituted, with regard to one who sells a family cemetery, that he must return it to the family:

One who sells his grave, the path to his grave, the place where he stands, that is, the place where the mourners gather after the burial,

[that is, the place where mourners gather after the burial],

and the place of his eulogy, the family comes and buries him against his will

of the purchaser

because of family disgrace.

In any event, it is clear that Rav held that the husband’s inheritance is mandated by Torah law, like Rabban Shimon ben Gamliel. If so, why did he say, “The halakha is in accordance with Rabban Shimon ben Gamliel, but not for his reason”? And we answer:

Rav

who said in the beraita cited above that “the husband’s inheritance is mandated by Torah law” did not say this because he held so himself, but only

in accordance with the reasoning of Rabbi Yohanan ben Beroka.

And

if it were up to

him, he would not hold

this way; rather, he held that the husband’s inheritance is rabbinic.

Mishna:

If one died, leaving a wife, a creditor, and heirs.

And his estate did not contain sufficient land both to pay the wife’s ketuba and to repay his debt.

And he had a deposit or a loan in the hands of others.

And the creditor and the wife, by virtue of her ketuba, came to collect from that debt .

Rabbi Tarfon says: They shall be given

the assets

to the weakest of them.

The Gemara explains who is the weakest .

Rabbi Akiva says: We do not show compassion in judgment! Rather, they shall be given to the heirs.

Because

all of them,

that is, the creditor and the wife by virtue of her ketuba,

require an oath

in order to collect, since one who comes to collect from the property of orphans may collect only by oath. And until they swear, we do not know whether the deceased owed them anything .

And the heirs do not require an oath.

Therefore, as soon as he died, the heirs acquired them, and they are in their possession. A wife’s ketuba and a debt are not collected from the movable property of orphans.

And if he left

the deceased

detached produce

from the land,

Rabbi Tarfon held that

whoever is first to seize it acquires it,

since seizure after death is effective . But if the heirs acquired it, it is not taken from them, since the movable property of orphans is not encumbered to the creditor or to the ketuba.

And if

the woman acquired

more than

her ketuba,

or

the

creditor acquired

more than his debt,

what is the law regarding

the surplus?

Rabbi Tarfon says: It shall be given to the weakest of them,

that is, to the holder of the later document, whether the woman or the creditor, since he is in the weaker position: if the assets come into the heirs’ possession, neither the woman nor the creditor will be able to collect them from the heirs.

Rabbi Akiva says: We do not show compassion in judgment! Rather, it shall be given to the heirs.

Because

all of them require an oath, whereas the heirs do not require an oath.

As stated above .

Gemara:

We learned in the Mishna: “If one died … and he had a deposit or a loan in the hands of others.”

And we challenge this:

Why do I need the Mishna to teach “a loan,”

and

why do I need it to teach “a deposit”?

And we answer:

Both are necessary! For if it had taught

only

“a loan,”

I might have said that only

in this case Rabbi Tarfon said

that it is given to the weakest of them,

because a loan is given to be spent,

and it is not present in its original form with the borrower; therefore, the money is not considered to be in the orphans’ possession.

But a deposit, which is present in its original form that is, it is physically present,

[which is found intact],

I might say that he concedes to Rabbi Akiva,

since it is considered to be in the orphans’ possession, and one may not collect from it.

And if it had taught this,

that is, only a deposit, I might have said that specifically

in this case Rabbi Akiva said

that it is considered to be in the orphans’ possession, since it is present in its original form,

but with regard to the other

that is, a loan,

I might say that he concedes to Rabbi Tarfon,

since it was given to be spent and is not in the orphans’ possession, so the debt and the ketuba may be collected from it. Therefore,

both are necessary,

both cases.

We learned in the Mishna, according to Rabbi Tarfon, that the assets are given to the weakest of them. And the Gemara explains:

What is meant by “the weakest”?

Rabbi Yosei, son of Rabbi Ḥanina, says: To the weakest with regard to proof,

that is, to the one whose document is later than that of the other, so that he cannot collect from purchasers who acquired property before him .

Rabbi Yohanan says: To the wife by virtue of her ketuba,

and she is called the weaker one

because of ḥina,

that is, so that men will find favor in the eyes of women , and they will not hesitate to marry them out of fear that they might lose their ketuba .

And

as in

the dispute

between the tannaim:

As it is taught: What is “the weakest among them”?

Rabbi Binyamin says: The weakest in terms of the evidence,

that is, the later document, as stated above.

And it is valid. [

meaning, it is valid to do so].

Rabbi Elazar says: The marriage contract of a woman, on account of ḥena.

We learned in the Mishna: If he

left detached produce,

the first to take possession of it acquires it; and with regard to the surplus, Rabbi Tarfon and Rabbi Akiva disagree. According to Rabbi Tarfon, it is given to the weakest among them, while according to Rabbi Akiva, it is given to the heirs.

And

we ask: According to

Rabbi Akiva, why specifically the surplus,

that is, why did he disagree with Rabbi Tarfon only with regard to the “surplus”? After all,

all of them, too, belong to the heirs,

since taking possession of them is ineffective, as the orphans had already acquired them, as stated above, because all of them require an oath, whereas the orphans do not require an oath.

And we answer:

Indeed so.

According to Rabbi Akiva, all of them, too, belong to the orphans.

And since Rabbi Tarfon said “surplus,” he, too, taught

his ruling with regard to the

“surplus.”