Ketubot 95b — the Talmud in English

But there are everyday cases

in which the Sages rule as follows: if the free properties were destroyed, he returns and collects from the liened properties

This is what happened:

a certain man mortgaged to him

a vineyard

[a vineyard]

to his fellow for ten years

[he mortgaged his vineyard to the lender for ten years], so that the lender would consume its produce for ten years and it would return to the owners without money

And this is what the borrower writes to the lender: “When these years are completed, this land shall go out without money,” and it is called “the mashkanta of Sura.” And see how the Ritva praised Rashi’s words here, who explained that a mortgage such as this is meant ; and see Rash i in Bava Metzia 109b, s.v. “a certain man” “who mortgaged a vineyard” “to his fellow.” And it aged

[the vineyard grew old]

for five years

, meaning that after five years it no longer produced fruit.

And he came before the Sages

[the lender came before the Sages],

and they wrote him

to the lender who had received the mortgage

a writ of seizure

on fields that the borrower had sold to other purchasers.

Thus, they collect from the purchasers after the land that had been in the borrower’s possession when the purchasers bought it had deteriorated.

And we answer: There is no proof from there, because

there too

they

the purchasers

are the ones who caused the loss to themselves

[they caused themselves the loss]—

Since they knew

, because the purchasers knew

that it is the nature of a vineyard to age

[that it is common for a vineyard to grow old],

they should not have bought

[they should not have bought land from the borrower], and therefore they collect from them. But with ordinary purchasers, who considered the possibility that the free properties might be destroyed, it may be said that they too are included in the enactment of the Sages that they should not be repaid from them.

We conclude:

And the halakha is: If the free properties were destroyed, he collects from the liened properties!

Abaye said:

One who gives his properties to a woman and says to her:

“My properties

are given

to you

as a gift

and after you, to so-and-so,”

that is to say: When you die, your heirs shall not inherit you; rather, the properties shall belong afterward to the one whose name he specifies.

And she stood

that woman

and married

, and she died, the husband inherits her and not that so-and-so.

And because

the husband

who inherits his wife is considered

“a purchaser”

—he

is

the husband is considered to have acquired, in his wife’s properties, the right to inherit his wife’s properties after her death—

and

therefore

“after you” has no standing in place of the husband

, for this is as though the woman had sold her properties to another, in which case that so-and-so who comes after her has no rights in the properties.

And the Gemara explains:

In accordance with whom

, according to whose view did Abaye say that if the woman indeed sold the properties to another, “after you” no longer has any rights in the properties?

Like this tanna

, that is, like Rabban Shimon ben Gamliel, who holds so:

For it was taught:

One who says to his fellow:

“My properties

are given

to you

as a gift

and after you, to so-and-so,” and

he

went down and sold

the properties to another.

Behold,

the second

—he is that so-and-so who acquired the properties after the death of the first—

takes them from the hands of the purchasers

when the first dies,

the words of Rabbi.

Rabban Shimon ben Gamliel says: The second has only what the first left over

, and since the first sold the properties and left nothing over, “after you” has no rights at all.

And Abaye follows Rabban Shimon ben Gamliel!

The Gemara expresses astonishment:

Did Abaye really say this

“My properties are yours and after you, to so-and-so, and she stood and married, the husband takes them from the hands of the purchasers”!?

But Abaye said:

“Who is an ‘evil cunning person’?”

This is one who gives advice to sell the properties,

This is one who gives advice to sell the properties

like Rabban Shimon ben Gamliel

, who holds that if the first sold, “after you” has no rights at all, for the second has only what the first left over.

Thus, one must not do so!?

And we answer:

Did he say

Abaye

“let her marry”

, which implies that this may be done initially!?

But

he said, “she married,”

which implies after the fact; and indeed, initially one must not do so.

And Abaye said:

One who says to a married woman:

“My properties

are given

to you

as a gift

and after you, to so-and-so,” and she sold

her properties to another

and died

, since she was already married at the time when the giver said this, certainly his intention was: “after you” shall acquire, but the husband shall not inherit; and therefore:

Behold,

the husband

who is her heir and has the legal status of “a purchaser”

—takes them from the hands of the purchasers

[that is, from the purchaser], since the husband “acquired” first, at the time of the marriage.

And “after you”

takes them

from the husband

, for this is as though the giver said, “After you shall acquire; the husband shall not acquire.” But “after you” could not take them from the purchasers, in accordance with Rabban Shimon ben Gamliel, that the second has only what the first left over.

And

the

purchaser

returns and takes them

from “after you,”

because with respect to “after you,” the first one’s sale is a sale, in accordance with Rabban Shimon ben Gamliel.

And we establish it

the properties

in the hand of the purchaser

, and the husband can no longer take them from him.

The Gemara raises an objection to this ruling from our Mishna:

What is different from that which we learned

in our Mishna:

“And they return round and round, until they make a compromise between them,”

and here too we should say that they should return round and round until they make a compromise between them!?

And we answer:

There

in our Mishna

all of them have a loss

—all of them

, that is to say: Whichever way you act, someone will suffer a loss—either one of the women, who will not receive her marriage settlement, or the purchaser who bought and paid out his money. Therefore, until they make a compromise between them, the matter will return without end.

But

here

in Abaye’s words,

it is the purchaser who has a loss

[the purchaser who alone paid money suffers a loss] if we do not place the properties in his possession. But the woman and the one after her, who received them as a gift, and likewise the husband, who inherits without payment, have no loss; therefore the properties shall remain in the purchaser’s possession.

Rafram went

and

said the teaching before Rav Ashi

[Rafram went and recited Abaye’s final words before Rav Ashi].

And Rafram expressed astonishment at Abaye’s words:

Did Abaye really say this!?

But Abaye said

in his first teaching above:

“My properties are yours and after you, to so-and-so,” and

she

stood

the woman who received them

and married; the husband is a purchaser, and ‘after you’ has no standing in place of the husband,

that is to say, “after you” cannot take them from the husband. But here Abaye said that “after you” takes them from the husband!?

He said to him

Rav Ashi said to Rafram:

There

—in Abaye’s first words—

where he said to her

the giver said to the woman, “My properties are yours and after you, to so-and-so,”

when she was

still

unmarried,

and his intention was not to remove the husband’s right.

But

here

—in Abaye’s second words—

where he said to her

the giver said to the woman, “My properties are yours and after you, to so-and-so,”

when she was

already

married.

For necessarily,

what is he saying to her?

“After you”

shall

acquire,

but the

husband shall not acquire,

for he knows that she has a husband; and if he did not intend this, why did he say “after you”?

We learned in the Mishna: “And they return round and round until they make a compromise between them,”

and likewise a creditor,

and likewise a woman who is a creditor:

A tanna

taught in a beraita to explain our Mishna: “Likewise a creditor,” that is:

“Likewise a creditor and two purchasers”

—likewise a creditor and two purchasers

return round and round until they make a compromise between them.

That is: Shimon owed Reuven one hundred dinars, and he had two fields, each worth fifty dinars. Shimon went and sold his two fields to Levi and Yissachar, one after the other, and the lender wrote to Yissachar: “I have no legal claim or dealings with you.”

Behold, the lender, the creditor, takes half his debt from Levi, and Levi returns and collects the land from Yissachar. Then the lender again returns and collects this land as well from Levi, for the borrower still owes him fifty dinars. Then Yissachar again returns and takes it from the creditor, for he wrote to him, “I have no legal claim in your properties.” Then Levi again returns and collects from Yissachar, and they return round and round until they make a compromise between them. “Likewise a woman who is a creditor,” that is:

“Likewise a woman who is a creditor and two purchasers,”

likewise a woman who is a creditor and two purchasers,

that is: The same arrangement applies to a woman whose husband owed her the debt of her marriage settlement and he sold his fields to two people, as was explained above.

We have returned to you, [tractate] “One Who Was Married,”

the sales return!

Mishna:

A widow

may sell for her marriage settlement and for her maintenance, even without expert judges; therefore:

Whether

she was a widow

from betrothal,

who has no maintenance but only a marriage settlement,

or whether

she was a widow

from marriage,

who is entitled both to maintenance and to a marriage settlement,

she

may sell

the lands that the orphans inherited from her husband, for her marriage settlement and for her maintenance, even

without a court

of expert judges.

Rabbi Shimon says:

A widow may not sell without a court except for maintenance, since it is impossible for her to sit and suffer until the court attends to her, but not for a marriage settlement; and therefore:

If she was a widow

from marriage

—for she sells for maintenance—she may

sell without a court.

But if she was a widow

from betrothal, she may sell only in a court, because

the widow from betrothal

has no maintenance, and anyone who has no maintenance

—but sells only for a marriage settlement—

may sell only in a court

of experts, like other creditors.

Gemara:

We learned in the Mishna: A widow, whether from betrothal or from marriage, may sell without a court:

The Gemara raises an objection to this:

Granted, from marriage

, it is understandable that she may sell without a court

because of maintenance,

since it is impossible for her to sit and suffer until the court attends to her.