Kiddushin 79b (עט:) — the Talmud in English

A dangerously ill person who wrote all his property to others: his gift takes effect only if he ultimately dies from this illness. But if he recovered, his gift is void. Since he gave away all his property and left nothing for himself, he thereby revealed that he gave it only on the condition that he die from this illness.

But if a healthy person wrote all his property to others, his gift is a valid gift.

And we learned in a beraita in the Tosefta to tractate Bava Batra [10:5]: In the case of one who wrote all his property to others, he says: I was dangerously ill at the time of the writing, and since I recovered from my illness, my gift is void.

Whereas the recipients of the gift say: You were healthy at the time of the writing, and therefore the gift remains valid. —

Who takes out

the property

from whom? —

If the recipients seized the property, then

he [the donor]

the donor

takes

it

from them,

even

without

bringing

proof

that he was dangerously ill, since the matter is uncertain, and the property [the land] remains in the possession of the mara kama, who is considered to have presumptive ownership of it.

But

they cannot take it from him without

bringing

proof

that he was healthy at the time of the gift, since in every case involving disputed property, the burden of proof rests upon the one who seeks to take property from another. —

This is the statement of Rabbi Yaakov.

Rabbi Natan says: If

he is

healthy now,

the presumption is that he was also healthy at the time of the gift. Therefore,

they must bring proof that he was dangerously ill

at the time of the gift, in order for the gift to be nullified.

And if

he is

dangerously ill now,

the presumption is that he was also dangerously ill at the time of the gift. Therefore,

they must bring proof that he was healthy

at the time of the gift, in order for the gift to remain valid.

The Gemara discusses this:

Let us say,

shall we say that

Rav,

who says, “She is a grown woman before us,”

agrees with Rabbi Natan?

For Rabbi Natan, too, determines the status at the time of the gift on the basis of his present status. If he is presently presumed healthy, we attribute to him that he was healthy then as well, and say: He is healthy before us; and the same applies conversely. This is precisely Rav’s position.

And Shmuel,

who says, “We are concerned for the betrothals of both,”

agrees with Rabbi Yaakov.

That is, just as Rabbi Yaakov disputes the reasoning of “he is healthy before us” and says that the matter remains uncertain, and we do not rely on a present presumption, so too Shmuel does not rely here on the fact that she is a grown woman before us.

And we reject this:

Rav could say to you: I state

my position

even in accordance with Rabbi Yaakov.

For

Rabbi Yaakov said there only this much,

there, that we do not rely on the fact that he is healthy before us, only in a monetary case, because

it can be said: Establish the property according to its presumption.

That is, it is a halakhic principle in monetary law that the burden of proof rests upon the one who seeks to take property from another. Therefore, even if they seized the property, until the time of the gift the property was presumed to belong to the donor, and it turns out that they seized property from one who had presumptive possession, without bringing proof for their claim. A present presumption cannot be used to take property from one who has presumptive possession of it.

But here,

in the case of his daughter who reached maturity,

can we say, “

Establish the person according to her presumption,”

and establish her as a minor, as she had been until now?!

The case concerns the very day on which her six months as a na'ara are to be completed. On that day she does not have the presumption of being a na'ara, since she is destined to change during that day and become a bogeret. Therefore, it is reasonable to attribute to her the appearance of the signs of maturity from the beginning of the day, as she is now, and to say that she had already reached maturity before her father’s betrothal.

And Shmuel said: I state

my words

even according to

the view of

Rabbi Natan.

For

Rabbi Natan said there only this much,

that if he is healthy now, we establish him as healthy earlier as well, only because

everyone

all people

is presumed healthy.

Therefore, he must bring proof that he was dangerously ill, because

one who removes himself [one who removes himself]

from

the presumption

of being healthy,

it is incumbent upon him to bring

he has the obligation to bring

proof

for his claim.

But here,

if we say that she remained a na'ara throughout this entire day, then even if she is presently presumed before us to be a bogeret,

does she thereby remove

her

self from

the

presumption that preceded it [from the presumption of maturity in which she is presently found]?! After all, many young women do not display the signs of maturity on the day on which their six months as a na'ara are completed. Therefore, if we say that there was a delay in the appearance of the signs of maturity until the end of the day, this is not considered as though she thereby departed from her present presumption of maturity.

The Gemara now discusses whether Rav and Shmuel disputed another disagreement between tanna'im:

Let us say,

shall we say that the dispute between Rav and Shmuel is

the same

as

the dispute between

these tanna'im?!

For it was taught: In the case of a na'ara who was on the final day of her status as a na'ara, and

her father betrothed her on the road,

and on that same day she also

betrothed

herself

in the city, and

at the end of the day

she is a bogeret

before us —

One tanna taught: She is a bogeret before us. We attribute to her that she was also a bogeret at the time of the betrothals. Therefore, her betrothal is valid.

And another was taught: We are concerned for the betrothals of both.

What, is it not that one

tanna holds

like Rav, and one

tanna holds

like Shmuel?!

And we reject this:

No,

that is not the basis of their dispute. Rather, it is possible to say that

both

of them

hold

like Shmuel.

Rather,

here,

in the first beraita, the case is

where she contradicts him

her father. According to him, at the beginning of the day, when he betrothed her, she was a na'ara, whereas she claims that the signs of maturity had already appeared in her on the previous day, and therefore, the following morning, she was a bogeret. The present presumption that “she is a bogeret before us” supports her definite claim.

And

here,

in the second beraita, the case is

where she does not

contradict him,

contradict him, but she, too, is uncertain when she reached maturity. Therefore, we are concerned for both betrothals, since we do not know when she reached maturity.

But the Gemara still discusses:

And let us say,

why should we not say,

since the mishnayot do not dispute,

as we established that the tanna'im in the two beraitot did not dispute the matter, but each spoke of a different circumstance, so too

the amora'im [Rav and Shmuel]

do not dispute,

but Rav spoke of a case where she contradicts him, and Shmuel spoke of a case where she does not contradict him.

And we reject this:

Can you really explain it so?!

Do you think it is possible to say this? Surely Rav spoke even of a case where she does not contradict him, and he disputes Shmuel.

And there is proof of this:

Here is

indeed

Rav Yosef, son of Rav Menashya, from

the place called

Davil, performed an act in accordance with Rav.

He issued a ruling and acted in accordance with Rav’s position, and did not take the father’s betrothal into consideration.

And Shmuel became angry

at this

and said

words of criticism about him:

Everyone measures him with a small kav, but this one, being from the Rabbis, they measure him with a large kav!

He spoke in the language of parable and satire, as though to say: All Torah scholars have their wisdom measured by a small measure of a kav, and therefore they are afraid to rely on their own wisdom and permit a doubtful case of a married woman. But this student presents himself as though he had received wisdom in a large measure, and therefore he is not afraid to rely upon it and permit a doubtful case of a married woman.

And if it would enter your mind

that Rav and Shmuel

do not dispute,

why

was Shmuel angry

with Rav Yosef, son of Rav Menashya?

Perhaps when he performed the act,

perhaps what he did in accordance with Rav’s position was

in a case where she contradicts him,

for you said that Rav permitted it only in that circumstance.

Rather, it is certainly the case that Rav permitted it even when she does not contradict him, and he disputes Shmuel.

Mar Zutra said to Rav Ashi: This is what Ameimar said: The halakha is in accordance with Shmuel.

And Rav Asi said: The halakha is in accordance with Rav.

The conclusion of the Gemara is:

And the halakha is in accordance with Rav.

Mishna:

a.

One who departed, he and his wife [the woman of established lineage]

to a distant country, and

after some time

he came

back,

he, his wife, and his sons, when only the husband is known to us, but neither the woman nor her children are known to us.

And

the husband said:

The

woman

who

departed with me to a distant country—she is

the

woman

who returned with me,

this

one;

and these

are the sons, they are mine, and they are

her sons, the sons of this wife!

He is deemed trustworthy concerning the fact that this is his wife.

Therefore,

he

does

not

need to bring proof, neither concerning

the

fitness of the lineage of

the woman, since we rely on the assumption that her lineage was examined here when he married her.

And

likewise, he does

not

need to bring proof

concerning

the lineage of

the sons.

Since they are attached to her, they are certainly her sons, and since she is of fit lineage, they too are of fit lineage.

b. But if only his sons came with him, without his wife, and he said: The woman whom I married here and took with me to the distant country

died

there,

and these

are

her sons —

he must

bring proof concerning the sons,

that they are indeed the sons of that woman.

But he

does

not

need to

bring proof concerning

the lineage of

the woman, since her lineage had already been examined, as stated.

c. And if he departed for the distant country as a bachelor, married a woman there, and returned with his wife, and said:

I married a woman in a distant country,

and

she is

the

woman,

this one, and these

are

her sons —

he must

bring proof concerning the woman

that her lineage is fit, since it had never previously been examined.

And

he does

not need to bring proof concerning the sons

that they are indeed her sons, since they came with her, attached to her.

d. And if he came only with his sons and said: The woman whom I married in the distant country

died, and these

are

her sons —

he

must bring proof, both

concerning the woman,

that she is of established lineage,

and

both

concerning the sons,

that they are indeed her sons.

Gemara:

We learned in the Mishna: And he need not bring proof concerning the sons.

Rabba bar Rav Huna said: And all of them,

all the cases in which this law was stated, are

in

the circumstance that the sons

are attached to her [to their mother], and for this reason they are presumed to be her sons.

The Sages taught:

One who says, “

I married a woman in a distant country,”

must bring proof concerning

the fitness

of the woman’s lineage, but need not bring proof concerning the sons.

And he must bring proof concerning the

sons who are

grown

that they are her sons, since we have no presumption concerning this.

But

he need not bring proof concerning the minor children

that they are her sons, because the fact that they are attached to her attests to this.

When are these matters stated? In

one who says, “

I married one woman

and these are her sons.”

But if he

says, “

I married two women

in a distant country, and one died, and this is the second one, and these are her sons”—

he must bring proof concerning the woman and concerning the sons.

Both

concerning the grown children and

both

concerning the minor children.

Even if they are attached to her, this does not attest that they are her sons. For perhaps they are the sons of the other woman, and because she raised them, they are attached to her.

Reish Lakish said: