Kiddushin 79b — the Talmud in English

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

But a healthy person who 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]: 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 annulled.

But the recipients of the gift say: You were healthy at the time of the writing, and therefore the gift remains in force. —

Who removes

the property

from whom? —

If the recipients seized the property, then

he

[the giver]

removes

it

from their possession,

even

without

bringing

proof

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

But

they do not remove it from his possession without

bringing

proof

that he was healthy at the time of the giving, since in every monetary matter placed in doubt, the one who removes from his fellow bears the proof. —

The words of Rabbi Yaakov.

Rabbi Natan says: If

now

he is healthy,

his presumption is that he was also healthy at the time of the giving, and therefore

he must bring proof that he was dangerously ill

at the time of the giving, so that the gift should be annulled.

And if

now

he is dangerously ill,

his presumption is that also at the time of the giving he was dangerously ill, and therefore

they must bring proof that he was healthy

at the time of the giving, so that the gift should remain in force.

And the Gemara discusses:

Let us say,

shall we say that

Rav,

who says, “She is a mature girl before us,”

says in accordance with Rabbi Natan? For Rabbi Natan, too, establishes the status at the time of the giving according to his present status. If now he is presumed healthy, we attribute that he was also healthy then, and we say: He is healthy before us—and likewise the opposite. And this is exactly like Rav’s words.

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 about the betrothals of both,”

says in accordance 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 take into account the present presumption, so too Shmuel does not rely here on the fact that she is a mature girl before us.

—

And we reject this:

Rav can say to you: I, who say

I state my position

even in accordance with Rabbi Yaakov.

For

Rabbi Yaakov said there only this far,

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

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

That is, it is a rule in monetary law that the one who removes from his fellow bears the proof. Therefore, even if they seized the property, until the time of the giving the property was presumed to belong to the giver, and it follows that they seized property from one who had possession, without bringing proof for their words; and through a present presumption one cannot remove property from the one who possesses it.

But here,

here, in the case of his daughter who became mature,

can we say: “

Establish the person according to her presumption,”

and shall we establish her according to the presumption of being a maiden, as she was until now?!

For the case concerns that same day on which her six months of maidenhood are destined to end, and on that day she does not have the presumption of maidenhood, since she is destined to change on it and become mature. Therefore, we should attribute that from the beginning of the day she already brought the signs of maturity, just as she is now, and had already become mature before the father’s betrothal.

And Shmuel said: I, who say

my words

even according to

the position of

Rabbi Natan.

For

Rabbi Natan said there only this far,

that if now he is healthy, we establish him according to the presumption of being healthy even beforehand, only because

everyone

all people

stand with the presumption of being healthy.

And therefore he must bring proof that he was dangerously ill, for

the one who removes himself

[one who removes himself]

from a presumption

of being healthy,

it is upon him to bring

the obligation to bring

proof

for his words.

But here,

here, if we say that she was a maiden throughout this entire day, then even if she is now presumed before us to be mature,

does she remove

does she thereby remove

herself from

the

presumption that preceded her

[from the presumption of maturity in which she is now]?! For many maidens do not bring the signs of maturity on the day on which their six months of maidenhood are completed. Therefore, if we say that there was a delay in bringing the signs of maturity until the end of the day, this is not considered as though she thereby leaves the present presumption of maturity.

And now the Gemara discusses whether Rav and Shmuel disputed another dispute between tannaim:

Let us say,

shall we say that the dispute between Rav and Shmuel is

as

the dispute of

these tannaim?!

For it was taught: A maiden who was on the last day of her maidenhood, and

her father betrothed her on the road, and on that same day she too

and on that same day she also

betrothed

herself

in the city, and

at the end of the day

she is mature

before us—

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

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

And another was taught: We are concerned about 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,

they did not dispute this, but it is possible to say that

both

the one and the other hold

like Shmuel.

Rather,

here,

in the first beraita, the case is

where she contradicts him

her father. According to his words, at the beginning of the day, when he betrothed her, she was a maiden, whereas she claims that the signs of maturity had already appeared in her from the previous day, and therefore, on the following day, immediately in the morning, she was mature. And the present presumption that “she is mature before us” supports her certain 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 became mature. Therefore, we are concerned about the betrothals of both, because we do not know when she became mature.

But the Gemara still discusses:

But the Gemara still discusses:

And let us say,

and why should we not say

since the beraitot do not dispute,

as we established that the tannaim did not dispute one another in the two beraitot, but each spoke of a different circumstance, so too

the amoraim

[Rav and Shmuel]

also 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 think so?!

Can you think that it can be said this way? Surely Rav also spoke of a case where she does not contradict him, and disputes Shmuel.

And there is proof of this:

Behold,

behold

Rav Yosef, son of Rav Menashya, from

the place called

Davil, performed an act in accordance with Rav.

He issued a ruling and performed an act according to Rav’s position, and was not concerned about the father’s betrothal,

and Shmuel became angry

about this

and said

words of criticism about him:

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

He spoke in the language of a parable and an expression of rhetoric, as though all Torah scholars had their wisdom measured for them with the measure of a small kav, and therefore they are afraid to rely on their wisdom and permit a doubtful married woman. Whereas this student presents himself as though he received wisdom in a large measure, and therefore he is not afraid to rely upon it and permit a doubtful married woman.

And if it enters your mind

that

Rav and Shmuel do not dispute

Rav and Shmuel,

why was Shmuel angry

with Rav Yosef, son of Rav Menashya?

Perhaps when he performed the act,

perhaps what he did according to Rav was

in a case where she contradicted him,

for you said that Rav too permitted only in this circumstance.

Rather, certainly Rav permitted even in a case where she did not contradict him, and he disputed Shmuel.

Mar Zutra said to Rav Ashi: So said Amemar: The halakha is in accordance with Shmuel.

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

And the Gemara’s conclusion:

And the halakha is in accordance with Rav.

Mishna:

1.

One who departed, he and his wife

[of proper lineage]

to the overseas country, and

after some time

he came

and

he, his wife, and his sons

returned, while only the husband is known to us, and not the woman and her children.

And he said,

the husband:

The woman

is

my wife, who departed with me to the overseas country; she is

the woman

this one

who returned with me,

and these

are the sons, they are mine, and they are

the sons

of this wife of mine!

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

And therefore

he does not

need to bring proof, neither concerning

need to bring proof, not concerning

the proper lineage of

the woman,

since we rely on the fact 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.

For since they cling to her, they are certainly her sons, and since she is fit, they too are fit.

2. 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 overseas 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 was already examined, as stated.

3. And if he departed to the overseas country while unmarried, and married a woman there, and returns with his wife, and says:

I married a woman in the overseas 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, for it was never examined.

And

he

does not need to bring proof concerning the sons

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

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

died, and these

are

her sons—

he

must bring proof,

both

concerning the woman,

that she is of proper lineage,

and

both

concerning the sons,

that they are indeed her sons.

Gemara:

We learned in the Mishna: And he does not need to 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

a circumstance in which the sons

cling to her

[after their mother], and because of this they are presumed to be her sons.

The Sages taught:

One who says, “

I married a woman in the overseas country,”

brings proof concerning

the fitness of

the woman, and does not need to bring proof concerning the sons.

And he brings proof concerning the

sons, the

older ones,

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

But

he does not need to bring proof concerning the younger ones

that they are her sons, because the fact that they cling to her testifies to this.

When are these words stated: In

one who says, “

I married one woman

and these are her sons.”

But in

one who says, “

I married two women

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

he brings proof concerning the woman and concerning the sons.

Both

concerning the older ones and

both

concerning the younger ones.

And even if they cling to her, this does not testify that they are her sons. For perhaps they are the sons of the second one, and because she raised them they cling to her.

Reish Lakish said: