Babylonian Talmud: Tractate Kethuboth

Folio 102a

— No, [our Mishnah is dealing] with deeds on verbal agreements,¹  and [the ruling²  was necessary] in accordance with [the view] of R. Giddal, since R. Giddal has laid down in the name of Rab:³  [if⁴  one man said to another.] 'How much are you giving to your son?' [and the other replies.] 'Such and such a sum', and [when the other asks.] 'How much are you giving to your daughter?' [the first replies.] 'Such and such a sum', [and on the basis of this talk] a betrothal was effected,⁵  kinyan is deemed to have been executed, these being matters concerning which kinyan is effected by a mere verbal arrangement.⁶

Come and hear: If a man gave to a priest in writing [a statement] that he⁷  owed him five sela's⁸  he must⁹  pay him the five sela's and his son is not redeemed thereby!¹⁰  — There [the law] is different because one is under a pentateuchal obligation [to give them] to him.¹¹  If that be so, why did he write? — In order to choose for himself a priest.¹²  If that is the case¹³  why is not his son redeemed?¹⁴  — In agreement with a ruling of 'Ulla; For 'Ulla said, pentateuchally [the son] is redeemed as soon as [the father] gives [the note of money indebtedness to the priest,] and the reason why the Rabbis ruled that he was not redeemed is because a preventive measure was enacted against the possibility of the assumption that redemption may be effected by means of bonds [in general].¹⁵

Raba said: [Their¹⁶  dispute seems to follow the same principles] as [laid down by] Tannaim: [If the guarantee] of a guarantor appears¹⁷  below the signatures to bonds of indebtedness,¹⁸  [the creditor] may recover his debt from [the guarantor's] free property.¹⁹  Such a case once came before R. Ishmael who decided that [the debt] may be recovered from [the guarantor's] free property.¹⁹  Ben Nannus, however, said to him, '[The debt may] be recovered neither from free property nor from assigned property'. 'Why?' the other asked him. 'Behold', he replied, 'this is just as if [a creditor] were [in the act of] throttling a debtor²⁰  in the street,²¹  and his friend found him and said to him, "Leave him alone and I will pay you", [where he is undoubtedly] exempt from liability, since the loan was not made through trust in him.'²²  May it not be suggested that R. Johanan holds the same view as R. Ishmael while Resh Lakish holds that of Ben Nannus? — On the view of Ben Nannus there can be no difference of opinion;²³

1. [H] in which the witnesses enter the terms that were verbally agreed upon between the parties and duly attach their signatures.
2. Which might appear superfluous in view of the fact that the agreement has been properly drawn up and duly signed.
3. Kid. 9b.
4. In negotiating a marriage.
5. Lit., 'they stood and betrothed'.
6. No symbolic kinyan being necessary. Our Mishnah, too, deals similarly with a verbal agreement from which symbolic kinyan was absent; and, contrary to the opinion that an agreement without kinyan is invalid, it lays down the law in agreement with R. Giddal.
7. Lit., 'that I'.
8. Or shekels. Such a sum is due to the priest for the redemption of an Israelite's firstborn son (cf. Ex. XIII, 13 and Num. XVIII, 16).
9. Though the document was unsigned and no kinyan was executed and, in consequence, should have no more legal force than a verbal admission. This contradicts Resh Lakish.
10. Bek. 510.
11. [He is not actually obliged Biblically to give to this particular priest, hence omit to him' with MS.M. which reads 'because it is Biblical'.]
12. In the absence of the written document the five sela's could have been given to any other priest.
13. That the Pentateuchal obligation confers upon a legally invalid document the force of one that was duly signed by witnesses.
14. A legal bond, surely, might be regarded as a virtual payment.
15. Other than those In which the father of the child himself assumed the liability.
16. R. Johanan and Resh Lakish.
17. Lit., 'which goes out'.
18. [The guarantor simply declaring 'I am guarantor' without attaching his signature (Tosaf.).]
19. But not from property which he sold or mortgaged. Since the signatures of the witnesses do not appear below the guarantee, the guarantor's undertaking can have no more force than a verbal promise, or a loan that has not been secured by a bond, in which case no assigned property is pledged to the creditor.
20. Lit., 'his fellow'.
21. Sc. using violence against him.
22. Such a guarantee is offered for the sole purpose of rescuing the debtor from the creditor's violence. It cannot be regarded as a serious guarantee to discharge the debt, since the debt was incurred before the guarantee was given, v. B.B. 175b.
23. I.e., even R. Johanan must admit that Ben Nannus differs from his ruling. For, if in the case of a guarantee which has Pentateuchal authority (v. B.B. 173b), Ben Nannus does not recognize the validity of a personally unattested undertaking, how much less would he recognize such an undertaking in a case like that spoken of by R. Johanan.

their dispute, however, might relate to the view of R. Ishmael. R. Johanan is, [of course,] in agreement with R. Ishmael, while Resh Lakish [might argue:] R. Ishmael maintains his view there¹  only²  because a pentateuchal responsibility is involved³  but [not] here where no pentateuchal responsibility is involved.

The [above] text [stated]: 'R. Giddal has laid down in the name of Rab: [If one man said to another,] "How much are you giving to your son?" [and the other replied,] "Such and such a sun,", and [when the other asks,] "How much are you giving to your daughter?" [the first replies,] "Such and such a sum", [and on the basis of this talk] betrothal was effected, kinyan is deemed to have been executed, these being matters concerning which kinyan is effected by a mere verbal arrangement'.⁴  Said Raba: It stands to reason that Rab's ruling should apply [only] to the case of a man whose daughter was⁵  a na'arah,⁶  since the benefit [of her betrothal]⁷  goes to him,⁸  but not to that of a bogereth,⁶  since the benefit [of the betrothal of the latter]' does not go to him; but, by God! Rab meant [his ruling to include] even one who is a bogereth. For, should you not concede this, [the objection could be put:] What benefit does the son's⁹  father derive?¹⁰  The reason consequently must be that¹¹  owing to the pleasure of the formation of a mutual family tie they decide to allow one another the full rights of kinyan.

Said Rabina to R. Ashi: Are those verbal arrangements,¹²  allowed to be recorded¹³  or are they not allowed to be recorded?¹⁴  — They, the other replied, may not be recorded.¹⁵  He¹⁶  raised an objection against him:¹⁷  PRUDENT MEN USED TO WRITE,¹⁸  ON CONDITION THAT I SHALL MAINTAIN YOUR DAUGHTER FOR FIVE YEARS WHILE YOU [CONTINUE TO LIVE] WITH ME'?¹⁹  — The meaning of²⁰  'WRITE' [in this context] is 'say'. Could 'saying', however, be described as 'writing'? — Yes, for so we learned: If a husband gives to his wife a written undertaking,²¹  'I have no claim whatsoever upon your estates',²²  and R. Hiyya taught:²³  If a husband said²⁴  to his wife.²⁵

Come and hear: Deeds of betrothal²⁶  and marriage²⁷  may not be written except with the consent of both parties,²⁸  but, [it follows, that] with the consent of both parties they may be written. Does not this refer to²⁹  deeds based on verbal agreements?³⁰  — No; deeds of actual betrothal,³¹  [the ruling³²  being] in agreement with R. papa and R. Sherabya; for it was stated: If a man wrote it³³  in her name³⁴  but without her consent she is, said Rabbah³⁵  and Rabina, betrothed, but R. Papa and R. Sherabya aid, She is not betrothed.³⁶

Come and hear: SHOULD THEY DIE, THEIR OWN DAUGHTERS ARE TO BE MAINTAINED OUT OF THEIR FREE PROPERTY ONLY BUT SHE MUST BE MAINTAINED EVEN OUT OF ASSIGNED PROPERTY, BECAUSE SHE [HAS THE SAME LEGAL STATUS] AS A CREDITOR!³⁷  Here we are dealing with a case where the man was made to confirm his obligation³⁸  by a kinyan.³⁹  If so,⁴⁰  [the same right⁴¹  should be enjoyed, should it not, by one's own] daughters also? — [This is a case] where kinyan was executed in favour of the ones but not in favour of the others.⁴²  Whence this certainty?⁴³  — Since she was in existence at the time the kinyan was executed, the kinyan in her favour is effective; the other daughters,⁴⁴  however, since they were not in existence at the time the kinyan was executed, the kinyan in their favour is not effective. But do we not also deal with the case where they⁴⁵  were in existence at the time of the kinyan, this being possible where,⁴⁶  for instance, the man had divorced his wife and then remarried her? — [This] however, [is the explanation:] Since she is not covered by the provision of Beth din⁴⁷  kinyan in her case is effective; in the case of the other daughters, however, who are protected by the provision of Beth din,⁴⁷  kinyan is not effective. Are they, on that account, worse off?⁴⁸  — This, however, is the reason: In the case of his own daughters, since they are protected by the provision of Beth din,⁴⁷  it might be assumed that he entrusted them⁴⁹  with some bundles [of money].⁵⁰

THE FIRST HUSBAND IS NOT ENTITLED TO PLEAD [etc.] R. Hisda stated: This⁵¹  implies that [the place of] a daughter must be with her mother.⁵²  Whence, [however, the proof] that we are dealing here⁵³  with one who is of age; is it not possible that⁵⁴  we are dealing only with a minor [whose custody must be entrusted to her mother] on account of what had once happened? For it was taught: If a man died and left a young son with his mother,⁵⁵  [and while] the father's heirs demand, 'Let him be brought up with us' his mother claims, 'My son should be brought up by me', [the son] must be left with his mother, but may not be left with anyone who is entitled to be his heir.⁵⁶  Such a case⁵⁷  once occurred and [the heirs] killed him on the eve of passover!⁵⁸  — If that were so⁵⁹  it should have been stated,⁶⁰  'To wherever she is,'

1. The case of the guarantor.
2. Lit., 'until here'.
3. The recognition of a guarantor's responsibility is (as stated supra) Pentateuchal.
4. Supra 102a q.v. for notes.
5. At the time betrothal was negotiated.
6. V. Glos.
7. Sc. the sum of money or object of value which the man gives to the woman as a token of betrothal which constitutes the required kinyan.
8. Lit., to his hand'. As a return for the benefit he, it may well be presumed, readily agrees that even his verbal undertaking should have the legal force of a personally attested written deed.
9. Sc. the bridegroom's.
10. Surely none; since the pecuniary benefit from his son's betrothal does not belong to him.
11. Lit., 'but'.
12. Lit., 'words', spoken of supra, in connection with which no symbolic kinyan was executed.
13. Sc. in a deed, by witnesses.
14. For, if they were to be embodied in a deed, the holder of such a deed would be enabled to distrain on assigned property to which, in the absence of symbolic kinyan, he is legally not entitled. [The question, according to Isaiah Trani, is whether these may be reduced to writing without the consent of both parties, either of whom may object to encumbering the property with a mortgage, v. Shittah Mekubbezeth a.l. and R. Nissim on Kid. 9b also, for other interpretations.]
15. Cf. supra nn. 10 and 11.
16. Rabina.
17. R. Ashi.
18. [H] emphasis on 'WRITE'.
19. Though the agreement was only verbal. How then could K. Ashi maintain that verbal arrangements may not be embodied in a deed?
20. Lit., 'what'.
21. [H]
22. Mishnah supra 830.
23. In reference to this Mishnah which uses the expression of writing (v. supra n. 3).
24. Emphasis on the word [H].
25. Which proves that a verbal statement is sometimes described as a written one.
26. Verbal agreements between the parties on the amounts promised.
27. Kethubah contracts.
28. B.B. 167b, Kid. 9b.
29. Lit., 'what, not?'
30. Cf. supra p. 647, n. 13. An objection thus arises against R. Ashi who ruled that verbal agreements 'may not be recorded'. [On Trani's interpretation (supra p. 650, n. II) this passage is adduced in support of R. Ashi that such deeds cannot be written without the consent of both parties. This will, however, necessitate the deletion of the words '(it follows that) with the consent of both they may be written', which words in fact do not occur in MS.M.]
31. Betrothal may be effected by a deed wherein the man enters, 'Behold thou art betrothed unto me'.
32. Which requires the consent of the woman to such a deed.
33. A deed of betrothal.
34. Or 'for her sake', that of the woman he wishes to betroth.
35. Var., 'Raba' (MS.M., the parallel passage in Kid., and Codes).
36. Kid. 9b, 48a.
37. Since only a written deed would confer upon her such a status it is obvious that such a deed was in her possession, an objection against R. Ashi (cf. supra n. 12).
38. To maintain his wife's daughter.
39. Lit., 'where they acquired (symbolic) possession from his hand'. Hence the permissibility of writing a deed.
40. That the verbal agreement was under a kinyan.
41. To exact the cost of maintenance from assigned property.
42. Lit., 'to this'.
43. The Mishnah, surely, does not mention kinyan in the case of the one and omit it in that of the others.
44. Who were presumably born from the marriage contracted at the time of the kinyan.
45. The man's own daughters.
46. Lit., 'and how is this to be imagined?'
47. The clause of the kethubah which entitles daughters born from that marriage to maintenance.
48. The contrary might, in fact, be expected: As they enjoy the privilege of the clause in the kethubah (v. supra n. 10) they should also be entitled to the privilege of the kinyan.
49. Lit., 'caused them to seize', before he died.
50. Or valuables, to discharge his obligation on the account of their maintenance.
51. The ruling that the maintenance of one's wife's daughter must be forwarded to the place where her mother lives.
52. The brothers who maintain her are not entitled to demand that she shall live with them.
53. In our Mishnah.
54. In stating. 'WHERE HER MOTHER (LIVES)'.
55. [H]; wanting in Bomb. ed.
56. An interested party may be suspected of murder.
57. That the child was entrusted to the care of relatives who were entitled to be his legal heirs.
58. In order to secure his property. Now since there is nothing to prove that an older daughter (who is well capable of looking after herself) must also be maintained at her mother's house and cannot be compelled to live with the brothers and receive maintenance from them, an objection arises against R. Hisda. [Detractors of the Talmud, it may be mentioned, professed to find in this passage an allusion to the 'ritual' murder of 'Christian' children! The absurdity of this suggestion was pointed out by Eric Bischoff in his Talmudkatechismus, p. 38, where he describes it as 'sinnlos' (senseless). It is evident that this incident was recorded to emphasize the danger of entrusting a child to the care of one who stands to benefit by its death. For we see here that even the sanctity of the Festival did not deter the brothers from perpetrating a crime for the purpose of gain. This danger has also been recognized in the English Law of Insurance which lays down that a man cannot insure his child's life to derive a benefit on its death].
59. That a daughter who is of age may be compelled to live with her brothers.
60. In our Mishnah.