Babylonian Talmud: Tractate Kethuboth

Folio 95a

a tirpa¹  [authorizing distraint on property sold]²  after the first of Iyar?'³  'They',⁴  he replied, 'might tell you: You [are holding a deed] that was written on the first of Nisan'.⁵  What means of redress [can he⁶  have recourse to]?⁷  — They⁸  write out authorizations⁹  to one another.¹⁰

MISHNAH. IF A MAN WHO WAS MARRIED TO TWO WIVES SOLD HIS FIELD,¹¹  AND THE FIRST WIFE¹²  HAD GIVEN A WRITTEN DECLARATION TO THE BUYER, 'I HAVE NO CLAIM WHATSOEVER UPON YOU', THE SECOND WIFE¹³  MAY¹⁴  DISTRAIN ON THE BUYER, AND THE FIRST WIFE¹²  ON THE SECOND, AND THE BUYER ON THE FIRST WIFE,¹⁵  AND SO THEY GO ON IN TURN UNTIL THEY ARRANGE SOME COMPROMISE BETWEEN THEM, THE SAME LAW APPLIES ALSO TO¹⁶  A CREDITOR¹⁷  AND TO¹⁶  A WOMAN CREDITOR,¹⁷

GEMARA. What matters it even if she HAD GIVEN him A WRITTEN DECLARATION? Has it not been a man says to another, 'I have no claim whatsoever on this field, I have no concern in it and I entirely dissociate myself from it', his statement is of no effect?¹⁸  — Here we are dealing with a case where a kinyan was executed.¹⁹  But even if kinyan had been executed, what is the use? Could she not say, 'I merely wished to oblige my husband'?²⁰  Have we not, in fact, learned: If a man bought [a married woman's property]²¹  from her husband and then bought it also from the wife, his purchase is legally invalid.²²  Does not this²³  show clearly that the woman can plead, 'I merely wished to oblige my husband'?²¹  R. Zera replied in the name of R. Hisda: This is no difficulty. One ruling²⁴  is that of R. Meir and the other²⁵  is that of R. Judah. For it was taught: [If a husband] drew up a deed²⁶  for the buyer²⁷  [of a field of his wife],²⁸  and she did not endorse it, [and then he drew up a deed] for another buyer [of a field of hers]²⁸  and that she did endorse, she loses thereby [her claim to] her kethubah,'²⁹  so R. Meir.³⁰  R. Judah, however, said: She may plead, 'I³¹  merely meant to oblige my husband;³²  what [claim] can you have against me?'³³

As to Rabbi,³⁴  however, would he allow the anonymous Mishnah here to represent the view of R. Meir and the anonymous Mishnah there³⁵  to represent the view of R. Judah?³⁶  R. Papa replied: [Our Mishnah deals] with the case of a divorced woman,³⁷  and it represents the opinion of all. R. Ashi replied: Both Mishnahs³⁸  represent the views of R. Meir,³⁹  for R. Meir maintains his view⁴⁰  only there where two buyers are concerned,⁴¹  since in such a case she may well be told, 'If you wished to oblige. you should have done so in the case of the first buyer',⁴²  but where Only one buyer [is concerned]. even R. Meir admits [that the sale is invalid].⁴³  while our Mishnah⁴⁴  [refers to a case] where [the husband had first] written out a deed for another buyer.⁴⁵

Elsewhere we learned: Payment cannot be recovered from mortgaged property where free assets are available, even if they are only of the poorest quality.⁴⁶  The question was raised: If the free assets were blasted⁴⁷  may the mortgaged property be distrained on? — Come and hear: [If a husband] drew up a deed for the buyer [of a field of his wife] and she did not endorse it [and then he drew up a deed] for another buyer [of a field of hers] and that she did endorse, she loses thereby [her claim to] her kethubah,' so R. Meir.⁴⁸  Now, if it could be imagined that where the free assets were blasted the mortgaged property may be distrained on [the difficulty would arise:] Granted that she lost [her right to recover] her kethubah from the second buyer,⁴⁹  why⁵⁰  should she not be entitled⁵¹  to recover it, at any rate, from the first buyer?⁵²  — Said R. Nahman b. Isaac:⁵³  The meaning of 'she loses' is that she loses [her right to recover her due] from the second buyer.⁵⁴  Said Raba: Two objections may be raised against this explanation:⁵⁵  In the first place [it may be pointed out] that [the expression of] 'she loses' implies total loss. And, furthermore, it was taught: If a man borrowed from one person and sold his property to two others, and the creditor gave a written declaration to the second buyer, 'I have no claim whatever upon you', [this creditor] has no claim whatever upon the first buyer, since the latter can tell him, 'I have left you⁵⁶  a source⁵⁷  from which to recover your debt'!⁵⁸  — There,⁵⁹  [it may be argued⁶⁰  that] it was he⁶¹  who had deliberately caused the loss to himself.⁶²

Said R. Yemar to R. Ashi:

1. V. supra p. 584, n. 8.
2. By the same vendor.
3. The month following Nisan. Lit., 'from Iyar onwards'. However late in Nisan the deed may have been written it could not have been later than the first of the following month, and the vendee should, therefore (v. supra p. 600, n. 9)' be entitled to distrain at least on those vendees who purchased their property from the same vendor after he had purchased his.
4. The vendees whose purchases were effected after the first of Iyar.
5. And since his deed was consequently of an earlier date than the one that was written on the 'fifth of Nisan', the holder of the latter deed was not entitled to the property which R. Joseph confirmed in his possession. 'Before distraining on our purchases', the vendees (v. supra n. 8) might well plead, 'claim the land which you have actually bought'.
6. The holder of the 'In Nisan' deed.
7. In view of the alternative pleadings. Should he make a claim against the holder of the deed written On the fifth of Nisan the latter could retort that 'In Nisan' meant the twenty-ninth of the month; and should he attempt to distrain on those who bought after the first of Iyar they could retort that 'In Nisan' meant the first of that month.
8. The holders of the 'In Nisan' and 'fifth of Nisan' deeds.
9. To distrain on subsequent buyers.
10. The holder of the 'In Nisan' deed is thus enabled to distrain on the subsequent vendees by virtue of his own deed or by virtue of that of the 'fifth of Nisan' held by the other. Since the vendor guaranteed to indemnify either of them he may distrain on behalf of the other if the later vendees plead that his deed was written as early as on the first of Nisan; or if, in reply to the claim of the holder of the 'fifth of Nisan' deed, they pleaded that the 'In Nisan' deed was written as late as on the twenty-ninth and that the holder of the earlier deed should consequently have distrained on him and not on them, who were later purchasers, he may distrain on them by virtue of his own deed.
11. Which was pledged for the kethubahs of the women,
12. I.e., the woman who was married first and whose kethubah consequently bore the earlier date.
13. Whose claim upon the field was not in any way impaired.
14. When her husband dies.
15. Since she had renounced in his favour her claims upon that field.
16. Lit., 'and so',
17. This is explained infra.
18. Supra 83a q.v. for notes, Git. 77a.
19. Lit., 'they (sc. witnesses) acquired from her (on behalf of the vendee)'. Such a kinyan (as was laid down by Amemar, supra 83b) is taken to refer to the land itself and not merely to the woman's abstract renunciation.
20. St. her kinyan was not meant to be taken seriously.
21. Which (a) her husband inserted in her kethubah as a special security for the sum of that kethubah, apart from the general security on all his estate, or (b) her husband assigned to her after their wedding as special security for her kethubah, or (c) she had brought to her husband as marriage dowry and for the money value of which he had made himself responsible to her (v. B.B. 49b ff).
22. Cit. 55b, B.B. loc. cit.
23. The ruling that the sale is invalid.
24. That of our Mishnah,
25. The ruling that the sale is invalid.
26. Lit., 'he wrote'.
27. Lit., 'for the first'.
28. V, supra p. 602, n. 11.
29. If her husband has no free property left. She cannot recover her kethubah even from the first buyer since he might plead that when he had bought his field her husband was still left in the possession of that field which he subsequently sold to the second purchaser.
30. Because by refusing to endorse the first deed she made it clear that she had no desire to please her husband. Her action in endorsing the second deed may, therefore, be regarded as the true expression of her consent to the sale and her earnest renunciation of her claim upon the property.
31. In endorsing the second deed.
32. Cf. supra p. 602, n. 10,
33. Surely none. She is, therefore, entitled to recover her kethubah from the second buyer.
34. R. Judah the Patriarch, the Redactor of the Mishnah.
35. Git, 55b just cited.
36. Since the halachah agrees as a rule with the anonymous Mishnah a contradiction would arise.
37. Who renounced her rights to the purchased field after she had been divorced, so that the plea of obliging her husband is clearly inadmissible.
38. Lit., 'all of it', our Mishnah as well as the one in Git. 55b.
39. Both dealing with a woman who was still living with her husband,
40. That the woman loses her kethubah.
41. As was specifically mentioned in that Baraitha. Cf. supra note 7'
42. As she had not done it she cannot now plead that her object was to oblige her husband.
43. Since she may plead that she merely wished to oblige her husband.
44. Which regards the woman's renunciation as valid.
45. Whose deed she refused to endorse. Cf. supra p. 603, n. 7.
46. Git. 48b.
47. After the sale of the others.
48. Cf. supra p, 603 notes,
49. On account of her endorsement of his purchase.
50. Since her first source of payment was no longer available,
51. As in the case of free assets that were blasted.
52. Whose purchase corresponds to the 'mortgaged property' referred to in the enquiry. Since, however, she is not allowed to distrain on the first it follows, does it not, that even if the free assets were blasted, payment cannot be recovered from mortgaged property.
53. The Baraitha quoted provides no solution to the question.
54. Her right to recover her kethubah from the first buyer, however, remains unimpaired.
55. Which R. Nahman b. Isaac advanced.
56. 'When I purchased the first field'.
57. The field which the second buyer had subsequently purchased.
58. Similarly in the ease of the woman, her kethubah cannot be recovered from the first buyer who might well plead that he too had left her a source from which to collect her kethubah, R. Nahman h. Isaac's explanation thus stands refuted by two objections.
59. In the Baraitha cited by Raba.
60. In justification of R. Nahman b. Isaac's explanation. So according to R. Tam and R. Han (v. Tosaf, s.v. [H] a.l.), contrary to Rashi who regards what follows as the conclusion of Raba's arguments, v. infra n. 5.
61. The creditor.
62. By signing the declaration in favour of the second buyer though he was well aware that by this act he loses the only source available for the recovery of his debt. In the ease of a woman, however, whose kethubah does not fall due for payment until after the death of her husband, it may well be maintained that the renunciation of her rights in favour of the second buyer, during the lifetime of her husband, was not regarded by her as of any practical consequence, and the loss ultimately ensuing cannot, therefore, be said to have been deliberately caused by herself. As the two eases are not analogous R. Nahman b. Isaac's explanation stands unrefuted, The first objection raised by Raba remains unanswered as happens sometimes in such Talmudic discussions where only the second of two objections is dealt with. Moreover the first objection is rather feeble and may well be met by the reply that the expression 'she loses' need not necessarily imply total loss (so Tosaf. loc. cit.), According to Rashi 'There … himself', is taken by Raba as an argument against the solution of the problem that was attempted by inference from the first Baraitha, and might also be inferred from the last one quoted (cf. Golds.). 'There', i.e., in the eases dealt with in the last Baraithas, the argument runs, it was he', i.e., the claimant (the woman in the first case and the creditor in the second) 'who had caused the loss to himself'; and no inference can, therefore, be drawn from either of these cases in respect of the one referred to in the question where the claimant is in no way responsible for the loss of the free assets.

This,¹  Surely, is the regular practice²  [of the courts of law]? For did not a man once pledge a vineyard to his friend for ten years³  but it aged after five years,⁴  and [when the creditor] came to the Rabbis⁵  they wrote out a tirpa⁶  for him?⁷  — There⁸  also it was they⁹  who caused the loss to themselves. For, having been aware that it may happen that a Vineyard should age,¹⁰  they should not have bought [any of the debtor's pledged land].¹¹  The law, however, is that where free assets are blasted, mortgaged property may be distrained on.

Abaye ruled: [If a man said to a woman]¹²  'My estate shall be yours and after you [it shall be given] to So-and-so', and then the woman¹³  married, her husband has the Status of a vendee and her successor¹⁴  has no legal claim¹⁵  in face¹⁶  of her husband. In agreement with whose view [was Abaye's ruling laid down]? In agreement with the following Tanna.¹⁷  For it has been taught: [If one man said to another,] 'My estate shall be yours and after you [it shall be given] to So-and-so' and the first recipient went down [into the estate] and sold it, the second may reclaim the estate¹⁸  from those who bought it; so Rabbi. R. Simeon b. Gamaliel ruled: The second may receive only that which the first has left.¹⁹  But could Abaye have laid down such a ruling? Did not Abaye in fact, Say, 'Who is a cunning rogue? He who counsels²⁰  to sell²¹  an estate²²  in accordance with the ruling of R. Simeon b. Gamaliel?²³  — Did he Say, 'She may marry'?²⁴  All he said was, 'The woman married'.²⁵

Abaye further stated: [If a man said to a woman.]²⁶  'My estate shall be yours and after you [it shall be given] to So-and-so' and the woman sold [the estate] and died, her husband²⁷  may seize It from the buyer, the woman's successor²⁸  [may seize it] from the husband,²⁹  and the buyer from the successor,³⁰  and all the estate is confirmed in the possession of the buyer.³¹  But why should this case be different from the following where we learned: AND SO THEY GO ON IN TURN UNTIL THEY ARRANGE SOME COMPROMISE BETWEEN THEM? — There they are all suffering some loss³²  but here it is only the buyer who suffers the loss.³³

Rafram went to R. Ashi and recited this argument to him: Could Abaye have laid down such a ruling?³⁴  Did he not, in fact, lay down: [If a man said to a woman.] 'My estate shall be yours and after you [it shall be given] to So-and-so', and then the woman married, her husband has the status of a vendee, and her successor has no legal claim in face of her husband?³⁵  — The other replied: There [it is a woman] to whom he³⁶  spoke while she was feme sole,³⁷  but here [we are dealing with one] to whom he³⁶  spoke when she was married.³⁸  For it is this that he meant to tell³⁹  her? 'Your successor only shall acquire Possession; your husband shall not'.⁴⁰

THE SAME LAW APPLIES ALSO TO A CREDITOR. A Tanna taught:⁴¹  The same law applies to⁴²  a creditor and two buyers⁴³  and also to a woman, who was a creditor,⁴⁴  and two buyers.⁴⁵

CHAPTER XI

MISHNAH. A WIDOW IS TO BE MAINTAINED OUT OF THE ESTATE OF [HER DECEASED HUSBAND'S] ORPHANS [AND] HER HANDIWORK BELONGS TO THEM. IT IS NOT THEIR DUTY, HOWEVER, TO BURY HER; IT IS THE DUTY OF HER HEIRS, EVEN THOSE WHO INHERIT HER KETHUBAH, TO BURY HER.

GEMARA. The question was asked: Have we learnt,⁴⁶  'is to be maintained'⁴⁷  or 'one who is maintained'?⁴⁸  Have we learned, 'is to be maintained', in agreement with the men of Galilee,⁴⁹  so that there is no way⁵⁰  [by which the orphans] can avoid⁵¹  maintaining her; or have we rather learned 'one who is maintained',⁴⁸  in agreement with the men of Judaea,⁵²  so that [the orphans,] if they wish it, need not⁵³  maintain her?

1. To allow creditors to distrain on mortgaged property wherever free assets are blasted.
2. Lit., 'and, surely, actions every day'.
3. The terms entered in the mortgage deed being that the creditor was to enjoy the usufruct of the vineyard during the ten years, in payment of his loan, while the vineyard itself was to return to the debtor at the end of that period without any further payment or obligation on his part.
4. I.e., ceased yielding produce before the creditor had recouped himself in full.
5. To claim the balance of the loan,
6. V. supra p. 584, n. 8.
7. And thereby enabled him to distrain on all property which the debtor had sold after the date On which the mortgage deed was written. This being the regular practice in the administration of the law, why was the question, supra 95a, at all raised?
8. The ease just cited.
9. Who purchased the lands from the debtor though they were well aware that these were already pledged to the mortgagee of the vineyard.
10. And that this might happen before the expiry of the ten years in consequence of which the creditor would naturally distrain on the debtor's remaining property.
11. Having bought it they have only themselves to blame for the consequences. The regular practice of the courts in such actions has, therefore, no bearing on the ease referred to in the question.
12. Who (as will be explained Infra) was feme sole.
13. Lit., 'and stood up'.
14. Lit., 'to after you'.
15. Lit., 'nothing'.
16. Lit., 'place'.
17. R. Simeon b. Gamaliel.
18. After the death of the first donee who, by the terms of the gift, was entitled to the usufruct during his lifetime only but had no right to sell the estate itself
19. B.B. 137a; and since the first has sold the estate the second his no rightful claim upon it.
20. So Rashb. (B. B. 137a). Aliter. Who lakes counsel with himself (R. Gersh.).
21. And much more so one who sells (so according to Rashb. v. supra n. 15).
22. Which was given to a person with the stipulation that after his death it shall pass over to another person.
23. Sotah 21b, B. B. loc. cit. Though such a sale is morally wrong, since the donor meant the second donee to have the estate after the death of the first, it is nevertheless quite legal on the basis of the ruling of R. Simeon b. Gamaliel. Now since Abaye condemns the person who acts on the ruling of R. Simeon b. Gamaliel, would he himself base a ruling of his on this view' of R. Simeon b. Gamaliel?
24. Which would have implied approval.
25. A fait accompli. Her action, however, though legal, is nevertheless condemned by Abaye as morally wrong.
26. Who (v. infra) was married.
27. Who has the status of a first buyer.
28. Cf. supra p. 606, n. 9.
29. Because, unlike the previous ease where the woman of whom Abaye spoke was unmarried, the woman in this case (v. supra n. 4) was married at the time the estate was presented to her and her successor. Her husband who was not in any way mentioned by the donor is, therefore, deemed to have been Implicitly excluded by the donor from all rights to, or claim upon. the estate.
30. In agreement with the ruling of R. Simeon b. Gamaliel that the first donee has the right to sell the estate.
31. It cannot again be taken away from him by the husband, since his present tenure of the estate is no longer based upon his rights as a buyer from the married woman but upon the rights derived from her successor. In the former ease the husband as 'first buyer' (v. supra note 5) would have had right of seizure. In the latter ease he has none.
32. The buyer loses some of his purchase money and the women lose portions of their kethubah.
33. The husband and the donees are only claiming a gift.
34. That all the estate is confirmed in the possession of the buyer.
35. Cf. supra p. 606, n. 7 and 9.
36. The donor.
37. Cf. supra p. 606, n. 7.
38. Cf. supra p. 607, n. 4.
39. Lit., 'what did he (mean) to say?'
40. Cf. supra 607. n. 7.
41. In explanation of our Mishnah.
42. Lit., 'and so'.
43. The total value of whose purchases from the debtor represents the amount of the debt. The creditor, if he renounced his claim to the extent of that portion of the debt that was secured on the second buyer's purchase, may distrain on the purchases of the first buyer who in turn distrains on the second buyer (whose purchase was that of property that was already pledged to the first in security of his purchase) who in turn distrains on the creditor (by virtue of his renunciation); and so they go on in turn until a compromise is arranged.
44. Sc. who claims the amount of her kethubah.
45. Cf. supra n' 9 mutatis mutandis.
46. In our Mishnah.
47. [H] sc. the reading given supra.
48. [H] in which case the Mishnah means that only the handiwork of a widow, who is maintained by the orphans, belongs to them.
49. Who entered in the kethubah the clause. 'You shall dwell in my house and be maintained therein out of my estate throughout the duration of your widowhood' (v. Mishnah supra 52b).
50. 'To go' (cf. fast.).
51. Aliter. There is no possibility of avoiding (cf. Levy).
52. Who added to the clause mentioned (supra n. 4), 'Until the heirs may consent to pay you your kethubah' (Mishnah. supra 52b).
53. If they had paid her the kethubah.