"nor infer [any law] from it" — because a judge must be guided only by that1 which his eyes see.
Raba inquired: What2 [is the law in the case of] a person in good health?3 Does R. Johanan b. Beroka4 speak [only] of [the case of] a dying man, who has the right to appoint an heir [on the spot],5 but not [of] one [who is] in good health; or [does he] perhaps [speak] also even of one in good health? — R. Mesharsheya said to Raba: Come and hear: R. Nathan said to Rabbi,6 'You7 have taught your Mishnah8 in accordance with [the views of] R. Johanan b. Beroka; for we learnt:8 [A husband who] did not give [his wife] in writing9 [the following statement, viz.], "The male children that will be born from our marriage10 shall inherit11 the money of thy marriage settlement in addition to their shares with their brothers",12 is [nevertheless] liable, because it is a condition13 laid down by the court'.14 And Rabbi replied [to him]:15 "We learnt: they shall take".16 [Later], however, Rabbi stated: "It was childishness on my part to be presumptuous in the presence of Nathan the Babylonian. The fact is17 that the law is well established [that] male children may not seize18 any sold property [of their father in payment for their mother's kethubah]".19 [Now], if it is assumed [that] we learnt, "they shall take", why may they not seize sold property?20 Consequently it must be inferred that we learnt: "they shall inherit"'.21 [Now], who has been heard to hold this view?22 [Surely] R. Johanan b. Beroka! Thus it may be inferred [that the law23 applies] even to [the case of] one who is in good health.24
R. Papa said to Abaye: Whether according to him who said, [that the reading25 was] 'they shall take', or according to him who said [that the reading was], 'they shall inherit', [the question may be asked], surely one [has] not [the right] to give possession of something which is not yet in existence! And even R. Meir,26 who maintains [that] one may give possession of that which is not yet in existence, applies this law27 [only to the case where the possession was given] to one who is [already] in existence,28 but not [to the case where possession is given] to one who does not exist.29 [The reason], however,30 [must be that] a condition [imposed] by a court is different [from an ordinary assignment],31 here, likewise,32 [it could have been explained33 that] a condition [imposed] by a court is different!34 — He replied to him: Because he [first] used the expression, 'they shall inherit'.35
Subsequently, Abaye said: What I said is nothing,36 For we learnt:37 [A husband who] did not give his wife in writing38 [the following] undertaking, viz., 'The female children that will be born from our marriage39 shall live in my house and be maintained out of my estate until they shall be taken [in marriage] by men, is [nevertheless] liable, because that [fatherly duty] is a condition [imposed] by the court. Consequently, this40 is a case of giving to one as a 'gift'41 and to another as an 'inheritance',42 and wherever [something is given] to one person as an inheritance and to another as a gift43 even the Rabbis agree [that the assignments are valid].44
R. Nihumai (one said, it was R. Hananya b. Minyumai) asked Abaye:
Original footnotes renumbered.
- Lit., 'a judge has nothing but'.
- Lit., 'how'.
- Who appointed one of his legal heirs to inherit all his estate.
- In our Mishnah, supra 130a.
- Without the necessity for a formal written document. The instructions of a dying man, though only verbal, are legally binding.
- R. Judah I, Editor of the Mishnah.
- I.e., Palestinians. R. Nathan (v. infra) was a Babylonian.
- Keth. 52b.
- As part of her kethubah, or marriage contract,
- Lit., 'that you will have from me'.
- This provision is necessary, in the interests of the children, in case their mother predeceases their father who subsequently marries another wife who gives birth to new male children.
- That the marriage settlement of a wife who predeceased her husband is to be inherited by her sons on the death of the husband. [The reason of this enactment is given by R. Simeon b. Yohai (Keth. 52b) 'in order that a man may be encouraged to give as liberal a dowry to his daughter as he would give to his son — for the fear lest the daughter's property should eventually go to another woman's children would make a father hesitate before dowering her as liberally as he would like on marriage.]
- This shows that the Mishnah is in accordance with the views of R. Johanan. Why, then, Rabbi was asked, did he adopt the view of an individual against the Rabbis who were in the majority?
- Keth. 55a.
- Not 'inherit', i.e., as a gift and not as an inheritance. That a father has the right to give his estate as a gift, to whomsoever he desires, is disputed by no one.
- Lit., 'but'.
- Lit., 'it (the kethubah) may not' etc.
- Keth. 55a.
- Which was really mortgaged to them prior to the sale. The right to the gift was acquired at once, i.e., on the date of the marriage contract.
- Since an inheritance takes effect after the testator's death, the buyers of the property, purchase of which took place in the owner's lifetime, have the prior claim. R. Nathan's objection was, therefore, well founded.
- Enunciated in the cited Mishnah.
- Of R. Johanan in our Mishnah.
- Since here the appointment to heirship was made at the time of the marriage.
- In the Mishnah cited by R. Nathan.
- Lit., 'according to R. Meir'.
- Lit., 'these words'.
- At the time when possession was conferred.
- How, then, can the children, who were not in existence when the marriage contract between their father and mother was written, acquire possession of their mother's kethubah?
- Why the children do acquire possession.
- Though a private assignment is not valid unless the assignee was alive at the time when it was made, an assignment based on the decision of a court takes effect in all cases.
- In respect to the objection raised by R. Nathan.
- by Rabbi.
- And all (even the Rabbis who elsewhere maintain that the expression of 'inherit' does not confer possession), agree that, in such a case, the assignment is valid. What need, then, was there for Rabbi to suggest a change if reading from 'inherit' to 'receive'?
- Instead of the generally more effective term 'take', denoting 'gift'. This seemed to imply agreement with the view of R. Johanan b. Beroka, as against that of the Rabbis. Hence, Rabbi preferred to change the reading.
- There was really no need for Rabbi to suggest a change of reading, for in either case, whatever the reading, the Mishnah may be considered to be in agreement with both R. Johanan and the Rabbis.
- Keth. 52b.
- Together with her kethubah.
- Lit., 'which you will have from me'.
- The husband's undertaking with reference to the male children on the one hand, and to that of the female children on the other.
- The maintenance of the daughters. There is legal obligation on a father to provide for the maintenance of his daughters.
- The sons are given their mother's kethubah as her legal heirs.
- And the expressions of 'gift' and 'inheritance' were used one immediately after the other.
- According to the Mishnah, supra 126b, which represents the opinion of the Rabbis, an assignment made by using the expression of inheritance is legally valid whenever the expression of 'gift' was used with it. This was explained in the Gemara, supra 129a, to apply even to the case of two separate fields given as an inheritance and a gift respectively to two different persons. Similarly, here, the kethubah for the sons and the maintenance for the daughters may be regarded as the assignment of an inheritance and a gift respecting two persons; and, since the two provisions were made by the same court and are to be entered in the same contract, the two clauses, one containing the term, 'inherit', and the other, 'give', may be assumed to follow in close proximity to one another; in which case the Rabbis also agree that both the inheritance and the gift are acquired. The question, therefore, remains why was Rabbi compelled to have recourse to a change of reading?
Baba Bathra 131b
Whence [it is to be inferred] that [both provisions] were made by one court? Is it not possible [that] they were made by two [different] courts?1 — This possibility2 cannot be entertained,3 for in the earlier part [of the Mishnah cited] it was stated: R. Eleazar b. Azariah gave the following exposition in the presence of the Sages in the Vineyard of Jabneh:4 '[Since it was provided that] the sons shall be heirs [to their mother's kethubah], and the daughters shall be maintained [out of their father's estate, the two cases are to be compared]: As the sons cannot be heirs except after the death of their father, so the daughters cannot claim maintenance except after the death of their father'.5 [Now], if it is granted [that both provisions]6 were enacted by one court, one can well understand why an analogy was drawn between one provision and the other. If, however, it is argued [that they] were enacted at two [different] courts, how could an analogy be drawn between one provision and the other?7 — What proof!8 It is quite possible still to maintain [that the provisions]9 were enacted by two [different] courts;10 but11 the latter court had to frame its provisions on the lines analogous to those of the former court in order that there might be no discrepancy between the one provision and the other.
Rab Judah said in the name of Samuel: If a [dying] man gave all his property12 to his wife, in writing, he [thereby] only appointed her administratrix.13
It is obvious [that if he assigned all his property to] his grown up son, he [thereby], merely appointed him administrator.14 What [is the law, however, if he assigned it to] his young son? — It was stated [that] R. Hanilai b. Idi said in the name of Samuel: Even [If to] his youngest son who [still] lies in [his] cradle.15
It is obvious [that if a father assigned all his property to] his son or [to] a stranger, the stranger [is to receive it] as a gift,16 while the son [is merely appointed] administrator.17 [If he assigned it to] his betrothed or [to] his divorced wife, [either of them is to receive it] as a gift.18 The question was [however], asked, What [is the law if the assignment was made to] a daughter where there are sons, [to] a wife where there are brothers,19 or to a wife where there are sons of the husband?20 — Rabina said in the name of Raba: None of these21 acquires possession, except his betrothed, or divorced wife. R. 'Awira in the name of Raba said: All these acquire possession except a wife where there are brothers,22 and a wife where there are sons of the husband.23
Original footnotes renumbered.
- And, consequently, the two expressions, ('inheritance' for the sons, and 'gift' for the daughters), cannot be regarded as made one immediately after the other. And since in this case the Rabbis would regard the assignments as invalid, Rabbi had to revert to a change of reading, in order that the Mishnah may conform with the view of the Rabbis.
- That the provisions were made at two courts.
- Lit., 'it cannot enter your mind'.
- [The name of the School established in that town (Jamnia) by R. Johanan b. Zakkai, and so called because the members sat in rows like vines in a vineyard (J. Ber. IV, 1). Krauss Lewy's Festschrift, 22, maintains that they originally met in a vineyard.]
- He thus holds that there is no legal, as distinct from moral, obligation on the father to support his daughter after a certain age, v. Keth. 49a.
- Kethubah for the sons, and maintenance for the daughters.
- One court may have given the sons the right of heirship after the father's death, while the other court may have granted the daughters' maintenance even during the lifetime of their father. Hence it must be assumed that both provisions were made by the same court.
- Lit., 'whence your proof'?
- V. p. 549, n. 6.
- Hence the expressions of 'inheritance' and 'gift' cannot be regarded as having been made one immediately after the other. Rabbi was consequently compelled, in order that the Mishnah may conform with the view of the Rabbis, to change the reading from 'they shall inherit' to 'they shall take'.
- As to the argument, how could R. Eleazar draw an analogy between provisions made by different courts.
- As a gift.
- And his sons are entitled to receive their due shares in the estate. Since no father would give all his estate to his wife and leave his children penniless it is taken for granted that the testator's wish was not that all his property shall be given to his wife for her sole use, but that she shall only administer it in the interests of all the heirs. His use of the expression 'gift' is assumed to have been intended as a means of making his children dependent on her, so that she might enjoy the respect due to her.
- So that his brothers may pay him due respect.
- The estate is not to be given to him alone but to all the heirs. The father's wish is interpreted as a desire that all the other heirs shall pay respect to his youngest son.
- For, had the testator merely meant him to be administrator, he would have stated the fact explicitly.
- V. n. 8 and 9 supra.
- As he can hardly be so much concerned about safeguarding their respect as to make provision to that extent.
- Of the testator; and no other heirs.
- Born from another wife, in each of these cases the consideration of respect is likely to arise.
- Lit., 'in all of them not'.
- V. note 2.
- V. note 3.