MISHNAH. IF THE HOUSE COLLAPSED UPON A MAN1 AND HIS WIFE2 [AND] THE HEIRS OF THE HUSBAND3 PLEAD [THAT] THE WIFE DIED FIRST4 AND [THAT] THE HUSBAND DIED AFTERWARDS,5 [WHILE] THE HEIRS OF THE WIFE6 PLEAD [THAT] THE HUSBAND DIED FIRST [AND THAT] THE WIFE DIED AFTERWARDS, BETH SHAMMAI HOLD [THAT THE ESTATE] IS TO BE DIVIDED,7 AND BETH HILLEL HOLD [THAT] POSSESSIONS8 [ARE TO REMAIN WITH THOSE WHO ARE] IN THEIR ESTABLISHED RIGHT OF OWNERSHIP;9 THE KETHUBAH10 IN THE POSSESSION OF THE HEIRS OF THE HUSBAND; [AND] THE PROPERTY THAT COMES IN AND GOES OUT WITH HER11 IN THE POSSESSION OF THE HEIRS OF THE FATHER.12
Original footnotes renumbered.
- Lit., 'upon him'.
- From whom he had no children.
- His sons, e.g., that were born from another wife or his father and brothers.
- And her estate was consequently inherited by her husband before he died.
- And, consequently, his heirs are entitled to his estate including all that he inherited From his wife.
- Her relatives who are not related to her husband.
- Since it is impossible to ascertain who in fact died first, the ownership of the estate is a matter of doubt, and any property the ownership of which is in doubt must be divided between the claiming parties.
- I.e., property which the wife brought to her husband on marriage, and the value of which was included in her marriage contract, the husband assuming full responsibility for loss or profit.
- The Gemara, infra, explains who these are,
- I.e., the sum of a hundred, (in the case of the marriage of a widow), or of two hundred zuz (in the case of the marriage of a virgin), and the 'additional sum' which a husband undertakes to pay to his wife upon divorce or upon his death, and which forms the principal element in a marriage contract.
- Property, the principal of which is retained in the wife's possession while its usufruct is enjoyed by the husband. V. supra, p. 206, n. 7.
- Of the wife. Since she obtained the property from her father's house and since the property itself remained all the time in her possession, the heirs of her father's house are entitled to inherit it. (CF. Rashb. and R. Gersh. a.l.)
Baba Bathra 158b
GEMARA. In whose established right of ownership?1 — R. Johanan said: In the right of the ownership of the heirs of the husband.2 R. Eleazar said: In the right of ownership of the heirs of the wife;3 and R. Simeon b. Lakish in the name of Bar Kappara said: [The estate in dispute] is to be divided.4 And so did Bar Kappara teach: Since these appear as heirs and those appear as heirs, [the estate] is to be divided [between them].
MISHNAH. IF THE HOUSE COLLAPSED UPON A MAN5 AND HIS MOTHER,6 BOTH7 AGREE THAT [THE ESTATE IN DISPUTE] IS TO BE DIVIDED.8 R. AKIBA SAID: I AGREE IN THIS [CASE] THAT THE ESTATE [IS TO REMAIN WITH THOSE WHO ARE] IN ITS ESTABLISHED RIGHT OF OWNERSHIP.9 BEN AZZAI SAID TO HIM: [IS IT NOT ENOUGH THAT] WE ARE SUFFERING FROM THE EXISTING DIVISIONS OF OPINION10 THAT YOU [MUST] COME TO CREATE DIFFERENCES FOR US WHERE UNANIMITY WAS DECLARED?11
GEMARA. In whose established right of ownership?12 — R. Elai said: In the established right of the ownership of the heirs of the mother. R. Zera said: In the established right of the ownership of the heirs of the son. When R. Zera went up [to Palestine] he adopted13 the principle of R. Elai.14 R. Zera said: From this15 one may deduce that the climate of the land of Israel makes one wise. And what is the reason?16 — Abaye replied: Because the inheritance17 has become the established possession of that tribe.18
BEN AZZAI SAID TO HIM: [IS IT NOT ENOUGH THAT] WE ARE SUFFERING FROM EXISTING DIVISIONS OF OPINIONS etc. R. Simlai said: This implies [that] Ben Azzai was disciple [and] colleague of R. Akiba [seeing] that he said to him, 'That you come'.19
[The following statement] was sent from Palestine:20 '[If] a son borrowed on [the security of] the estate of his father, during the lifetime of his father, and he died, his son may take away from the buyers; and this it is that presents a difficulty in civil law.'21 [If] he borrowed, [it may be asked.] what [is he to] take away? And, furthermore, what has he to do with buyers?22 — But, if that statement was made, thus
Original footnotes renumbered.
- Do the possessions to which Beth Hillel referred in our Mishnah, remain?
- Since the husband is entirely responsible for loss or profit and is also entitled to sell it, it is regarded as his possession and, consequently, on his death, it passes over into that of his heirs,
- Since it was she who brought it to him from her father's house.
- Between the heirs of the husband and those of the wife.
- Lit., 'upon him'.
- In her widowhood. Her heirs (e.g.. her brothers) plead that the son died first and that, consequently, his mother inherited his estate before she died, and they now inherit it from her, while his heirs (e.g., his paternal brothers) plead that the reverse had happened and that they, therefore, are entitled to the inheritance.
- Lit., 'these and these', Beth Shammai and Beth Hillel who are in disagreement on the cases in the Mishnah, supra 157a and 158a.
- Unlike the case of a father and son (Mishnah supra 157a), where one party claims possession as heirs and the other as creditors, or the case of a husband and wife (Mishnah. supra 158a), where certain kinds of property are in the legal ownership of the husband while others are in that of the wife, the case in our Mishnah deals with claims both of which are of equal strength, both being based on the right of inheritance, the widow being acknowledged as the undisputed possessor of the estate, the only point in doubt being whether the one party or the other is to be heir. As the equality of the claims leaves the question of ownership in equal doubt on either side, both schools are of the unanimous opinion that the estate in dispute must be divided.
- I.e., even in this case, the School of Hillel maintain the view they had advanced in the previous cases. 'I agree' may be paraphrased 'I agree to differ' (cf. Rashb.)
- Which are an obstacle to the formulation of the authoritative law.
- Since It was generally agreed that in the case spoken of in our Mishnah Beth Shammai and Beth Hillel are in agreement, why should R. Akiba introduce a note of discord by asserting that even here they are in dispute?
- Does the estate remain according to R. Akiba?
- Lit., 'stood'.
- 'Rabbah adopted the principle of R. Zera', which follows in current editions is to be deleted. (V. BaH, R. Gersh. and R. Han, a.l.) — [It is, however, well to remember that R. Elai was a Palestinian and that R. Zera must have become aware of R. Elai's view only after he came to Palestine when he was led to abandon his own opinion, whereas Rabbah, who still remained behind in Babylon, retained the view of his colleague, R. Zera. Considered in this light, the reading in our current editions is quite in order.]
- That in Palestine he was able to see the wisdom of R. Elai's decision.
- for R. Elai's decision that the heirs of the mother are entitled to the estate.
- The possessions of the widow from the moment her husband died.
- To which the mother belongs. Hence it must not be taken away from her heirs, who naturally belong to the same tribe, in favour of the son's heirs who may belong to another tribe and who would, consequently. alienate the property from the tribe the ownership of which had been established.
- And not, 'that our Master comes'.
- Lit., 'there'. v. supra p. 687, n. 12. The statement is unintelligible and is explained in the Gemara infra.
- Lit., 'laws of monies or money matters'.
- In the statement no sale but a loan was mentioned!