Babylonian Talmud: Tractate Kethuboth

Folio 91a

but they differ here on [the question whether it is necessary for the surplus] denar to consist of real estate. The one Master¹  holds that only real estate is regarded as a surplus²  but not movables³  and the other Master⁴  holds that even movables [are regarded as surplus].⁵  But can you say so?⁶  Have we not learned, R. Simeon ruled: Even if there was movable property⁷  it is of no avail⁸  unless there was landed property [of the Value of] one denar more than [the total amount of] the two kethubahs?⁹  — [The fact,] however, is that they¹⁰  differ here on [the question whether] a denar of mortgaged property [is regarded as a surplus]. One Master¹¹  holds that only free property constitutes a surplus¹²  but not mortgaged property, and the other Master¹³  holds that mortgaged property also [constitutes a surplus]. If so,¹⁴  [instead of stating,] 'R. Simeon ruled: If there is a surplus of one denar', should it not have been stated, 'Since there is a surplus of one denar'? — The fact, however, is that they¹⁰  differ on [the question whether a sum] less than a denar [constitutes a surplus]. One Master¹⁵  is of the opinion that only a denar constitutes a surplus¹⁶  but not a sum less than a denar, and the other Master¹⁷  holds that even less than a denar [constitutes a surplus]. But did not R. Simeon, however, say 'a denar'? And were you to reply. 'Reverse [their views]',¹⁸  does not the first Tanna of the Mishnah¹⁹  [it may be retorted] also speak of a denar?²⁰  — The fact, however, [is that we must follow] on the lines of the first two explanations. and reverse [the views].²¹

Mar Zutra stated in the name of R. Papa: The law [is that where] one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the 'male children' kethubah, and that one kethubah²²  is regarded as the surplus over the other. [Now] granted that if we had been told that '[where] one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the "male children" kethubah', but had not been told that 'one kethubah is regarded as the surplus over the other' it might have been presumed [that the former law applied] Only where the surplus amounted to a denar but not otherwise.²³  [Why,] however, could we [not have] been informed [of the second law only, viz., that] 'one kethubah is regarded as the surplus over the other', and it would have been self-evident,²⁴  [would it not, that this ruling was] due to [the law that 'where] one [wife died] during her husband's lifetime and the other after his death [the sons of the former] are entitled to the "male children" kethubah'?²⁵  — If we were given the information in such a manner, [the law] might have been presumed [to apply to a case,] for instance, where a man had married three wives of whom two died during his lifetime and one after his death, and the last mentioned had given birth to a daughter who is not entitled to heirship.²⁶  but [not to the case where] one [wife died] during her husband's lifetime and the other after his death and the latter had given birth to a son, [since in this case] the possibility of a quarrel²⁷  might have to be taken into consideration,²⁸  hence we were taught [that even in this case one kethubah²⁹  is regarded as surplus over the other].³⁰

MISHNAH. IF A MAN WAS MARRIED TO TWO WIVES AND THEY DIED, AND SUBSEQUENTLY HE HIMSELF DIED, AND THE ORPHANS [OF ONE OF THE WIVES]³¹  CLAIM THEIR MOTHER'S KETHUBAH³²  [BUT THE ESTATE OF THE DECEASED HUSBAND] IS ONLY ENOUGH³³  [FOR THE SETTLEMENT OF THE] TWO KETHUBAHS³⁴  [ALL THE ORPHANS] RECEIVE EQUAL SHARES.³⁵  IF THERE WAS A SURPLUS³⁶  OF [A MINIMUM OF] ONE DEN A R,³⁷  EACH GROUP OF SONS³⁸  RECEIVE THE KETHUBAH OF THEIR MOTHER.³⁹  IF THE ORPHANS [OF ONE OF THE WIVES]⁴⁰  SAID, 'WE ARE OFFERING FOR OUR FATHER'S ESTATE ONE DEN AR MORE [THAN THE TOTAL AMOUNT OF THE KETHUBAHS]', IN ORDER THAT THEY [MIGHT THEREBY BE ENABLED TO] TAKE THEIR MOTHER'S KETHUBAH⁴¹  THEIR REQUEST IS DISREGARDED⁴²  AND⁴³  THE ESTATE IS [PROPERLY] VALUED AT THE BETH DIN. IF THE ESTATE INCLUDED⁴⁴  PROSPECTIVE PROPERTY,⁴⁵  IT IS NOT [REGARDED] AS [PROPERTY HELD] IN ACTUAL POSSESSION.⁴⁶  R. SIMEON RULED: EVEN IF THERE WAS MOVABLE PROPERTY⁴⁷  IT IS OF NO AVAIL⁴⁸  UNLESS THERE WAS LANDED PROPERTY [WORTH] ONE DENAR MORE THAN [ THE TOTAL AMOUNT OF] THE TWO KETHUBAHS.

GEMARA. Our Rabbis taught: If one wife had⁴⁹  [a kethubah for] a thousand [zuz] and the other for five hundred, each group of sons⁵⁰  receive the kethubah of their mother provided a surplus of one denar was available; otherwise, they must divide the estate in equal proportions.

It is obvious [that if⁵¹  the estate was] large⁵²  and⁵³  it depreciated,⁵⁴  the heirs have already⁵⁵  acquired ownership thereof.⁵⁶  What, [however, is the ruling where the estate was] small and it appreciated?⁵⁷  — Come and hear the case of the estate of the house of Bar Zarzur which was small and it appreciated, and when [the heirs] came [with their suit] before R. Amram he said to them, 'It is your duty⁵⁸  to satisfy them'.⁵⁹  As they disregarded [his ruling] he said to them, 'If you will not satisfy them I will chastise you with a thorn that causes no blood to flow'.⁶⁰  Thereupon he sent them to R. Nahman, who said to them 'Just as [in the case where an estate was] large and it depreciated

1. The first Tanna.
2. Lit., 'yes'.
3. As in the case under dispute the surplus consisted of movables the first Tanna denies the sons of the first wife all rights to their mother's kethubah,
4. R. Simeon,
5. Hence his ruling that where there is a surplus (even if it consists of movables) the sons of the first wife, like those of the second, are entitled to the payment of their mother's kethubah,
6. That R. Simeon regards movables also as a surplus.
7. Lit., 'property which has no security'.
8. As far as the calculation of a surplus is concerned,
9. V. the Mishnah infra.
10. R. Simeon and the first Tanna.
11. The first Tanna,
12. Lit., 'yes'.
13. R. Simeon.
14. That the Baraitha under discussion deals with a case where there is a surplus of one denar and that R. Simeon relaxes the ruling of the first Tanna by regarding that denar as surplus even if it represents mortgaged property.
15. The first Tanna.
16. Lit., 'yes'.
17. R. Simeon.
18. I.e., that in the opinion of the first Tanna the sons of the first wife are deprived of their mother's Kethubah (cf. supra p. 578, n. 7) only where there is no surplus at all, but if there is one, even if of less than a denar, they are entitled to her kethubah, while according to R. Simeon they are entitled to her kethubah only if the surplus amounts to a denar (so Tosaf. s.v. [H] a.l. contrary to Rashi).
19. Infra, who is in dispute with R. Simeon and who is identical with the first Tanna of the Baraitha (supra 90b) under discussion.
20. How' then can it be suggested (cf. supra note 4) that the first Tanna admits a surplus of less than a dear?
21. Cf. supra note 4 mutatis mutandis. The first Tanna deprives the sons of the first wife of her kethubah only where there is no surplus at all but if there is one, even though it consists of movables or mortgaged property. they are to receive her kethubah, while R. Simeon allows them their mother's kethubah only where the denar surplus consists of landed and free property (cf. Tosaf. s.v. [H]). The previous objection against the expressions 'if' instead of 'since' (cf. supra p. 579' n. 16) does not arise since R. Simeon is more restrictive than the first Tanna.
22. That is paid to the heirs of the wife who bad survived her husband and whose kethubah has the status of a debt.
23. Lit., 'if there is a surplus of a denar, 'yes'; if not, 'not'. Hence one can well understand the necessity for the statement of the second law also.
24. Lit., 'and I would know'.
25. Since it is such a case only. where one kethubah has the status of a debt, that could give rise to this law. Where both wives died doting their husband's lifetime the sons of both have obviously equal rights of inheritance and the question of surplus to satisfy the Pentateuchal law of inheritance does not arise.
26. In respect of her father's estate. As her claim is restricted to bet mother's kethubah alone, not being entitled to a share in the residue of bet father's estate after her mother's kethubah had been paid. no quarrels between bet and the sons of the two other wives could possibly arise on that account. Hence it is lawful for the sons whose mother's kethubah was larger to collect their due by pointing to the sum paid to the daughter (in settlement of her mother's kethubah which has the status of a debt) as the surplus which satisfied the Pentateuchal law of inheritance.
27. Between that son and his brothers, all of whom have the same rights to their father's estate; v. supra p. 574. n. 8.
28. I.e., it might have been presumed that in order to obviate such a quarrel it may have been enacted that in such a case the second kethubah is not regarded as a surplus and all the sons share equally, after the payment of the second kethubah, the residue of their father's estate.
29. V. supra p. 580, n. 8.
30. The possibility of a quarrel does not affect the rights of the sons of the first wife.
31. Whose kethubah was for a larger sum than that of the other.
32. As heirs of their mother, by virtue of the 'male children' clause (v. Mishnah, supra 52b); while the other heirs demand a division in equal portions on the ground that, irrespective of their mother's 'male children' kethubahs, as sons of the deceased they are entitled to equal shares in his estate.
33. Lit., 'and there is not there but'.
34. So that, if their demand is complied with, the brothers would be receiving their respective shares of their mother's kethubahs in virtue of the 'male children' clause, thus allowing no scope for the operation of the Biblical law of succession.
35. As heirs of their father with equal rights to his estate.
36. After the two kethubahs had been paid.
37. So that the pentateuchal law of succession could be applied to it.
38. Lit., 'these … and these'.
39. And the residue of the estate (amounting to not less than one denar) is then divided between all the sons in equal portions.
40. V. supra note 1.
41. Cf. supra notes 4-9 and text.
42. Lit., 'they do not listen to them'.
43. Lit., 'but'.
44. Lit., 'there were there'.
45. Such, for instance, as an expected inheritance from the orphan's grandfather who survived their father, or an outstanding debt of their father's which would fall due only at some time in the future.
46. The existing estate must accordingly be divided equally amongst all the sons of the deceased though the addition of the prospective property would have provided a surplus.
47. Cf. supra p. 579, n. 9.
48. Cf. loc. cit. n. 10.
49. Lit., 'to this',
50. Lit., 'these … and these'.
51. At the time the father died,
52. I.e., its value exceeded the total amount of the kethubah by not less than a denar,
53. When it was valued at the court.
54. So that no surplus remained after deduction of the amounts of the kethubahs,
55. At the moment of their father's death, when there was a surplus (v. supra note 4).
56. The sons of the wife whose kethubah was for the larger amount are, therefore, entitled to the larger sum though at the time of the division of the property there was no longer any surplus.
57. V. supra notes 2-5. Are the sons who claim the larger kethubah now entitled to it as if the surplus had been available at the time of their father's death, or is a claim once lost never recoverable?
58. Lit., 'go'.
59. The sons of the woman whose kethubah was for the larger amount,
60. Metaph. He would place them under the ban.

the heirs have already acquired ownership thereof, so [also where the estate was] small and it appreciated the other heirs¹  have already²  acquired ownership thereof.³

(Mnemonic:⁴  A thousand and a hundred duty in a kethubah, Jacob put up his fields by words [of] claimants.) A man against whom there was a claim of a thousand zuz had two mansions each of which he sold⁵  for five hundred zuz. The creditor thereupon came and distrained on one of them and then he was going to distrain on the other. [Whereupon the purchaser] took one thousand zuz, and went to [the creditor] and said to him, 'If [the one mansion] is worth to you one thousand zuz, well and good; but if not, take your thousand⁶  zuz and go'.⁷  Rami b. Hama [in dealing with the question] proposed that this case was exactly analogous to that in our Mishnah: IF THE ORPHANS [OF ONE OF THE WIVES] SAID, 'WE ARE OFFERING FOR OUR FATHER'S ESTATE ONE DENAR MORE'.⁸  But Raba said to him, 'Are the two cases at all alike? There⁹  the orphans¹⁰  would be suffering a loss, but here, does the creditor suffer any loss? He only advanced a thousand zuz and a thousand zuz he receives

And for what amount is the tirpa¹¹  made out?¹²  — Rabina said: For a thousand zuz. R. 'Awira said: For five hundred. And the law is [that the tirpa is made out] for five hundred.

A certain man against whom someone had a claim for a hundred zuz had two small plots of land each of which he sold⁵  for fifty zuz. His creditor came and distrained on one of them and then he came again to distrain on the other. [The purchaser. thereupon.] took a hundred zuz and went to him and said, 'If [one of the plots] is worth a hundred zuz¹³  to you. well and good; but if not, take the one hundred zuz and go'.¹⁴  R. Joseph [in considering the question] proposed to say that this was a case exactly analogous to that in our Mishnah: IF THE ORPHANS [OF ONE OF THE WIVES] SAID¹⁵  etc. But Abaye said to him, 'Are the two cases at all alike? There the orphans would have suffered a loss, but here, what loss would [the creditor] have? He lent a hundred and receives a hundred'.

For what amount is the tirpa made out? — Rabina said: For a hundred. R. 'Awira said: For fifty. And the law is [that it is made out] for fifty.

A certain man against whom there was a claim for a hundred zuz died and left a small plot of land that was worth fifty zuz. As his creditor came and distrained on it the orphans went to him and handed to him fifty zuz. Thereupon he distrained on it again. When they came [with this action] before Abaye. he said to them, 'It is a moral duty incumbent upon orphans¹⁶  to pay the debt of their father.¹⁷  With the first payment you have performed a moral duty. and now that he has seized [the land again] his action is perfectly lawful',¹⁸  This ruling. however, applies only in the case where [the orphans] did not tell him,¹⁹  'These fifty zuz are for the price of the small plot of land', but if they did tell him, 'these fifty zuz are for the price of the small plot of land',²⁰  they have thereby entirely dismissed him,²¹

A certain man²²  once sold the kethubah of his mother²³  for a goodwill [price]²⁴  and said to [the buyer], 'If mother comes and raises objections I shall not pay you any compensation'.²⁵  His mother then died having raised no objections. but he himself²⁶  came and objected.²⁷  Rami b. Hama [in discussing the case] proposed to decide that he²⁸  takes the place of his mother. Raba, however, said to him: Granted that he did not accept any responsibility for her action, did he not accept responsibility for his own action either?²⁹

Rami b. Hama stated: If Reuben³⁰  sold a field to Simeon³⁰  without a guarantee³¹  and Simeon then re-sold it to Reuben with a guarantee

1. Whose mother's kethubah was for the smaller amount.
2. At the moment their father died, when there was 110 surplus.
3. Cf. supra note 8 mutatis mutandis,
4. The words or phrases of the mnemonic correspond to striking terms in the successive rulings that follow,
5. To one person after he had incurred his debt.
6. The sum which the seller owed him,
7. I.e., 'give up both mansions',
8. As the offer of the orphans is rejected on account of its excessive nature, so is the purchaser's demand of the excessive valuation of the one mansion also to be rejected.
9. Our Mishnah.
10. The sons of the woman whose kethubah was for the lesser amount.
11. [H] (rt. [H] 'to seize'), a document issued by a court of law to a claimant (e.g.. a creditor, or a purchaser on whom, as in this case, the seller's creditor has distrained) who is unable to collect his due from the defendant (in this case, the seller), authorizing him to trace his property (including any land the defendant may have sold after the liability in question had been incurred by him) for the purpose of seizing it eventually in payment of his claim.
12. Lit., 'do we write'. Where the creditor was willing to accept the one mansion from the purchaser in settlement of his claim of one thousand zuz, is it for the five hundred zuz which the purchaser has actually lost, or is it for the one thousand zuz, the amount of the debt he has settled?
13. The sum which the seller owed him.
14. I.e., return both plots.
15. Cf. supra p. 584. nn. 5-9 mutatis mutandis.
16. Though such a duty cannot be enforced by a court of law.
17. As a mark of respect for his memory.
18. Since a debtor's landed property is pledged for his debts.
19. The creditor, when they paid him the first fifty zuz.
20. Thus pointing out that the money was not intended as a payment of the debt.
21. He cannot again seize the land which is now the absolute property of the orphans.
22. Whose mother married again after his father's death.
23. During her second husband's lifetime.
24. [H] (cf. supra p. 542, n. 4). A very small price only would be paid for such a kethubah, the purchase of which must be in the nature of a mere speculation, since the mother might die during the lifetime of her husband who would inherit it or the son might pre-decease his mother and never come Into Its possession. in both of which eases the purchaser would lose all he paid.
25. Lit., 'I will not come to your rescue' (rt. [H] in Pa. 'to free, save, rescue separate by force'). i.e., he accepted no responsibility whatsoever for the safety of the money advanced.
26. As the heir of his mother.
27. Contending that as he had accepted no responsibility he may now, like his mother, himself object to the sale and thus procure the amount of the kethubah for himself.
28. The son.
29. Of course he did. Though he may well cancel the sale on the ground that it was invalid because it had taken place before he (the seller) was in possession of the inheritance (cf. B.M. 16a), he must nevertheless refund to the buyer the full price he had received whatever it may have been. (For an alternative interpretation v. Rashi a.l., second explanation. and cf. Tosaf s.v. [H] a.l.).
30. The names of the first two sons of Jacob (cf. Gen. XXIX, 32f) are taken as fictitious names for 'seller' and 'buyer' respectively.
31. For compensation in ease of distraint by a creditor.