Babylonian Talmud: Tractate Baba Bathra

Folio 144a

a covered cistern¹  the proceeds²  are to be equally divided'; but [the proceeds of] a covered cistern [are surely] due to [the elder brothers] themselves!³  — A covered cistern is different, since It [only] requires watching⁴  and even minors can keep a watch over it.

THEY SAID, 'SEE WHAT [OUR] FATHER HAS LEFT; WE DESIRE TO CULTIVATE [OUR OWN SHARES] AND TO ENJOY THE PROFITS'. THE PROCEEDS BELONG TO THEM. R. Safra's father left [some] money. He took it [and] carried on with it a business. [Then] came his brothers and sued him before Raba.⁵  He said to them. 'R. Safra is a great man; he [is] not [expected to] leave his studies in order to toil for others'.⁶

[WHERE] THE WIFE HAD EFFECTED IMPROVEMENTS IN THE ESTATE. SHE IMPROVED IT FOR THE COMMON GOOD — What has a wife to do with the property of orphans?⁷ — R. Jeremiah replied: [The Mishnah speaks] of a wife [who is] an heiress.⁸  [Is this not] obvious?⁹  — It might have been assumed [that] since it is not usual for her to look after an orphan's estate¹⁰  [she is entitled to all the profits], even where she did not [first] make a specific declaration,¹¹  as if she had [actually] made [it], hence it [was necessary to] teach us [that this is not so].

IF [HOWEVER] SHE SAID,' SEE WHAT MY HUSBAND HAS LEFT ME; I DESIRE TO CULTIVATE [MY SHARE] AND TO ENJOY THE BENEFITS.' THE PROCEEDS BELONG TO HER. [Is not this] obvious? It might have been assumed [that] since it is creditable to her when people say that she works for the orphans. she might [consequently] forego her claims,¹²  hence it [was necessary to] teach us [that this is not so].

R. Hanina said: If a person marries his adult son in a house [of his], he¹³  acquires its ownership. But this only [in the case of] one [who is] of age, and only [where he married] a virgin, and only [when she is] his first wife, and only — where he is the first [son] whom he married.¹⁴

It is obvious [that] where his father had set aside for him¹⁵  a house and [there is] an upper story [thereon], [the latter] acquired the ownership of the house [but] not [of] the upper story. What [is, however, the law in the case of] a house and an exedra?¹⁶  [Or in the case of] two houses one within the other? — This is undecided.

An objection was raised: [If] his father had set aside for him a house and [it contains] furniture, he acquires possession of the furniture [but] not of the house! — R. Jeremiah replied: [This refers to a case] where, for instance, his father's store[s] were kept there.¹⁷  The Nehardeans say': Even [if only) a dove-cote.¹⁸  R. Judah and R. Papi say: Even [if only] a pot of fish-hash.¹⁹

Mar Zutra married his son and hung up²⁰  for himself²¹  a sandal.²²  R. Ashi married his son and hung up²⁰  for himself²¹  a jug of oil.²³

Mar Zutra said: The following three things have [been] enacted [by] the Rabbis as fixed law without [adducing any] reason. One [is] this.²⁴  The other [is that] which Rab Judah said in the name of Samuel, [namely that]. a [dying] man [who] gave all his property to his wife, in writing. [thereby] only appointed her adminstratrix.²⁵  [.And the] third²⁶  [is that] which Rab had stated: [If one said] 'You owe me a maneh; give it to X', in the presence of the three parties,²⁷  [X] acquires possession.²⁸

1. Heb. [H], 'a cistern and its cover' (Rashb. and R. Gersh.): a sprinkling business' (Jast.): 'a watchman's post' (R. Tam in Tosaf.. [For a full discussion of the term, v. Krauss, T.A. I, 273f, and III, 361]
2. Out of the sale of its water.
3. Since no expenses for its upkeep and protection are drawn out of the funds of the estate. And yet it is stated that the proceeds are to be equally divided. How then, could Raba say that if the improvement was at the expense of the elder brothers all the profits belong to them only?
4. Lit., 'was made for watching', i.e., no expenses are involved. and all the elder brothers have to do is to watch that no water is stolen from it.
5. Demanding a share in the profits.
6. When an elder brother is an important person, he is entitled to all the profits which are due to his efforts. even though he did not first make the proper declaration that he desired the estate to be divided and that he intended keeping to himself any profits he would make.
7. She either receives the amount of her kethubah(v. Glos.) after which she has no more claim upon the estate: or she looks after the property of the orphans in return for her maintenance. How, then, could she claim any profits resulting from improvements in the estate.
8. In the case, e.g.. where the deceased gave instructions that the widow shall be co-heir with his sons (Rashb.).
9. Why was it necessary for our Mishnah to restate it in the case of a widow, seeing that the law had already been stated in regard to brothers.
10. Lit., 'to take the trouble'.
11. Lit., 'specified'; that she desired the estate to be divided and that she intended to make the improvements in her interests alone.
12. Even though she first declared that she would work in her interests alone.
13. The son.
14. In such cases the father's joy is so great that he willingly and wholeheartedly gives away the house to his son.
15. His son: on the occasion of his marriage.
16. V. Glos.
17. Since he requires it for his own purposes he would not transfer its ownership to his son.
18. Of the father is kept in the house, the son does not acquire ownership of the house.
19. Cf. n 6.
20. In the house where the marriage took place.
21. To indicate to his son that the house was not to become his property.
22. The sandal, like any of the other objects mentioned above is regarded for this purpose as a store.
23. Cf. n. 10
24. The ruling just mentioned, that a son acquires the ownership of a house of his father in which his marriage took place, even if the father did not explicitly present it to him.
25. V. supra 131b.
26. Lit. 'other'.
27. I.e., the debtor, the creditor, and X, the assignee.
28. Though there were no proper witnesses and no legal form of acquisition, the transfer of the claim is valid. This rabbinic law, which is declared to be arbitrary and based on tradition alone, recognises the transfer of claims to a third party, though this is not provided for by Biblical Law.

MISHNAH. IF ONE OF THE BROTHERS WHO ARE PARTNERS [IN THE INHERITED ESTATE]¹  WAS APPOINTED²  TO A GOVERNMENT POST³  THE INCOME FROM THE APPOINTMENT IS TO BE EQUALLY DIVIDED BETWEEN ALL THE BROTHERS.⁴  [IF ONE OF THEM] CONTRACTED A DISEASE AND HAD HIMSELF CURED, THE [EXPENSES OF THE] CURE [MUST BE DEFRAYED] OUT OF HIS OWN.

GEMARA. A Tanna taught: The appointment⁵  [in our Mishnah means] a government appointment.⁶

Our Rabbis taught: [In the case where] one of the brothers was appointed [tax] collector or overseer,⁷  if [the appointment was] due to the brothers⁸  [the income⁹  belongs] to the brothers; if [the appointment was] due to himself¹⁰  [the income belongs] to himself. 'If [the appointment was] due to the brothers', [it was said). [the income belongs] to the brothers'; [is not this] obvious! — This is required only [in the case] where he is exceptionally' smart [since] it might have been said [that] his smartness had caused him [to receive the appointment].it was necessary to teach us [that this is not so].

Our Rabbis taught: [If] one of the brothers took [from an inherited estate]¹¹  two hundred zuz to study Torah or to learn a trade. the brothers can tell him:¹²  'If you are with us you [can] have [your] maintenance; if you are not with us. you [can] have no maintenance'. But let them give [it] to him wherever he is? — This [is proof] in support of R. Huna. For R. Huna said, 'The blessing of a house [is proportionate] to its size'¹³  Then let them give him according to the blessing of the house!¹⁴ — That is so.¹⁵

[IF ONE OF THEM] CONTRACTED A DISEASE AND HAD HIMSELF CURED, THE [EXPENSES OF THE] CURE [MUST BE DEFRAYED] OUT OF HIS OWN. Rabin sent in the name of R. El'a: This applies only¹⁶  [to the case] where he contracted the disease through [his own] negligence. but [if] by accident the [cost of the] cure is [defrayed] from the common funds. What is meant by negligence? — As R. Hanina [taught]. For R. Hanina said:¹⁷  Every' thing is in the power of heaven except [illness through] cold [or] heat; for it is said, Cold [and] heat¹⁸  are in the way of the froward. he that keepeth his soul holdeth himself far from them.¹⁹

MISHNAH. IF SOME OF THE BROTHERS HAVE BESTOWED GIFTS AS GROOMSMEN²⁰  IN THE LIFETIME OF [THEIR] FATHER²¹  [WHEN] THE WEDDING GIFTS ARE RECIPROCATED²²  THEY REVERT TO THE COMMON FUNDS OF THE ESTATE; FOR [THE RECIPROCATION OF] WEDDING GIFTS MAY BE CLAIMED THROUGH A COURT OF LAW.²³  IF, HOWEVER, ONE HAS SENT TO HIS FRIEND JARS OF WINE OR JARS OF OIL,²⁴  HE CANNOT CLAIM THEM²⁵  THROUGH A COURT OF LAW, BECAUSE [THE PRESENTATIONS OF] SUCH [GIFTS] ARE [MERE ACTS OF] LOVINGKINDNESS.²⁶

GEMARA. A contradiction was raised: [If] his father had sent [through] him²⁷  a wedding gift. the reciprocated gift returns to him.²⁷  [If] a wedding gift was sent²⁸  to his father, the reciprocated gift²⁹  is to be returned³⁰  from the common funds!³¹ — R. Assi replied in the name of R — Johanan: Our Mishnah also speaks³²  [of the case where the gift] was sent to his father. But, surely it was stated, IF SOME OF THE BROTHERS ACTED AS GROOMSMEN! — Read, 'TO SOME'.³³  But. Surely. it was taught. [WHEN] THE WEDDING GIFTS ARE RECIPROCATED! — It means this: [When] it has to be reciprocated, it is returned from the common funds. R. Assi said: There is no difficulty:³⁴  Here³⁵  [it is a case] where [the father] did not specify;³⁶  here³⁷  [it refers to the case] where he did specify; as It was taught: If his father sent wedding gifts [through] him,³⁸  the reciprocated gift belongs to him.³⁹  If his father. [however.] sent wedding gifts without specifying [which son was to take them], the reciprocated gift reverts to the common estate.⁴⁰

And Samuel explained: Here⁴¹  it is a case of a levir⁴²  who is not [entitled] to receive the prospective possessions⁴³  of his dead brother' as those which he already possessed.⁴⁴  Does this then imply that the other⁴⁵  must repay;⁴⁶  [why could] he [not] say. 'Give me my shoshbin and I will rejoice with him'?⁴⁷  Has it not been taught. 'Where it is the custom to return⁴⁸  the [token of] betrothal⁴⁹  it [must] be returned, [and] where the custom is not to return. it [need] not [be] returned'; and R. Joseph b. Abba said in the name of Mar 'Ukba in the name of Samuel, 'This applies only to the case⁵⁰  where she died but [where] he died it [need] not [be] returned. What is the reason? Because she can say:

1. I.e., before the estate has been divided between them.
2. Lit., 'fell'.
3. [H] Lit., 'handicraft', 'trade' 'workmanship': a form of compulsory service exacted by the Roman government from different households in turn. Barth, J., Etym. Studies 60, connects the word with Assyrian umanate, 'troop'. 'army'.
4. Lit., 'he fell for the middle or common funds'. Since his appointment is due to his membership of the family all its members are entitled to its benefits, (v. however n. 7 and 9 infra).
5. V. note 3.
6. In the case. however, of a private appointment, the earnings belong to himself.
7. [H] Polemostos. Thus Rashb. and R. Gersh. 'soldier'(R. Han.). 'Manager' or 'commissioner (Jast.) reading epimletes. [H] [G][The word is also explained as Politeuomenos=Decurio, and we have here a reference to the heavy expenses which were attached to the office of Boule under the Roman government, the question under consideration being in the case when a brother is called upon to represent his brothers, living with him on the common estate of their father, on the Boule, whether the expenses involved are to he borne by all or by the brother thus nominated alone. V. Buchler, op.cit., 40.]
8. I.e., if such government appointments are made from every family in turn.
9. Or expenses involved
10. To his own merits or attainments.
11. Before it had been divided.
12. If he expects maintenance from them while he is away from home in pursuit of his studies or trade.
13. Keth. 101a. The more the members of a household the cheaper the cost of living. The absent brother has consequently saved little by his departure while the amount he requires for his maintenance is incomparably higher than what would have been the case had he remained with the family.
14. I.e., if the full cost of his maintenance has not been saved by his departure. let that portion of it which is being saved be given to him.
15. He does get that portion.
16. Lit., 'they did not teach but'.
17. B.M. 107b; A.Z. 3b: Keth. 30a.
18. Heb., Pahim. [H] (Cf. [H], coal). Others render zinim pahim, [H] 'blowing cold winds'. (Cf. [H], cold and [H] blow)
19. Prov. XXII, 5 E.V., Thorns and snares are in the way etc.
20. Groomsmen (shoshbinin). in addition to acting as best men or companions of the groom, also brought him presents (shoshbinuth). Their services and gifts were reciprocated on the occasion of their marriages. [On shoshebin, V. Krauss, TA. II, 458. He connects it with [H] 'twig' and 'branch', alluding to the myrtles which formed a feature of marriage ceremonies. and which were entrusted to the shoshebin. Cf. [G].]
21. Who defrayed the cost of the presents.
22. On the occasion of the marriage of one of the sons after their father's death.
23. The gifts are consequently regarded as a loan and as part of the common estate.
24. As an ordinary gift: not as that of a shoshbin.
25. Lit.. 'they cannot he collected'.
26. The recipient does not incur any liability'.
27. His son who was a shoshebin.
28. By a shoshbin.
29. That is sent after the father's death on the occasion of that groomsman's marriage.
30. A reciprocated wedding gift being regarded as a loan. (V supra note 3), it is the duty of the orphans to repay it as any other of the debts of their father.
31. From the first part of this Baraitha it follows that a reciprocated wedding gift belongs to the son through whom the father had sent the original gift; how, then, could it be stated in our Mishnah that a reciprocated gift reverts not to the son but to the common estate?
32. Lit., 'when we learnt'.
33. I.e., when a gift sent in return for the one made by their father reached them.
34. Even if the meaning of the Mishnah is taken as it is read.
35. In our Mishnah.
36. Which son was to act as shoshbin (R. Gersh.) Hence. the reciprocated gift reverts to the common estate.
37. In the cited Baraitha.
38. One of his sons.
39. The son who acted as shoshbin.
40. Though one of the sons had acted as the shoshbin and carried the presents.
41. Our Mishnah according to which the reciprocated gift reverts to the common estate.
42. The husband's brother, who, in accordance with Deut. XXV, 5, married the widow of his brother who died childless and who, had he been alive, would have been entitled as shoshbin to the reciprocated gift.
43. The reciprocated gift is the prospective property of the dead brother, which the brother who married his widow cannot inherit, though he inherits all property that was in his brother's possession prior to his death.
44. Hence the gift reverts to the common estate.
45. The original recipient of the gifts from the dead brother.
46. To the heirs of him who presented him with the gifts.
47. He should only be expected to reciprocate, i.e., to act as best man for his friend as the latter had acted for him, but not to send presents to heirs who have no claims on him.
48. In the case where the bride died before the marriage took place (as explained infra).
49. The token of betrothal, consisting of money or any object of value, which the man gives to the woman at betrothal, whereby the union was legalised.
50. Lit., 'they did not teach but'.