Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 18a

what is the meaning of the term, '[She] exacts payment of all [that is due to her],' seeing that she is only entitled to a hundred or two hundred zuz¹  [and no more]? Again, if [you will say that we derive the law] from that which R. Hiyya b. Ammi learnt: 'If the betrothed wife [of a priest dies] he [the priest] is not deemed a mourner²  nor is he allowed to defile himself.³  In similar circumstances the woman is not deemed a mourner and is not obliged to defile herself⁴  [if he dies]. [Also] if she dies he does not inherit her [property];⁵  if he dies she exacts the payment of her Kethubah'⁶  — [it could be objected]: perhaps [this refers to a case where the betrothed man] had written her [a Kethubah]. And if you will argue: If he wrote her a Kethubah what need is there to tell us [that she may exact payment]? [I will answer]: It is necessary [to let us know that] if she dies he does not inherit her [property]!⁷  — [It must therefore be said that Abaye corrected himself because of what the Mishnah⁸  itself Says, [and he argued thus]: If you held the view that we deal here with a place where no Kethubah is [usually] written, the [production of the] bill of divorcement having [there] the same effect as [the production of] her Kethubah,⁹  [it could be refuted by the question]: Does a bill of divorcement contain [the figures] 'one hundred zuz' or 'two hundred zuz'?¹⁰  And if you will Say: seeing that the Rabbis have provided [that the production of the bill of divorcement entitles the woman] to exact payment it is just as if [the figures] were written in it, the objection could still be raised: Let him [the husband] plead and say, 'I have [already] paid up.' And if you will argue that we could say to him, 'If you paid you should have torn up [the bill of divorcement],' [the answer would be:] They could reply, 'She did not let me [tear it up], as she said: I wish to keep it [as evidence that I am free] to marry again.' And if you will argue [further]: 'We could say to him, You should have torn it¹¹  and have written on it: This bill of divorcement has been torn by us, not because it is an invalid bill, but to prevent it being used for the purpose of exacting payment a second time,' [the answer would be:] Do all who exact payment [of a debt] exact such payment in a Court of Law?¹²

MISHNAH. IF ONE FINDS BILLS OF DIVORCEMENT OF WIVES, [DEEDS OF] LIBERATION OF SLAVES, WILLS, DEEDS OF GIFT, AND RECEIPTS, ONE SHALL NOT RETURN THEM, FOR I SAY, THEY WERE WRITTEN, BUT HE [WHO ORDERED THEM TO BE WRITTEN] CHANGED HIS MIND [AND DECIDED] NOT TO HAND THEM OVER.

GEMARA. [If] the reason why [bills of divorcement are not returned] is that [we say], HE CHANGED HIS MIND [AND DECIDED] NOT TO HAND THEM OVER, then [we must assume] that if he [who lost the document] says [to those who found it], 'Give it [to the wife]', it is given [to her]¹³  even after a long time, but the following contradicts it: If one has brought a bill of divorcement [in order to deliver it on behalf of the husband] and has lost it, [the law is that] if it is found immediately¹⁴  it is valid, if not,¹⁵  it is invalid!¹⁶  — Rabbah said: It is no contradiction: There [the reference is] to a place where caravans pass frequently;¹⁷  here [in our Mishnah the reference is] to a place where caravans do not pass frequently. And¹⁸  even in a place where caravans pass frequently this [law¹⁹  only applies to a case] where two [persons called] 'Joseph ben Simeon'²⁰  are known to be in the same town.²¹  For if you did not maintain this, there would be a contradiction in Rabbah's own words, [as the following incident shows:] A bill of divorcement was once found in R. Huna's court-house, and in it was written, 'At Shawire,²²  a place [situate] by the canal Rakis.' R. Huna said:

1. One hundred in the case of a widow, and two hundred in the case of a virgin, which become due when the husband divorces her or dies.
2. [H], the designation of a mourner between the time of the death of a relative and the burial (after which he becomes an [H]). During that period of mourning a priest is not allowed to partake of sacrificial meat or other holy food. But mere erusin does not constitute relationship to the extent that the death of the betrothed woman should render the laws of mourning applicable to the bereaved priest.
3. Cf. Lev. XXI, 1-4. A wife is regarded as [H] ('his flesh', cf. Gen. II, 24) for whom a priest may defile himself, but not a betrothed woman.
4. The laws of defilement do not apply to a woman, whether she be the wife or the daughter of a priest (as the text speaks of 'the sons of Aaron', not the daughters or wives). On the other hand it is the duty of both men and women, whether of priestly descent or not, to attend to the burial of their dead relations, but betrothal does not constitute relationship in this respect, and there is no obligation on the part of a woman (or a man) to attend to the burial of her (or his) betrothed.
5. While a husband inherits his deceased wife's property (cf. B.B. 111b) he does not inherit the property of his betrothed.
6. Yeb. 29b; Sanh. 28b.
7. As this law had to be stated, the matter of the Kethubah is also mentioned.
8. Of Keth. 88b cited above.
9. So that it may be argued that the Kethubah is due to be paid, not because of the provision of the Rabbis, but because the bill of divorcement constitutes a written document, on the strength of which the money can be claimed.
10. It cannot be maintained that the bill of divorcement constitutes a document by means of which the payment of the Kethubah can be exacted, as such a document, if used for the purpose of collecting a debt, would have to state the amount due to be collected, and a bill of divorcement contains no such statement.
11. I.e., made a tear in it, without destroying it. This is usually done to a bill of divorcement after it has been handed to the woman.
12. It is only when payment is made in a Court of Law that one can expect the document to be endorsed in the way suggested, but people do not always pay their debts in Court. So that even if it be admitted that the mere production of the bill of divorcement entitles the woman to demand payment of the amount of the Kethubah just as if the amount were stated in the bill, one could not maintain that the husband would not be believed if he pleaded 'I have paid already,' seeing that he has good reason for not having had destroyed the bill of divorcement on payment. It must therefore be assumed that the reason why payment of the Kethubah can be enforced against the plea of the husband is that it is based on an enactment of the Courts, and in accordance with the dictum of R. Johanan given above.
13. And we do not apprehend that this is a different bill which another person has lost, and that the names in the document refer to other persons who happen to have had the same names as those given in the document which was lost and found.
14. So that there is no interval during which someone else may have lost a similar document in the same place.
15. If it is not found immediately, but after an interval, during which a caravan may have passed through the place and halted there for a meal.
16. As a member of the caravan may have lost it, and by some coincidence the names in the two documents may have been identical (Mishnah Git. 27a).
17. The reference in Git. is to a place where caravans often pass through, and there is a likelihood of the bill having been dropped by a member of one of these travelling companies, but our Mishnah here deals with a case where there is no such likelihood.
18. [What follows is a Talmudic comment on Rabbah's statement.]
19. Viz., that a bill of divorcement is invalid if found after a long time.
20. A common name often given in the Talmud as one likely to be borne by two persons in the same town.
21. I.e., in the town where the document was issued.
22. [Near Sura, v. Obermeyer, Die Landschaft Babylonian, p. 299.]

We apprehend that there may be two places called Shawire.¹  R. Hisda then said to Rabbah: Go and consider it carefully, for in the evening R. Huna will ask you about it. So he went and examined it thoroughly, and he found that we had learnt [in a Mishnah]: Every document endorsed by the Court shall be returned.²  Now, R. Huna's court-house is surely like a place where caravans pass frequently,³  and yet Rabbah decided that [the document] should be returned. We must therefore say that '[only] if two persons called 'Joseph ben Simeon' are known to be there it is so,⁴  [but] if not, [it is] not [so]'.⁵  Rabbah decided an actual case where a bill of divorcement was found among the flax in pumbeditha in accordance with his teaching.⁶  Some say where flax was sold,⁷  and it was [a case where two bearing the same name] were not known to be [in the place], although caravans were frequent there; others say [it was the place] where flax was steeped, and even though [two persons bearing the same name] were known to be [in the place, the bill had to be returned] because caravans were not frequent there.⁸

R. Zera pointed out a contradiction between our Mishnah and a Baraitha, and then explained it: We learnt [in the Mishnah]: If one has brought a bill of divorcement [in order to deliver it on behalf of the husband] and has lost it, [the law is that] if it is found immediately, it is valid, if not, it is invalid. This contradicts [the following Baraitha]: If one finds in the street a bill of divorcement it shall be returned to the woman when the [former] husband admits [its genuineness], but if the husband does not admit [its genuineness] it shall not be returned to either of them.⁹  At all events it says, 'When the husband admits [its genuineness] it shall be returned to the woman' — [obviously] even after a long time! — And [R. Zera] explained it [by saying]: There¹⁰  [the reference is] to a place where caravans pass frequently, but here¹¹  [the reference is] to a place where caravans do not pass frequently. Some say that it is only when [two persons bearing the same name] are known to be [in the place]¹²  that we do not return [the bill],¹³  and this is [in accordance with] the view of Rabbah. Others say that even if [two persons bearing the same name] are not known to be in the place we do not return [the bill] — contrary to the view of Rabbah. Now, we can well understand why Rabbah did not argue like R. Zera,¹⁴  as he [Rabbah] deemed it more important to point out the [apparent] contradiction between our Mishnah [and the other Mishnah],¹⁵  but why did not R. Zera argue like Rabbah?¹⁶  — He will answer you: Does our Mishnah teach [expressly], 'But if he says, Give it [to the wife], it is given to her, even after a long time'? It may be that the meaning is: If he says, 'Give it [to the wife]' it is given to her, but only immediately,¹⁷  as we have assumed all along.¹⁸  According to the version of him who says that the view of R. Zera is that in a place where caravans are frequent [the document shall not be returned] even if there are no [two persons] known to be [in the place where the document was issued], and that [R. Zera thus] differs with Rabbah — wherein do they differ? — Rabbah holds that when the Mishnah states that 'Every document endorsed by the Court shall be returned',¹⁹  it deals with [a document] which was found in Court, and since a Court of law is like a place where caravans are frequent,²⁰  [we must conclude that] only if [two persons of the same name] are known to be [in the place where the document was issued the law is that] the document shall not be returned, but that if [two persons of the same name] are not known to be there [the law is that] it shall be returned. And R. Zera?²¹  — He will answer you: Does [the Mishnah] state: 'Every document endorsed by the Court, which has been found in Court, shall be returned'? It only states: Every document endorsed by the court shall be returned, — but, in reality, it has been found outside [the Court].²²

R. Jeremiah says: [The Baraitha deals with a case] where the witnesses say, 'We never signed more than one bill of divorcement [with the name] of Joseph ben Simeon.'²³  But if so — what need is there to tell us [that in such a case the document has to be returned]? — You might say that we ought to apprehend that by a peculiar coincidence the names [of the husband and wife] as well [as the names of] the witnesses were identical [in two bills of divorcement]; therefore we are told [that we do not apprehend such a coincidence]. R. Ashi says: [The Baraitha deals with a case] where [the husband]²⁴  says, 'There is a hole near a certain letter,'²⁵  and provided [he states] definitely near which letter [the hole is to be found],²⁶  but if [he just says, 'There is] a hole [in the document,' without indicating the exact place, the document is] not [returned to the wife]: R. Ashi was in doubt whether [the validity of a claim to lost property put forward by one who describes the lost article's] distinguishing marks is [derived from] Biblical law or rabbinical law.²⁷

Rabbah b. Bar Hanah

1. Even when the messenger who lost the bill of divorcement appears before us and testifies that the husband who lives in Shawire sent him to deliver it, and there is no other man with the same name as the husband (and no other woman of the same name as the wife) known to be living in that place, we apprehend that there may be another place called Shawire where a man of the same name (and a woman of the same name) exists, and therefore we do not return the document. [This might better be rendered as a question: Do we apprehend that there may be two places called Shawire? v. Strashun, a.l.]
2. Mishnah infra 20a. The endorsement of the Court shows that the transaction referred to in the document has been completed, so that the apprehension that the person who authorised the document to be written may have changed his mind and refused to complete the transaction, does not arise. As the bill of divorcement referred to by R. Huna was found in the Rabbi's court-house it must be assumed that it was lost after it was dealt with by the Court, and that therefore it must be treated like 'a document endorsed by the Court'.
3. As many people come to the Court with such documents.
4. Only if two persons bearing the same name are known to live in the place where the document was issued is the document not returned.
5. I.e., the document has to be returned.
6. [In a case where a lost bill of divorcement was found in a place where only one of the two conditions was fulfilled, and Rabbah, following the principle he laid down, ruled that the bill should be returned for the benefit of the wife.]
7. A market where many people come to buy flax. Although this is like the case where caravans are frequent, the document was returned because there were no two persons of the same name known to exist in the place of issue.
8. [It was not the market where people came to buy flax and consequently could not be treated as a place where 'caravans pass frequently,' but it was a case where two persons bearing the same name were known to exist and yet Rabbah decided in accordance with his teaching above that the document should be returned. On the cultivation of flax in Pumbeditha, v. Obermeyer, op. cit., p. 239.]
9. Either to the wife or to the husband (Git. 27a). The case cannot be decided until legal evidence is adduced in support of the plea of the one or the other.
10. In the Mishnah, which says that if found after a long interval the bill of divorcement is invalid.
11. In the Baraitha, which says that even if found after a long interval the bill should be returned when admitted by the husband to be genuine.
12. Where the bill was issued.
13. Where caravans pass frequently.
14. I.e., why Rabbah did not point out the apparent contradiction between the Mishnah and the Baraitha, as R. Zera did.
15. It is more important to reconcile two Mishnahs than a Mishnah and a Baraitha.
16. And point out the apparent contradiction between the two Mishnahs (which have the same editor).
17. But not if there has been an interval, in which case the bill is not returned. The Mishnah, however, may not have such a case in view at all, as it only says, IT SHALL NOT BE RETURNED, and in this respect an interval would make no difference. Had the Mishnah referred to a case where the bill had to be returned it would probably have made the distinction between 'immediately' and 'after an interval'. It was only the Gemara that derived from the Mishnah, by implication, the law that if the husband wishes to maintain the validity of the bill by saying, 'Give it to the wife,' he may do so even 'after a long time'.
18. There is nothing in the Mishnah to contradict our view of the law as implied in the wording of the Baraitha, which says that the bill shall be returned, and makes no distinction between 'immediately' and 'after a long time'.
19. Infra 20b.
20. [Read with MS.F. 'and yet it states "it shall be returned," hence we must conclude that even where caravans are frequent it is only if (two persons) are known to be, etc.']
21. How does he explain the reference in the Mishnah to a 'Court of law'?
22. Where 'caravans are not frequent.' [For where it was found in Court it would be returned having regard to the frequency of caravans there.]
23. Only in such does the Baraitha say that the bill shall be returned.
24. Who admits that the bill is genuine.
25. The letter is named by the husband.
26. This constitutes a 'precise, distinguishing mark', upon which one may rely even as regards a Biblical law. V. infra 27a.
27. [If the validity of ordinary distinguishing marks is only of Rabbinic origin, such marks would not be relied upon in the case of a bill of divorcement in view of the grave implications involved.]