manumission cancel a mortgage.1
Rab Judah stated: If a wife brought to her husband2 two articles worth a thousand zuz, and their value increased to two thousand, she receives one3 in settlement of her kethubah;4 and for the other5 she pays its price and receives it, since it represents assets of her paternal property.6
What are we taught by this7 statement! That assets of her paternal property belong to her? This, surely, has already been stated by Rab Judah!8 — It might have been assumed that that statement8 applied only where she came to claim [paternal property] as part of her kethubah, but not where she desired to take it in return for payment of its value, hence we were taught [that she may also pay its price and receive it].
MISHNAH. IF THE DAUGHTER OF AN ISRAELITE WAS MARRIED TO A PRIEST WHO DIED AND LEFT HER PREGNANT, HER SLAVES MAY NOT EAT TERUMAH9 IN VIRTUE OF THE SHARE OF THE EMBRYO,10 SINCE AN EMBRYO MAY DEPRIVE11 [ITS MOTHER]12 OF THE PRIVILEGE [OF EATING TERUMAH]13 BUT HAS NO POWER TO BESTOW IT UPON HER;14 SO R. JOSE. THEY15 SAID TO HIM: SINCE YOU HAVE TESTIFIED TO US IN RESPECT OF THE DAUGHTER OF AN ISRAELITE WHO WAS MARRIED TO A PRIEST,16 THE SLAVES OF THE DAUGHTER OF A PRIEST, WHO A MARRIED TO A PRIEST WHO DIED AND LEFT HER WITH CHILD, SHOULD ALSO BE FORBIDDEN TO EAT TERUMAH ON ACCOUNT OF THE SHARE OF THE EMBRYO!17
GEMARA. A question was raised: Is R. Jose's reason18 because he is of the opinion that an embryo in the womb of a lay woman19 is regarded as a nonpriest,20 or is his reason because only the born may bestow the right of eating but the unborn may not? — In what respect could this difference matter?21 — In respect of an embryo in the womb of a priest's daughter.22 Now, what is the reason? Rabbah replied: R. Jose's reason is this. He is of the opinion that an embryo in the womb of a lay woman19 is regarded as a non-priest.20 R. Joseph replied: The born may bestow the privilege of eating while the unborn may not.
An objection was raised: They said to R. Jose: Since you have testified to us in respect of the daughter of an Israelite who was married to a priest, what is the law in respect of the daughter of a priest who was married to a priest? 'The first',23 he replied, 'I heard;24 but the other25 I have not heard'.26 Now, if you agree [that R. Jose's reason is because] an embryo in the womb of a lay woman27 is regarded as a non-priest,28 it was correct for him to say, 'The first I heard, but the other I did not'. If you maintain, however, [that R. Jose's reason is because] the born may bestow the right of eating and the unborn may not, what [could he have meant by] 'The first I have heard but the other I have not heard', when the principle is the same! — This is indeed a difficulty.
Said Rab Judah in the name of Samuel: This29 is the opinion of R. Jose; but the Sages said: If he30 has children,31 they32 may eat [terumah] by virtue of his children;33 if he has no children, they32 may eat by virtue of his34 brothers, and if he has no brothers they32 may eat by virtue of the entire family.35 'This',36 would imply that he37 himself does not share the view;38 but, surely, Samuel said to R. Hana of Bagdad, 'Go bring me a group of ten men that I may tell you in their presence39 that if title is conferred upon an embryo [through the agency of a third party], it does acquire ownership'!40 The fact is that 'this' here denotes that he41 also holds the same opinion. What, then, does he41 teach us?42 That the Rabbis disagree with R. Jose! But do they, in fact, disagree? Surely R. Zakkai stated:43 This evidence44 was submitted by R. Jose in the name of Shemaiah and Abtalion and they45 agreed with him! — R. Ashi replied: Does it read, 'and they accepted'? It was only said, 'and they agreed', [which may only mean] that his view is logical.46
Our Rabbis taught: If he47 left children,48 both these and the others49 may eat terumah.50 If he51 left his widow with child,52 neither these nor the others49 may eat it.53 If he left children and also left his widow with child, the melog slaves may eat as she may eat;54 but the zon barzel slaves may not eat, on account of the share of the embryo which may deprive [its mother]55 of the privilege [of eating terumah] but has no power to bestow it;56 so R. Jose. R. Ishmael son of R. Jose stated in the name of his father: A daughter may bestow the right of eating; a son may not.57 R. Simeon b. Yohai said: [If the children58 are] males, all [the slaves] may eat.59 [If however they are] females, [the slaves] are not permitted to eat, since it is possible that the embryo might be a male;60 and daughters, where there is a son, have no share at all.61 What need was there to point62 to the possibility that the embryo might be a male when this63 might be equally deduced [from the fact] that [even when the embryo is] a female it deprives them of the privilege!64 — He meant to say: There is one reason and also an additional one. 'There is the one reason' that a female embryo also deprives [the slaves] of the privilege; and, furthermore,65 'it is possible that the embryo might be a male and daughters, where there is a son, have no share at all'.
'[If the children are] males, [the slaves] may eat'. But, surely, there is an embryo in existence!66 — He is of the opinion
Original footnotes renumbered.
- The prohibition against the use of a dead man's shroud has the same force as that of consecrated objects and invalidates, therefore, the legal force of the wife's mortgage. V. supra note 1.
- In her dowry as zon barzel.
- Which is now worth one thousand zuz.
- Which entitles her only to the one thousand zuz which was the sum at which the two articles were appraised at the time she transferred them to her husband.
- The value of the second article, now belonging to the husband since the appreciation took place while the articles were in his possession.
- Which property belongs to her.
- R. Judah's.
- Supra 66b, top.
- Even if she had other children by virtue of whom she herself is entitled to the eating of terumah.
- A portion of each slave belonging to the embryo who is one of the heirs.
- The reasons are explained infra.
- If she is the daughter of a priest who was married to an Israelite who died.
- Even though there are no other children from that union to deprive her of the right of returning to the priestly house of her father and to enjoy the privilege again.
- If she is an Israelite's daughter married to a priest who died leaving her with no children but the embryo. As it cannot bestow such right upon its mother so it cannot bestow it upon its slaves.
- The Sages who disagreed with him.
- That an embryo does not entitle one (either its mother or slaves) to the privilege of eating terumah.
- V. p. 447, n. 12.
- In forbidding in our Mishnah the eating of terumah by zon barzel slaves.
- The daughter of an Israelite, belonging to no priestly family.
- Even if his father was a priest.
- Since, whatever the reason, the embryo does not bestow the privilege.
- Who had been married to a priest. The first reason does not apply, while the second, does
- Lit.. 'this'.
- That the slaves are forbidden to eat terumah.
- Lit., 'this'.
- V. supra p. 448, n. 13. Consequently they are allowed to eat terumah.
- V. p. 448, n. 8.
- V. p. 448, n. 9.
- The ruling in our Mishnah.
- The deceased priest.
- Besides the embryo.
- The zon barzel slaves.
- The embryo is entirely disregarded.
- The deceased priest's.
- Among the entire family of the priest there must be at least one who is entitled to be his heir; and so long as the embryo is unborn, that born heir, as the owner of the slaves, is fully entitled to confer upon them the right of eating terumah.
- The expression, 'This is the opinion of R. Jose'.
- That an embryo acquires ownership.
- Thus giving the matter due publicity.
- B.B. 142b, Keth. 7b, Zeb. 95a.
- By pointing out that the statement is that of R. Jose.
- V. BaH. Cur. edd., 'R. Zakkai raised an objection'.
- Recorded in our Mishnah.
- The Rabbis.
- They, however, did not accept it.
- A deceased priest.
- And his widow was not pregnant.
- The melog and the zon barzel slaves.
- The melog slaves are entitled to the privilege by virtue of the rights of the widow who is entitled to it by virtue of her surviving children; and the son barzel slaves are entitled to the privilege by virtue of the priest's living children who are now their owners.
- The deceased priest.
- And he is not survived by any other children.
- Since the embryo cannot bestow the privilege (cf. supra n. 4) either upon his mother or upon the slaves.
- The melog's slaves being the property of the widow and the embryo having no share in them. As by virtue of her living sons the widow is herself entitled to eat terumah she may also feed her slaves on it, Cf. supra n' 4.
- V, supra p. 448, n. 1.
- v. supra p. 448, n. 3.
- This is explained infra.
- Who survived the deceased priest.
- On their account because the chances that the embryo will be a viable male and thus have a share in the slaves are so uneven that they may be disregarded. For, in the first instance, it is likely that the embryo will be a female and thus have no share at all in the slaves. And secondly, were it to be a male, it might yet be a miscarriage, which again would have no share in the slaves (v. infra).
- Who, when born, will become the owner of the slaves.
- The slaves, therefore, would be the property of the embryo which cannot bestow upon them the right of eating terumah.
- As a reason why the slaves are forbidden to eat terumah in the latter case.
- The prohibition upon the slaves.
- Since the female embryo, when born, would be entitled to a share among the other daughters and now, therefore, as an embryo, deprives the slaves of the privilege.
- Which is the other reason.
- And it, owing to its share in them, should deprive the slaves of the privilege.
that no provision need be made against the less usual cases.1 Or if you prefer I might say that he2 is of the opinion that provision in fact must be made against the less usual cases also, [but here] a special arrangement might be made3 in accordance with a ruling of R. Nahman in the name of Samuel. For R. Nahman stated in the name of Samuel: Where orphans4 wish to divide the property of their [deceased] father, Beth din appoint a guardian for [every one of] them, and [each guardian] chooses for his ward a suitable portion. As soon, however, as they reach their majority they are entitled to enter a protest.5 In his own name, however, R. Nahman stated: Even when they reach majority they are not entitled to protest, for otherwise what validity is there in the authority of a Beth din!6
Must it be assumed that R. Nahman's ruling is a matter of dispute between Tannaim!7 — No; all accept R. Nahman's [arrange. ment],8 but the dispute here9 centres on the question whether10 provision was to be made against the less usual cases.11
'R. Ishmael], son of R. Jose, stated in the name of his father: A daughter may bestow the right of eating; a son may not.12 Wherein lies the difference [between the son and the daughter]? If a son may not bestow the right of eating on account of the share of the embryo, a daughter also should not be entitled to bestow the right of eating on account of the share of the embryo! — Abaye replied: Here13 we are dealing with a small estate14 and in a case where there is a son15 as well as a daughter, [so that the slaves may eat the terumah] whatever be the assumption [as to the sex of the embryo]. If the embryo is a son then he is not better than the one who is already born.16 And if it is a daughter, then why does a daughter eat at all?17 Surely by virtue of an ordinance of the Rabbis.18 But so long as she has not seen the light19 no provision for her has been made by the Rabbis.20 If you take it21 to refer22 to a small estate, [how will you] explain the final clause,23 'since it is possible that the embryo might be a male, and daughters, where there is a son, have no share at all'? On the contrary; a small estate belongs to the daughters! — The final clause refers to a large estate. But does a small estate belong to the daughters? Surely, R. Assi stated in the name of R. Johanan: Where male orphans forestalled [the ruling of Beth din] and sold a small estate, their sale is valid!24 — But the fact is that by the mention of daughter 'the mother' is to be understood.25 If so, this is exactly the same statement as that of R. Jose! — The entire statement was made by R. Ishmael son of R. Jose.
MISHNAH. AN EMBRYO,26 A LEVIR,27 BETROTHAL,28 A DEAF-MUTE,29 AND A BOY WHO IS NINE YEARS AND ONE DAY OLD,30 DEPRIVE [A WOMAN]31 OF THE RIGHT [OF EATING TERUMAH], BUT CANNOT BESTOW THE PRIVILEGE UPON HER,32 [EVEN WHEN] IT IS A MATTER OF DOUBT WHETHER THE BOY IS NINE YEARS AND ONE DAY OLD OR NOT,33 OR WHETHER HE34 HAS PRODUCED TWO HAIRS35 OR NOT.
IF A HOUSE COLLAPSED UPON A MAN AND UPON HIS BROTHER'S DAUGHTER,36 AND IT IS NOT KNOWN WHICH OF THEM DIED FIRST, HER RIVAL MUST PERFORM HALIZAH37 BUT MAY NOT CONTRACT LEVIRATE MARRIAGE.38
GEMARA. AN EMBRYO, for if [its mother] is the daughter of a priest [who was married] to an Israelite [the embryo] deprives her of the privilege,39 [for it is written]. As in her youth,40 which excludes one who is with child.41 And if she is the daughter of an Israelite [who was married] to a priest, the embryo does not bestow the privilege39 upon her, because the living child does bestow the privileged but not the unborn.42
A LEVIR, for if [his yebamah] is the daughter of a priest who was married to an Israelite, [the Ievir] deprives her of the privileged [for it is written], And is returned unto her father's house,40 which excludes one who is awaiting the decision of the levir;43 and if she is the daughter of an Israelite [who was married] to a priest [the levir] does not bestow the privilege upon her, because the All Merciful said, The purchase of his money.44 while she is the purchase of his brother. BETROTHAL, for if [the woman] is the daughter of a priest [who was betrothed] to an Israelite, [betrothal] deprives her of the privilege,
Original footnotes renumbered.
- Lit., 'a minority'. I.e., against the possibility that the embryo might be born a viable male. Against the possibility of male births there is the equal possibility of female births, and by adding the minority of miscarrying women to the half of female births, the male births are found to form only a minority.
- R. Simeon.
- The embryo is allotted as his share a portion of the estate exclusive of the slaves, who consequently form a portion of the shares of the living brothers, who, as their owners, bestow upon the slaves the right of eating terumah. Where, however, there are only daughters, such an arrangement cannot be made, since in such a case the embryo, in case he is born a viable male, is the sole heir and owner.
- Who are minors.
- Against the original division, and to demand a new one. The validity of acceptance of the shares by the guardians extends only to the produce or yield of the estate up to the date of the protest.
- V. Kid. Sonc. ed., p. 210, notes.
- That R. Simeon, who permits the slaves to eat, in the case of sons, by adopting the arrangement mentioned, is of the same opinion as R. Nahman; while R. Jose, who forbids terumah to the slaves, maintaining as he evidently does that the arrangement is of no avail and that the division must be postponed until the heirs reach majority, is in disagreement with R. Nahman.
- Wherever such had been made,
- Between R. Jose and R. Simeon, supra 6a.
- Where R. Nahman's arrangement had not been made,
- R. Simeon permits the slaves to eat terumah, because he holds that no provision has to be made against the less usual cases (v. supra p. 451, n. 3) while R. Jose forbids them to eat it, because he maintains that provision must be made even against the less usual case.
- This is now assumed to mean that where there is a daughter but no son, she bestows the right of eating terumah upon the slaves, but where there is a son, the slaves are not permitted to eat the terumah.
- R. Ishmael's statement.
- Which, by an ordinance of the Rabbis, must be handed over to the daughters for their maintenance while the sons receive nothing. v. B.B, 139b.
- To whom the estate belongs in accordance with the Pentateuchal law.
- Lit., 'exists', 'stands'. Since the Rabbis deprived the living son of his share and gave it to the daughters. they have, even more so, deprived the embryo of its share.
- From her father's estate, though he is also survived by sons'
- Pentateuchally she has no claim at all in the presence of a son.
- Lit., 'came out into the air of the world'.
- The embryo, consequently, cannot possibly have a share in the slaves, who may. therefore, eat terumah by virtue of the rights of the living children. Had there been a daughter only and no son, the slaves would not have been permitted to eat terumah on account of the embryo, which, were it a female, would have had in the slaves an equal share with their sister.
- R. Ishmael's statement.
- Lit., 'in what did you place it'.
- Which presumably deals with a similar case.
- Keth. 103a, Sotah 21b, B.B. 140a. Which proves that the estate, even when small, belongs to the sons also. How then could the slaves be permitted to eat terumah?
- I.e., the mother of the embryo may feed her melog slaves with terumah as she herself is permitted to eat it by virtue of her living sons. A son, however, may not feed the zon barzel slaves with terumah owing to the share of the embryo.
- Whose mother was (a) the daughter of a priest married to an Israelite, or (b) the daughter of an Israelite married to a priest, and whose father died before he (the embryo) was born.
- The widow of whose deceased brother was (a) the daughter of a priest (he and his brother being Israelites), or (b) the daughter of an Israelite (he and his brother being priests).
- Of (a) the daughter of a priest to an Israelite, or (b) the daughter of an Israelite to a priest.
- Who is (a) an Israelite married to the daughter of a priest, or (b) a priest married to the daughter of an Israelite.
- This is explained in the Gemara, infra.
- If she is (a) the daughter of a priest (cf. last four notes).
- If she is (b) the daughter of an Israelite (cf. supra notes 6-9).
- This has no reference to what follows and is explained in the Gemara.
- Who betrothed the woman.
- Which are the marks of puberty, when he becomes legally entitled to contract a marriage.
- To whom he had been married and who, like himself, died childless.
- With the daughter's father, the brother of the deceased. Though the dead woman was his forbidden relative, her rival becomes subject to the halizah because it is possible that the woman had been killed before the man, and when the man died her former rival was no longer related to her. V. infra note 6.
- Because it is also possible that the man was killed first and that the rival consequently remained forbidden to the levir as the rival of his daughter.
- Of eating terumah.
- Lev. XXII, 13.
- Only when she returned unto her father's house as in her youth (v. ibid.), i.e., if, like a virgin, she has no child at all, not even an embryo, may she eat of her father's bread (ibid.) i.e., terumah.
- This is deduced from Such as are born in his house etc. (Lev. XXII, 11) by taking the Kal [H] in the sense of Hif. [H] V Torath Kohanim, a.l., (v. Rashi).
- Being dependent on the levir's will she cannot without his release, return to her father's house.
- Lev. XXII, 11 emphasis on 'his.'