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Babylonian Talmud: Tractate Kethuboth
MISHNAH. IF A HUSBAND GIVES TO HIS WIFE A WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER1 UPON YOUR ESTATES', HE MAY NEVERTHELESS ENJOY ITS USUFRUCT DURING HER LIFETIME AND, WHEN SHE DIES, HE IS HER HEIR. IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES'? THAT IF SHE SOLD THEM OR GAVE THEM AWAY HER ACT MIGHT BE VALID. IF HE WROTE, 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE, HE MAY NOT ENJOY THEIR USUFRUCT DURING HER LIFETIME BUT, WHEN SHE DIES, HE IS HER HEIR. R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE UNLESS HE WROTE OUT FOR HER [THE FOLLOWING UNDERTAKING]: 'I HAVE NO CLAIM WHATSOEVER UPON YOUR ESTATES AND UPON THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE AND SO ON WITHOUT END.
IF HE WROTE, 'I HAVE NO CLAIM UPON YOUR ESTATES, THEIR PRODUCE AND THE PRODUCE OF THEIR PRODUCE DURING YOUR LIFETIME AND AFTER YOUR DEATH', HE MAY NEITHER ENJOY THEIR PRODUCE DURING HER LIFETIME NOR CAN HE BE HER HEIR WHEN SHE DIES. R. SIMEON B. GAMALIEL RULED: WHEN SHE DIES HE IS HER HEIR BECAUSE [BY HIS DECLARATION] HE IS MAKING A CONDITION WHICH IS CONTRARY TO WHAT IS ENJOINED IN THE TORAH2 AND WHENEVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID.3
And if he gave her such an undertaking in writing,7 what does It matter? Was it not taught: If a man says8 to another,9 'I have no claim whatsoever on this field, I have no concern in it and I entirely dissociate myself from it',10 his statement is of no effect?11 — At the school of R. Jannai it was explained, [we are dealing here with the case] of a man who gave the undertaking to his wife12 while she was still only betrothed to him,13 [the ruling14 being] in agreement with that of R. Kahana, that a man is at liberty to renounce beforehand an inheritance15 which is likely to accrue to him from another source;16 and [this ruling, furthermore, is] in agreement with a dictum of Raba, that if anyone says. 'I do not desire [to avail myself] of a regulation of the Rabbis of this kind', his desire is granted.17 What [is meant by the expression] 'of this kind'? As [that referred to in the statement made by] R. Huna in the name of Rab: A woman is entitled to say to her husband, 'I do not wish either to be maintained by you or to work for you'.18 If so,19 should not [the same ruling apply to] a married woman also?20 Abaye replied: In the case of a married woman the husband's rights have the same force as the wife's.21 Raba said: His rights are superior to hers. This22 is of practical significance in the case of a woman who was awaiting the decision of the levir.23
The question was raised: What is the ruling if symbolic kinyan was executed24 [at the time of the renunciation]?25 — R. Joseph replied: [The kinyan is invalid since] it related to an abstract renunciation.26 R. Nahman replied: [The kinyan is valid because] it related to land itself.27 Said Abaye: R. Joseph's statement is reasonable
where [the partner]1 lodged his protest forthwith,2 but if he delayed,3 the kinyan must be regarded as relating to the land itself,4 Amemar said, the law is that the kinyan is taken to refer to the land itself.5 Said R. Ashi to Amemar: [Do you speak] of one who lodged his protest forthwith or of one who delayed it? 'In what respect [the other asked] does this matter?' — In respect of [determining whether the law is] in agreement with the view of R. Joseph.6 'I did not hear this',7 the other replied. 'by which I mean that I do not accept it.'
IF SO, WHAT WAS HIS OBJECT IN GIVING HER THE WRITTEN UNDERTAKING etc. But8 why should she not be able to say to him, 'You have renounced all your claims'?9 — Abaye replied: The holder of a deed is always at a disadvantage.10 But might it not be suggested [that he renounced his claim] upon the usufruct?11 — Abaye replied: A young pumpkin [in hand] is better than a full-grown one [in the field].12 But may it be suggested [that his renunciation related] to his heirship?13 Abaye replied: Death is a common occurrence but the sale [of property by a wife] is not common;14 and whenever a person renounces his claims [he does so] in respect of what is not a common occurrence but he does not do it in respect Of that which is a common occurrence. R. Ashi replied:15 [The husband's renunciation was] 'UPON YOUR ESTATES',16 but not upon their produce; 'UPON YOUR17 ESTATES', but not after your death.18
R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE [etc.]. Our Rabbis taught: The following are regarded as produce and the following as the yield of the produce respectively. If a woman brought to her husband19 a plot of land and it yielded produce, such yield is regarded as produce. If he sold the produce and purchased land with the proceeds and that land yielded produce, such yield is regarded as the yield of the produce.
The question was raised: According to R. Judah, [is the expression] THE PRODUCE OF THEIR PRODUCE20 the essential element,21 or is rather WITHOUT END22 the essential element,23 or is it possible that both expressions are essential?24 But should you find [some ground] for deciding [that the expression] THE PRODUCE OF THEIR PRODUCE is the essential element,25 what need was there [it might be asked, for the mention26 of] 'WITHOUT END'? — It is this that we were taught: So long as he renounced in her favour, in writing, the yield of the produce it is as if he had expressly written in her favour, 'without end'. But should you find [some reason] for deciding that WITHOUT END is the essential element,27 what need was there [it might be asked, for the mention26 of] THE PRODUCE OF THEIR PRODUCE? — It is this that we were taught; Although he renounced in her favour, in writing, the yield of the produce [the renunciation] is valid only28 if he also wrote 'without end' but is invalid29 if he did not [write it]. But if you should find some argument for giving the decision that both expressions are essential [it could he asked]. what need is there for the specification30 of both? Both are necessary. For if only the 'yield of the produce' had been written in her favour and 'without end' had been omitted, it might have been assumed that he loses thereby his right to the enjoyment of the yield of the produce only but that he is still entitled to enjoy the produce of the yield of that produce, hence it is necessary for the expression 'without end' [to be included in the renunciation]. And if only 'without end' had been written in her favour and the 'yield of the produce' had not been specified,30 it might have been assumed that 'without end' referred to the first produce only,31 hence it is necessary to specify also the 'yield of the produce'.32
The question was raised: May a husband who wrote, in favour of his wife, the renunciation 'I have no claim whatsoever upon your estates and upon the yield of their produce', enjoy the produce itself? Has he renounced the yield of their produce only but not the produce [itself] or is it possible that he renounced all his claim? But it is quite obvious that he has renounced all his claims. For should you suggest that he only renounced his claim upon the yield of the produce but not upon the produce itself, whence [it might be objected] would arise a yield of the produce if the man had consumed the produce itself?33
[No, for even] according to your view, [how will you explain] the statement in our Mishnah, R. JUDAH RULED: HE MAY IN ALL CASES ENJOY THE YIELD OF THE PRODUCE etc. [Where it may equally be objected,] whence would there be a yield of the produce if she34 has consumed the produce itself? [Your explanation,] however, [would be that the reference is to a case] where the woman had allowed [the produce] to remain;35 here also [it may be a case] where the husband has allowed the produce to remain.35
R. SIMEON B. GAMALIEL RULED etc. Rab said: The halachah is in agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave. What is meant by 'the halachah is In agreement with the ruling of R. Simeon b. Gamaliel but not because of the reason he gave'? If it be suggested: 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' in respect of his statement that WHEN SHE DIES HE IS HER HEIR, 'but not because of the reason he gave'.for whereas R. Simeon b. Gamaliel is of the opinion that if A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab holds that such a condition36 is valid37 and [his acceptance of the ruling38 is solely due to] his opinion that a husband's right of inheritance is a Rabbinical enactment and that the Sages have imposed upon their enactments greater restrictions than upon those of the Torah;39
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