Gittin 51

או דלמא קצובין ואף על פי שאינן כתובים

Or perhaps, in order to collect from liened property, it suffices that the obligation be of a fixed amount, even if it is not written?

תא שמע דאיתמר מי שמת והניח שתי בנות ובן וקדמה הראשונה ונטלה עישור נכסים ולא הספיקה שניה לגבות עד שמת הבן

The Gemara suggests: Come and hear an answer to this question from what was stated, that the amora’im disagree about the following issue: There is a case of one who died and left two daughters and a son, and the first daughter went ahead and took one-tenth of the estate as her dowry, as sons are obligated to sustain their deceased father’s daughters until they reach majority or become betrothed and to give them part of his estate as a dowry, as daughters do not inherit when there are sons; but the second daughter did not manage to collect her tenth of the estate for her dowry before the son died. Therefore, the entire estate fell to the two daughters, who then divide it between themselves, and there is a dispute as to how they divide the estate.

אמר רבי יוחנן שניה ויתרה ואמר לו רבי חנינא גדולה מזו אמרו מוציאין לפרנסה ואין מוציאין למזונות ואת אמרת שניה ויתרה

Rabbi Yoḥanan says: The second daughter forfeited her one-tenth of the estate, and therefore she cannot demand that she should first receive one-tenth of the estate as her dowry, as did her sister, and that only afterward they divide what remains of the estate equally between themselves. And Rabbi Ḥanina said to him: Did they not say even more than this, that if the brother sold off property belonging to his father’s estate, payment for the daughter’s dowry can be appropriated from the buyer, but payment for her sustenance cannot be appropriated from him? If the father’s estate is liened to his daughter’s dowry, so that she can collect her dowry even from a third party who bought the property from the son, she should be able to collect it from her father’s estate before it is divided up between the daughters. And you say that the second daughter forfeited her one-tenth of the estate?

והא פרנסה דמיקץ קייצא מיכתב לא כתיבא וקא מוציאה

The Gemara tries to draw a conclusion with regard to the question that was raised previously: But isn’t the dowry mentioned by Rabbi Ḥanina, i.e., the dowry to which an orphan daughter is entitled from her father’s estate, of a fixed amount, i.e., one-tenth of the estate, and it is not written? And nevertheless, according to Rabbi Ḥanina, it can be appropriated from liened property that has been sold to another party.

שאני פרנסה כיון דאית לה קלא כמאן דכתיבא דמי

The Gemara rejects this argument: A dowry is different, since it generates publicity. If one dies and is survived by daughters, everyone knows that a portion of his estate is pledged for their dowries. Therefore, the obligation is considered to be as if it were written. In other situations, it might be necessary according to Rabbi Ḥanina that the obligation be both of a fixed amount and written.

מתיב רב הונא בר מנוח מתו בנותיהן נזונות מנכסים בני חורין

Rav Huna bar Manoaḥ raised an objection from a mishna (Ketubot 101b) that addresses the case of a woman who was married to a man with whom she had stipulated that he would sustain her daughter from a previous marriage. After receiving a divorce from him, she married a different man with whom she made the same stipulation, so that the stepdaughter receives sustenance from the two husbands. That mishna states: If the husbands died, then their own daughters, even from that same woman, are sustained only from the unsold property in their estate. This accords with the halakha taught in the mishna above (48b).

והיא נזונת מנכסים משועבדים מפני שהיא כבעלת חוב

The mishna in Ketubot continues: But the stepdaughter is sustained even from liened property that had been sold to a third party. This is due to the fact that her legal status is like that of a creditor, and therefore she has the right to collect her debt from property formerly owned by her stepfather, her debtor. This is difficult according to both opinions, as the stepdaughter’s sustenance is appropriated from liened property that has been sold to another person, despite it being neither a fixed amount nor written.

הכא במאי עסקינן בשקנו מידו

The Gemara answers: With what are we dealing here? We are dealing with a case where the mother acquired the right to the daughter’s sustenance from his possession, i.e., where they performed an act of acquisition confirming the stipulation. Consequently, it is considered as though the stipulation had been written and publicized, and so the property of the two husbands is liened for the stepdaughter’s sustenance.

אי הכי בנות נמי בשקנו לזו ולא קנו לזו

The Gemara asks: If that is so, that the mishna is referring to a case where they performed an act acquisition, then the deceased’s own daughters as well should be entitled to collect their sustenance from liened property that has been sold to a third party. The Gemara rejects this argument: The mishna is referring to a case where the mother acquired the right to sustenance on behalf of this one, the stepdaughter, but did not acquire the right to sustenance on behalf of the other daughters.

מאי פסקא בת אשתו דהואי בשעת קנין מהני לה קנין בתו דלא הואי בשעת קנין לא מהני לה קנין

The Gemara asks: What is the reason for the decision of the tanna to record the halakha in a case where the mother acquired the right for this one but not for that one? The Gemara explains: With regard to his wife’s daughter from her previous marriage, who was alive at the time of the act of acquisition, i.e., when he gave the mother her marriage contract, the act of acquisition is effective for her. With regard to his own daughter from this mother, who was not alive at the time of the act of acquisition, the act of acquisition is not effective for her.

מי לא עסקינן דהוו תרוייהו בשעת קנין והיכי דמי דגרשה ואהדרה

The Gemara raises an objection: Are we not dealing here even with a case where both of them were alive at the time of the act of acquisition? And what are the circumstances? It is a case where after she was married to him and had a daughter from him, he divorced her and later remarried her, at which time an act of acquisition was performed to confirm the stipulation with regard to sustenance. As his own daughter was alive at the time, why is the act of acquisition not effective for his own daughter’s sustenance as it is for that of his stepdaughter?

אלא בתו דבתנאי בית דין קאכלה לא מהני לה קנין בת אשתו דלאו בתנאי בית דין קאכלה מהני לה קנין

Rather, the difference between them is as follows: With regard to his own daughter, who eats, i.e., is sustained, from his estate based on a stipulation of the court, as the daughter’s right to sustenance from her father’s estate is an inseparable part of her mother’s marriage contract, the act of acquisition that was performed is not effective for her, because her entitlement is derived from a different source, the stipulation of the court. With regard to his wife’s daughter, who eats from his estate not based on a stipulation of the court, as her entitlement is based on the explicit stipulation made between the husband and the wife, the act of acquisition is effective for her and enables her to collect her sustenance even from liened property that has been sold to a third party.

וכי מיגרע גרעה אלא בתו כיון דבתנאי בית דין קאכלה אימר צררי אתפסה

The Gemara challenges this explanation: But is a right that is rooted in two sources, both a stipulation of the court and an act of acquisition, inferior to a right that is rooted in an act of acquisition alone? The act of acquisition is in addition to the stipulation of the court, and should be effective for her as well. Rather, this is the difference between them: With regard to his own daughter, since his daughter eats from his estate based on a stipulation of the court, say that perhaps he already gave her money during his lifetime for her sustenance. Since there is uncertainty, she cannot recover her sustenance from liened property, even if an act of acquisition was performed to confirm the stipulation. With regard to the stepdaughter, there is no concern that perhaps he already gave her the money while he was alive. Therefore, if an act of acquisition was performed, she can collect her sustenance even from liened property that has been sold to another.

תא שמע אמר רבי נתן אימתי בזמן שקדם מקחו של שני לשבחו של ראשון

The Gemara continues its discussion with regard to collection from liened property that has been sold to a third party: Come and hear what Rabbi Natan said: When do we say that if one appropriated a field and sold it, and the buyer worked the land and enhanced it, and then the initial owner from whom the field had been appropriated reclaimed the property, the buyer can recover the increase in value of the field resulting from his enhancements only from unsold property in the robber’s possession but not from liened property that has been sold to another party? This is said when the purchase of the second buyer, i.e., the party who purchased the property that rightfully belonged to the robber, preceded the enhancements made by the first buyer to the appropriated property he purchased from the robber.

אבל קדם שבחו של ראשון למקחו של שני גובה מנכסים משועבדים אלמא משום דלא קדים הוא

But if the enhancements made by the first buyer preceded the acquisition of the second buyer, then he can collect the increase in value of the field resulting from his enhancements even from liened property that has been sold to the second buyer. Apparently, he cannot collect the increase in value from liened property because the enhancements did not precede the sale of the other field, not because the increase in value is not of a fixed amount or written in a deed.

תנאי היא דתניא אין מוציאין לאכילת פירות ולשבח קרקעות ולמזון אשה והבנות מנכסים משועבדים מפני תיקון העולם לפי שאין כתובין

The Gemara answers: Proof cannot be brought one way or the other from this baraita, since the issue is the subject of a dispute between tanna’im, as it is taught in another baraita: The court does not appropriate payment from liened property that has been sold to a third party for the consumption of produce or for the enhanced value of land or for the sustenance of a man’s wife and daughters. The reason why one cannot collect these debts from liened property is for the betterment of the world, because all these obligations are not written in any deed. If purchasers are at risk of losing the land they purchased to pay debts of the seller that had not been written, they will have no way to protect themselves, and no one will purchase land.

אמר רבי יוסי וכי מה תיקון העולם יש בזו והלא אין קצובין

The baraita continues: Rabbi Yosei said: And what betterment of the world is there in this, in stating that the reason the land is not appropriated is only because the debt was not written? But isn’t the real reason that these obligations cannot be collected from liened property is that they are not of a fixed amount? No one would be willing to purchase land if the land were liened to an unlimited debt. It is clear in this baraita that the criteria for collection from liened property that has been sold to a third party are subject to a tannaitic dispute.

והמוצא מציאה לא ישבע אמר רבי יצחק שני כיסין קשורין מצאת לי והלה אומר לא מצאתי אלא אחד נשבע שני שוורים קשורין מצאת לי והלה אומר לא היה אלא אחד אינו נשבע

§ The mishna teaches: And it was further instituted that one who finds a lost item and returns it to its rightful owner is not required to take an oath that he did not keep any part of the lost item for himself. This ordinance was also instituted for the betterment of the world. Rabbi Yitzḥak says: If the owner of the lost item brings a claim against the finder, saying: You found two money pouches tied together that belong to me, and the other person says: I found only one pouch, then the finder takes an oath, similar to anyone who admits to part of a claim. If the owner claims: You found two oxen tied together that belong to me, and the other person says: There was only one ox, the finder is not required to take an oath.

מאי טעמא שוורין מנתחי מהדדי כיסין לא מנתחי מהדדי

The Gemara explains: What is the reason for the difference between the two cases? It is that oxen become detached from each other. Consequently, it is possible that when the oxen were lost, there had been two that were tied together, but afterward they became separated and the finder found only one. By contrast, pouches do not become detached from each other. Since the finder admits that he found one of them, it stands to reason that he actually found both of them.

שני שוורין קשורין מצאת והלה אומר מצאתי והחזרתי לך אחד מהן הרי זה נשבע

Rabbi Yitzḥak also says: If the owner of the lost item says to the finder: You found two tied oxen, and the other person says: I found two oxen, but I already returned one of them to you, then the finder takes an oath.

ורבי יצחק לית ליה המוצא מציאה לא ישבע מפני תיקון העולם

A question may be raised against these rulings of Rabbi Yitzḥak: But does Rabbi Yitzḥak not accept the halakha stated in the mishna that one who finds a lost item is not required to take an oath, this being an enactment instituted for the betterment of the world?

הוא דאמר כרבי אליעזר בן יעקב דתניא רבי אליעזר בן יעקב אומר פעמים שאדם נשבע על טענת עצמו כיצד מנה לאביך בידי והאכלתיו פרס הרי זה נשבע וזה הוא שנשבע על טענת עצמו

The Gemara answers: Rabbi Yitzḥak stated his opinion in accordance with the opinion of Rabbi Eliezer ben Ya’akov, as it is taught in a baraita (Tosefta, Shevuot 5:10) that Rabbi Eliezer ben Ya’akov says: There are times when a person takes an oath about his own claim. How so? One says to another: One hundred dinars of your deceased father’s was in my possession, as I had borrowed that sum from him. And I already paid him part [peras] of it, but I still owe you fifty dinars. In this case, he is not believed unless he takes an oath that he repaid the half, like anyone who admits to part of a claim. And this is an example of a case where one takes an oath about his own claim. Although nobody has claimed anything from him, he still takes an oath on the basis of his own statement.

וחכמים אומרים אינו אלא כמשיב אבידה ופטור

But the Rabbis say: In such a case, the borrower is regarded only as someone who is returning a lost item, and therefore he is exempt from an oath. Rabbi Yitzḥak’s position is similar to that of Rabbi Eliezer ben Ya’akov. Since the finder says that he found only half of what the owner claims was lost, he is treated like someone who admits to part of a claim and therefore takes an oath.

ורבי אליעזר בן יעקב לית ליה משיב אבידה פטור אמר רב בטוענו קטן

The Gemara asks: But does Rabbi Eliezer ben Ya’akov not maintain that someone who returns a lost item is exempt from an oath? Rav says: The case in dispute between Rabbi Eliezer ben Ya’akov and the Rabbis is not one where nobody has claimed anything from the borrower, as in such a case all agree that the borrower is exempt from taking an oath. Rather, it is a case where the creditor has died, leaving a child as his heir, and this minor confronts the borrower and claims a hundred dinars from him, which he alleges was lent by his late father. The other admits to having borrowed the money but claims that he already repaid half the sum. Since he admits to part of the claim, he takes an oath that he did repay the other part.

קטן מידי מששא אית ביה והתנן אין נשבעין על טענת חרש שוטה וקטן

The Gemara asks: Does the claim of a minor have any substance? But didn’t we learn in a mishna (Shevuot 38b): One does not take an oath in response to the claim of a deaf-mute, an imbecile, or a minor, as the claim of one who lacks halakhic competence has no significance whatsoever. According to this, if a minor brought a claim against the borrower, it is as though there were no claim at all but only the borrower’s admission, and so the borrower should be exempt from taking an oath.

מאי קטן גדול ואמאי קרי ליה קטן דלגבי מילי דאביו קטן הוא

The Gemara answers: To which kind of minor was Rav referring? It was to an adult son of the creditor. And why does Rav call him a minor, if he is in fact an adult? It is as with regard to his father’s affairs he is like a minor. He does not know with certainty how much money the borrower repaid but merely says that he thinks he owes his father more.

אי הכי טענת עצמו טענת אחרים הוא טענת אחרים והודאת עצמו

The Gemara asks: If that is so, that we are dealing with a case where the deceased creditor’s adult son made a claim against the debtor, how can Rabbi Eliezer ben Ya’akov say about this claim that it is his own claim? Is this an oath taken about his own claim? It is an oath taken about the claim of others, i.e., the son. The Gemara answers: Rabbi Eliezer ben Ya’akov calls it an oath taken about one’s own claim, although it is really the claim of others, because it is his own admission that obligates him to take the oath.

כולהו טענתא נמי טענת אחרים והודאת עצמו נינהו אלא בדרבה קמיפלגי דאמר רבה מפני מה אמרה תורה מודה מקצת הטענה ישבע חזקה אין אדם מעיז פניו בפני בעל חובו

The Gemara objects: All claims that lead to the oath of one who admits to part of the claim are also a combination of the claim of others and the defendant’s own admission. Rather, Rabbi Eliezer ben Ya’akov and the Rabbis disagree with regard to the following explanation given by Rabba, as Rabba says: For what reason did the Torah say that one who admits to part of the claim brought against him takes an oath with regard to the rest of the claim, which he denies, whereas one who denies the entire claim is not required to take an oath? Rabba answers: The oath of partial admission is based on a presumption with regard to the defendant’s behavior. There is a presumption that a person would not be so brazen as to stand before his creditor and deny his debt when his creditor knows that he is lying.

והאי בכוליה בעי למכפריה ליה והאי דלא כפריה משום דאין אדם מעיז פניו בפני בעל חובו ובכוליה בעי דלודי ליה והאי דלא אודי ליה אישתמוטי הוא דקא משתמיט ליה סבר עד דהוו לי זוזי ופרענא ליה ואמר רחמנא רמי שבועה עילויה כי היכי דלודי ליה בכוליה

Rabba continues: And this one who admits to part of the claim would want to deny all of it, and the only reason he does not deny all of it is because a person would not be so brazen before his creditor. And in fact, he would want to admit to all of the claim to him. And the reason that he did not admit the whole claim to him and say that in fact he owes him the entire sum is that he was evading his obligation temporarily. The debtor is short of money and he thinks: I will pay my creditor as much as I can afford now, and I will evade paying the rest until I have enough money, and then I will repay him the rest, to which I have not yet admitted. Therefore, the Merciful One states: Impose an oath on the debtor in order to induce him to admit all of the debt to the creditor.

רבי אליעזר בן יעקב סבר לא שנא בו ולא שנא בבנו אינו מעיז והילכך לאו משיב אבידה הוא ורבנן סברי בו הוא דאינו מעיז אבל בבנו מעיז ומדלא מעיז משיב אבידה הוא

Following Rabba’s reasoning, the difference of opinion between Rabbi Eliezer ben Ya’akov and the Rabbis can be explained as follows: Rabbi Eliezer ben Ya’akov holds that there is no difference between the creditor himself and the creditor’s son, as in all cases the debtor would not be so brazen as to deny his debt. Therefore, the debtor is not considered like someone who is returning a lost item. Rabbi Eliezer ben Ya’akov maintains that Rabba’s reasoning applies in this case as well, so he is required to take an oath. And the Rabbis hold that he would not be so brazen as to deny a debt before the creditor himself, but toward his creditor’s son he would be brazen and deny the claim completely. And since he was not so brazen as to deny the entire claim, but admitted to part of it, he is considered like someone returning a lost item, and therefore he is exempt from taking an oath.