Ketubot 83

הכותב לאשתו דין ודברים אין לי בנכסיך הרי זה אוכל פרות בחייה ואם מתה יורשה אם כן למה כתב לה דין ודברים אין לי בנכסיך שאם מכרה ונתנה קיים

MISHNA: One who writes for his wife in a document the declaration: I have no legal dealings or involvement with your property, thereby relinquishing his rights to her possessions, may nevertheless consume the produce of her property in her lifetime. And if she dies before him, he inherits from her. If this is so, if he still retains his rights, why would he write for her: I have no legal dealings or involvement with your property? The result of this declaration is that if she sold or gave away her property, the transaction is binding, and he cannot claim it.

כתב לה דין ודברים אין לי בנכסיך ובפירותיהן הרי זה אינו אוכל פרות בחייה ואם מתה יורשה רבי יהודה אומר לעולם אוכל פירי פירות עד שיכתוב לה דין ודברים אין לי בנכסיך ובפירותיהן ובפירי פירותיהן עד עולם

If he writes for her: I have no legal dealings or involvement with your property or with its produce, he may not consume the produce of her property during her lifetime, but if she dies he still retains the right to inherit from her. Rabbi Yehuda says: He always consumes the produce of the produce. Although he has waived his rights to consume the produce itself, it becomes her usufruct property, whose yield belongs to him. He remains entitled to the produce of the produce until he writes for her: I have no legal dealings or involvement with your property, or with its produce, or with the produce of its produce forever.

כתב לה דין ודברים אין לי בנכסיך ובפירותיהן ובפירי פירותיהן בחייך ובמותך אינו אוכל פירות בחייה ואם מתה אינו יורשה רבן שמעון בן גמליאל אומר אם מתה יירשנה מפני שמתנה על מה שכתוב בתורה וכל המתנה על מה שכתוב בתורה תנאו בטל:

If he writes for her: I have no legal dealings or involvement with your property or with its produce, or with the produce of its produce, in your lifetime and after your death, he may not consume the produce of her property in her lifetime. And if she dies, he does not inherit from her. Rabban Shimon ben Gamliel says: If she dies, he does inherit from her, because he stipulates counter to that which is written in the Torah. According to Rabban Shimon ben Gamliel, a husband inherits from his wife by Torah law, and whoever stipulates counter to that which is written in the Torah, his stipulation is void.

גמ׳ תני רבי חייא האומר לאשתו

GEMARA: Rabbi Ḥiyya taught in a baraita: One who says to his wife; he did not teach: One who writes for his wife, as the mishna stated. This indicates that this condition can be stated verbally and does not need to be written in a contract.

וכי כתב לה הכי מאי הוי והתניא האומר לחבירו דין ודברים אין לי על שדה זו ואין לי עסק בה וידי מסולקת הימנה לא אמר כלום

The Gemara asks about the ruling of the mishna: And if he wrote this to her, what of it? How does such a stipulation, written or otherwise, take effect? But isn’t it taught in a baraita: One who says, whether verbally or by written communication, to another person with whom he shares property: I have no legal dealings or involvement with this field, or I have no dealings with it, or my hands are removed from it, has not said anything? This is because statements that waive rights without transferring them to another have no legal standing.

אמרי דבי רבי ינאי בכותב לה ועודה ארוסה כדרב כהנא דאמר רב כהנא נחלה הבאה לאדם ממקום אחר אדם מתנה עליה שלא יירשנה וכדרבא דאמר רבא האומר אי אפשי בתקנת חכמים כגון זו שומעין לו

The Sages from the school of Rabbi Yannai say: The mishna is referring to one who writes such a statement for her while she is still betrothed. Since the property was not yet in the husband’s possession when he wrote this condition, he was able to forgo any rights that he would later receive. This is in accordance with the opinion of Rav Kahana, as Rav Kahana said: Concerning an inheritance that comes to a person from another place, i.e., he did not inherit it directly but rather through his wife or by means of a gift, the person can stipulate with regard to it that he will not inherit it. In this case, his statement is effective, although one cannot waive a right one already has. And this ruling is in accordance with the opinion of Rava, as Rava said: With regard to one who says: I do not want to avail myself of an ordinance of the Sages that was instituted for my benefit, such as this one, one listens to him.

מאי כגון זו כדרב הונא אמר רב דאמר רב הונא אמר רב יכולה אשה שתאמר לבעלה איני ניזונת ואיני עושה

The Gemara asks: What is meant by: Such as this one? The Gemara explains: Rava is referring to that statement of Rav Huna, who said that Rav said a certain ruling. As Rav Huna said that Rav said that a woman is able say to her husband: I will not be sustained by you and, in turn, I will not work, i.e., you will not keep my earnings. The Sages instituted that a husband must provide sustenance for his wife, and in exchange is entitled to her wages. Since this was instituted for the benefit of the wife, she is able to opt out of this arrangement. Similarly, the husband may opt out of the arrangement granting him the right to the produce of his wife’s land.

אי הכי אפילו נשואה נמי

The Gemara asks: If that is so, and Rava’s opinion that one can waive a right instituted by the Sages for his own benefit is accepted, then even if he relinquished his rights to his wife’s property once she was already married, his stipulation should also be valid. Why, then, was it necessary for Rabbi Yannai to explain that the stipulation in the mishna was made only in the case of a betrothed woman?

אמר אביי נשואה ידו כידה רבא אמר ידו עדיפא מידה נפקא מינה לשומרת יבם

Abaye said: In the case of a married woman, his hand, i.e., his right to the property, is like her hand. Since the husband is considered a partner in her property, he cannot forfeit his ownership by declaration. Rava said: If they are married, his hand is preferable to her hand, i.e., he has more rights to her property than she does. The Gemara comments: The practical difference between the opinions of Rava and Abaye concerns the case of a widow awaiting her brother-in-law [yavam] to perform levirate marriage. If the husband’s rights are greater than the wife’s, then the rights of the yavam can be judged to be at least equal to that of the wife. If the husband and wife have equal rights in her property, then the rights of the yavam are inferior to the wife’s.

איבעיא להו קנו מידו מהו אמר רב יוסף מדין ודברים קנו מידו רב נחמן אמר מגופה של קרקע קנו מידו אמר אביי מסתברא מילתא דרב יוסף

A dilemma was raised before the Sages: What is the halakha if one not only wrote a declaration relinquishing his rights to his partner’s property, but they also performed an act of acquisition transferring the rights from him? Rav Yosef said: They acquired from him only his promise of: I have no legal dealings or involvement with your property. Therefore, the transaction is no more effective than the promise itself. Rav Naḥman said: The transaction is effective and they acquired the land itself from him. Abaye said: The statement of Rav Yosef is reasonable

בעורר אבל בעומד מגופה של קרקע קנו מידו

in the case of one who immediately objects when the other comes to claim the portion he was promised, saying that he wrote what he did only in order to avoid a quarrel. However, in the case of one who waits while the other takes possession of the land before regretting his decision and requesting its return, the halakha is that one acquired from him the land itself, as he cannot retract his statement at this late stage.

אמר אמימר הלכתא מגופה של קרקע קנו מידו אמר ליה רב אשי לאמימר בעורר או בעומד למאי נפקא מינה לכדרב יוסף אמר ליה לא שמיע לי כלומר לא סבירא לי:

Ameimar said: The halakha is that one acquired from him the land itself. Rav Ashi said to Ameimar: Do you mean to teach this halakha with regard to one who immediately objects or with regard to one who waits? The Gemara comments: With regard to what opinion is there a practical difference? There is a difference according to Abaye’s explanation of the opinion of Rav Yosef. However, according to Rav Naḥman, in either case the other retains possession of the land. Ameimar said to him: I did not hear about Abaye’s explanation of the opinion of Rav Yosef. That is to say, I do not hold in accordance with it. I do not distinguish between these two cases.

אם כן למה כתב לה וכו׳: ותימא ליה מכל מילי סליקת נפשך אמר אביי יד בעל השטר על התחתונה

§ The mishna taught that if a husband says: I have no claim to your property, then he has not relinquished his right to benefit from the produce of the property or to inherit from his wife. The mishna asks: If this is so, and he still retains his rights, why would he write for her: I have no legal dealings or involvement with your property, and explains that his statement grants her permission to sell the property if she so wishes? The Gemara asks: And why does the wife not say to him: You removed yourself from everything? He wrote a general statement, which could be understood as a renouncement of all of his rights. Abaye said: There is a principle that the owner of the document is at a disadvantage. A document is always interpreted as narrowly as possible, to impose only the most limited obligations. Therefore, in this case, the husband is assumed to have relinquished only some of his rights.

ואימא מפירי אמר אביי בוצינא טב מקרא

The Gemara asks: And if this is so, why not say that the husband has merely withdrawn his rights from the produce? A gift or sale of the entire land is a significant matter, certainly in relation to the minor value of its produce. Why, then, is his statement not understood as a renunciation of his rights to the produce? Abaye said: There is a proverb that a cucumber in one’s possession is better than a gourd one will have only later. There is an assumption that the husband’s current access to the produce is more important to him than the future ability to sell the field.

ואימא מירושה אמר אביי מיתה שכיחא מכירה לא שכיחא וכי מסליק איניש נפשיה ממילתא דלא שכיחא ממילתא דשכיחא לא מסליק איניש נפשיה רב אשי אמר בנכסייך ולא בפירותיהן בנכסייך ולא לאחר מיתה:

The Gemara continues to inquire: And why not say that the husband has withdrawn his rights from the inheritance? This is the least important right of the husband, as he might die before her. Abaye said: Death is common, whereas a sale is not common, as one does not usually sell one’s ancestors’ inheritance. And when a person removes himself, it is assumed that he does so from an uncommon matter. However, a person does not remove himself from something that is common. Rav Ashi said a different reason: The wording of the document is: I have no claim to your property, indicating: But I am not relinquishing my claim to its produce. Similarly, the statement: To your property, means during your lifetime, indicating: But I am not relinquishing my claim to it after your death.

רבי יהודה אומר לעולם הוא אוכל פירי פירות: תנו רבנן אלו הן פירות ואלו הן פירי פירות הכניסה לו קרקע ועשתה פירות הרי הן פירות מכר פירות ולקח מהן קרקע ועשתה פירות הרי הן פירי פירות

§ The mishna taught that if a husband wrote: To your property and to its produce, he may not eat the produce. However, Rabbi Yehuda says: He always consumes the produce of the produce. The Sages taught with regard to the statement of Rabbi Yehuda: Which is considered the produce, and which is considered the produce of the produce? If she brought into the marriage for her husband land that produced produce, this is produce. If he sold the produce and purchased land from their sale, and this land produced produce, this is the produce of the produce.

איבעיא להו לרבי יהודה פירי פירות דוקא או דלמא עד עולם דוקא או דלמא תרוייהו דוקא

A dilemma was raised before the Sages: According to Rabbi Yehuda, who maintains that the husband renounces his rights to his wife’s property by writing: To their produce and the produce of the produce forever, is it specifically the phrase produce of the produce that makes his statement effective, and it is sufficient if he writes only this phrase? Or, perhaps he must specifically write forever, and that alone is sufficient. Or perhaps it is effective only if he specifically writes both of the statements.

אם תמצי לומר פירי פירות דוקא עד עולם למה לי הא קא משמע לן כיון דכתב לה פירי פירות כמאן דכתב לה עד עולם דמי

The Gemara elaborates: If you say that it is specifically the phrase produce of the produce that makes the statement of the husband effective, why do I need the mishna to include the word forever? The Gemara suggests: This word teaches us that since he wrote to her: Produce of the produce, it is considered as though he wrote to her the term forever, but it does not matter if in practice he omitted this word.

ואם תמצי לומר עד עולם דוקא פירי פירות למה לי הא קא משמע לן אף על גב דכתב לה פירי פירות אי כתב לה עד עולם אין אי לא לא

Conversely, the Gemara asks: And if you say that he must specifically write the word forever, why do I need the mishna to include the phrase: Produce of the produce? The Gemara suggests: This phrase teaches us that although he wrote to her: Produce of the produce, if he also wrote to her the word forever, then yes, he has renounced his rights. However, if he did not write this, then he has not withdrawn his rights from her property, and he may consume the produce of the produce of the produce.

ואם תמצי לומר תרוייהו דוקא תרתי למה לי צריכא דאי כתב לה פירי פירות ולא כתב לה עד עולם הוה אמינא פירי פירות הוא דלא אכיל אבל פירא דפירי פירות אכיל להכי איצטריך עד עולם ואי כתב לה עד עולם ולא כתב לה פירי פירות הוה אמינא לעולם אפירות קאי להכי איצטריך פירי פירות:

And if you say that it is effective only if he specifically writes both of the statements, why do I need two expressions? The Gemara answers: It is necessary to include both phrases, for if he had written for her only: Produce of the produce, and not written for her: Forever, I would say that it is the produce of the produce that he may not consume, but the produce of the produce of the produce he may consume. For this reason, it was necessary to also write forever. And if he had written for her only: Forever, and had not written for her: Produce of the produce, I would say that forever is referring to the produce, i.e., the husband permanently relinquishes his claim to the produce itself, but he retains his right to the produce of the produce. For this reason, it was also necessary to specify produce of the produce.

איבעיא להו כתב לה דין ודברים אין לי בנכסייך ובפירי פירות מהו שיאכל פירות מפירי פירות סליק נפשיה מפירי לא סליק נפשיה או דלמא מכל מילי סליק נפשיה

A dilemma was raised before the Sages: If the husband wrote to his wife: I have no claim to your property or to the produce of your produce, what is the halakha with regard to the possibility that he may consume the produce itself? Has he removed himself from the produce of the produce, but from the produce itself, which he failed to mention, he has not removed himself? Or perhaps he has removed himself from all matters, as the produce of the produce includes the produce itself?

פשיטא דמכל מילי סליק נפשיה דאי אמרת מפירי פירות סליק נפשיה מפירי לא סליק נפשיה כיון דאכלינהו לפירות פירי פירות מהיכא

The Gemara answers: It is obvious that he has removed himself from all matters, for if you say that he has removed himself only from the produce of the produce, while from the produce itself he has not removed himself, since he consumes the produce, from where will there be produce of the produce?

וליטעמיך הא דתנן רבי יהודה אומר לעולם הוא אוכל פירי פירות כו׳ כיון דאכלינהו לפירי פירי פירות מהיכא אלא בדשיירא הכא נמי בדשייר:

The Gemara answers: But according to your reasoning, the same question could be asked about the case discussed in the mishna, as we learned in the mishna: Rabbi Yehuda says: He always consumes the produce of the produce, until he writes for her: Or to their produce, or to the produce of their produce forever. This indicates that if he did not write: To their produce, he would be allowed to consume the produce, just not the produce of the produce. Here too, it could be asked: Since he consumes the produce, from where will he have produce of the produce? Rather, it must be that this is referring to one who left over some of the produce, which he used to purchase land, of whose produce he consumes. If so, here too, this is a case of one who left over some of the produce, from which he acquired land, and it is the produce of this land to which he has no rights. The dilemma is left unresolved.

רבן שמעון בן גמליאל אומר כו׳: אמר רב הלכה כרבן שמעון בן גמליאל ולא מטעמיה

§ The mishna taught: Rabban Shimon ben Gamliel says: Even if he wrote: I have no claim to your property, or to its produce, or to the produce of its produce, in your lifetime and after your death, he nevertheless inherits from her. This is because his condition is void, as it runs counter to what is written in the Torah. Rav said: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel that a husband inherits from his wife, but not because of his line of reasoning.

מאי הלכה כרבן שמעון בן גמליאל ולא מטעמיה אילימא הלכה כרבן שמעון בן גמליאל דאמר אם מתה יירשנה ולאו מטעמיה דאילו רבן שמעון בן גמליאל סבר מתנה על מה שכתוב בתורה תנאו בטל ורב סבר תנאו קיים וקסבר ירושת הבעל דרבנן וחכמים עשו חיזוק לדבריהם יותר משל תורה

The Gemara asks: What is the meaning of this statement: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, but not because of his line of reasoning? What does Rav mean? If we say that Rav agrees that the halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said that if she dies he inherits from her, but Rav maintains this opinion not because of Rabban Shimon ben Gamliel’s line of reasoning, as Rabban Shimon ben Gamliel holds that if one stipulates counter to that which is written in the Torah, his condition is void, and then Rav must hold that his condition is valid. But that is not so. Rav accepts Rabban Shimon ben Gamliel’s conclusion, for he holds that the inheritance of a husband is by rabbinic law, and for this reason his condition is void, as the Sages reinforced their pronouncements with greater severity than those of Torah law and decreed that the inheritance of a husband cannot be canceled in any manner.