Reish Lakish suggested that the Mishna quoted by Rabbi Yochanan could be explained as Rabbi Akiva’s opinion. But this is rejected as Rabbi Akiva holds that one can acquire things that are not yet in existence and the Mishna was based on the principle that things that are not yet in existence cannot be acquired. Some hold that Rabbi Akiva holds this way and others disagree. Rav Nachman brought a list of rabbis, including Rabbi Akiva, who all hold that one can acquire something that is not yet in existence. The Gemara then lists all of the sources in which we see each one’s opinion. Two versions are brought of a question that Rav Sheshet was asked. Either the question was – can one witness be accepted to permit a woman to marry a yabam. Or can one witness be accepted to permit a woman to marry someone other than the yabam (that the son died after the father)?
This week’s learning is dedicated by Medinah Korn in loving memory of her mother, Rosalie Katchen, Shoshana Raizl bat Avraham Yehoshua ve-Baila Toibe, z”l, on her 25th yahrzeit. She left a profound legacy for her family and many devoted friends who continue to learn from her to this day. Yehi zichra baruch.
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This week’s learning is dedicated by Medinah Korn in loving memory of her mother, Rosalie Katchen, Shoshana Raizl bat Avraham Yehoshua ve-Baila Toibe, z”l, on her 25th yahrzeit. She left a profound legacy for her family and many devoted friends who continue to learn from her to this day. Yehi zichra baruch.
Yevamot 93
קֻוֽנָּם שֶׁאֲנִי עוֹשָׂה לְפִיךָ — אֵין צָרִיךְ לְהָפֵר.
If a wife said: Konam, i.e., this is forbidden like consecrated property, in reference to anything that I will prepare for your mouth, that is, the payment for any work I perform shall be forbidden to you, he is not required to nullify the vow, as it is automatically void, since she was under a prior obligation to give him her earnings as part of their marriage agreement.
רַבִּי עֲקִיבָא אוֹמֵר: יָפֵר, שֶׁמָּא תַּעֲדִיף עָלָיו יוֹתֵר מִן הָרָאוּי לוֹ.
Rabbi Akiva says: He should nullify the vow, lest she exceed more than is fitting for him. A husband is entitled only to a certain sum from his wife’s earnings (see Ketubot 64b). If she earns only the sum of money to which he is entitled, the vow certainly does not go into effect. However, she might earn more, in which case the vow would apply with regard to the additional amount. To avoid this scenario, it is preferable for the husband to nullify the vow. This shows that according to the opinion of Rabbi Akiva a vow applies even with regard to an entity that has not yet come into the world. In this case, the entity is the earnings for work she has yet to perform.
הָא אִיתְּמַר עֲלַהּ: אָמַר רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ: בְּאוֹמֶרֶת: ״יִקְדְּשׁוּ יָדַי לְעוֹשֵׂיהֶם״, דְּיָדַיִם אִיתַנְהוּ בְּעָלְמָא.
The Gemara refutes this proof: But wasn’t it stated with regard to that mishna that Rav Huna, son of Rav Yehoshua, said: This mishna is not referring to a woman who renders the earnings for work she has yet to perform forbidden, but to a wife who says: Let my hands be consecrated to their Maker. In other words, she declares that it is as though her hands were sanctified, which means that anything produced by them is forbidden. Since these hands are in the world, she has not attempted to acquire something that does not exist. Therefore, there is no proof from here with regard to Rabbi Akiva’s opinion on that issue.
וּפְלִיגָא דְּרַב נַחְמָן בַּר יִצְחָק. דְּאָמַר רַב נַחְמָן בַּר יִצְחָק: רַב הוּנָא כְּרַב, וְרַב כְּרַבִּי יַנַּאי, וְרַבִּי יַנַּאי כְּרַבִּי חִיָּיא, וְרַבִּי חִיָּיא כְּרַבִּי, וְרַבִּי כְּרַבִּי מֵאִיר, וְרַבִּי מֵאִיר כְּרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב, וְרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב כְּרַבִּי עֲקִיבָא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.
§ The Gemara comments: And this opinion, that Rabbi Akiva maintains that one cannot acquire an entity that has not yet come into the world, disagrees with the opinion of Rav Naḥman bar Yitzḥak, as Rav Naḥman bar Yitzḥak said: Rav Huna agrees with the opinion of Rav, and Rav agrees with the opinion of Rabbi Yannai, and Rabbi Yannai with the opinion of Rabbi Ḥiyya, and Rabbi Ḥiyya with the opinion of Rabbi Yehuda HaNasi, and Rabbi Yehuda HaNasi with the opinion of Rabbi Meir, and Rabbi Meir with the opinion of Rabbi Eliezer ben Ya’akov, and Rabbi Eliezer ben Ya’akov with the opinion of Rabbi Akiva, who said: A person can transfer to another an entity that has not yet come into the world. This shows that Rabbi Akiva indeed maintains that one can acquire something that does not yet exist.
רַב הוּנָא מַאי הִיא? דְּאִיתְּמַר: הַמּוֹכֵר פֵּירוֹת דֶּקֶל לַחֲבֵרוֹ, אָמַר רַב הוּנָא: עַד שֶׁלֹּא בָּאוּ לָעוֹלָם — יָכוֹל לַחְזוֹר בּוֹ. מִשֶּׁבָּאוּ לָעוֹלָם — אֵין יָכוֹל לַחְזוֹר בּוֹ.
The Gemara specifies the particular contexts in which the aforementioned opinions, all of which concur, were issued: Rav Huna, what is the source for his ruling? As it was stated: With regard to one who sells the fruit of a palm tree to another before the fruit has grown, Rav Huna said: Until the fruit has come into the world, he can retract the sale, as it has yet to take effect. However, after the fruit has come into the world, he can no longer retract, despite the fact the fruit had not yet sprouted when he made the acquisition.
וְרַב נַחְמָן אָמַר: אַף מִשֶּׁבָּאוּ לָעוֹלָם — יָכוֹל לַחְזוֹר בּוֹ. אָמַר רַב נַחְמָן: מוֹדֵינָא דְּאִי שָׁמֵיט וְאָכֵיל — לָא מַפְּקִינַן מִינֵּיהּ.
And Rav Naḥman said: Even after they have come into the world he can retract, as the acquisition was defective from the outset. He maintains that one cannot transfer ownership of an entity that does not yet exist. Rav Naḥman said: Even so, I concede that if the buyer seizes the fruit and consumes it, the court does not remove them from him, because despite the faulty acquisition he was promised a sale of fruit.
רַב — דְּאָמַר רַב הוּנָא אָמַר רַב: הָאוֹמֵר לַחֲבֵרוֹ ״שָׂדֶה זוֹ שֶׁאֲנִי לוֹקֵחַ לִכְשֶׁאֶקָּחֶנָּה, קְנוּיָה לְךָ מֵעַכְשָׁיו״ — קָנָה.
The Gemara cites the proof that Rav also accepts the ruling that one can acquire an entity that does not yet exist, as Rav Huna said that Rav said: With regard to one who says to another: This field that I am about to buy, when I buy it, it is acquired by you from now, the addressee has acquired the field, despite the fact that it did not belong to the speaker at the time of his statement.
רַבִּי יַנַּאי כְּרַבִּי חִיָּיא — דְּרַבִּי יַנַּאי הֲוָה לֵיהּ אֲרִיסָא דַּהֲוָה מַיְיתֵי לֵיהּ כַּנְתָּא דְפֵירֵי כׇּל מַעֲלֵי שַׁבְּתָא. הָהוּא יוֹמָא נְגַהּ לֵיהּ וְלָא אֲתָא. שְׁקַל עַשַּׂר מִפֵּירֵי דְבֵיתֵיהּ עֲלַיְיהוּ. אֲתָא לְקַמֵּיהּ דְּרַבִּי חִיָּיא,
Rabbi Yannai also agrees with the opinion of Rabbi Ḥiyya, as demonstrated by the following episode: Rabbi Yannai had a sharecropper working his land who would bring him a basket [kanta] of fruit every Shabbat eve. One day he was late and did not come. Rabbi Yannai took tithe from the fruit in his house for the fruit he expected to receive. He did this in case the fruit arrived near the beginning of Shabbat, as one may not tithe on Shabbat. However, Rabbi Yannai was uncertain whether it is indeed possible to separate tithes for an entity that has not yet reached one’s possession. He therefore came before Rabbi Ḥiyya to inquire whether his separation of tithes was effective.
אֲמַר לֵיהּ: שַׁפִּיר עֲבַדְתְּ. דְּתַנְיָא: ״לְמַעַן תִּלְמַד לְיִרְאָה אֶת ה׳ אֱלֹהֶיךָ כׇּל הַיָּמִים״ — אֵלּוּ שַׁבָּתוֹת וְיָמִים טוֹבִים. לְמַאי הִלְכְתָא? אִילֵּימָא לְעַשּׂוֹרֵי וּמֵיכַל, אִיצְטְרִיךְ קְרָא לְמִישְׁרֵי טִלְטוּל דְּרַבָּנַן?!
Rabbi Ḥiyya said to him: You acted well, as it is taught in a baraita, with regard to a verse that discusses tithes: “And you shall eat before the Lord your God…in order that you should learn to fear the Lord your God all the days” (Deuteronomy 14:23). With regard to the emphasis of “all,” these are Shabbatot and Festivals. With regard to what halakha was this stated? If we say it was stated in regard to the issue of tithing and eating on Shabbat, this halakha is redundant. Was a verse necessary to permit the prohibition against moving objects, which applies by rabbinic law? Since the prohibition against moving objects is from the Sages, the Torah is certainly not referring to this halakha.
אֶלָּא לָאו, כִּי הַאי גַוְונָא. אֲמַר לֵיהּ: וְהָא אַקְרְיוּן בְּחֶלְמָא ״קָנֶה רָצוּץ״, מַאי לָאו, הָכִי קָאָמְרִי לִי: ״הִנֵּה בָטַחְתָּ לְּךָ עַל מִשְׁעֶנֶת הַקָּנֶה הָרָצוּץ הַזֶּה״?
Rather, is it not referring to a case like this, of one who tithed an entity that was not yet in the world, in honor of Shabbat? Rabbi Yannai said to Rabbi Ḥiyya: But they read before me in a dream these two words: Bruised reed. What, is it not the case that they said to me as follows: “Behold you trust upon the staff of this bruised reed” (II Kings 18:21)? In other words, you rely on an unsubstantiated idea.
לָא, הָכִי קָאָמְרִי לָךְ: ״קָנֶה רָצוּץ לֹא יִשְׁבּוֹר וּפִשְׁתָּה כֵהָה לֹא יְכַבֶּנָּה״.
Rabbi Ḥiyya said to him: No; The dream referred to a different verse, one that deals with the Messiah, as they said to you as follows: “A bruised reed he shall not break and the dimly burning wick he shall not quench; according to truth he shall bring forth justice” (Isaiah 42:3). In other words, Rabbi Yannai acted correctly, in accordance with the ways of truth. This exchange shows that both Rabbi Ḥiyya and Rabbi Yannai agree that an entity not in the world can be acquired.
רַבִּי — דְּתַנְיָא: ״לֹא תַסְגִּיר עֶבֶד אֶל אֲדוֹנָיו״, רַבִּי אוֹמֵר: בְּלוֹקֵחַ עֶבֶד עַל מְנָת לְשַׁחְרְרוֹ הַכָּתוּב מְדַבֵּר. הֵיכִי דָּמֵי? אָמַר רַב נַחְמָן בַּר יִצְחָק: דִּכְתַב לֵיהּ לִכְשֶׁאֶקָּחֲךָ — הֲרֵי עַצְמְךָ קָנוּי לְךָ מֵעַכְשָׁיו.
With regard to Rabbi Yehuda HaNasi, his opinion is as it is taught in a baraita: The verse states: “You shall not deliver a slave to his master” (Deuteronomy 23:16). Rabbi Yehuda HaNasi says: The verse is speaking of one who buys a slave on the condition to free him. This owner may not keep his acquisition as a slave. The Gemara clarifies: What are the circumstances? Rav Naḥman bar Yitzḥak said: It is referring to a case where one wrote to a slave in the document of acquisition: When I acquire you as a slave, you are acquired by yourself from now. In this case, the buyer transfers ownership of an entity not yet in the world, as the slave did not yet belong to him.
רַבִּי מֵאִיר — דִּתְנַן, הָאוֹמֵר לְאִשָּׁה: ״הֲרֵי אַתְּ מְקוּדֶּשֶׁת לִי לְאַחַר שֶׁאֶתְגַּיֵּיר״, ״לְאַחַר שֶׁתִּתְגַּיְּירִי״, ״לְאַחַר שֶׁאֶשְׁתַּחְרֵר״, ״לְאַחַר שֶׁתִּשְׁתַּחְרְרִי״, ״לְאַחַר שֶׁיָּמוּת בַּעְלִיךְ״, ״לְאַחַר שֶׁתָּמוּת אֲחוֹתִיךְ״, ״לְאַחַר שֶׁיַּחְלוֹץ לִיךְ יְבָמִיךְ״ — אֵינָהּ מְקוּדֶּשֶׁת. רַבִּי מֵאִיר אוֹמֵר: מְקוּדֶּשֶׁת.
Rabbi Meir, his opinion is as we learned in a mishna (Bava Metzia 16b): One who says to a woman: You are hereby betrothed to me after I convert; after you convert; after I am freed; after you are freed; after your husband dies; after your sister dies; after your yavam performs ḥalitza with you, she is not betrothed. Rabbi Meir says she is betrothed, as the acquisition of a betrothal applies even to an entity not yet in the world, in this case, a woman available for betrothal.
רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב — דְּתַנְיָא: יָתֵר עַל כֵּן אָמַר רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב: אֲפִילּוּ אִם אָמַר ״פֵּירוֹת עֲרוּגָה זוֹ תְּלוּשִׁים יְהוּ תְּרוּמָה עַל פֵּירוֹת עֲרוּגָה מְחוּבָּרִים״, אוֹ ״פֵּירוֹת עֲרוּגָה מְחוּבָּרִים עַל פֵּירוֹת זוֹ תְּלוּשִׁין, לִכְשֶׁיָּבִיאוּ שְׁלִישׁ וְיִתָּלְשׁוּ״, וְהֵבִיאוּ שְׁלִישׁ וְנִתְלְשׁוּ — דְּבָרָיו קַיָּימִין.
Rabbi Eliezer ben Ya’akov, his opinion is as it is taught in a baraita: Moreover, Rabbi Eliezer ben Ya’akov said that even if one said: The detached fruit of this garden bed shall be teruma for the currently attached fruit of this garden bed when its fruit will be detached, or if he said: The attached fruit of this garden bed shall be teruma for the currently detached fruit of this garden bed when the fruit reach a third of their growth, i.e., a third of their ripeness, and are detached, and if they actually reached a third and were detached, then his words are upheld and the teruma takes effect, despite the fact that the stipulation was issued before the attached fruit had ripened and before the obligation of teruma applied to the detached fruit. This halakha shows that one can acquire an entity not yet in the world; in this case he acquires the fruit by applying the sanctity of teruma to it.
רַבִּי עֲקִיבָא — דִּתְנַן: ״קֻוֽנָּם שֶׁאֲנִי עוֹשָׂה לְפִיךָ״ — אֵינוֹ צָרִיךְ לְהָפֵר. רַבִּי עֲקִיבָא אוֹמֵר: יָפֵר, שֶׁמָּא תַּעֲדִיף עָלָיו יֶתֶר מִן הָרָאוּי לוֹ.
Rabbi Akiva, his opinion is as we learned in the aforementioned mishna, that if a wife says: Konam that I will prepare for your mouth, the husband is not required to nullify the vow. Rabbi Akiva says: He should nullify the vow, lest she exceed more than is fitting for him, as he maintains that the vow applies even to entities not yet in the world.
בְּעוֹ מִינֵּיהּ מֵרַב שֵׁשֶׁת: עֵד אֶחָד בִּיבָמָה, מַהוּ? טַעְמָא דְּעֵד אֶחָד — מִשּׁוּם דְּמִילְּתָא דַּעֲבִידָא לְאִיגַּלּוֹיֵי לָא מְשַׁקַּר, וְהָכָא נָמֵי לָא מְשַׁקַּר. אוֹ דִלְמָא: טַעְמָא דְּעֵד אֶחָד מִשּׁוּם — דְּאִיהִי דָּיְיקָא וּמִינַּסְבָא. וְהָכָא, כֵּיוָן דְּזִימְנִין דְּרָחֲמָא לֵיהּ — לָא דָּיְיקָא וּמִינַּסְבָא.
§ They raised a dilemma before Rav Sheshet: In a case of one witness who testifies that a woman’s husband is dead, with regard to a yevama, what is the halakha? Can the court rely on this witness? The Gemara explains the sides of the dilemma: Is the reason that the testimony of one witness in the case of a missing husband is accepted because one does not lie about something that will be discovered, and here, too, he will not lie, in case the husband later arrives? Or, perhaps the reason for the eligibility of one witness is because the woman herself is exacting in her investigation before she marries again. But here, since she sometimes loves the yavam, as she already knew him beforehand, she is not exacting in her investigation before she marries again.
אֲמַר לְהוּ רַב שֵׁשֶׁת: תְּנֵיתוּהָ, אָמְרוּ לָהּ: מֵת בְּנֵךְ וְאַחַר כָּךְ מֵת בַּעְלִיךְ וְנִתְיַיבְּמָה, וְאַחַר כָּךְ אָמְרוּ לָהּ חִילּוּף הַדְּבָרִים — תֵּצֵא, וְהַוָּלָד רִאשׁוֹן וְאַחֲרוֹן מַמְזֵר. הֵיכִי דָמֵי: אִילֵּימָא תְּרֵי וּתְרֵי — מַאי חָזֵית דְּסָמְכַתְּ אַהָנֵי, סְמוֹךְ אַהָנֵי!
Rav Sheshet said to him: You learned the answer to this question in the mishna: If they said to her: Your child died and afterward your husband died, and she entered into levirate marriage, and afterward they said to her that the matters were reversed, she must leave her husband, and the first child and the last one are each a mamzer. Rav Sheshet analyzes this case: What are the circumstances? If we say they are two and two, i.e., two witnesses came first and said one account, followed by two other witnesses who claimed the reverse, what did you see to make you rely on these second witnesses when you can equally rely on the first pair? The first witnesses do not lose their credibility merely due to the testimony of the second pair, so why should she have to leave the yavam?
וְעוֹד, מַמְזֵר? סְפֵק מַמְזֵר הוּא. וְכִי תֵּימָא לָא דָּק, וְהָא מִדְּקָתָנֵי סֵיפָא: הָרִאשׁוֹן מַמְזֵר וְהָאַחֲרוֹן אֵינוֹ מַמְזֵר, שְׁמַע מִינַּהּ דַּוְקָא קָתָנֵי.
And furthermore, why should the child be a definite mamzer? At worst he is an individual whose status as a mamzer is uncertain, as there are two conflicting sets of testimonies. And if you would say that the tanna of the mishna was not precise in his failure to distinguish between a definite mamzer and one of uncertain status, but from the fact that it teaches in the latter clause of the mishna: The first is a mamzer and the last is not a mamzer, one can learn from here that the mishna was taught specifically in this manner, i.e., the mamzer the tanna referred to is a definite mamzer.
אֶלָּא לָאו שְׁמַע מִינַּהּ: חַד. וְטַעְמָא דַּאֲתוֹ בֵּי תְרֵי אַכְחֲשׁוּהּ, הָא לָאו הָכִי — מְהֵימַן.
Rather, isn’t it correct to conclude from here that only one witness testified at first, and the reason for the halakha is that two people came and contradicted him, as the testimony of two witnesses certainly overrules that of a single witness? It may be inferred from this that if it were not so, the lone witness is deemed credible. This shows that the court will accept the testimony of one witness even to allow a woman to enter into levirate marriage.
וְאִיכָּא דְּאָמַר: הָא לָא תִּיבְּעֵי לָךְ דַּאֲפִילּוּ אִיהִי נָמֵי מְהֵימְנָא, דִּתְנַן: הָאִשָּׁה שֶׁאָמְרָה מֵת בַּעְלִי — תִּנָּשֵׂא. מֵת בַּעְלִי — תִּתְיַיבֵּם. כִּי תִּיבְּעֵי לָךְ לְמִישְׁרֵי יְבָמָה לְעָלְמָא:
The Gemara provides an alternative version of the discussion. And some Sages maintain another version that says: Let the dilemma not be raised, as even a wife herself is also deemed credible when she says her husband is dead, as we learned in a mishna (114b): With regard to a woman who said: My husband is dead, she may marry. Likewise, if she claimed: My husband is dead, she should enter into levirate marriage. If so, one witness is certainly deemed credible when he says her husband has died. The case where you could raise the dilemma is with regard to permitting a yevama to all other men, if a witness claims that the yavam is dead.
מַאי טַעְמָא דְּעֵד אֶחָד — מִשּׁוּם דְּמִילְּתָא דַּעֲבִידָא לְאִיגַּלּוֹיֵי לָא מְשַׁקַּר, הָכָא נָמֵי לָא מְשַׁקַּר. אוֹ דִלְמָא: טַעְמָא דְּעֵד אֶחָד, מִשּׁוּם דְּאִיהִי דָּיְיקָא וּמִינַּסְבָא, וְהָא לָא דָּיְיקָא וּמִינַּסְבָא — דְּמִיסְנָא הוּא
In this case as well, the Gemara clarifies the sides of this dilemma: What is the reason that one witness is deemed credible? Is it because one does not lie about something that will be discovered, and therefore here too he would not lie? Or, perhaps the reason for accepting the testimony of one witness is because the wife is exacting in her investigation before she marries again, but this yevama is not exacting in her investigation before she marries again. Why not? Because she
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תמיד רציתי. למדתי גמרא בבית ספר בטורונטו קנדה. עליתי ארצה ולמדתי שזה לא מקובל. הופתעתי.
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Yevamot 93
קֻוֽנָּם שֶׁאֲנִי עוֹשָׂה לְפִיךָ — אֵין צָרִיךְ לְהָפֵר.
If a wife said: Konam, i.e., this is forbidden like consecrated property, in reference to anything that I will prepare for your mouth, that is, the payment for any work I perform shall be forbidden to you, he is not required to nullify the vow, as it is automatically void, since she was under a prior obligation to give him her earnings as part of their marriage agreement.
רַבִּי עֲקִיבָא אוֹמֵר: יָפֵר, שֶׁמָּא תַּעֲדִיף עָלָיו יוֹתֵר מִן הָרָאוּי לוֹ.
Rabbi Akiva says: He should nullify the vow, lest she exceed more than is fitting for him. A husband is entitled only to a certain sum from his wife’s earnings (see Ketubot 64b). If she earns only the sum of money to which he is entitled, the vow certainly does not go into effect. However, she might earn more, in which case the vow would apply with regard to the additional amount. To avoid this scenario, it is preferable for the husband to nullify the vow. This shows that according to the opinion of Rabbi Akiva a vow applies even with regard to an entity that has not yet come into the world. In this case, the entity is the earnings for work she has yet to perform.
הָא אִיתְּמַר עֲלַהּ: אָמַר רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ: בְּאוֹמֶרֶת: ״יִקְדְּשׁוּ יָדַי לְעוֹשֵׂיהֶם״, דְּיָדַיִם אִיתַנְהוּ בְּעָלְמָא.
The Gemara refutes this proof: But wasn’t it stated with regard to that mishna that Rav Huna, son of Rav Yehoshua, said: This mishna is not referring to a woman who renders the earnings for work she has yet to perform forbidden, but to a wife who says: Let my hands be consecrated to their Maker. In other words, she declares that it is as though her hands were sanctified, which means that anything produced by them is forbidden. Since these hands are in the world, she has not attempted to acquire something that does not exist. Therefore, there is no proof from here with regard to Rabbi Akiva’s opinion on that issue.
וּפְלִיגָא דְּרַב נַחְמָן בַּר יִצְחָק. דְּאָמַר רַב נַחְמָן בַּר יִצְחָק: רַב הוּנָא כְּרַב, וְרַב כְּרַבִּי יַנַּאי, וְרַבִּי יַנַּאי כְּרַבִּי חִיָּיא, וְרַבִּי חִיָּיא כְּרַבִּי, וְרַבִּי כְּרַבִּי מֵאִיר, וְרַבִּי מֵאִיר כְּרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב, וְרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב כְּרַבִּי עֲקִיבָא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.
§ The Gemara comments: And this opinion, that Rabbi Akiva maintains that one cannot acquire an entity that has not yet come into the world, disagrees with the opinion of Rav Naḥman bar Yitzḥak, as Rav Naḥman bar Yitzḥak said: Rav Huna agrees with the opinion of Rav, and Rav agrees with the opinion of Rabbi Yannai, and Rabbi Yannai with the opinion of Rabbi Ḥiyya, and Rabbi Ḥiyya with the opinion of Rabbi Yehuda HaNasi, and Rabbi Yehuda HaNasi with the opinion of Rabbi Meir, and Rabbi Meir with the opinion of Rabbi Eliezer ben Ya’akov, and Rabbi Eliezer ben Ya’akov with the opinion of Rabbi Akiva, who said: A person can transfer to another an entity that has not yet come into the world. This shows that Rabbi Akiva indeed maintains that one can acquire something that does not yet exist.
רַב הוּנָא מַאי הִיא? דְּאִיתְּמַר: הַמּוֹכֵר פֵּירוֹת דֶּקֶל לַחֲבֵרוֹ, אָמַר רַב הוּנָא: עַד שֶׁלֹּא בָּאוּ לָעוֹלָם — יָכוֹל לַחְזוֹר בּוֹ. מִשֶּׁבָּאוּ לָעוֹלָם — אֵין יָכוֹל לַחְזוֹר בּוֹ.
The Gemara specifies the particular contexts in which the aforementioned opinions, all of which concur, were issued: Rav Huna, what is the source for his ruling? As it was stated: With regard to one who sells the fruit of a palm tree to another before the fruit has grown, Rav Huna said: Until the fruit has come into the world, he can retract the sale, as it has yet to take effect. However, after the fruit has come into the world, he can no longer retract, despite the fact the fruit had not yet sprouted when he made the acquisition.
וְרַב נַחְמָן אָמַר: אַף מִשֶּׁבָּאוּ לָעוֹלָם — יָכוֹל לַחְזוֹר בּוֹ. אָמַר רַב נַחְמָן: מוֹדֵינָא דְּאִי שָׁמֵיט וְאָכֵיל — לָא מַפְּקִינַן מִינֵּיהּ.
And Rav Naḥman said: Even after they have come into the world he can retract, as the acquisition was defective from the outset. He maintains that one cannot transfer ownership of an entity that does not yet exist. Rav Naḥman said: Even so, I concede that if the buyer seizes the fruit and consumes it, the court does not remove them from him, because despite the faulty acquisition he was promised a sale of fruit.
רַב — דְּאָמַר רַב הוּנָא אָמַר רַב: הָאוֹמֵר לַחֲבֵרוֹ ״שָׂדֶה זוֹ שֶׁאֲנִי לוֹקֵחַ לִכְשֶׁאֶקָּחֶנָּה, קְנוּיָה לְךָ מֵעַכְשָׁיו״ — קָנָה.
The Gemara cites the proof that Rav also accepts the ruling that one can acquire an entity that does not yet exist, as Rav Huna said that Rav said: With regard to one who says to another: This field that I am about to buy, when I buy it, it is acquired by you from now, the addressee has acquired the field, despite the fact that it did not belong to the speaker at the time of his statement.
רַבִּי יַנַּאי כְּרַבִּי חִיָּיא — דְּרַבִּי יַנַּאי הֲוָה לֵיהּ אֲרִיסָא דַּהֲוָה מַיְיתֵי לֵיהּ כַּנְתָּא דְפֵירֵי כׇּל מַעֲלֵי שַׁבְּתָא. הָהוּא יוֹמָא נְגַהּ לֵיהּ וְלָא אֲתָא. שְׁקַל עַשַּׂר מִפֵּירֵי דְבֵיתֵיהּ עֲלַיְיהוּ. אֲתָא לְקַמֵּיהּ דְּרַבִּי חִיָּיא,
Rabbi Yannai also agrees with the opinion of Rabbi Ḥiyya, as demonstrated by the following episode: Rabbi Yannai had a sharecropper working his land who would bring him a basket [kanta] of fruit every Shabbat eve. One day he was late and did not come. Rabbi Yannai took tithe from the fruit in his house for the fruit he expected to receive. He did this in case the fruit arrived near the beginning of Shabbat, as one may not tithe on Shabbat. However, Rabbi Yannai was uncertain whether it is indeed possible to separate tithes for an entity that has not yet reached one’s possession. He therefore came before Rabbi Ḥiyya to inquire whether his separation of tithes was effective.
אֲמַר לֵיהּ: שַׁפִּיר עֲבַדְתְּ. דְּתַנְיָא: ״לְמַעַן תִּלְמַד לְיִרְאָה אֶת ה׳ אֱלֹהֶיךָ כׇּל הַיָּמִים״ — אֵלּוּ שַׁבָּתוֹת וְיָמִים טוֹבִים. לְמַאי הִלְכְתָא? אִילֵּימָא לְעַשּׂוֹרֵי וּמֵיכַל, אִיצְטְרִיךְ קְרָא לְמִישְׁרֵי טִלְטוּל דְּרַבָּנַן?!
Rabbi Ḥiyya said to him: You acted well, as it is taught in a baraita, with regard to a verse that discusses tithes: “And you shall eat before the Lord your God…in order that you should learn to fear the Lord your God all the days” (Deuteronomy 14:23). With regard to the emphasis of “all,” these are Shabbatot and Festivals. With regard to what halakha was this stated? If we say it was stated in regard to the issue of tithing and eating on Shabbat, this halakha is redundant. Was a verse necessary to permit the prohibition against moving objects, which applies by rabbinic law? Since the prohibition against moving objects is from the Sages, the Torah is certainly not referring to this halakha.
אֶלָּא לָאו, כִּי הַאי גַוְונָא. אֲמַר לֵיהּ: וְהָא אַקְרְיוּן בְּחֶלְמָא ״קָנֶה רָצוּץ״, מַאי לָאו, הָכִי קָאָמְרִי לִי: ״הִנֵּה בָטַחְתָּ לְּךָ עַל מִשְׁעֶנֶת הַקָּנֶה הָרָצוּץ הַזֶּה״?
Rather, is it not referring to a case like this, of one who tithed an entity that was not yet in the world, in honor of Shabbat? Rabbi Yannai said to Rabbi Ḥiyya: But they read before me in a dream these two words: Bruised reed. What, is it not the case that they said to me as follows: “Behold you trust upon the staff of this bruised reed” (II Kings 18:21)? In other words, you rely on an unsubstantiated idea.
לָא, הָכִי קָאָמְרִי לָךְ: ״קָנֶה רָצוּץ לֹא יִשְׁבּוֹר וּפִשְׁתָּה כֵהָה לֹא יְכַבֶּנָּה״.
Rabbi Ḥiyya said to him: No; The dream referred to a different verse, one that deals with the Messiah, as they said to you as follows: “A bruised reed he shall not break and the dimly burning wick he shall not quench; according to truth he shall bring forth justice” (Isaiah 42:3). In other words, Rabbi Yannai acted correctly, in accordance with the ways of truth. This exchange shows that both Rabbi Ḥiyya and Rabbi Yannai agree that an entity not in the world can be acquired.
רַבִּי — דְּתַנְיָא: ״לֹא תַסְגִּיר עֶבֶד אֶל אֲדוֹנָיו״, רַבִּי אוֹמֵר: בְּלוֹקֵחַ עֶבֶד עַל מְנָת לְשַׁחְרְרוֹ הַכָּתוּב מְדַבֵּר. הֵיכִי דָּמֵי? אָמַר רַב נַחְמָן בַּר יִצְחָק: דִּכְתַב לֵיהּ לִכְשֶׁאֶקָּחֲךָ — הֲרֵי עַצְמְךָ קָנוּי לְךָ מֵעַכְשָׁיו.
With regard to Rabbi Yehuda HaNasi, his opinion is as it is taught in a baraita: The verse states: “You shall not deliver a slave to his master” (Deuteronomy 23:16). Rabbi Yehuda HaNasi says: The verse is speaking of one who buys a slave on the condition to free him. This owner may not keep his acquisition as a slave. The Gemara clarifies: What are the circumstances? Rav Naḥman bar Yitzḥak said: It is referring to a case where one wrote to a slave in the document of acquisition: When I acquire you as a slave, you are acquired by yourself from now. In this case, the buyer transfers ownership of an entity not yet in the world, as the slave did not yet belong to him.
רַבִּי מֵאִיר — דִּתְנַן, הָאוֹמֵר לְאִשָּׁה: ״הֲרֵי אַתְּ מְקוּדֶּשֶׁת לִי לְאַחַר שֶׁאֶתְגַּיֵּיר״, ״לְאַחַר שֶׁתִּתְגַּיְּירִי״, ״לְאַחַר שֶׁאֶשְׁתַּחְרֵר״, ״לְאַחַר שֶׁתִּשְׁתַּחְרְרִי״, ״לְאַחַר שֶׁיָּמוּת בַּעְלִיךְ״, ״לְאַחַר שֶׁתָּמוּת אֲחוֹתִיךְ״, ״לְאַחַר שֶׁיַּחְלוֹץ לִיךְ יְבָמִיךְ״ — אֵינָהּ מְקוּדֶּשֶׁת. רַבִּי מֵאִיר אוֹמֵר: מְקוּדֶּשֶׁת.
Rabbi Meir, his opinion is as we learned in a mishna (Bava Metzia 16b): One who says to a woman: You are hereby betrothed to me after I convert; after you convert; after I am freed; after you are freed; after your husband dies; after your sister dies; after your yavam performs ḥalitza with you, she is not betrothed. Rabbi Meir says she is betrothed, as the acquisition of a betrothal applies even to an entity not yet in the world, in this case, a woman available for betrothal.
רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב — דְּתַנְיָא: יָתֵר עַל כֵּן אָמַר רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב: אֲפִילּוּ אִם אָמַר ״פֵּירוֹת עֲרוּגָה זוֹ תְּלוּשִׁים יְהוּ תְּרוּמָה עַל פֵּירוֹת עֲרוּגָה מְחוּבָּרִים״, אוֹ ״פֵּירוֹת עֲרוּגָה מְחוּבָּרִים עַל פֵּירוֹת זוֹ תְּלוּשִׁין, לִכְשֶׁיָּבִיאוּ שְׁלִישׁ וְיִתָּלְשׁוּ״, וְהֵבִיאוּ שְׁלִישׁ וְנִתְלְשׁוּ — דְּבָרָיו קַיָּימִין.
Rabbi Eliezer ben Ya’akov, his opinion is as it is taught in a baraita: Moreover, Rabbi Eliezer ben Ya’akov said that even if one said: The detached fruit of this garden bed shall be teruma for the currently attached fruit of this garden bed when its fruit will be detached, or if he said: The attached fruit of this garden bed shall be teruma for the currently detached fruit of this garden bed when the fruit reach a third of their growth, i.e., a third of their ripeness, and are detached, and if they actually reached a third and were detached, then his words are upheld and the teruma takes effect, despite the fact that the stipulation was issued before the attached fruit had ripened and before the obligation of teruma applied to the detached fruit. This halakha shows that one can acquire an entity not yet in the world; in this case he acquires the fruit by applying the sanctity of teruma to it.
רַבִּי עֲקִיבָא — דִּתְנַן: ״קֻוֽנָּם שֶׁאֲנִי עוֹשָׂה לְפִיךָ״ — אֵינוֹ צָרִיךְ לְהָפֵר. רַבִּי עֲקִיבָא אוֹמֵר: יָפֵר, שֶׁמָּא תַּעֲדִיף עָלָיו יֶתֶר מִן הָרָאוּי לוֹ.
Rabbi Akiva, his opinion is as we learned in the aforementioned mishna, that if a wife says: Konam that I will prepare for your mouth, the husband is not required to nullify the vow. Rabbi Akiva says: He should nullify the vow, lest she exceed more than is fitting for him, as he maintains that the vow applies even to entities not yet in the world.
בְּעוֹ מִינֵּיהּ מֵרַב שֵׁשֶׁת: עֵד אֶחָד בִּיבָמָה, מַהוּ? טַעְמָא דְּעֵד אֶחָד — מִשּׁוּם דְּמִילְּתָא דַּעֲבִידָא לְאִיגַּלּוֹיֵי לָא מְשַׁקַּר, וְהָכָא נָמֵי לָא מְשַׁקַּר. אוֹ דִלְמָא: טַעְמָא דְּעֵד אֶחָד מִשּׁוּם — דְּאִיהִי דָּיְיקָא וּמִינַּסְבָא. וְהָכָא, כֵּיוָן דְּזִימְנִין דְּרָחֲמָא לֵיהּ — לָא דָּיְיקָא וּמִינַּסְבָא.
§ They raised a dilemma before Rav Sheshet: In a case of one witness who testifies that a woman’s husband is dead, with regard to a yevama, what is the halakha? Can the court rely on this witness? The Gemara explains the sides of the dilemma: Is the reason that the testimony of one witness in the case of a missing husband is accepted because one does not lie about something that will be discovered, and here, too, he will not lie, in case the husband later arrives? Or, perhaps the reason for the eligibility of one witness is because the woman herself is exacting in her investigation before she marries again. But here, since she sometimes loves the yavam, as she already knew him beforehand, she is not exacting in her investigation before she marries again.
אֲמַר לְהוּ רַב שֵׁשֶׁת: תְּנֵיתוּהָ, אָמְרוּ לָהּ: מֵת בְּנֵךְ וְאַחַר כָּךְ מֵת בַּעְלִיךְ וְנִתְיַיבְּמָה, וְאַחַר כָּךְ אָמְרוּ לָהּ חִילּוּף הַדְּבָרִים — תֵּצֵא, וְהַוָּלָד רִאשׁוֹן וְאַחֲרוֹן מַמְזֵר. הֵיכִי דָמֵי: אִילֵּימָא תְּרֵי וּתְרֵי — מַאי חָזֵית דְּסָמְכַתְּ אַהָנֵי, סְמוֹךְ אַהָנֵי!
Rav Sheshet said to him: You learned the answer to this question in the mishna: If they said to her: Your child died and afterward your husband died, and she entered into levirate marriage, and afterward they said to her that the matters were reversed, she must leave her husband, and the first child and the last one are each a mamzer. Rav Sheshet analyzes this case: What are the circumstances? If we say they are two and two, i.e., two witnesses came first and said one account, followed by two other witnesses who claimed the reverse, what did you see to make you rely on these second witnesses when you can equally rely on the first pair? The first witnesses do not lose their credibility merely due to the testimony of the second pair, so why should she have to leave the yavam?
וְעוֹד, מַמְזֵר? סְפֵק מַמְזֵר הוּא. וְכִי תֵּימָא לָא דָּק, וְהָא מִדְּקָתָנֵי סֵיפָא: הָרִאשׁוֹן מַמְזֵר וְהָאַחֲרוֹן אֵינוֹ מַמְזֵר, שְׁמַע מִינַּהּ דַּוְקָא קָתָנֵי.
And furthermore, why should the child be a definite mamzer? At worst he is an individual whose status as a mamzer is uncertain, as there are two conflicting sets of testimonies. And if you would say that the tanna of the mishna was not precise in his failure to distinguish between a definite mamzer and one of uncertain status, but from the fact that it teaches in the latter clause of the mishna: The first is a mamzer and the last is not a mamzer, one can learn from here that the mishna was taught specifically in this manner, i.e., the mamzer the tanna referred to is a definite mamzer.
אֶלָּא לָאו שְׁמַע מִינַּהּ: חַד. וְטַעְמָא דַּאֲתוֹ בֵּי תְרֵי אַכְחֲשׁוּהּ, הָא לָאו הָכִי — מְהֵימַן.
Rather, isn’t it correct to conclude from here that only one witness testified at first, and the reason for the halakha is that two people came and contradicted him, as the testimony of two witnesses certainly overrules that of a single witness? It may be inferred from this that if it were not so, the lone witness is deemed credible. This shows that the court will accept the testimony of one witness even to allow a woman to enter into levirate marriage.
וְאִיכָּא דְּאָמַר: הָא לָא תִּיבְּעֵי לָךְ דַּאֲפִילּוּ אִיהִי נָמֵי מְהֵימְנָא, דִּתְנַן: הָאִשָּׁה שֶׁאָמְרָה מֵת בַּעְלִי — תִּנָּשֵׂא. מֵת בַּעְלִי — תִּתְיַיבֵּם. כִּי תִּיבְּעֵי לָךְ לְמִישְׁרֵי יְבָמָה לְעָלְמָא:
The Gemara provides an alternative version of the discussion. And some Sages maintain another version that says: Let the dilemma not be raised, as even a wife herself is also deemed credible when she says her husband is dead, as we learned in a mishna (114b): With regard to a woman who said: My husband is dead, she may marry. Likewise, if she claimed: My husband is dead, she should enter into levirate marriage. If so, one witness is certainly deemed credible when he says her husband has died. The case where you could raise the dilemma is with regard to permitting a yevama to all other men, if a witness claims that the yavam is dead.
מַאי טַעְמָא דְּעֵד אֶחָד — מִשּׁוּם דְּמִילְּתָא דַּעֲבִידָא לְאִיגַּלּוֹיֵי לָא מְשַׁקַּר, הָכָא נָמֵי לָא מְשַׁקַּר. אוֹ דִלְמָא: טַעְמָא דְּעֵד אֶחָד, מִשּׁוּם דְּאִיהִי דָּיְיקָא וּמִינַּסְבָא, וְהָא לָא דָּיְיקָא וּמִינַּסְבָא — דְּמִיסְנָא הוּא
In this case as well, the Gemara clarifies the sides of this dilemma: What is the reason that one witness is deemed credible? Is it because one does not lie about something that will be discovered, and therefore here too he would not lie? Or, perhaps the reason for accepting the testimony of one witness is because the wife is exacting in her investigation before she marries again, but this yevama is not exacting in her investigation before she marries again. Why not? Because she
