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Babylonian Talmud: Tractate Kethuboth
could Rab, however, [it may be retorted,] hold the opinion that one's condition [though contrary to what is written in the Torah] is valid? Has it not in fact been stated: If a man says to another, '[I sell you this object] on condition that you have no claim for overreaching against me' [the buyer]. Rab ruled, has nevertheless a claim for overreaching against him,1 and Samuel ruled, He has no claim for overreaching against him?2 — [It is this] then [that was meant;] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that IF A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, 'but not because of the reason he gave', for whereas R. Simeon b. Gamaliel is of the opinion that WHEN SHE DIES HE IS HER HEIR, Rab maintains that when she dies he is not her heir.3 But is not this in agreement with his reason4 and not with his ruling?5 — This then [it is that was meant:] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down 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 only a condition that is contrary to a Pentateuchal law is null but one that is contrary only to a Rabbinic law6 is valid, Rab maintains that even a condition contrary to a Rabbinic law6 is also null.7
But this would be in agreement, would it not, with both his reason8 and his ruling.9 Rab only adding [greater force to it]?10 This then [it is that was meant:] 'The halachah is in agreement with R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave', for, whereas R. Simeon b. Gamaliel holds that a husband's right of heirship is Pentateuchal and that [it is invalid because] WHEREVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab maintains that a husband's right of heirship is only a Rabbinic enactment and [that the condition is nevertheless null because] the Sages have imparted to their enactments the same force as that of Pentateuchal laws.
But [could it be said,] that Rab is of the opinion that a husband's right of heirship is only Rabbinical when in fact we have learned:11 R. Johanan b. Beroka ruled, 'If a husband is the heir of his wife he must [when the Jubilee year12 arrives] return [the inheritance] to the members of her family and allow them a reduction of price';13 and, in considering this statement, the objection was raised: What is really his14 opinion? If he holds that a husband's right of heirship is Pentateuchal, why [it may be asked] should he return [the inheritance at all]?15 And if [he16 holds it to be only] Rabbinical, why [it may be objected] should [even a part of] its price be paid?17 And Rab explained: He16 holds in fact the opinion that a husband's right of heirship is Pentateuchal but18 [here it is a case of a man], for instance, whose wife bequeathed to him a [family] graveyard, [and it is] in order [to avoid] a family taint19 that the Rabbis have ruled, Let him take the price and return it; and by20 'allow them a reduction in price' [was meant a deduction of] the cost of his wife's grave;21 [the return of a family graveyard being] in agreement with what was taught: If a person has sold his [family] grave, the path to this grave, his halting place.22 or his place of mourning, the members of his family may come and bury him perforce,23 in order [to avert] a slight upon the family!24 — Rab spoke here in accordance with R. Johanan b. Beroka's point of view but he himself does not uphold it.
MISHNAH. IF A MAN DIED AND LEFT A WIFE,25 A CREDITOR,26 AND HEIRS27 AND HE ALSO HAD A DEPOSIT OR A LOAN IN THE POSSESSION OF OTHERS, THIS, R. TARFON RULED, SHALL BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.28 R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT29 SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS30 MUST TAKE AN OATH31 THE HEIRS NEED NOT TAKE ANY OATH.32 IF HE LEFT PRODUCE THAT WAS DETACHED FROM THE GROUND, THEN WHOEVER33 SEIZES IT FIRST ACQUIRES POSSESSION. IF THE WIFE TOOK POSSESSION OF MORE THAN THE AMOUNT OF HER KETHUBAH, OR A CREDIT OR OF MORE THAN THE VALUE OF HIS DEBT, THE BALANCE, R. TARFON RULED, SHALL. BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.34 R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS30 MUST TAKE AN OATH31 THE HEIRS NEED NOT TAKE ANY OATH.32
GEMARA. What was the object of specifying both A LOAN and a DEPOSIT?35 [Both were] required. For if A LOAN only had been mentioned it might have been presumed that only in that case did R. Tarfon maintain his view, because a loan is intended to be spent,36 but that in the case of a deposit which is in existence37 he agrees with R. Akiba.38 And if the former39 only had been mentioned it might have been assumed that only in that case did R. Akiba maintain his view40 but that in the other case41 he agrees with R. Tarfon.42 [Hence both were] necessary.
What is meant by TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE? — R. Jose the son of R. Hanina replied: To the one who is under the greatest disadvantage in respect of proof.43 R. Johanan replied: [The reference is] to the kethubah of the wife44 [who was given this privilege] in order to maintain pleasantness45 [between her and her husband].46 [This dispute is the same] as that between the following Tannaim: R. Benjamin said, To the one who is under the greatest disadvantage in respect of proof.43 and this is the proper [course to take]; R. Eleazar said.[The reference is] to the kethubah of the wife44 [who was given this privilege] in order to maintain pleasantness45 [between her and her husband].46 IF HE LEFT PRODUCE THAT WAS DETACHED. As to R. Akiba,47 what was the point in discussing the BALANCE when48 the entire estate belongs to the heirs?49 — The law is so indeed,50 but since R. Tarfon spoke of the BALANCE, he also mentioned the BALANCE.
Now according to R. Tarfon,6 where [must the produce] be kept?7 — Both Rab and Samuel replied: It must be heaped up and lie in a public domain, but [if it was kept] in an alley8 no [seizure is valid]. Both R. Johanan and Resh Lakish, however, said: Even [if the produce lay] in an alley [seizure is valid].
Certain judges once gave their decision in agreement with R. Tarfon, and Resh Lakish9 reversed their verdict. Said R. Johanan to him, 'You have acted as [if R. Akiba's ruling were a law] of the Torah'!10 May it be assumed that they11 differ on this principle; One Master upholds the view that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed12 and the other Master upholds the view that if a law cited in a Mishnah had been overlooked the decision need not be reversed?13 — No; all agree that if [in giving a decision] a law cited in a Mishnah had been overlooked the decision must be reversed, but this is the point at issue between them:14 One Master holds that the halachah is in agreement with the opinion of R. Akiba [only when he differs] from a colleague of his but not from his master,15 while the other Master holds that the halachah [is in agreement with him] even [if he differs] from his master. If you prefer16 I might say; All agree that the halachah agrees with R. Akiba [only when he differs] from a colleague of his but not from his master. Here, however. the point at issue is this: One Master holds R. Tarfon to have been his17 master and the other Master holds him to have been his colleague. Alternatively it might be said: All agree that he18 was his19 colleague; but the point at issue between them20 is this: One Master maintains that the statement21 was that 'The halachah [agrees with R. Akiba]'22 and the other Master maintains that the statement21 was that 'one should be inclined [in favour of a ruling of R. Akiba]'.23
R. Johanan's relatives seized in an alley a cow that belonged to orphans. When they appeared before R. Johanan, he said to them, 'Your seizure is quite lawful'. R. Simeon b. Lakish, however, before whom they subsequently appeared, said to them. 'Go and return it'.24 'What can I do', said R. Johanan to whom they came again, 'when one of equal authority25 differs from me?'
[A creditor] once seized an ox from the herdsman of [his debtor's] orphans. The creditor said, 'I seized it during the lifetime [of the debtor]'26 and the herdsman said, 'He seized it after the debtor's death'.27 They appeared before R. Nahman who asked the herdsman, 'Have you witnesses that [the creditor] has seized it?' — 'No', the other replied. [R. Nahman thereupon] said to him: Since he could have said, 'It came into my possession through purchase'28 he is also entitled to say. 'I seized it during the lifetime [of the debtor]'. But did not Resh Lakish state; The law of presumptive possession is inapplicable to living creatures?29 — The case of an ox that was entrusted to a herdsman is different [from that of other living creatures].30
The people of the Nasi's31 household once seized in an alley a bondwoman belonging to orphans. At a session held by R. Abbahu, R. Hanina b. Papi and R. Isaac Nappaha in whose presence sat also R. Abba they32 were told, 'Your seizure is quite lawful'. 'Is it', said R. Abba to them,33 'because these people are of the Nasi's household that you are favouring them? Surely, when certain judges once gave a decision in agreement with R. Tarfon Resh Lakish reversed their decision'.34
Yemar b. Hashu had a money claim against a certain person who died and left a boat. 'Go', he said to his agent, 'and seize it'. [The latter] went and seized it, but R. Papa and R. Huna the son of R. Joshua met him and told him, 'You are seizing [the ship] on behalf of a creditor and thereby you are causing loss to others,35 and R. Johanan ruled: He who seizes [a debtor's property] on behalf of a creditor and thereby causes loss to others35
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