Babylonian Talmud

Rodkinson 1918 — source 14, scan section 32

(All that is said above treats of a will by a sick man ?) Rabha questioned: How is it if this was done by one while in good health? Shall we assume that the above verse applies only to a sick man, whose last will must be respected, or the same is the case with one in good health, as for this purpose he so acted that his words should be respected from that day? Come and hear: If one writes the products of his estates to his wife, and thereafter he dies, she may collect her marriage con- tract from the estate itself. If he writes her a part of the estate — a half, a third, or a quarter — she may collect her marriage con- tract from the remainder. If, however, he had presented to her all his estates, and thereafter a creditor came holding a prom- issory note from the deceased, according to R. Eliezer the deed of gift shall be annulled and she shall remain by her marriage contract. The sages, however, maintain, on the contrary: The marriage contract shall be annulled and she shall remain by the TRACT BABA BATHRA (LAST GATE). 291 deed of gift (as it may be supposed that she has relinquished her right in the marriage contract because of the gift she has received). Should, however, evidence be brought that the gift was not lawful, she remains shorn on both sides of the head. R. Jehudah the baker told that such a case happened with his sister's daughter, who was a bride; and the case came before the sages, and they decided that her marriage contract should be annulled and she should remain by her deed of gift. And thereafter the latter, for some reason, was also annulled, and she remained shorn on both sides of the head. We see, then, that if it were not for the creditor with his note, title would be given to her. Now, how was the case? Shall we assume that it was by a will from a sick man ? Is it not said above that she is con- sidered a guardian only? We must then say that it was by one in good health. Hence Rabha's question can be decided affirmatively. Nay, it may treat of a will by a sick man; and, according to R. Avira, it can apply to all the women mentioned above, and according to Rabhina's explanation it may apply to a bride and a divorced wife. Said R. Joseph b. Minumi in the name of R. Na'hman : The Halakha prevails that the marriage contract shall be annulled as the sages declare. Shall we as- sume that R. Na'hman does not hold the theory of supposition? Have we not learned in the following : If one's son went to the sea countries, and was thereafter reported dead, and he in con- sequence bequeathed all his estates to some one else, the gift is valid, even if his son were alive and returned. R. Simeon b. Menasia, however, maintains tliat the gift is null and void, as if he were aware that his son was still alive he would not do so ; and R. Na'hman said that the Halakha prevails with the latter. (Hence we see that R. Na'hman holds the theory of supposi- tion.) Yea, his decision that the marriage contract should be annulled is also because of a supposition — that for the pleasure she has in announcing that her husband presented to her all his estates she has relinquished the right to her marriage contract. There is a Mishna (Peah, III., 10) : " If one has bequeathed all his estates to his sons, but has left to his wife a small portion of ground, she loses her marriage contract." How is this to be understood — because he gave her a parcel of ground, she lost her marriage contract? Said Rabh: It means when he made the ceremony of a sudarium, to give title to his sons with 292 THE BABYLONIAN TALMUD. her garment (i.e., as she has given her garment for the purpose of dividing all his estate among his sons, it is to be supposed that she agreed to this act without any objection concerning her marriage contract). Samuel, however, maintains that it is sufficient if he did so in her presence and she kept i,ilent (as if this were against her will she would protest). R. Jose b. Ha- nina, however, maintains: It speaks of when he said to her, "Take this ground instead of your marriage contract." And the Boraitha teaches that concerning a marriage contract it is more loosely constructed than for other creditors, as the latter do not lose their right unless they say plainly, " We relinquish our right," while concerning a marriage contract it is sufficient that she does not protest. There is an objection from a Mishna in Khethuboth : R. Jose said : " If she has accepted, although he wrote nothing, she has lost the right of her marriage contract." From which it is to be inferred that according to the first Tana the accepting is not sufficient unless he writes. Hence he re- quires both writing and accepting. And lest one say that all of the Mishna in question is in accordance with R. Jose (i.e., if he wrote her a small parcel of ground, she loses her right). And R. Jose adds that the same is the case if she accepted, al- though it was not written. This cannot hold good, as there is a Boraitha in addition to that Mishna: Said R. Jehudah: All this holds good when she was present and had accepted; but if she accepted and was not present, she lost nothing of her right in the marriage contract. Hence this Mishna is an obejction to all the Amoraim mentioned above, and the objection remains. Said Rabha to R. Na'hman : In the case in question we have heard the opinions of Rabh, Samuel, and R. Jose. Now I would like to know what is the opinion of you, master. And he an- swered : I am of the opinion that as soon as he made his wife a sharer with his sons (i.e., at the time when he bequeathed his estates to his sons and set aside a piece of ground for her), she lost her marriage contract. (Provided she had not protested, as R. Na'hman holds with Samuel that if she kept silent it was sufficient. — Rashbam.) And so also it was taught by R. Joseph b. Minumi, in the name of R. Na'hman. Rabha questioned : How is it in a similar case when one is in good health ? Shall we say only when he was sick, and she was aware that he had no other estates, therefore she relinquished? But when he was TRACT BABA BATHRA (LAST GATE). 293 Still in good health she might think, " Why should I relinquish my right — he may in the future buy some other estates? " Or, on the other hand, having seen that he divided all his estates, she renounced her hope and reHnquished? This question re- mains undecided. There was one who wrote in his will, a half of my estate to one daughter, and the other half to another, and a third of the products to my wife. At that time R. Na'hman happened to be in Sura (where this will was made), and R. Hisda questioned him : How should such a case be decided ? And he answered : Thus said Samuel: Even if he left to her the products of one