From the News Center at UC Santa Cruz: “In his new book, Cosmological Koans: A Journey to the Heart of Physical Reality”, physicist Anthony Aguirre explores deep questions about the nature of reality, using an approach inspired by Zen koans to take the reader on a thought-provoking tour of the cosmos and the core ideas of modern physics.
In Zen Buddhism, koans are short parables or questions meant to confront the practitioner with the inadequacy of conventional concepts and habits of thought. Similarly, Aguirre’s “cosmological koans” confront the reader with the unexpected nature of the world as described by physics and the mind-boggling ways in which it differs from our subjective experience or intuitive understanding of things.
‘I wanted to convey that sense of mystery and wonder that comes from seeing reality in a new way,’ said Aguirre, a professor of physics and holder of the Faggin Family Presidential Chair for the Physics of Information at UC Santa Cruz.
The book covers a wide range of topics, woven together with a fictional story line that recounts a journey from Italy to Japan. Multiple universes, the nature of time, the meaning of quantum theory, and entropy and information are among the subjects explored in short chapters that manage to convey mind-bending ideas in a way that is accessible and entertaining.
The topics include some of the most challenging open questions in cosmology and physics, as well as concepts that have long been settled science yet remain disturbingly counterintuitive. With respect to the enduring mystery of time, for example, Einstein showed that there is no universal ‘now’—in other words, different observers can have different perceptions of whether two events are simultaneous.”
Let’s explore the concept of time a bit further. In Chapter 28, p. 210, Professor Aguirre writes that you don’t see the world as it is now, whether that “now” is cosmic or not. The world you see around you is the world as it was in the past. Viewing the leaf falling from a tree 50 meters away, you see the tree as it was 167 nanoseconds ago.
What does “now” mean? In other words how do we define the present as distinct from the past or the future? It’s a timeless question borne of metaphysics as much as physics. As soon as you stop to identify that now is now, the moment has already passed into the past. Perhaps the closest we can come is envisioning a pause button as the label for a given “time t” that occurs as an event in a particular space at a specific time. But as we know, within our physical framework, there is no pause button. The arrow of time is always moving forward. The instant we reflect on the present it becomes the past, and the future is the next moment in time.
So if identifying the present is nearly a fleeting impossibility, would we have the audacity to imagine a perfect moment in time? Art Garfunkel believes we can, and who am I to disagree?
In chapter 30, p. 226, Professor Aguirre turns his attention to the thorny question of Theodicy, or why a designer would create a world of beauty such as ours while allowing for unimaginable levels of pervasive suffering. This leads the good professor to contemplate the multiverse, and that the universe we inhabit is one among many – merely the one that is most inhabitable to us. That thinking is in line with Leibniz, who imagined this to be the “best” universe not just in terms of good outweighing evil, but also as the simplest in hypotheses and the richest in phenomena.
Chapter 31, The Floating Gardens, prompted me to get even more whimsical than usual. From a biblical standpoint, and the Old Testament in particular, the most significant “uni-verse” is the first verse. (Might we consider this a Cosmological “Cohen” as opposed to a “Koan”?) It reads: בְּרֵאשִׁית בָּרָא אֱלֹהִים אֵת הַשָּׁמַיִם וְאֵת הָאָרֶץ
בְּרֵאשִׁית – in the beginning. The beginning of what? Time would seem to be the essence.
בָּרָא אֱלֹהִים – God created. The apparent conflict between “God” in the plural, and “created” in the singular.
אֵת הַשָּׁמַיִם וְאֵת הָאָרֶץ – The heavens and the earth. Note the singularity of the earth and the multiplicity of the heavens, not to mention “the two aces”.
So by now you may be wondering, who is Katrina? In chapter 50, p. 355, Professor Aguirre takes note of the host of dichotomies he has assailed us with: Us and Them. Self and Other. East and West. Katrina is a young woman in the service industry I encounter in her role as a barista at Starbucks in the morning and as a waitress at Martell’s Tiki Bar in the evening, a dichotomy in its own right. She took an interest in what I was reading one morning – it was Cosmological Koans – which led to a conversation about East/West and the Yoga which got shoved down to the bottom of my bucket list.
Starbucks of course asks for your first name if you order anything but regular coffee. Originally I gave my name as Len, but for some reason the baristas kept hearing “Glen”. I got tired of correcting them, and so Glen I became for the purposes of my morning routine. When Katrina waited on Miriam and me and at Martell’s, my “real” name came to the surface. “If you’re Len, be Len” she said. Sounds like a cosmological koan to me.
Not quite what the beautiful message above had in mind, in our Mishnah on דף פ״ט עמוּד ב, we discuss a case in which a couple divorced and re-married and then divorced again. So there are two כְּתוּבּוֹת as well as two גִיטִין in play:
שְׁנֵי גִיטִּין וּשְׁתֵּי כְתוּבּוֹת, גּוֹבָה שְׁתֵּי כְתוּבּוֹת – If a woman had two גִיטִין and two כְּתוּבּוֹת as a result of her divorce and remarriage to the same man, the fact that she is in possession of these documents proves that she was never paid for her first כְּתוּבָּה, and she collects two כְּתוּבּוֹת.
If she was in possession of two כְּתוּבּוֹת and only one גֶט; or if she had one כְּתוּבָּה and two גִטִּין; or if she had a כְּתוּבָּה, a גֶט, and witnesses to her husband’s death after their re-marriage, she collects payment of only one כְּתוּבָּה. This is because there is a presumption that one who divorces his wife and re-marries her, re-marries her with the intention of using her first כְּתוּבָּה, and she agrees that she collects payment of only the original document. This is the presumption, unless he wrote another כְּתוּבָּה for her.
As you can see, we have four scenarios in the Mishnah that the Gemara will be discussing, all through which the wife collects only one כְּתוּבָּה:
כְּתוּבָּה then גֶט, followed by כְּתוּבָּה then גֶט
כְּתוּבָּה followed by כְּתוּבָּה followed by גֶט
כְּתוּבָּה then גֶט followed another גֶט (without a second כְּתוּבָּה being written
כְּתוּבָּה then גֶט, after which the husband dies.
The Gemara begins with a question: אִי בָּעֲיָא בְּהַאי — גָּבְיָא, אִי בָּעֲיָא בְּהַאי — גָּבְיָא
The Mishnah states that if she had כְּתוּבּוֹת (A and B) and one גֶט (case #2 above), she can collect only one כְּתוּבָּה. However, it does not specify which כְּתוּבָּה she can claim. Does this mean that if she desires, she can collect payment of כְּתוּבָּה (A) or if she desires she can collect payment with כְּתוּבָּה (B)? In that case, if she prefers she can use the document that promises the larger sum, and if she prefers to use the marriage contract with the earlier date in order to be able to collect property that her husband had sold to others between the dates on the two documents, she may collect with that one. In other words, whichever כְּתוּבָּה provides her the better deal.
If that is the case, let us say that it is a conclusive refutation of a statement that Rav Nacḥman said in the name of Shmuel said: If there are two documents that are issued one after the other, each recording the same transaction of a sale or a gift and they are separated by a few days, it is assumed that the second שְׁטַר cancels the first one. Why not say in this case as well that the second כְּתוּבָּה voids the first one?
The Gemara answers: Was it not stated with regard to the halacha Shmuel quoted in the name of Rav Nacḥman that Rav Pappa said: Rav Nacḥman concedes that if he added to the transaction detailed in the second document a palm tree that was not mentioned in the first document, this shows that he did not intend to cancel the first document. Rather, he wrote the second document as an addition to the first document. Here too, the Gemara is dealing with a case when he added an additional sum for her in the second כְּתוּבָּה. This proves that he wanted to add to the first כְּתוּבָּה, and not to void it.
By the way, if this sounds familiar, it’s because we had a Gemara earlier in Kesubos דף מ״ד which discussed how much extra value a palm tree added to a property can bring. Take a look here to refresh your memory, but for your convenience I’ll reproduce the pertinent part:
The Gemara refutes this suggestion: Was it not stated with regard to this halacha of Rav Nacḥman that Rav Pappa said: And Rav Nacḥman concedes that if he added so much as a palm tree in the second document, this shows that he wrote it as an addition, and therefore the second document does not cancel the first, but adds to its sum? Here too, he added something for her, as the sum of money specified in the second marriage contract (300) is larger than that specified in the first (200).
At this point you might be asking: Wait a minute. What kind of a comparison is this? The second כְּתוּבָה of 300 is worth 50% more on paper than the first כְּתוּבָה of 200. That is a clear differential between the two that makes them non-equivalent. But the second document on the same property added only a palm tree. How much added value could that represent?
At the 13:50 mark of his video, R’ Stefansky notes that he met an individual in Ramat Beit Shemesh who trains dogs to sniff bugs who would otherwise destroy palm trees. These dogs sell for around a hundred thousand dollars! Why so expensive? Because fertile date-producing palm trees have tremendous value, ranging up to $5,000 per year of profit! So the second land contract doesn’t negate the first, but adds value to it because of the addition of the palm tree.
Well … there is considerably more ground to cover, but as Yom Kippur approaches, I will let Rabbi Stern take you the rest of the way.
We begin with the Mishnah on the last line of דף פ״ח עמוּד ב, and discussion of what evidence a divorced woman must produce in order to collect her כְּתוּבָּה:
הוֹצִיאָה גֵּט וְאֵין עִמּוֹ כְּתוּבָּה – In a case where a woman produced a גֶט and it was unaccompanied by a כְּתוּבָּה, and she demands that her husband pay her marriage contract – גּוֹבָה כְּתוּבָּתָהּ: she collects payment of her marriage contract, and he cannot claim that he already paid it.
If she produced a כְּתוּבָּה, and it was unaccompanied by a גֵּט, and she says: My גֵּט was lost, and he says: Just as your גֵּט was lost, so too my receipt for the payment of your כְּתוּבָּה was lost; and likewise, in a case of a creditor who produced a promissory note after the Sabbatical Year, unaccompanied by a document that prevents the Sabbatical Year from forgiving an outstanding debt [prosbol], and demanded payment of the debt, these debts may not be collected.
Rabban Shimon ben Gamliel says: From the time of danger and onward, after the ruling authorities banned the performance of mitzvos, people would destroy a גֵט or a pruzbul immediately after they were signed, a woman collects payment of her כְּתוּבָּה without a גֵט, and a creditor collects debts owed to him without a pruzbul. The assumption is that due to the circumstances these documents were written but were not preserved. As Rashi notes regarding the times of danger:
מן הסכנה – שגזרו עובדי כוכבים על המצות והיו יראים לשמור גיטיהן ומשקיבלתו שורפתו וכן פרוזבוליהן
The פְּרוֹזְבּוּל is an interesting mechanism, explained here. As Rashi elaborates:
פרוזבול – במסכת גיטין מפרש בפרק השולח גט (דף לד:) הלל התקין פרוזבול כדי שלא תשמט שביעית שמוסר שטרותיו לב”ד שיגבו מן הלוה חובו כל זמן שיתבענו דהשתא לא קרינן ביה לא יגוש שאינו תובעו כלום אלא הב”ד תובעו שהפקירם היה הפקר והם יורדין לנכסיו
The Gemara, expounding on the Mishnah above states:
Conclude from the Mishnah that when one repays a debt, the creditor writes a receipt and gives it to the debtor as proof of payment, If one does not write a receipt, then in the case in the Mishnah where she receives payment of her כְּתוּבָּה by producing her גֶט, let us be concerned lest she produce her כְּתוּבָּה in a different court and collect payment with it a second time. In the absence of a receipt, the husband cannot prove that the debt was paid.
Rav said: That is no proof, as we are dealing with a place where one does not write a כְּתוּבָּה. In those places, there is a general stipulation of the חַכָמִים that a husband must pay his wife the sum of the כְּתוּבָּה even if no document was written. Therefore, there is no concern lest she produce the כְּתוּבָּה at a later stage. And Shmuel said that the Mishnah is referring even to a place where one writes a כְּתוּבָּה, which she claims to have lost. As Rabbi Stern pointed out, this attests to the power of the כְּתוּבָּה which protects the wife even when one was written but is not at hand. It is a תְּנַאי בֵּית דִין.
Bottom line: we aren’t worried about deceit on the part of the wife. However, whether on the husband’s part or the wife’s part. if they’re claiming that something was done that was atypical for the locale, such as writing a כְּתוּבָּה or גֶט, they need to bring proof through witnesses as to what occurred (either that a document was written when it usually wasn’t or that it wasn’t when it usually is). Of course this is only when a document can’t be produced to substantiate the claim. As Rashi comments:
לדידי מיפרשא לי – דלעולם אין כותבין שובר והיינו טעמא דגובה כתובתה דאי מקום שאין כותבין הוא והוא אומר כתבתי וירא אני שמא תחזור ותוציאנה עליו להביא ראיה ואי מייתי ראיה עדים שכתב לא גביא ואי לא מייתי ראיה קתני מתניתין גובה כתובתה ואינו נאמן לומר שניתי מנהג העיר ואי מקום שכותבין הוא והיא אמרה לא כתב לי עליה להביא ראיה וכי קתני מתניתין גובה כתובתה שהביאה ראיה שלא כתב לה
And Rashi notes further:
הדר ביה – ואוקי מתני’ בטעמא אחרינא ואמר בין במקום שכותבין ובין במקום שאין כותבין כי מפקא גט בלא כתובה גובה עיקר כתובתה דהיינו מנה ומאתים וגובה דקתני מתני’ עיקר קאמר ולא תוספת וכי מפקא כתובה בלא גט גובה תוספת ולא עיקר חיישינן שמא גבאתו על פי הגט
And how do we avoid the potential double dipping problem if the wife can collect twice, once as a divorcee and once as a widow?
Rav Huna responded: The solution is that we tear it and write the following on its back: We tore this bill of divorce, not because it is an invalid bill of divorce, but in order that she not return and collect with it another time. Where there’s a will, there’s a way.
For the past eleven years, since Ryan Howard went down in a heap at home plate in St. Louis, neither the Philadelphia Phillies nor their fans have had anything to be excited about in the post-season. Well congratulations to the Fightins who looked like they might fold down the stretch, but managed to get off the post-season schneid, or more accurately have qualified as a Wild Card to get their participation trophy. This was a maddeningly inconsistent bunch all year, and it was fitting that Zach Eflin, of all people, picked up the first save of his career and arguably the most important one of the year to cap a magnificent performance by Aaron Nola. In another night of firsts, JT Realmuto was caught stealing for the first time this year, but that became a footnote as Bryson Stott and Kyle Schwarber both homered in the 8th to give the Phils a cushion. There was really only one moment of frustration last night, occurring later in the 8th inning, when the Phils loaded the bases with an opportunity to really salt the game away as Grease Hoskins stepped up to the plate against a RHP. These days that’s almost a guaranteed K, and inexplicably Topper didn’t send Long Ball Hall to the plate who murders RHPs. Be that as it may, the Fightins popped the champagne corks as they officially gave birth to their first post-season berth since 2011.
What will the post-season look like? Todd Zo has a nice set of FAQs here. Phils will play the Wild Card Series on the road Fri, Sat, and Sun, with Zach Wheeler opening the set. Instead of watching the scoreboard for the Brewers, we’ll have our eyes on the Padres. Finish with a worse record than the Pods and we’ll face St. Louis, with the Braves after them. Finish ahead of the Pods and we face the Mets with the Dodgers in the wings.
Zolecki’s best guess for the post-season roster, which scales back to 26 players instead of 28, looks like this:
C: J.T. Realmuto 1B: Rhys Hoskins 2B: Jean Segura 3B: Alec Bohm SS: Bryson Stott LF: Kyle Schwarber CF: Brandon Marsh RF: Nick Castellanos DH: Bryce Harper Bench: C Garrett Stubbs, INF Edmundo Sosa, INF/OF Nick Maton, OF Matt Vierling Rotation: RHP Zack Wheeler, RHP Aaron Nola, LHP Ranger Suárez, LHP Bailey Falter Bullpen: RHP Seranthony Domínguez, RHP David Robertson, LHP José Alvarado, RHP Zach Eflin, RHP Andrew Bellatti, RHP Noah Syndergaard, RHP Connor Brogdon, RHP Nick Nelson, RHP Kyle Gibson
A big night in Houston was preceded by a big day in Arizona, as the Fall League got underway. I previously previewed the Phils’ contingent on the Surprise Saguaros, and regarding Johan Rojas noted: That he is currently considered the Phils’ 5th best prospect. An international signing in 2018 out of the Dominican who just turned 22, Rojas has speed to burn having stolen 37 bases this year while being thrown out only once. His slash line this year has been an underwhelming .231/.290/.331, so despite the glowing breakdown below at the beginning of the season the AFL would be a great proving ground to see if he has the right stuff to get to the next level.
As the lone rep from the Phils in yesterday’s opening 11-6 victory on the road vs. Susan’s Salt River Rafters, the most exciting Rojas since Cookie set quite the tone going 3 for 4 with a walk and a stolen base out of the nine hole.
Am excited to be heading out there in a couple of weeks, and realize now that the past ten years have been sweeter paradoxically because there has been so little to be enthusiastic about with the parent club. Here’s hoping though that recent Fall League alumni Bohm and Stott contribute to the Phillies in a big way, while the prospects shine brightly enough to provide continued optimism for the future.
I swear, the Gemara we’re learning can be challenging at times. Well that is a gratuitous statement if you’ve ever heard one, isn’t it? Not only can all Gemara be challenging at times, but our focus isn’t on colloquial swearing. Rather, it is the more serious issue of a woman potentially having to swear in halachic terms to support her claims vis-a-vis her כְּתוּבָּה. We had five such circumstances in our Mishnah:
הַפּוֹגֶמֶת בִּכְּתוּבָה – she “impairs” her כְּתוּבָּה by admitting it was paid in part, and is looking to claim the reminder of it.
עֵד אֶחָד מְעִידָהּ שֶׁהִיא פְּרוּעָה – one witness testifies against her claim that full amount of the כְּתוּבָּה had not been paid to her yet.
מִנְּכָסִים מְשׁוּעְבָּדִים – from property that the husband sold that was previously included in her כְּתוּבָּה, and which the wife now comes to the purchasers to collect.
מִנִּכְסֵי יְתוֹמִים – from property the husband included in the כְּתוּבָּה that now falls to his heirs if he dies, and on which the deceased husband’s wife now comes to collect from his children.
וְשֶׁלֹּא בְּפנָו – a “recalcitrant” husband who goes overseas and sends his wife a גֶט; she now comes to claim her כְּתוּבָּה without him being present.
With that brief review, we begin our Daf today on דף פ״ח עמוּד א:
מִנְּכָסִים מְשׁוּעְבָּדִים. תְּנַן הָתָם: וְכֵן הַיְּתוֹמִים לֹא יִפָּרְעוּ אֶלָּא בִּשְׁבוּעָה – The Mishnah teaches that if a woman comes to claim her marriage contract from liened property that had been sold to a third party, she must first take an oath. We learned in a Mishnah elsewhere (Shavuos 45a): And similarly (in a case where orphans come to collect from others) orphans can collect payment only by means of an oath. Ultimately the Gemara explains that the tangential case of orphans having to swear is when both the lender and the borrower died, and orphans are coming to collect on the loan from orphans: אָמַר רַב זְרִיקָא אָמַר רַב יְהוּדָה, לֹא שָׁנוּ אֶלָּא שֶׁאָמְרוּ יְתוֹמִים: אָמַר לָנוּ אַבָּא ״לָוִיתִי וּפָרַעְתִּי״, אֲבָל אָמְרוּ: אָמַר לָנוּ אַבָּא ״לֹא לָוִיתִי אַף בִּשְׁבוּעָה״ — לֹא יִפָּרְעוּ
As Rashi notes: דכיון דאמר לא לוה מודה הוא שלא פרע והרי שטר מוכיח עליו שלוה – if the orphans claim that their father told them the loan never took place, they are admitting they didn’t pay the loan. Now that a document is being produced that proves there was a loan, the orphans are required to pay and an oath is not taken because it would carry no weight.
Let’s not take a deeper dive into the case where the husband isn’t present:
The Mishnah teaches that one who comes to collect her כְּתוּבָּה when not in her husband’s presence can collect it only by means of an oath. רַב אַחָא שַׂר הַבִּירָה said: An incident came before רַבִּי יִצְחָק in אַנְטוֹכְיָא (Antioch), and he said: They taught this halacha only with regard to the wife’s כְּתוּבָּה; she may collect her כְּתוּבָּה in her husband’s absence, because the חַכָמִים wanted men to find favor in the eyes of women. In order to ensure that women would want to marry, the חַכָמִים instituted decrees with regard to a כְּתוּבָּה that are for the woman’s benefit. However, a creditor does not have the right to collect his debt even with an oath if the borrower is absent, in case he has already been paid.
As an aside, Steinsaltz notes that Antioch was the most important of the cities built by Selecuus I Nicator (whose son was Alexander the Great) in honor of his father, Antiochus, around the year 300 BCE. Antiochus became synonymous with monarchy, with iterations of that name given to 13 Seleucid monarchs who ruled Syria for the greater part of two and a half centuries (see here). The city was established in proximity to the Mediterranean Sea.
Its location at the crossroads of major trade routes helped it become one of the largest cities in the ancient world. (Today the city is known as Antakya in southern Turkey, near the Syrian border.) From the time of its establishment under the Greeks, Antioch was an important center of Jewish life, and it remained so under Roman and Byzantine rule. It appears that its Jewish inhabitants were in close contact with the Jewish community in אֶרֶץ יִשְׂרָאֵל and its רַבָּנִים.
The Gemara makes the point that just like the חַכָמִים wanted to safeguard the institution of marriage by preserving the rights of the wife through the כְּתוּבָּה in the husband’s absence, they also wanted to facilitate commerce by encouraging loans. Rules were therefore implemented to prevent the lender to evade payment by going overseas. Essentially this was a type of financial extradition to nab deadbeats.
Zooming along, the Gemara poses this question: רַבִּי שִׁמְעוֹן אוֹמֵר: כל זְמַן שֶׁתּוֹבַעַת כְּתוּבָּתָהּ וְכוּ׳. רַבִּי שִׁמְעוֹן אַהֵיָיא – R’ Shimon says: Whenever she claims her marriage contract, the heirs administer an oath to her. To which statement in the Mishnah is רַבִּי שִׁמְעוֹן referring? Rabbi Stern notes that the Gemara will entertain several possible answers, with the final one being that whether or not the husband writes any kind of waiver about swearing, Ima Miriam (who we discussed yesterday) said that when it comes to collecting from יְתוֹמִים, the wife has to swear.
There will be other attempted answers that the Gemara will refute. Another דִין that will be probed is whether or not the wife who is an אַפִּיטְרָפּוּס or gatekeeper of the husband’s property has to swear that she wasn’t skimming off the top. On this, רַבִּי שִׁמְעוֹן is not מַחְמִיר. In other words he is lenient about swearing only in the case where it doesn’t involve the wife collecting on her כְּתוּבָּה from the יְתוֹמִים.
We normally think of the כְּתוּבָּה as a document that stipulates the monetary rights of the bride, but in our Daf today on דף פ״ו עמוּד ב we open with a wrinkle that the husband writes or declares that affects whether or not his wife is exempt from taking a נֶדֶר or שְׁבוּעָה. As we will see, this consideration about requiring her to take an oath will pertain to her claim about the amount she has received relative to what is owed to her through the כְּתוּבָּה. But first, the text of the Mishnah itself:
If one wrote to his wife in the כְּתוּבָּה: I do not have the right to administer a vow or an oath upon you, he cannot administer an oath to her. However, he can administer an oath to her heirs, and to those who come on her authority, either as her representatives or because they purchased her כְּתוּבָּה.
If the husband wrote: “I do not have the right to administer a vow or an oath upon you, or upon your heirs, or upon those who come on your authority”, he cannot administer an oath to her; not to her, nor her heirs, nor those who come on her authority. But the husband’s heirs can administer an oath to her, and to her heirs, and to those who come on her authority.
If he wrote: Neither I, nor my heirs, nor those who come on my authority have the right to administer a vow or an oath upon you, or upon your heirs, or upon those who come on your authority, he cannot administer an oath to her or to them; not he, nor his heirs, nor those who come on his authority may administer an oath, not to her, nor to her heirs, nor to those who come on her authority.
If a woman who was exempted from an oath by her husband went from her husband’s grave, immediately after her husband’s death, to her father’s house, without handling her late husband’s property, or in a case where she returned to her father-in-law’s house and did not become a steward (אַפּוֹטְרוֹפְּיָא) over the property at all throughout this period, then the heirs cannot administer an oath to her with regard to her actions in their father’s lifetime, as the husband exempted her from an oath to the heirs. And if she became a steward, the heirs may administer an oath to her about the future, i.e., anything she did with the property after the death of her husband, but they cannot administer an oath to her with regard to what took place in the past, during her husband’s lifetime.
The burning issue on everyone’s mind, including Rashi, is: “What kind of שְׁבוּעָה are we talking about? The Gemara begins by posing this question: שְׁבוּעָה מַאי עֲבִידְתֵּהּ, on which Rashi comments:
איזו שבועה סתם שאשה חייבת לבעלה או ליורשיו דקתני דכי לא פטרה משביעה וכי פטרה אין משביעה
רַב יְהוּדָה says in the name of רַב that it is referring to אַפּוֹטְרוֹפְּיָא שֶׁנַּעֲשֵׂית בְּחַיֵּי בַעְלָהּ, as it was common for a man to leave his wife in charge of his property while exempting her from taking an oath.
In contrast, רַב נַחְמָן said in the name of רַבָּה בַּר אֲבוּהּ that is referring to a woman who claims that she received partial payment of her marriage contract (עַל הַפּוֹגֶמֶת כְּתוּבָּתָהּ), who must take an oath that she received no more than the amount she admits to. The Mishnah is referring to a husband who exempted his wife from this oath.
As an aside, this language of “עַל הַפּוֹגֶמֶת כְּתוּבָּתָהּ” is very interesting. The word פָּגוּם means blemish, so it is as if the כְּתוּבָּה was blemished from its original value by the fact that the wife has taken drawn down part of its provisions. As Rabbi Stern noted, it’s like making a qualified withdrawal from one’s pension fund.
Rav Mordechai said this halacha before Rav Ashi, and asked him the following question: Granted, according to the one who says that it is referring to a woman who claims that she received partial payment of her כְּתוּבָּה, it would have entered her mind that this might happen, as she thinks: Perhaps I will require money, and I will take what I need from my כְּתוּבָּה up front. She therefore says to her husband before their marriage: Write for me that you will not administer an oath to me when I come to collect the rest of my כְּתוּבָּה. However, according to the one who says that it is referring to a woman who became an אַפִּיטְרָפּוּס during her husband’s lifetime, did she know beforehand that her husband would establish her as an אַפִּיטְרָפּוּס, to know to say to him: Write for me that you will not administer an oath to me?
It turns out the halacha takes the timing of all this into consideration as follows:
It was with regard to this statement that the Gemara asked: What is the purpose of mentioning the past? What oath would they have wanted her to take with regard to the past? And it was in response to this question that Rav Yehuda said that Rav said: It is referring to a woman who became an אַפִּיטְרָפּוּס during her husband’s lifetime.
The Gemara presents a dispute as to what is considered the past, first continuing the quote from Rav Yehuda: But they can administer an oath to her with regard to her conduct between her husband’s death and his burial. And Rav Masana said: Even concerning her actions between her husband’s death and his burial, they cannot administer an oath to her, as the Sages of נְהַרְדָּעֵי show great empathy and say: For the purpose of paying head tax [כְרָגָא], and for payment to provide for children’s sustenance [מְזוֹנֵי], and for burial [קְבוּרָה], we sell property inherited by orphans without an announcement. Why? Because in these urgent matters, the court is not particular about a possible loss incurred by the heirs. Similarly, the woman need not take an oath with regard to how she conducted her affairs for her husband’s funeral, because in such a time of stress she cannot manage her accounts in a precise manner.
The Gemara then expends considerable real estate on debating what a husband can make his wife swear about, versus what his heirs can make her swear. And the bottom line? If the wife is coming to collect anything from the orphans, from the יְתוֹמִים, she has to swear. How do we know this?
A couple of interesting asides here. Whenever the Gemara uses the term “מִשּׁוּם”, it means that the individual relating the information didn’t hear it directly from the source. So in this case it is Rav Nachman saying that Shmuel said he heard that Abba Shaul ben Ima Miriam said that the wife who is coming to collect from the יְתוֹמִים has to swear. Another feature of the language used here is the reference to Abba Shaul as the son of his mother Miriam. What is fascinating is that we have two honorific titles uses for the same person: Abba in reference to Shaul and Ima in reference to (his mother) Miriam. The following is from The Stack Exchange:
Yad Eliyahu Nashim, p. 50 says:
פלונית ומצינו עוד כעין זה שם לאשה בשבת קטן ג ובנדרים כ א וב”מ נט ב אימא שלום אשתו של ר”א ואחותו של ר”ג ונ”ל ששם זה נלקח מלשון הכתוב בשופטים ה’ עד שקמתי דבורה שקמתי אם בישראל כי לולא זאת ששמה נודע בשערים ומפורסמת יותר מבעלה היו קורין אותו על שם אביו ולכן הוסיפו תיבת אימא ולא אמרו בן מרים משום שאז היי נראה כרב מרי בר רחל המובא כ”פ בש”ס כמו בשבת קנד ב וביבמות מה ב וב”מ עג ב וזהו משום שאביו הי’ גר קראוהו על שם אמו אבל כאן קראוה אימא מרים ע”ש שהיא היתה מפורסמת בשמה עוסקת בצרכי הרבים כמו אם בישראל הנאמר בדבורה הנביאה ולא כההיא שאמרו בנדה ט ב כל שקורין לה אמא ואינה בושה מחמת זקנה ע”ש ליה
In short, the title “אימא” is an honorific and due to the piety of אימא מרים and her laboring on behalf of the needs of the community she was of greater renown than his father. Furthermore, once he was going to be known by his mother it would have been improper to simply leave it at בן מרים as this might imply something incorrect regarding his paternal parentage (e.g. son of a convert).
We Zoom ahead to the next Mishnah, which begins as follows:
A woman who affects her כְּתוּבָּה by acknowledging that she has received partial payment can collect the rest of her marriage contract only by means of an oath. Similarly, if one witness testifies that her כְּתוּבָּה is paid, she can collect it only by means of an oath. In any case where she seeks to claim her כְּתוּבָּה from the property of orphans, or from liened property that has been sold to a third party, or when not in her husband’s presence, she can collect it only by means of an oath.
There is considerably more ground to cover, but the hour is late and so for the balance of the Daf, I refer you to Rabbi Stern’s video.
אֲבִימִי, the son of רַבִּי אֲבָהוּ, owed money to people from the Bay area (בֵּי חוֹזָאֵי). He sent the money in the possession of חָמָא, son of רַבָּה בַּר אֲבָהוּ, who went and paid the money that אֲבִימִי owed. He said to the people from בֵּי חוֹזָאֵי: Give me back the שְׁטַר that shows that the person who sent me owes you money. They said to him: The money that you paid us was for side debts, i.e., money from a different debt, which was not written in a שְׁטַר. We accepted the money from you as payment of that debt. We will therefore not return the שְׁטַר to you, as he has yet to pay off the debt listed in the שְׁטַר.
This case came before רַבִּי אֲבָהוּ. He said to חָמָא, son of רַבָּה בַּר אֲבָהוּ: Do you have witnesses that you paid them? He said to him: No. רַבִּי אֲבָהוּ said to him: He could have made a more advantageous claim [miggo], so we believe him when he makes the lesser claim. (Since they can say: These matters never occurred, i.e., you never paid them anything, they can also say: These are side debts.) Therefore, you cannot demand from them either the money or the document.
The Gemara relates another incident: There was a certain woman who was obligated to take an oath in order to avoid payment in Rava’s court. The daughter of Rav Chisda said to Rava, her husband: I know that woman, and she bends the truth. Rava reversed the obligation of the oath so that it fell onto the other party, who now had the option of taking an oath that the woman owes him money and collecting his debt. This shows you how important one’s reputation in the community is.
There was a certain woman who was obligated to take an oath in Rav Bibi bar Abaye’s court (apparently as well known in his day as Bibi Netanyahu). The opposing litigant said to the judges: Let her come and take an oath in the town. It is possible that she will be ashamed of her lies and will admit that she is liable. She said to the judges: Write me a letter of commendation, so that when I take the oath they will give it to me, and I will then be willing to take an oath in the town. Rav Beivai bar Abaye said to them: Write the document for her.
Rav Pappi, unimpressed by this ruling, said: Is it because you come from unfortunate people (מִמּוּלָאֵי) that you say unfortunate things? Rav Beivai was from the house of Eli, whose descendants were sentenced to die at a young age (an alternate explanation is that they were truncated in the sense of being midgets or humpbacked, the implication being that they were known to have physical or mental challenges).
Whoa!!! This retort by Rav Pappi is such a zinger that it made it into the expanded edition of Talmudic Insults and Curses by Dr. Arther Heft, with the entry of “Flawed Ancestry – Flawed Reasoning”. Or as alternately translated, you come from a truncated people, and therefore use truncated reasoning.
The bottom line is that it’s not just what you know. It’s the trustworthiness of your source, or how well you know who you know (almost sounds like the famous Rumsfeld-ism, doesn’t it.)
The Gemara now cites a series of cases in which people leave valuables behind, but don’t specify unambiguously to whom the valuables should belong.
There was a certain man who deposited seven pearls (מַרְגָּנְיָתָא) tied up in a handkerchief in the house of רַבִּי מְיָאשָׁא, son of the son of R’ Yehoshua ben Levi. רַבִּי מְיָאשָׁא passed away without instructing the members of his household on his deathbed, and without explaining to whom the gems belonged. רַבִּי מְיָאשָׁא’s family and the depositor came before R’ Ami to discuss the ownership of the gems. He said to them: They belong to the claimant, first of all, since I know about רַבִּי מְיָאשָׁא, son of the son of R’ Yehoshua ben Levi, that he is not wealthy enough to be able to afford such gems. And furthermore, the depositor has provided an identification mark that proves that he is the owner.
So this first of in the series of cases involves identifying characteristics of pearls, the second involves an expensive and distinctive silver goblet, and the third involves valuable silk.
The determination of the identity of the owner can be either the likelihood of a person owning the object – specifically how wealthy he was and therefore how likely he might be to have passed it along as an inheritance to his children, or the person claiming it being able to supply an identifying feature of the object (for example, the grade of the pearls, an inscription on the goblet, or a snag on the silk).
The fourth and final case we’ll discuss is one in which it is not the object that is in doubt, but the identity of the intended recipient of the property that the deceased intended to give that is in question:
There was a man who said to those present at his deathbed: My property should go to Toviya. He passed away, and Toviya came to claim his possessions. R’ Yocḥanan said: Toviya has come, and there is no need to be concerned that he might have meant a different Toviya.
I love these next few lines because there are so many layers of complexity to them:
Here is the scenario: What if the individual on his deathbed says that bequeaths the item in question to “Toviya”, and a תַּלְמוּד חָכָם named Rav Toviya comes forward? The straight translation is that if the deceased said my property should go to Toviya, and Rav Toviya came forward, it is assumed that this is not the person the deceased had in mind because he didn’t specify “Rav” Toviya. But if Rav Toviya is a person who is familiar with the deceased, then it can be assumed that the deceased called him by his first name and not by his title because he was familiar with him. If two men named Toviya came forward, and one of them was the deceased’s neighbor and the other a Torah scholar but not his neighbor, the Torah scholar takes precedence. Similarly, if one was a relative and the other a Torah scholar, the Torah scholar takes precedence.
Entry #85 of The Transformative Daf by Rabbi Daniel Friedman is titled “First-Name Basis”, and states the case that this generation has perhaps become too casual in referring to authority figures by their first name, rather than using their title. In earlier generations, even if one was a close friend of a Rabbi or Doctor or Judge, and the two of you were on a first-name basis in personal conversations, you would never think of referring to that individual by his first name in public.
As an aside, in addition to Rabbi Stern, you may know by now that my two favorite “go to” resources for enhancing the content of Blog Yomi are Talmudology.com and The Transformative Daf. I had considerable difficulty in trying to obtain Volume 2 of The Transformative Daf either in bookstores or online from the publisher. Yesterday, via LinkedIn, Rabbi Friedman shared that shipment of the books by the publisher was delayed for a few weeks, and now bookstores are reluctant to accept them because they feel we’re too far into Kesubos for Volume 2 to sell. So he’s got boxes of them piled up in his living room and is able to give you a good deal. Instead of the list price of $20+tax, he’ll personally deliver it to you for $10 if you’re in the Teaneck, NJ area, or mail it for $14 (all inclusive) anywhere in the United States. He also has a donor willing to sponsor multiple copies for a school or shul. You can contact him directly at firstname.lastname@example.org, or 973-557-3290. Just be sure to call him Rav Daniel, not Daniel. That is, unless, you’re a close personal friend. 😉
Why would it be presumed that someone on his deathbed would rather bequeath a valuable item to a תַּלְמוּד חָכָם than a less scholarly neighbor? Rashi writes:
ת”ח קודם – דמסתמא אדם מצדיק מעשיו לזכות בשעת מיתה דאמר מר (ברכות לד:) כל הנביאים לא נתנבאו אלא למהנה תלמידי חכמים מנכסיו
Unlike Dylan Thomas’s exhortation to not go gentle into that good night, rather than raging against the dying light most individuals are occupied with מצדיק מעשיו לזכות, or making their final actions meritorious such as enabling scholars to benefit from their property.
Let’s look at the translation from Sefaria/Steinsaltz:
“A dilemma was raised before the Sages: If two men have the same name and one was a neighbor and the other one was a relative, what is the halacha? The Gemara answers: Come and hear the solution from the following verse: “A close neighbor is better than a distant brother” (Mishlei 27:10). If they were both relatives, or both neighbors, or both scholars, there is no systematic way of determining who is entitled to the property, and the decision is left to the discretion of the judges.”
ArtScroll notes that שׁוּדָא דְּדַיָּינֵי literally means toss of the judges but, as Rabbi Stern points out, this doesn’t mean that they flipped a coin as to which טוֹבִיָּה the man on his deathbed was referring. Rather, as Rashi explains:
שודא דדייני – הטלת הדיינים לפי מה שיראו דיינים שהיה דרכו של מת לקרב את זה יותר מזה או מי שבשניהן טוב ונוהג בדרך ישרה שיש לומר בו נתכוין המת לזכות
The discretion of the judges is in determining which טוֹבִיָּה the man on his deathbed was closer with. Or if that wasn’t clear, the judges would agree which טוֹבִיָּה was the more “ehrlich yid“. The implication being that the man on his deathbed had intent to leave substantial property to whomever provided the greater זְכוּת or merit, adding to the dying man’s brownie points in getting to Heaven.
ArtScroll finishes discussion on the topic by noting that this pertains to a deathbed declaration willing property to “Toviah”. However, if he states that he owes $ to “Toviah”, the money is divided equally by those who claim it, be they relatives, neighbors, scholars, or Englishmen, since he could have just as well borrowed from one as the other.
If the husband wrote to his wife: I have no claim to your property or to the produce of your produce, what is the halacha 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?
ArtScroll notes are helpful here, and they state: “Obviously, secondary produce could come into being if the husband leaves over some of the primary produce and it is invested in the purchase of land. The Gemara actually mentions this below, at the end of the counterargument, but it is difficult to see why this simple point needed to be brought out through the lengthy counterargument! Shita Mekubetzes therefore explains the current argument as follows:
It is possible for the ‘produce of the produce’ to be generated only if the primary produce is invested in the purchase of new נִכְסֵי מְלוֹג. But if the husband may consume the produce, he can prevent any such investment, and thus, his renunciation of ‘produce of the produce’ is worthless! Since the husband has not conceded anything unless his renunciation applied to the primary produce as well, this must be his intent.”
The husband is removing himself or being מְסַלֵק from inheriting his wife’s property in the event that she pre-deceases him. But you can’t make a תְּנַאי or condition which goes against the grain of what the Torah says (according to רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל) or in opposition to what the רַבָּנָן (according to רַב).
And now, to use Rabbi Stern’s term, the Gemara is going to Ramble On a bit …
You know the feeling … being right for the wrong reasons. We discount the husband’s proclamation that he doesn’t want to inherit his wife’s property. To wit, per the Sefari/Steinsaltz translation of the above:
“Rather, Rav said: The halacha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said that if she died he inherits from her, but not because of his line of reasoning. As Rabban Shimon ben Gamliel holds that the inheritance of a husband is by Torah law, and whoever stipulates counter to that which is written in the Torah, his condition is void; and Rav holds that the inheritance of a husband is by rabbinic law, but his stipulation is nevertheless void, as the Sages reinforced their pronouncements with the severity of Torah law and ruled that their laws cannot be abrogated.”
Now onto a discussion that “happens only once in a yoivel”. In fact, it is the case of what happens to property during the יוֹבֵל year that the husband inherited from his wife:
The Gemara asks: And does Rav hold that the inheritance of a husband is by rabbinic law? But didn’t we learn in a mishnah (Bechoros 52b) that Rabbi Yoḥanan ben Beroka says: One who inherits from his wife must return the property to her family members in the יוֹבֵל year and deduct for them part of the monetary value of the property? He can claim only part, but not all, of the property’s value from the wife’s relatives.
And Rav said: Actually, he holds that the inheritance of a husband is by Torah law, and he is discussing a case where his wife bequeathed to him her family’s graveyard. Due to the need to avoid a family flaw, i.e., harm to the family name if the wife’s family would have to be buried in plots belonging to others, the Sages said that he should take compensation from them and return the graveyard to them. (Hey, it can happen. See the case of the burial plot snafu I wrote about here.)
Onto the next Mishnah, and more scenarios involving the laws of inherintance:
The reisha, or the first part of the Mishnah states:
With regard to one who died and left behind a wife, and a creditor to whom he owed money, and heirs, all of whom claim payment from his property, and he had a deposit or a loan in the possession of others, רַבִּי טַרְפוֹ says: The deposit or the loan will be given to the weakest one of them, i.e., the one most in need of the money. רַבִּי עֲקִיבָא says: One is not merciful in judgment. If the halacha is that it belongs to one party, one follows the halacha and leaves aside considerations of mercy. Rather, the halacha is that the money will be given to the heirs, as all people who wish to exact payment from orphans require an oath before they collect their debt, but the heirs do not require an oath. They therefore have a more absolute right than the others to their father’s property.
The seifa, or the latter part of the Mishnah is similar to the reisha, but addresses how any surplus money in the estate is to be distributed:
If the deceased left behind produce that was detached from the ground, whoever first took possession of them as compensation for what was owed, whether the creditor, the wife, or the heirs, acquired the produce. If the wife acquired this produce and it was worth more than the payment of her marriage contract, or the creditor acquired this produce and it was worth more than the value of his debt, what should be done with the surplus? רַבִּי טַרְפוֹן says: It will be given to the weakest one of them (whoever is most in need of the money), either the creditor or the wife, depending on the circumstances. רַבִּי עֲקִיבָא says it will be given to the heirs, as all people who wish to exact payment from orphans require an oath before they collect their debt, but the heirs do not require an oath.
With this in mind, let’s take a look at a theme that is topical as we approach Yom Kippur, echoed in Rabbi Friedman’s entry #84 in The Transformative Daf:
“When a mortal court shows mercy in a civil case, favoring the weaker party, they, in effect, become Robin Hoods, stealing from the rich and giving to the poor. As much as the judge’s heart may be bleeding for this poor widow, he has no right to take money away from the heirs, money that rightfully belongs to them.
While that’s true for a mortal court, the good news is that the Heavenly court may indeed show mercy in judgement. Why? Because God has more than enough to go around. He has an unlimited supply of abundant prosperity, health, and success for all His children … If God were to employ His attribute of justice in our lives, most of us would not fare very well. Instead, He takes His attribute of mercy and allows it to overpower the attribute of justice and be gracious toward us, treating us all with abundant loving-kindness. That doesn’t mean we should take advantage of His graciousness and act disdainfully toward Heaven. Rather, it means you can count on Hashem to show y ou mercy and compassion for your mistakes in life.”
And on that note, here is Rabbi Stern to take you the rest of the way!
Occasionally I’ll come across a topic that captures the imagination because it is such a universal aphorism, and cuts across so many lines. One such subject is delayed or deferred gratification. It is the antithesis of instant gratification, a temptation that we all succumb to at various times.
By now you know I’m a big fan of Dr. Jeremy Brown over at Talmudology.com, and he has an entry for the Daf I most recently posted (דף פ״ג) that I meant to incorporate, but didn’t get to. Rather than trying to go back and shoe-horn it in, it really deserves it’s own spotlight. So, for your learning and reading enjoyment, here is Ketuvot 83b ~ Cucumbers, Gourds and the Marshmallow Test in its entirety:
In the middle of a discussion about the rights of a husband to his wife’s property, we find this gem:
כתובות פג ,ב
אמר אביי: בוצינא טב מקרא
Abayye taught: a small gourd now is better than a large gourd later
Here’s how Rashi explained this pithy phrase:
בוצינא דלעת קטנה קרא דלעת גדולה והאומר לחבירו קח לך דלעת קטנה בגינתי או המתן עד שיגדילו וקח גדולה טוב לו ליקח הקטנה מיד כי לא ידע מה יולד יום
…When a person says to his friend “you may take this small gourd in my garden now or you can wait until it grows larger and then take it” it is better to take the small gourd immediately, because you cannot know what the future may bring.
This is a fairly unremarkable observation, and it finds a similar expression in the adage “a bird in the hand is worth two in the bush.” The meaning is clear: it’s better to have a small but certain gain rather than risk a larger one that is less certain (though see here for an interesting alternative origin of the expression). This is Rashi’s explanation. But there is another way to explain the phrase (and this is followed by the Koren-Steinsaltz Talmud). According to Tosafot, cited in the name of Rabeinu Tam (d.1171), the saying means the following:
ומשל הדיוט כך הוא שאדם אוהב הקישות יותר שיהנה בה מהרה ממה שהוא אוהב דלעת ולהמתינה אע”פ שהיא טובה יותר
This common saying means that a person would prefer [fast growing] cucumbers because he can enjoy them sooner, rather than gourds [which grow slowly and] which require waiting, even though they [taste] better. (Tosafot, בוצינא טב מקרא, Ketuvot 83b).
So according to the great Rabeinu Tam, the aphorism does not address any element of risk. Instead it is addressing the ability to have self-control and to plan for the future. The larger reward is certain, but is only available if you can wait. In fact, Rabeinu Tam is describing the famous Marshmallow Test.
THE MARSHMALLOW TEST
The man behind the Marshmallow Test is the psychologist Walter Mischel, the emeritus chair of the Department of Psychology at Columbia University. He was born in Vienna and fled to the US in 1938, and sadly he died in September 2018 at the age of 88. His obituary in The New York Times noted that his studies on “delayed gratification in young children clarified the importance of self-control in human development, and…led to a broad reconsideration of how personality is understood.”
The test is simple: give kindergarten children an option –one reward now (in the original experiments the children could choose any reward, not just a marshmallow) or two if you can sit and not touch the reward for fifteen minutes. The studies were performed at Stanford between 1968 and 1974 and involved some 550 children. If you haven’t already seen what the test looks like, grab a coffee and watch the video. It’s quite wonderful.
There have been dozens and dozens of academic papers written on the Marshmallow test, since Mischel first published his findings in 1969. But perhaps most surprisingly, the findings of the Marshmallow experiment on pre-schoolers seems to predict the future behaviors of the test subjects when they are adults. Here is Mischel summarizing his findings in his new book called (predictably enough,) The Marshmallow Test: Mastering Self-Control.
“What the preschoolers did as they tried to keep waiting, and how they did or didn’t manage to delay gratification, unexpectedly turned out to predict much about their future lives. The more seconds they waited at age four or five, the higher their SAT sores and the better their rated social and cognitive functioning in adolescence. At age 27-32, those who had waited longer during the Marshmallow Test in preschool had a lower body mass index and better sense of self-worth, pursued their goals more effectively, and coped more adaptively with frustration and stress. At midlife, those who could consistently wait (“high delay”), versus those who couldn’t consistently wait (“low delay”), were characterized by distinctively different brain scans in areas linked to addictions and obesity.
— Walter Mischel, The Marshmallow Test 2014, p5.
Wow. That’s some test. But before you run out and test your preschool aged children (or grandchildren), remember that according to Tosafot, most people prefer a smaller instant reward to a larger but delayed reward.The classic Marshmallow Test measured how long young children could control their desires for an instant reward, but gives a new insight into this daf. If you can hold out for slow growing gourds rather than go for the faster growing cucumbers, you might just do very well in later life. And that’s a good lesson to think about on Rosh Hashanah.
Wishing you a happy, sweet and healthy New Year from the entire Talmudology team.
We turn the page to a new perek, as we begin on דף פ״ג עמוּד א. By way of review, we’ve been discussing the properties of נִכְסֵי מְלוֹג (pun intended), of which there are three essential features:
The husband gets to eat the פֵּירוֹת, a term that we’ve pointed out is not limited literally to the fruits of the land, but any capital improvements that increase the value of the קַרְקַע beyond the קֶרֶן (its principal value).
The husband has the right to restrict his wife from selling the land without his consent, because their marriage set up this collaborative relationship they have in the joint venture between קַרְקַע and פֵּירוֹת.
If the wife dies, the husband is first in line to inherit her land.
These three items are recognized in American Law, and it known as “Joint Tenancy”, with the three components titled a) ownership, b) vested interest, and c) survivorship. With that intro, we can speculate whether a husband distancing himself from the rights to the wife’s נִכְסֵי מְלוֹג brought into the marriage is forfeiting the rights to item #1, #2, #3, or all of the above. This act of removing oneself from the relationship, or severing joint tenancy, is called “סִילוּק”.
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 (פֵּירוֹת) 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. In other words, he’s only removing himself from #2 above.
The Mishnah continues by noting that he can be more expansive in his self-restrictions:
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. רַבִּי יְהוּדָה 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.
Lastly, he can be מְסַלֵק or distance himself from all three rights to the property, although there is a dispute about #3, with רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל dissenting:
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.
The Gemara elaborating on the Mishnah above begins with this curious statement: תָּנֵי רַבִּי חִיָּי: ״הָאוֹמֵר לְאִשְׁתּוֹ״ – R’ Chiya taught in a baraisa: “One who says to his wife” … In other words, he didn’t teach: One who writes for his wife, as the Mishnah stated. This indicates that waiving his right to the real estate can be stated verbally, and does not need to be written in a contract.
But is this universally agreed upon? As we’ll see shortly, it is not. The Gemara will impress that joint tenancy carries with it certain rights and obligations, so it shouldn’t be easy for the husband to walk away from those obligations with just a verbal declaration.
If the marriage has only progressed to the stage of אֵירוּסִין, then joint tenancy has not taken place yet and one can distance himself or be מְסַלֵק from any obligations to the property by verbal declaration. But once נִישׂוּאִין has taken place, the husband and wife are true partners and joint tenancy exists. To sever that one would need a שְׁטַר מַתָּנָה – a written contract enabling the husband to transfer both his rights and obligations to his wife.
What is the halacha 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 Nacḥman said: The transaction is effective and they acquired the land itself from him.
At this juncture you may be wondering: Why would someone with partnership rights in anything just walk away from it? Rabbi Stern posed that question and indicated from several sources that the husband is probably just fed up with the property. He has abandoned any hope regarding its profitability, and it just isn’t worth the hassle.
The Gemara then relates a debate between Rav Yosef and Ameimar as to what happens if a person renounces his right to partnership in the field. but then expresses his regret. Does it cancel his divesting himself from the property, or not? And, does this affect all three components of his joint tenancy (a) ownership, b) vested interest, and c) survivorship), or just one or two of them?
For the answer to that and much more, I’ll leave you in good hands with Rabbi Stern.
We did a double dose yesterday, in advance of Rosh Hashanah, so the numbering systems is off slightly. Hope you all had a good one, and best wishes for a כְּתִיבָה וַחתִימָה טוֹבָה to everyone. We begin this installment on דף פ״ב עמוּד א, driving toward the end of the perek which we’ll finish today. This is a good time to summarize what we’ve covered in the perek, with an assist from Rabbi Steinsaltz’s translation and commentary.
The Gemara concluded that according to all opinions, a widow who inherits property while waiting for her יָבָם may use the property as she chooses before the marriage, and the husband (her brother-in-law who has not yet made יִבּוּם) cannot protest. The same principle applies to a (non-widowed) woman who inherited property before אֵירוּסִין. On the other hand, if she inherited it after אֵירוּסִין but before נִישׂוּאִין (what we call these days the engagement period), she should not sell the property lechatchila, but if she does the transaction is valid. The term for the property that a woman owns before marriage, and brings into the marriage as part of her dowry is called נִכְסֵי מְלוֹג.
The English term that Steinsaltz uses for נִכְסֵי מְלוֹג, and with which I wasn’t familiar until learning this Gemara is:
As defined at investopedia, usufruct is a legal right accorded to a person or party that confers the temporary ability to use and derive income or benefit from someone else’s property. A usufruct combines the two property rights of usus and fructus. Usus refers to the right to use something directly without damaging or altering it, and fructus refers to the right to enjoy the fruits of the property being used—that is, to profit from the property by leasing it, selling crops produced by it, charging admission to it, or a similar use.
That brings us to the differences between property mortgaged as a lien to the כְּתוּבָּה of a “regular” wife in contrast to the נִכְסֵי מְלוֹג of the יְבָמָה. In the former case, the חַכָמִים instituted an ordinance that the husband may not designative specific movable items (מְטַלְטְלִין) to serve as payment for the כְּתוּבָּה. (If you’re looking for a catchy phrase, you can’t use מְטַלְטְלִין as a lien.) Rather, all of the husband’s property should be mortgaged for this purpose. That way the husband can still sell his property while the wife retains the mortgage on her קֶרֶן. However, in the case of the כְּתוּבָּה of the יְבָמָה, all of the assets belong to the deceased husband are mortgaged, and the יָבָם may never sell them.
With that background, our Gemara begins by sharing an incident involving יִבּוּם, mindful of where we left off in yesterday’s Daf:
There was a certain man who had a יְבָמָה fall before him for יִבּוּם in the town of Masa Mecḥasya, and his brother wanted to disqualify her from any of the brothers by influencing the יָבָם to serve her with divorce papers (a גֶט). The man said to his brother: Why are you lobbying with me to divorce rather than do יִבּוּם with our brother’s widow? If it’s because you’re jealous that I’m getting the property that comes along with the deal, then I’ll divide the property with you. The brother said to him: I don’t trust you, and am afraid you’re going to swindle me like one of those connivers from Pumbedisa. As Rashi writes:
פומבדיתאה רמאה – שאחרי כן חזר בו פומבדיתא קרי להו רמאה כדאמרי’ בעלמא (חולין דף קכז.) נרשאה נשקיך מני ככיך פומבדיתאה לוייך שני אושפיזיך [ובחזקת הבתים (ב”ב מו.) כמו כן תא ואחוי לך רמאי דפומבדיתא]
To give this a little more context, Pumbedisa was an ancient city that is now known as Fallujah in Iraq. In the old days it was a wild area with ornate properties, known for fostering alot of schemes. In contrast, the area of Masa Mechasya was known for its scholars rather than scoundrels. The Pumbedisa Academy, the scholars of whom gave rise to the תַּלְמוּד בַּבְלִי, was actually located in Masa Mechasya.
So the יָבָם in this case, who was probably taken aback by his brother’s characterization of him as a potential swindler from Pumbedisa, said to him: If you wish, let’s divide the property right away. I’m so trustworthy that I’m prepared to give it to you now, even though the acquisition will take effect only after I marry our deceased brother’s wife (the יְבָמָה). As Rashi notes:
פלוג מהשתא – החזק בחלקך מעכשיו ואע”פ שאינה עכשיו קנויה לך עד שאכנוס או שאחלוק לכשאכנוס ואזכה בכולן זכה אתה בחלקך על פי שהחזקתיך מעכשיו
Is there any evidence that one can make such a transfer of ownership of property before it has actually come into your possession? The Gemara tried to bring proof of this from what מָר בַּר רַב אָשֵׁי related:
Mar bar Rav Ashi related that Rav Dimi said in the name of R’ Yocḥanan: In the case of one who says to another: Go and pull this cow and it will be acquired for you only after thirty days, he has acquired it through the act of מְשִׁיכָה, and this is the halacha even if at the end of the thirty days the cow was standing in a distant place that does not belong to the one acquiring the cow. This indicates that the present act of מְשִׁיכָה is effective for later. Despite this halacha, Mar bar Rav Ashi claims that a difference exists between this case and ours, which involved The Yavam Brothers looking for a loophole in dividing the yevama’s property. How so?
הָתָם — בְּיָדוֹ, הָכָא — לָאו בְּיָדוֹ – Regarding מְשִׁיכָה, the cow is in the seller’s position to be able to transfer ownership. Regarding our case, the יָבָם doesn’t have the property in hand in order to divide it with his brother because he has not yet done יִבּוּם. And while we’re on the subject, there seems to be a matter of disagreement about what R’ Yochanan actually said regarding the case of מְשִׁיכָה.
In contrast with what Mar bar Rav Ashi related that Rav Dimi said above, Ravin came from Eretz Yisrael and said in the name of R’ Yocḥanan: If one is instructed to do מְשִׁיכָה on a cow, but the acquisition will take effect only after thirty days, he has not acquired it. The Gemara answers: No problem! The case when one acquires the cow is referring to a situation when the seller says: Acquire it from now, so that once thirty days have passed it should belong to him retroactively. But in the case when one does not acquire it, is when he did not say to him: Acquire it from now. If the acquisition does not take effect now, it cannot take effect later. Putting antics in semantics, ay?
עוּלָּא said, you guys are giving me a headache.
בְּעוֹ מִינֵּיהּ מֵעוּלָּא: יִבֵּם וְאַחַר כָּךְ חִילֵּק, מַהוּ? לֹא עָשָׂה וְלֹא כְלוּם. חִילֵּק וְאַחַר כָּךְ יִבֵּם, מַהוּ? לֹא עָשָׂה וְלֹא כְלוּם. They inquired of Ulla: If the יָבָם performed יִבּוּם with the woman and afterward divided the property he promised to share with his brother, what is the halacha? He replied: He has done nothing. They further asked: If he divided the property and afterward performed יִבּוּם, what is the halacha? He once again responded: He has done nothing. So there is no loophole, and I sense a Netflix series of The Yavam Brothers in the works.
Think about the plot here. There are four brothers, and one of them is married but without children. Because there are no kids to drain his wallet, he has made the most of his opportunity to invest in real estate. But before he has time to fully enjoy the fruits of his labor, he dies leaving his gorgeous wife ample real estate. The three younger brothers have always been envious of Big Brother, and now young brother #1 (let’s call him Hoss) is looking forward to making יִבּוּם with his deceased brother’s widow (let’s call her Libby). After all, he not only gets to climb into bed with Libby to perpetuate his brother’s name (a former prohibition sanctioned by the Torah, no less), but is the beneficiary of the real estate that he has always coveted. But the brother-in-law who is next in line (let’s call him Little Joe) starts to pressure Hoss not to make יִבּוּם, because if he doesn’t marry Libby and they all do chalitza instead, all of the brothers divide up the real estate equally. The problem is that Hoss is really attracted to Libby, and covets her more than he does the real estate. So to get Little Joe off his back he offers to make a side deal in which they agree to split the real estate. When did they make the deal, is it binding, and how effective will it be in Little Joe keeping the other brothers at bay? Oh, the drama …
(Spoiler alert: וְהִלְכְתָא: לֹא עָשָׂה וְלֹא כְלוּם – the halacha is, no side deals allowed.)
As the Gemara turns to דף פ״ח עמוּד ב, Rabbi Stern points out a fundamental חִדוּשׁ about this dispensation of of being able to marry your sister-in-law. There are instances in which we see that the prohibition of an act is set aside by circumstances of the moment. But if those circumstances change, then the original prohibition remains. Let’s take our case of יְבָמָה. The only reason that the Torah is allowing the brother to have conjugal relations with his sister-in-law is to perpetuate his brother’s name. But, I might think, it’s only a one-shot deal. Meaning, in other words, that if things didn’t work out and he decides to divorce her, that’s it. She is now forbidden to him again because her original status of the sister-in-law relationship returns. Comes along our Gemara and says: מַהוּ דְּתֵימָא: מִצְוָה דִּרְמָא רַחֲמָנָא עֲלֵיהּ עַבְדַּהּ, וְהַשְׁתָּא תֵּיקוּם עֲלֵיהּ בְּאִיסּוּר אֵשֶׁת אָח, קָא מַשְׁמַע לַן – once he marries his sister-in-law, she is a wife in every sense of the word, and the original prohibition is severed. What is the practical application of this? (It actually might make for another good episode in The Yavam Brothers Netflix Series.)
If the couple gets divorced, and the original prohibition against relations with your brother’s wife returns, then they can’t reconcile and re-marry. If however that forbidden relationship dissolved entirely through יִבּוּם (which the Gemara is telling us is the case), they they are free to reconcile and re-marry.
By the way, Rabbi Stern also points out a concept from יְבָמוֹת that is reiterated in our Daf, and may get lost in all of the melodrama. We’re presuming that a יָבָם has some attraction to his יְבָמָה, but that is not always the case. This isn’t a deal he necessarily bargained for. Literally, overnight, because his brother’s life was ended, his sister-in-law “falls to him”. There is always the possibility that this would present a burden to him on many levels, not the least of which is financial. That is why the provision is made that he takes over the terms of his deceased brother’s כְּתוּבָּה, rather than having to provide his sister-in-law with financial obligations of his own (i.e. that would have had to be provided in a כְּתוּבָּה of his own making).
Well there’s more ground to cover, largely focusing on further inferences inherent in the כְּתוּבָּה, but I have to finish working on the Netflix script so I’ll leave the balance of the perek to Rabbi Stern.