# dafyomi

lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Mid'Oraisa, it suffices to have a basket on her 
          head. This does not fulfill Das Yehudis.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (R. Asi):</font></b> A basket on the head is considered covered 
          (even for Das Yehudis).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (R. Zeira):</font></b> Where is it sufficient?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the market this does not fulfill Das Yehudis!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is considered covered in the 
               courtyard.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> If she must cover her hair in the 
               courtyard, no married Bas Yisrael can fulfill this!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> It suffices in the alleyway between 
          courtyards.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> She spins in the market.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Opinion #1 (Rav Yehudah):</font></b> The case is, she reveals her 
          arms to men.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Opinion #2 (Rav Chisda):</font></b> She spins with a thread dangling 
          by her (Ervah, i.e. lower) 'face'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Mishnah):</font></b> She speaks with all men.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> She jokes with young men.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar bar Chanah):</font></b> Rav Ukva saw an Araviya 
               spinning, with a thread by her face. She threw her 
               stick, and asked Rav Ukva to retrieve it. Rav Ukva 
               made a remark.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ravina:</font></b> He said that this is spinning in the market.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rabanan:</font></b> He said that this is speaking with all men.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mishnah - Aba Sha'ul):</font></b> Even if she curses his ancestors 
          in front of him...
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> This is (even) if she curses his ancestors 
          in front of his children.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Siman to remember this is 'Efrayim and Menasheh 
               will be like Reuven and Shimon to me.' (Many explain 
               that the Siman is from the continuation 
               'U'Moladtecha Asher Holadta Achareihem Lecha 
               Yiheyu...' Ritva - this shows that one's children 
               are like himself. Gra (EH 115:13) - the verse shows 
               that 'Moldav' refers to children, and Yoldav' refers 
               to parents.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rabah):</font></b> In front of his son she says to him 'A lion 
               should eat your father'.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Tarfon says, even a loud-voiced woman.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> What is a loud-voiced woman?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer #1 (Rav Yehudah):</font></b> It is one who audibly asks for 
          Bi'ah.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer #2 (Beraisa):</font></b> When she has Bi'ah in this 
          courtyard, she can be heard in another courtyard.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Objection:</font></b> If so, this should be listed among Mumim (in 
          the Mishnah 75a)!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, we must rely on the first answer.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MARRIAGE ON CONDITION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man was Mekadesh a woman on condition 
          that she has no vows and she was found to have, she is 
          not Mekudeshes;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he did Nisu'in Stam (without specifying) and she was 
          found to have vows, she leaves without a Kesuvah;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If he was Mekadesh on condition that she has no Mumim and 
          she was found to have Mumim, she is not Mekudeshes;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If he did Nisu'in Stam and she is found to have Mumim, 
          she leaves without a Kesuvah;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  All Mumim that disqualify Kohanim are considered Mumim in 
          a woman.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Why was this Mishnah repeated in 
          Kidushin (20a)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> It was taught here for the law of Kesuvos, and 
          the law of Kidushin was added on. It was taught there for 
          the law of Kidushin, and the law of Kesuvos was added on.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (R. Yochanan):</font></b> Our Mishnah discusses vows not eat meat, 
          drink wine, or wear colored clothing.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> The law applies to vows of affliction, 
          i.e. not to eat meat, drink wine, or wear colored 
          clothing.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Rav Papa):</font></b> To which part of the Mishnah does 
          this apply?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It applies to the Reisha (Kidushin on 
               condition that she has no vows).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, any vow invalidates the Kidushin!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1 (Rav Papa):</font></b> It applies to the Seifa (he (was 
          Mekadesh and) did Nisu'in Stam. If she has one of these 
          vows, she leaves without a Kesuvah.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> Really, it applies to the Reisha. 
          His insistence (that she have no vows) applies only to 
          things that people care about.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES A MAN FORGO HIS CONDITION?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav):</font></b> If a man was Mekadesh a girl on condition and did 
          Nisu'in with her Stam (and the condition was not 
          fulfilled), she needs a Get from him (before she can 
          marry someone else);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Shmuel):</font></b> She does not need a Get.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Abaye):</font></b> Rav does not assume that since he did not 
          mention the stipulation at the time of Nisu'in, this 
          shows that he pardoned it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, a person does not have Bi'as Znus (Rambam - 
               therefore, he pardons his stipulation; Rashi - he 
               intends that the Bi'ah make Kidushin).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Rav and Shmuel already argued about this 
          elsewhere!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If an orphaned minor (married mid'Rabanan) 
               became an adult without doing Mi'un and married 
               another man, she does not need a Get from the second 
               man;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shmuel:</font></b> She needs a Get from the second man.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> They needed to argue in both cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they argued only about a minor, one might have 
               thought that there Rav does not require a Get 
               because her first husband did not stipulate 
               (therefore, he wants Bi'ah to make Kidushin 
               mid'Oraisa once she matures), but Rav would agree in 
               our case, for the Mekadesh was insistent about his 
               condition!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had they argued only here, one might have thought 
               that here Shmuel requires a Get because her first 
               husband stipulated (therefore, he does not want 
               Bi'ah to make Kidushin), but Shmuel would agree 
               there, for there was no stipulation!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he did Nisu'in Stam and she was found to 
          have vows, she leaves without a Kesuvah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Inference:</font></b> She leaves without a Kesuvah, but she needs a 
          Get.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Suggestion:</font></b> The case is, he was Mekadesh her on 
          condition, and did not mention it at the Nisu'in. This 
          refutes Shmuel!
<br>
<br>

sjt:
<font><b>1) DOES A MAN DO 'BI'AH L'SHEM KIDUSHIN'</b></font><b>
<br>QUESTION:</b> Rav and Shmuel argue with regard to whether a man who marries a woman has specific intention for Bi'ah l'Shem Kidushin. If a man marries a woman on condition that she has no Nedarim, Rav says that when he has Bi'ah with her, he has intention that his Bi'ah should be l'Shem Kidushin so that it not be a Be'ilas Z'nus.
</p><p>
Rabah holds that this Machlokes applies only in a case of 'one wife like two wives:' A man becomes betrothed (with Erusin) to a woman on condition that she has no Nedarim, and then he divorces her from the Erusin, and then he becomes betrothed to her again and marries her. Rav and Shmuel argue whether the Bi'ah after that second marriage is done l'Shem Kidushin or not, but they both agree that if he marries her right away after the first Erusin without divorcing her, he does <i>not</i> have intention for Bi'ah l'Shem Kidushin in order to prevent a Be'ilas Z'nus. <b>RASHI</b> (DH Machkoles b'Ta'us Ishah Achas, and elsewhere) explains why Rav agrees that the husband does not intend to do Bi'ah l'Shem Kidushin in a case of one wife whom he married on condition that she not have Nedarim and she was found to have Nedarim. Since the man stipulated with the woman that he is marrying her on condition that she has no Nedarim and she agrees to marry him, he assumes that she does not have any Nedarim and that is why she agrees to marry him. Thus, he does not suspect that she has Nedarim and he thinks that his initial Kidushin took effect, and thus he does not do Bi'ah l'Shem Kidushin since he thinks it is not necessary. 
</p><p>
The Gemara challenges the view of Rabah from the Beraisa which says that if a man does Bi'ah with a woman in order to be Mekadesh her on condition that his father agrees, the Tana Kama says that it is a valid Kidushin even if the father does not agree to it, while Rebbi Shimon ben Yehudah says that the Kidushin is valid only if the father agrees. The Gemara says that we see from here proof against Rabah, because even when one marries one woman with a condition, he still intends to override and annul the condition at the time that he does Bi'ah with her in order that his Bi'ah not be a Be'ilas Z'nus.
</p><p>
What is the Gemara's question? In the case of our Mishnah, the man's stipulation involved something that already happened: he stipulated that she has no Nedarim that she made in the past that presently apply to her. In such a case, Rabah says that the man does not do Bi'ah l'Shem Kidushin because he assumes that she has no Nedarim (since she agreed to marry him).
</p><p>
However, in the case where he marries her on condition that his father agrees, that condition depends on a <i>future</i> event -- the father's consent! At the time of Be'ilah, though, the decision of his father is not yet known, so the husband cannot assume that the condition has been fulfilled, and thus he certainly does Bi'ah l'Shem Kidushin! If anything, that case is similar to a case where he marries two women, and it is not similar to the case under discussion where he marries one woman! (<b>MAHARAM SHIF</b>)
</p><p>
Similarly, how can the Gemara question Rabah from the case of a man who is Mekadesh a Ketanah? The Beraisa says that according to the Chachamim, if the Ketanah becomes an adult while married to him, the Kidushin is a Kidushin d'Oraisa because the husband does not want his Bi'ah to be a Bi'as Z'nus (i.e. he does not want the Kidushin to remain mid'Rabanan). How is that case comparable to the case of marrying one woman with a stipulation that is not fulfilled ('Ta'us Ishah Achas')? They are not comparable! In the case of 'Ta'us Ishah Achas,' the man has reason to assume that she does not have any Nedarim and that is why he does not do Bi'ah l'Shem Kidushin. In contrast, in the case of the Ketanah who grows up while married to him, the man knows that the original Kidushin was not a fully valid Kidushin until now, and therefore he knows that in order for the Be'ilah not to be a Be'ilas Z'nus he knows that he must do Bi'ah l'Shem Kidushin! (<b>BEIS YAKOV</b>)
</p><p>
<b>ANSWER:</b> The Gemara apparently assumes that when a person is Mekadesh a woman with Be'ilah on condition that his father approves, he would not do so unless he is confident that his father agrees to the marriage. Therefore, it is possible that the man <i>does</i> assume that his condition will be fulfilled and the Kidushin will take effect, just like when he marries a woman on condition that she has no Nedarim and he relies on the fact that she agrees as an indication that she has no Nedarim.
</p><p>
In the case where one is Mekadesh a Ketanah, the Gemara assumes that since the Rabanan instituted that Kidushin take effect (Kidushin mid'Rabanan) with a Ketanah who has no father, most people do not realize that the Kidushin does not take effect mid'Oraisa. Therefore, he will rely on the Kidushin d'Rabanan and he will not consider the possibility that he must do Bi'ah with her l'Shem Kidushin when she becomes an adult. (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection:</font></b> No, he did not stipulate at the Kidushin or at 
          the Nisu'in.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> This implies that if he was Mekadesh her on 
          condition and did Nisu'in Stam she would not need a Get;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, why does it teach that if he was Mekadesh on 
               condition, the vows are Mevatel the Kidushin? It 
               should teach a bigger Chidush, that even if he also 
               did Nisu'in Stam she is not Mekudeshes, all the more 
               so if he was only Mekadesh her!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Indeed, the Mishnah teaches this:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a man was Mekadesh a woman on condition that she 
               has no vows, and did Nisu'in Stam and she was found 
               to have vows, she is not Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was Mekadesh her Stam and did Nisu'in Stam, 
               and she was found to have vows, she leaves without a 
               Kesuvah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> She gets no Kesuvah, but she needs a Get.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> Why do we distinguish?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She does not get a Kesuvah, because he can say that 
               he did not want a wife who vows. If so, she should 
               not need a Get either!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> She needs a Get only mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> The Tana is unsure whether or not she 
          is Mekudeshes. We are lenient about money (he does not 
          pay a Kesuvah), but we are stringent about Isurim (so she 
          needs a Get).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ARGUMENT OF RAV AND SHMUEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rabah):</font></b> Rav and Shmuel argue about a mistake involving 
          two women. All agree that no Get is needed for a mistake 
          involving only one woman.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> The Mishnah discusses one woman, and we 
          challenged Shmuel from the Mishnah (i.e. they argue)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Correction (Rabah):</font></b> Rather, Rav and Shmuel argue about a 
          mistake involving one woman like the case of two women. 
          All agree that no Get is needed for a simple mistake 
          involving one woman.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question #1 (Abaye - Beraisa):</font></b> If a man was Mekadesh a 
          woman by mistake, or with less than a Perutah, or when he 
          was a minor; even if he later sent pre-nuptial gifts, she 
          is not Mekudeshes. This is because he relied on the 
          initial Kidushin (he did not intend for these gifts to 
          make Kidushin);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he had Bi'ah with her, he acquired her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon bar Yehudah says, he did not acquire her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is like the case of one woman, and Tana'im 
               argue!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> The mistaken Kidushin was because he 
               thought that she had no vows.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> No, the mistake was that he gave her less than a 
          Perutah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection:</font></b> That is the next case in the Beraisa!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> The Beraisa explains itself. It means, if a man 
          was Mekadesh a woman by mistake, e.g. with less than a 
          Perutah...
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What do the Tana'im argue about?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> The first Tana holds that a man knows that Ein 
          Kidushin Tofsin with less than a Perutah. He intended 
          that Bi'ah make Kidushin;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Yehudah holds that a man thinks that 
               less than a Perutah can make Kidushin. He had Bi'ah 
               assuming that she was already Mekudeshes, and did 
               not intend to acquire her.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question #2 (Beraisa):</font></b> If a man said to a woman 'I will 
          have Bi'ah with you to be Mekadesh you on condition that 
          my father will consent', even if the father does not 
          want, she is Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Yehudah says, Kidushin takes effect 
               only if the father wants.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like an error about one woman, and Tana'im 
               argue!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about what 'my father will consent' 
          means:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana holds that it means that he will be 
               quiet (not object). R. Shimon ben Yehudah holds that 
               it means that he will say that he approves.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question #3 (Beraisa):</font></b> If a girl (a minor) was married 
          off by her father and divorced from Nisu'in, she is like 
          an orphan in her father's lifetime. If she remarried her 
          ex-husband (and he died without children), Chachamim 
          agree with R. Eliezer that she does Chalitzah but not 
          Yibum, since she was fully divorced, but not fully 
          remarried;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if she was divorced and remarried 
               before maturity (Na'arus). If she was divorced 
               before maturity and remarried after maturity, or if 
               he remarried her before maturity and she matured 
               before he died, she may do Chalitzah or Yibum;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer says, she must do Chalitzah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is like a mistake about one woman, and Tana'im 
               argue (about whether or not he intended for Bi'ah to 
               make Kidushin after she matured)!
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS THERE INTENT TO MAKE KIDUSHIN THROUGH 'BI'AH'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> Here also, they argue about something else;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana holds that a man knows that Kidushin 
               of a minor is not mid'Oraisa. He has Bi'ah (after 
               maturity) with intent for Kidushin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer holds that a man thinks that Kidushin of 
               a minor is mid'Oraisa. He has Bi'ah assuming that 
               she is already his wife, without intent to make 
               Kidushin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Acha bar Yakov):</font></b> If one makes Kidushin on condition 
          and has Bi'ah, all agree that a Get is not required. 
          (This is like Rabah.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Rav Acha brei d'Rav Ika - Beraisa):</font></b> A mistaken 
          Chalitzah is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is a mistaken Chalitzah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Reish Lakish):</font></b> They tell the Yavam 'do 
               Chalitzah, and you will be permitted to do Yibum.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (R. Yochanan - Beraisa):</font></b> Whether he 
               intended for Chalitzah (to forbid her to the Yevamim 
               and permit her to strangers) but she didn't, or she 
               intended but he didn't, the Chalitzah is invalid, 
               unless both have intention.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (R. Yochanan):</font></b> They tell the Yavam 'do 
               Chalitzah on condition that she will give you 200 
               Zuz.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Summation of question:</font></b> This shows that since he does 
               the act of Chalitzah, he pardons the condition. Here 
               also, since he has Bi'ah, he pardons his 
               stipulation!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rav Acha bar Yakov):</font></b> All stipulations are learned 
          from the stipulation with the tribes of Gad and Reuven 
          (they were given Ever ha'Yarden on condition that they 
          help conquer Eretz Yisrael);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A stipulation is binding only if the act (that is 
               contingent on it) can be fulfilled through a 
               Shali'ach. (Chalitzah cannot be done by a Shali'ach. 
               Therefore the stipulation is void, not because he 
               pardoned it.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Bi'ah cannot be performed by a Shali'ach, yet 
          one can put a condition on Kidushei Bi'ah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> That is because a verse teaches that all actions 
          that make Kidushin have the same law (and Kidushin 
          through money or a document can be done through a 
          Shali'ach).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN DOES 'BI'AH' NECESSITATE A 'GET'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Ula):</font></b> If one was Mekadesh with a loan and had Bi'ah, or 
          was Mekadesh on condition and had Bi'ah, or was Mekadesh 
          with less than a Perutah and had Bi'ah, all agree that 
          she needs a Get.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Yosef bar Aba):</font></b> If one was Mekadesh with less than a 
          Perutah and had Bi'ah, all agree that she needs a Get;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In this case, a person does not err (and intends for 
               Kidushin, since he knows that the first Kidushin was 
               invalid). In Ula's other cases a person errs, and a 
               Get is not needed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav Kahana):</font></b> If a man was Mekadesh on condition and had 
          Bi'ah, she needs a Get;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A case occurred, and Chachamim could not permit her 
               without a Get.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  This is unlike the following Tana:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah citing R. Yishmael):</font></b> If 'she was not 
               grabbed' she is forbidden. Had she been grabbed, she 
               would be permitted;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> There is another case in which she is permitted even 
               if she was not grabbed, i.e. mistaken Kidushin. Even 
               if her son is on her shoulder, she may do Mi'un and 
               leave him.
<br>
<br>

sjt:
<font><b>1) KIDUSHIN 'AL TENAI' AND WITH LESS THAN A 'PERUTAH'</b></font><b>
<br>QUESTION:</b> The Gemara cites Ula who says in the name of Rebbi Elazar that if a man betroths a woman by performing Kidushin with a stipulation ('Al Tenai') and then he has relations with her, or he performs Kidushin by giving the woman too little money ('Pachos mi'Shaveh Perutah' -- less than a Perutah's worth) and then he has relations with her, 'everyone agrees' that the Kidushin takes effect and the woman needs a Get. Even though the stipulation was not fulfilled, or he gave her less than a Perutah, the Kidushin takes effect because of the Bi'ah, because 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus' --  when he has Bi'ah with her, he has intention that his Bi'ah should be l'Shem Kidushin so that it not be a Be'ilas Z'nus.
</p><p>
How can Ula say that 'everyone agrees to this,' referring to Rav and Shmuel? In the Gemara earlier (73a), Shmuel says clearly that in a case where one performed Kidushin with a Tenai and then performed Nisu'in without specifying any Tenai, the woman is <i>not</i> considered married and she does <i>not</i> need a Get!
</p><p>
In addition, Shmuel there says that if a woman -- who was married off by her mother or brothers when she was a Ketanah -- marries someone else after she reaches the age of adulthood, she is considered married to the second man and needs a Get, since she was never married mid'Oraisa to the first husband, even though he lived with her after she became an adult. Obviously, Shmuel does not agree that 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus!' How, then, could Ula say that 'everyone agrees?'
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Divrei ha'Kol) explains that according to Ula, what Shmuel meant is not that a Be'ilah after the Tenai does not override the Tenai. Rather, the Be'ilah afterwards certainly overrides the Tenai, because 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus.' Shmuel is discussing a case where the man did Nisu'in <i>without</i> Be'ilah; he did Nisu'in with Chupah alone. That is why the Tenai still remains -- for there is no Be'ilah.
</p><p>
If the man did not do Nisu'in with Be'ilah but only with Chupah, why, then, does Rav say that she needs a Get, if there was no Be'ilah? The answer is that Rav holds that by making a Nisu'in with Chupah, the husband shows that he is willing to forgo the Tenai (since be obviously plans to have Bi'ah with her during Nisu'in, and he does not want it to be a Bi'as Z'nus), and therefore the <i>original</i> Kidushin now takes effect.
</p><p>
Why does Shmuel say that the Kidushin of a Ketanah (who later did Mi'un) does not become d'Oraisa after the husband lives with her when she reaches adulthood? Tosfos explains (based on the Gemara in Yevamos 110a) that in the case of a Ketanah the Be'ilah is not really a Be'ilas Z'nus because there does exist a  Kidushin mid'Rabanan. That is why Shmuel says that the Be'ilah during adulthood does not effect a Kidushin. But in a case where the man was Mekadesh the woman with less than a Perutah and then did Bi'ah with her, the Bi'ah does make a Kidushin, because 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus.'
</p><p>
(b) The <b>RITVA</b>, after addressing the other possibility, concludes that there is a printing error in our Gemara and the words 'Divrei ha'Kol' ('everyone agrees') should be omitted. Accordingly, Ula is expressing only the opinion of Rav and not the opinion of Shmuel.
</p><p>
The practical difference between these two approaches is what happens when the man performs Nisu'in (Chupah) without doing Be'ilah with her. According to Tosfos, the Halachah follows Rav and Chupah alone without Be'ilah <i>does</i> serve to make them married, because the man forgoes the Tenai with Chupah alone (see Shulchan Aruch EH 38:35). According to the Ritva and other Rishonim, only after doing Be'ilah does the Kidushin take effect, since 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus.'
</p><p>
The <b>BEIS SHMUEL</b> (EH 38:59) adds that there is another practical difference. According to Tosfos, it should not be necessary to have witnesses at the time of the Chupah or Be'ilah, since the Kidushin was performed earlier with witnesses and now he is just forgoing the Tenai and not making a new Kidushin. (This is indeed how the <b>RAMBAM</b> rules). According to those who say that the only reason the Kidushin takes effect is because he performs a new act of Kidushin (without a Tenai) by doing Be'ilah and 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus,' then there must be witnesses at the time of the Be'ilah in order for the new Kidushin to take effect, because Kidushin takes effect only with witnesses (this is how the <b>ROSH</b> rules). 
</p><p>
The <b>AVNEI MILU'IM</b> suggests that this practical difference of the Beis Shmuel is not necessarily correct. Rather, even according to Tosfos, it could be that witnesses are necessary for the Nisu'in. Even though the Kidushin has already been performed and now the husband is just annulling the Tenai (with the Chupah or Be'ilah), nevertheless, he is only annulling the Tenai in order for the subsequent Be'ilah not to be a Be'ilas Z'nus. To accomplish this, the Chupah must be a proper act of Nisu'in. Nisu'in, the Avnei Milu'im posits, should be considered a 'Davar she'b'Ervah' since it affects her with regard to certain Halachos (such as whether her punishment for adultery will be Sekilah or Chenek, if she is a Na'arah Me'urasah, and such as becoming Tamei for her if she dies, if he is a Kohen). Therefore, as we find with Kidushin (Kidushin 66b), if there are no witnesses present that Chupah or Bi'ah will not accomplish Nisu'in, and the subsequent Be'ilah will be a Be'ilas Z'nus in any case. If so, threre is no reason to assume that the man is forgoing the Tenai with this Chupah or Bi'ah.
</p><p>
(The Avnei Milu'im's assertion that Nisu'in requires the presence of witnesses in order for it to take effect is debated by the other Acharonim. Although the <b>TOSFOS <b><b>RI</b></b> HA'ZAKEN</b> (a.k.a. Rav Shlomo Min ha'Har) in Kidushin 10b does seem to require the presence of witnesses for Nisu'in to take effect, as the Avnei Milu'im writes, the <b>AVNEI NEZER</b> (EH 395) and <b>MARCHESHES</b> (2:1:7) point out that the <b>RAMBAM</b> (Hilchos Ishus 7:23) seems to rule otherwise. The <b>CHELKAS YO'AV</b> (EH 6) proves that the <b>ROSH</b>(Bava Basra 9:16) also does not require witnesses for Nisu'in to take effect. See also <b><b><b>OR</b></b> SAME'ACH</b> to Hilchos Ishus 10:2.)
</p><p>


lvr: 32
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IF THE VOW WAS PERMITTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa #1):</font></b> If a woman (became Mekudeshes on condition 
          that she has no vows or Mumim, and she had a vow and) 
          went to a Chacham and he permitted her vow, she is 
          Mekudeshes. If she (had a Mum and) went to a doctor and 
          he removed her Mum, she is not Mekudeshes.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What is the difference between these?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> A Chacham uproots the vow retroactively. A 
          doctor's cure is not retroactive.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Contradiction (Beraisa #2):</font></b> If she went to a Chacham and 
          he permitted her vow, or to a doctor and he removed the 
          Mum, she is not Mekudeshes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> Beraisa #1 is like R. Meir. Beraisa #2 
          is like R. Elazar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds that a man does not mind if his wife 
               is shamed by going to Beis Din. R. Elazar holds that 
               he minds (and he did not want Kidushin in such a 
               case).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Mishnah):</font></b> If a man divorced his wife due to a vow 
          she made, or because of her bad reputation, he may not 
          remarry her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, if many knew about the vow, he may 
               not remarry her. (She is fined for taking a vow that 
               cannot be annulled.) If not, he may remarry her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, if the vow can be annulled only by a 
               Chacham (i.e. her husband cannot annul it), he may 
               not remarry her. If the husband can annul it, he may 
               remarry her;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Elazar says, we forbade him to remarry her in the 
               case when a Chacham is needed only due to the case 
               when a Chacham is not needed. (This answer is 
               explained on the coming Daf.)
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IF THE VOW WAS UNDONE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What is R. Yehudah's source (that a vow made in 
          public cannot be annulled)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> 'Bnei Yisrael did not kill them (the Giv'onim) 
          because the leaders of the congregation had sworn to 
          them.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is considered (in front of) many?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Rav Nachman bar Yitzchak):</font></b> It is three, like 
          we expound regarding Zivah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> '(If a woman sees blood) many days' - 'days' teaches 
               two; 'many' teaches a third.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (R. Yitzchak):</font></b> It is 10. It says 'Edah' (like 
          it says regarding the 10 evil Meraglim).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  (Mishnah - R. Meir) If the vow can be annulled only by a 
          Chacham, he may not remarry her. If the husband can annul 
          it, he may remarry her;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Elazar says, we forbade him to remarry her when a 
          Chacham is needed only due to the case when a Chacham is 
          not needed.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What is the source of their dispute?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> R. Meir holds that a man does not mind if his 
          wife is shamed by going to Beis Din. (Perhaps he will say 
          that had he known that a Chacham can permit her vow he 
          would not have divorced her, so the Get is invalid. We 
          decree that he can never remarry her, so he will not 
          divorce before investigating all possibilities. There is 
          no concern for a vow he could have annulled by himself. 
          Surely he knew this, and decided to divorce her anyway);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Elazar holds that a man does not want his wife to 
               be shamed by going to Beis Din. (Even had he known 
               that a Chacham can permit her, he would have 
               divorced her. The only concern for an invalid Get is 
               if he did not know that he could have annulled it 
               himself. We decree about a vow that needs a Chacham 
               due to the case of a vow he could have permitted.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (to 3:d, 74B - Rava):</font></b> Beraisa #2 (which says 
          that she is not Mekudeshes if a Chacham permitted her 
          vow) discusses a woman from an important family.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The husband does not want the Kidushin to take 
               effect, lest he be forced to give to her a Get and 
               become forbidden to her relatives (perhaps he would 
               have wanted to marry one of them).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question (Seifa):</font></b> If he went to a Chacham and annulled 
          his vow or to a doctor and he removed his Mum, she is 
          Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa should similarly discuss a man from an 
               important family and say that she is not Mekudeshes!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> A woman wants to be married in any case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> A woman says, 'It is better to live 
               as two (i.e. married) than to live (alone) like a 
               widow.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye):</font></b> Even a woman married to an ant (a midget) 
               puts her chair among the important women.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> Even if her husband cleans wool (a 
               scorned profession), she goes out on the porch to 
               greet him (she is not ashamed).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> Even if he is from a bad family, she 
               will not even request lentils (a simple 
               accompaniment for her bread, for it suffices for her 
               that she is married).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Beraisa):</font></b> All women married to such men have Znus, 
               and attribute the child to their husbands.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>'MUMIM' THAT INVALIDATE 'KIDUSHIN'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> All Mumim that disqualify (a Kohen)...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Beraisa):</font></b> They added the following Mumim: sweat, a wart, 
          and bad breath.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> These also disqualify a Kohen!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> An animal that is old, Mezuham (sweaty) 
               or sick (is a Ba'al Mum).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> These disqualify a Kohen, whether they 
               are permanent or temporary.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (R. Yosi bar Chanina):</font></b> Sweat disqualifies a 
          Kohen only if it cannot be washed away.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> Mezuham (odorous) is different that 
          sweat.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Sweat can be washed away with wine vinegar, so it 
               does not disqualify a Kohen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also bad breath is not a Mum. He can put a pepper in 
               his mouth and serve!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  These remedies do not suffice for a wife.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> What is the case of the wart?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it has hair, it disqualifies also a Kohen!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it does not have hair but it is big, it 
               disqualifies also a Kohen!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If it does not have hair and is small, it does not 
               disqualify a Kohen or a wife!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> A wart with hair is a Mum. If it has 
                    no hair, it is a Mum only if it is big.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> What is considered big?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (R. Shimon ben Gamliel):</font></b> The size of an 
                    Italian Isar (a coin) is big.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (R. Yosi bar Chanina):</font></b> The wart (is small and has 
          no hair, but it) is on her forehead.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> If so, he saw it and accepted it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Rav Papa):</font></b> It is under her kerchief. Sometimes it 
          is seen, and sometimes not.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> If a dog bit her and a scar remains, this 
          is a Mum.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> A deep voice is a Mum - 'Your voice is 
          pleasant and your form is beautiful'.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Beraisa - R. Nasan Birah):</font></b> A handbreadth between the 
          breasts.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rav Acha brei d'Rava):</font></b> This is an ideal amount.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> No, the Beraisa teaches that this is a Mum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the proper amount?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> It is three fingers.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Beraisa - R. Nasan):</font></b> If her breasts are bigger than 
          other women's, this is a Mum.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> How much bigger is a Mum?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (R. Maisha bar brei d'R. Yehoshua ben Levi):</font></b> A 
          handbreadth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Is this ever the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Yes! Rabah bar bar Chanah saw an Arab woman 
               bend her breasts in back of her and nurse her child.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  (R. Maisha):</font></b> 'It will be said, Ish v'Ish were born in 
          Tziyon' - this applies equally to one born there, and one 
          who anticipates seeing it.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  (Abaye):</font></b> One person born there is like two of us.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> One of us who goes there is like two of 
               them;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In Bavel, R. Yirmiyah did not understand the 
                    Rabanan. After going to Eretz Yisrael, he calls 
                    us 'foolish Babylonians'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN IN DOUBT WHEN THE 'MUMIM' AROSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Meir):</font></b> If she had Mumim in her father's 
          house, the father must prove (to collect a Kesuvah) that 
          they came after Kidushin, and the husband's field (wife) 
          got spoiled;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If she entered the husband's Reshus and Mumim were found, 
          the husband must prove (to be exempt from paying a 
          Kesuvah) that they came before Kidushin, and the Kidushin 
          was invalid;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Chachamim say that this applies only to Mumim in covered 
          places. The husband has no claim about Mumim in exposed 
          places.
<br>
<br>

sjt:
<font><b>1) MARRYING A PROMINENT WOMAN WHO MAKES NEDARIM</b></font><b>
<br>QUESTION:</b> The Gemara asks that there is a contradiction between two Beraisos. One Beraisa states that if a man is Mekadesh a woman on condition that she has no Nedarim, and she has a Neder but she annuls it (before the husband discovers the Neder), the Kidushin takes effect. A second Beraisa states that in such a case the Kidushin does not take effect.
</p><p>
Rava answers that the Beraisa that says that the Kidushin does not take effect is discussing an 'Ishah Chashuvah,' a woman from a prominent family. <b>RASHI</b> explains that since the woman is from a prominent family, the man does not want the Kidushin to take effect at all if she has any Nedarim, because he wants to retain the right to marry her immediate relatives (and if the Kidushin takes effect and he must divorce her, he will be prohibited to her relatives).
</p><p>
What does Rashi mean? If the woman annulled her Nedarim, there is no reason for him not to want to be married to her. He should not be bothered that he is Asur to her relatives, just like her was not bothered by it at the time that he gave her the Kidushin! On the other hand, if the fact that she had Nedarim which she annulled does not satisfy his stipulation because he is afraid that she will continue to make more Nedarim in the future, then the same concern should apply to any woman, even one who is not an Ishah Chashuvah, and thus the Kidushin should not take effect with any woman who has Nedarim since the stipulation was not fully fulfilled! (<b>TOSFOS HA'ROSH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS HA'ROSH</b> says that when a person makes a stipulation that the Kidushin will take effect only if the woman has no Nedarim, there is a doubt about what his intentions are. We know that he does not want her to have a Neder upon her at the time of the marriage. However, he might also not want her to be the type of woman who has a tendency to make Nedarim even if, at the present moment, she has no Nedarim upon her. This second intention is subject to doubt -- we cannot be certain that he does not want to marry her if she might make Nedarim in the future. He might have that in mind, but, on the other hand, perhaps he does not care about that.
</p><p>
Therefore, in the case of a woman who is not Chashuvah, he is required to give her a Get when she annulled her present Nedarim, because she might make Nedarim in the future and he might have intended not to marry such a woman. In the case of an Ishah Chashuvah, though, we can be certain that he has full intention not to marry her if she is the type of woman who will makes Nedarim (whether she annuls her present Nedarim or not), because any excuse, any imperfection he sees in her, will impel him to not marry her so that he does not become Asur to her relatives if he finds it necessary to divorce her. His stipulation is therefore interpreted to mean that he does not want to marry her if she now has Nedarim <i>even if</i> she later annuls them.
</p><p>
(b) The <b>AVNEI MILU'IM</b> (EH 39:5) rejects this explanation. Even in the case of a woman who is not Chashuvah, he argues, the husband should want the Kidushin <i>not</i> to take effect if the woman has any imperfection in order to avoid at all costs having to divorce her. If he divorces her, after all, he must pay her the Kesuvah. 
</p><p>
The Avnei Milu'im explains instead that Rava must hold like the Yerushalmi. The Yerushalmi rules that even when a person makes a Tenai that he is marrying the woman on condition that she has no Nedarim, and she turns out to have Nedarim, he is still required mid'Rabanan to give her a Get, so that if she later annuls her Nedarim she will not become an Eshes Ish retroactively (by fulfilling the Tenai and having the Kidushin take effect retroactively). (<b>TOSFOS</b> on 74b, DH Chacham, explains that the Bavli argues and holds that it is not considered a fulfillment of the Tenai if she annuls her Nedarim <i>after</i> the husband finds out about them.)
</p><p>
In the case of a woman who is not Chashuvah, the man does not mind the fact that he must give her a Get if she is found to have Nedarim, even though he becomes Asur to her relatives. In the case of an Ishah Chashuvah, though, he wants to avoid giving her a Get if it turns out that she has Nedarim. Therefore, he marries her on condition that <i>even if she annuls her Nedarim</i>, he still does not want her to be his wife. That way, he will not have to give her a Get if she <i>does</i> have Nedarim, since it will not help for her to annul them afterwards and the Yerushalmi's concern will not apply!
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If there is a bathhouse in the city, he has no claim even 
          about Mumim in hidden places, since he checks her through 
          his female relatives.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara):</font></b> (In the Reisha) if the father does not bring 
          proof, the husband is believed. This is like R. Yehoshua, 
          who says that a woman is not believed (to say that she 
          was a Besulah at the time of Kidushin, and was raped 
          later - 12b);.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> In the Seifa, if the husband does not bring 
          proof, the father is believed. This is like R. Gamliel, 
          who says that she is believed (about this)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1 (R. Elazar):</font></b> We are forced to say that 
          different Tana'im said these two clauses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Don't say that R. Yehoshua never follows 
               Chazakah of the body. This is only when Chazakah of 
               money opposes it. If not, he follows it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If the bright patch (Tzara'as) appeared 
               and later a white hair developed inside, this makes 
               him Muchlat (absolutely Tamei). If the white hair 
               came first, he is not Muchlat. If we are in doubt, 
               which came first, he is Muchlat;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehoshua says, Kehah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> (It is as if) it became weaker; he 
               is Tahor (not Muchlat).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> One Tana taught the entire Mishnah. In 
          the Reisha the Mumim were found by the father, so we 
          assume that they were there from the beginning. In the 
          Seifa the Mumim were found by the husband, so we assume 
          they came when she was already married to him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question (Abaye - Mishnah):</font></b> If she entered the husband's 
          Reshus, he must prove that the Mumim arose before 
          Kidushin, invalidating the Kidushin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It does not suffice to prove that the Mumim were 
               there after Kidushin in her father's house. 
               According to Rava, if they were found by the father, 
               we assume that they were there from the beginning!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> If he proves that the Mumim were there 
          during Eirusin, we have a Chazakah, a man does not drink 
          a cup (marry a woman) before he checks it! Certainly, he 
          saw the Mum and accepted it!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> If so, the same applies even if the Mum 
          preceded the Kidushin!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> We have a Chazakah, a man does not accept Mumim.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> If so, the same applies when the Mum was seen 
          after Kidushin in her father's house!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> When the Mum was seen after Kidushin, two 
          Chazakos oppose the husband: of her body (she was born 
          without Mumim), and a man does not drink a cup before he 
          checks it, and he accepted the Mum.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> We should say that that a man does not accept 
          Mumim!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Rejection:</font></b> That is one Chazakah. It does not override two 
          Chazakos.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO MUST BRING PROOF WHERE THE 'MUM' WAS FOUND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If he proves that the Mum was there before 
          Kidushin, the Chazakah that she was born unblemished does 
          not apply. We are left with the Chazakah that a man does 
          not drink until he checks. We should say that he accepted 
          the Mum!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> No, a man does not accept Mumim; also, we leave 
          the money in its Chazakah (by him. Therefore, two 
          Chazakos favor him.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #3 (to question 3:f, 75b - Rav Ashi):</font></b> (The entire 
          Mishnah is like R. Gamliel.) In the Reisha, she claims 
          that he owes to her father (he receives the Kesuvah of an 
          Arusah; the Chazakah of her body does not help for him.) 
          In the Seifa, she claims that he owes to her.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Rav Acha brei d'Rav Ika - Beraisa):</font></b> R. Meir 
          admits regarding Mumim that are fit to come with her from 
          her father's house, that the father must bring proof.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She is claiming that he owes her, and still, she 
               must bring proof!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The Beraisa discusses a Mum such as an extra 
          finger (which certainly was there before Kidushin).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If so, what proof can she bring?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> She must prove that the husband accepted the Mum.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHO MUST BRING A PROOF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah citing Shmuel):</font></b> Reuven traded his cow for 
          Shimon's donkey. Shimon was Moshech (brought to his 
          premises) the cow to acquire it. When Reuven went to be 
          Moshech the donkey, he found that it was dead. Shimon 
          must bring a proof that his donkey was alive at the time 
          that he pulled the cow (if not, the trade is void and he 
          must return the cow).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah of a Kalah supports this.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> To which Mishnah does he refer?
<br>
<br>

sjt:
<font><b>1) CONFLICTING CHAZAKOS</b></font><b>
<br>QUESTION:</b> Rava resolves a contradiction between the first part of the Mishnah and the second part of the Mishnah. In the Reisha, the Mishnah states that if a woman is found to have a Mum (blemish) after the Erusin but before the Nisu'in, then the burden of proof is upon the <i>woman</i> (or her father) if she wants to receive the money of the Kesuvah. She does not receive her Kesuvah unless she can prove that the Mum developed <i>after</i> the Erusin (and thus it was the husband's bad fortune). However, in the Seifa, the Mishnah states that if a woman is found to have a Mum after the Nisu'in, then the burden of proof is upon the <i>husband</i>, and he must give her the Kesuvah unless he can prove that she had the Mum before the Erusin.
</p><p>
Rava answers that the Mishnah holds that a Chezkas ha'Guf (that she had no Mum until the last possible moment) together with a Ta'anas Bari (her claim of certainty) are strong enough to win the case for the woman. That is why -- when the Mum is found after the Nisu'in -- the burden of proof is on the <i>husband</i>.
</p><p>
In contrast, when the Mum is found after the Erusin and before the Nisu'in, her Chezkas ha'Guf is not as strong. It has a weakness in that the Mum was found while she was still in the Reshus of her father, and thus there is reason to say that she always had a Mum while in the Reshus of her father (even before the Erusin; this is called 'Kan Nimtza, Kan Hayah'). The Chezkas ha'Guf, therefore, does not have the power to decide the case in her favor, and that is why the <i>woman</i> must bring proof that the Mum developed only after the Erusin.
</p><p>
Abaye questions Rava's explanation of the Mishnah. He asks that if Rava's assertion is true that the element of 'Kan Nimtza, Kan Haya' weakens her Chezkas ha'Guf and tells us that she had the Mum even before the Erusin, then in the Seifa, when the Mum was found after the Nisu'in, it should suffice for the husband to bring proof that the woman had the Mum <i>during</i> the Erusin (before the Nisu'in)! As long as we know that she had the Mum during the Erusin, we can then assume that she had it before the Erusin as well (because of 'Kan Nimtza, Kan Hayah'). Why, then, does the Mishnah say that he must prove that she had the Mum <i>before</i> the Erusin in order for him to win the case?
</p><p>
Rava answers that besides the Chezkas ha'Guf, there are two other Chazakos that must be taken into consideration. First, there is a Chazakah that tells us that the husband should have to pay the Kesuvah even if she did have a Mum at the time of the Erusin, because a man usually checks out a woman before marrying her, and thus he probably saw that she had a Mum and accepted it. (We will call this, in short, the 'Chazakah that he checked and accepted the Mum'). Second, there is a Chazakah that tells us the opposite -- had he seen the Mum, he would probably not have agreed to marry her, and since we see that he did marry her, he must not have been aware of the Mum (we will call this, in short, the 'Chazakah that he was unaware of the Mum'). This second Chazakah tells us that he should <i>not</i> have to pay the Kesuvah, since he was unaware of the Mum at the time of the marriage.
</p><p>
Taking these two Chazakos into consideration, the Gemara says that if the husband brings proof that she had the Mum before the Erusin, then these two Chazakos cancel each other out (since once says that he checked her out and knew about the Mum and accepted it, and the other says that he was unaware of the Mum and that is why he married her). When they cancel each other out, the husband is left with a Chezkas Mamon (he is holding the money that is in doubt), and he wins the case.
</p><p>
If, on the other hand, the husband can only prove that the Mum was there after the Erusin (before the Nisu'in), then the 'Chazakah that he checked and accepted the Mum' combines with her Chezkas ha'Guf, and thus the husband loses the case and he must pay her the Kesuvah. These two Chazakos outweigh the single 'Chazakah that he was unaware of the Mum.'
</p><p>
<b>RASHI</b> (DH Chada) asks, why do we view the situation as two Chazakos against one? If the Mum was there after the Erusin, then we should view it as two Chazakos against <i>two</i>, because the Chezkas Mamon of the husband should join with the 'Chazakah that he was unaware of the Mum!' Those two Chazakos would then counteract the two Chazakos supporting the woman's claim! 
</p><p>
Rashi answers that the Chezkas Mamon does not exist in this situation, according to Raban Gamliel whose view the Mishnah is following. The Chezkas Mamon here is opposed by a Chezkas ha'Guf, and Raban Gamliel maintains that a Chezkas ha'Guf neutralizes the Chezkas Mamon and renders it totally ineffective.
</p><p>
What does Rashi mean? How could Rashi say that the Chezkas Mamon is neutralized by the Chezkas ha'Guf in a case where the Mum is found after the Erusin (before the Nisu'in)? We learned earlier (Rashi 75b, DH Rava Amar) that the Chezkas ha'Guf can only neutralize the Chezkas Mamon if the Mum is found <i>after</i> the Nisu'in. But if it is found before the Nisu'in, then the Chezkas ha'Guf loses its power, because the logic of 'Kan Nimtza, Kan Hayah' opposes it! Thus, the Chezkas Mamon should overpower the Chezkas ha'Guf! Since the Gemara is discussing a Mum found after the Erusin and before the Nisu'in, the Chezkas Mamon should certainly not be overpowered by the Chezkas ha'Guf and should still be effective. 
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH v'Chada) asks this question on the Gemara itself. Tosfos gives two answers. First, Tosfos answers that even when the Chezkas ha'Guf is weak, it still has strength to counter the husband's claim, and in order for the husband to win the case it must be opposed by a Chezkas Mamon. Similarly, the 'Chazakah that he was unaware of the Mum' is also not strong enough by itself to overpower the opposing Chazakah (the 'Chazakah that he checked and accepted the Mum') unless it is supported by a Chezkas Mamon as well.
</p><p>
However, the Chezkas Mamon cannot be utilized twice. Therefore, since it is used once to overpower the Chezkas ha'Guf, the 'Chazakah that he checked and accepted the Mum' will overpower the 'Chazakah that he was unaware of the Mum,' because the latter does not have the support of the Chezkas Mamon (for it was already used). As a result, he will lose the case.
</p><p>
Conversely, if the Chezkas Mamon is used to support the 'Chazakah that he was unaware of the Mum,' then it can no longer be used to oppose her Chezkas ha'Guf. As a result, the Chezkas ha'Guf will win the case for her. (In summary, both Chazakos of the man's claim need the Chezkas Mamon to win the claim for him, but since only one can use it, he loses the claim. First, the Chezkas Mamon needs its own strength to overpower the countering Chezkas ha'Guf. And second, the 'Chazakah that he was unaware of the Mum' needs the support of the Chezkas Mamon to overpower the countering 'Chazakah that he checked and accepted the Mum.')
</p><p>
However, this does not seem to be the intention of Rashi. Rashi writes that there is a full-fledged Chezkas ha'Guf here that overpowers the Chezkas Mamon. He makes no mention of the fact that the Chezkas Mamon was used up already to counter a different Chazakah.
</p><p>
(b) The Rishonim favor the second answer of Tosfos. Tosfos says that the Chezkas Mamon together with the 'Chazakah that he was unaware of the Mum' cannot be viewed as two separate supports for the husband's claim. In contrast, the Chezkas ha'Guf together with the 'Chazakah that he checked and accepted the Mum' <i>are</i> viewed as two separate supports for <i>the wife's</i> claim. The reason for this is as follows.
</p><p>
The two Chazakos that support the woman's claim provide independent support for her claim. That is, if <i>either one</i> of the Chazakos is true, then she will win the case: If the Chezkas ha'Guf is true -- and she really developed the Mum only after the Nisu'in -- then she wins the case. If the 'Chazakah that he checked and accepted the Mum' is true -- i.e. even though she had a Mum before the Erusin, he saw it and accepted it -- then again she wins the case.
</p><p>
In contrast, <i>both</i> of the Chazakos that support the husband must be true in order for him to win the case. The 'Chazakah that he was unaware of the Mum' cannot work by itself without the Chezkas Mamon. This is because the Chezkas Mamon does nothing for him without a 'Chazakah that he was unaware of the Mum.' That second Chazakah must be true in order for the Chezkas Mamon to work, because if it is not true (and he saw the Mum before the Erusin and accepted it), then the Chezkas Mamon is worthless! (In short, his two Chazakos provide only a single support for a single claim for him to win the case: that the Mum was there before the Nisu'in <i>and</i> that he did not notice it.) Consequently, his two Chazakos have only the strength of one Chazakah and thus they are overpowered by the woman's two independent Chazakos.
</p><p>
However, this approach also does not seem to fit into what Rashi is saying. Rashi says that the Chezkas Mamon does not work because it is countered by a Chezkas ha'Guf. If he meant what Tosfos is saying, Rashi should have said that there <i>is</i> a Chezkas Mamon, but it is looked at as one and the same as the 'Chazakah that he was unaware of the Mum' and is overpowered by the wife's two Chazakos.
</p><p>
(c) Rashi might have rejected the second explanation of Tosfos, which the Rishonim favor, because the Gemara itself mentions the Chezkas Mamon as being independent of the 'Chazakah that he was unaware of the Mum.' The Gemara says that if the husband can prove that the woman had the Mum before the Erusin (and thus the only question is whether he saw it and accepted it or he was unaware of it), then the single 'Chazakah that he checked and accepted the Mum' cannot oppose the two Chazakos countering Chazakos -- the <i>Chezkas Mamon</i> and the 'Chazakah that he was unaware of the Mum' -- and those two Chazakos prevail.
</p><p>
According to Tosfos' second approach, the Gemara here should not have mentioned the Chezkas Mamon as a separate Chazakah. (Tosfos' first answer might have been trying to avoid this question.)
</p><p>
Rather, Rashi (at the end of 75b) seems to answer our question. He explains that the 'Chazakah that he checked and accepted the Mum' is not just a separate Chazakah, but that it removes the weakness that the Chezkas ha'Guf normally has when the Mum is discovered during the Erusin. Since there is a reason that the husband should be obligated to pay the Kesuvah even if the Mum existed when the woman was in the Reshus of her father, the Chezkas ha'Guf remains with its original strength and it neutralizes the Chezkas Mamon. What remains is the Chezkas ha'Guf together with the 'Chazakah that he checked and accepted the Mum' against the 'Chazakah that he was unaware of the Mum' without the Chezkas Mamon. And she wins the case.
</p><p>
Rashi's logic can be understood as follows: The Chazakos that we have been discussing can be classified into three categories: a Chazakah that provides a strong logical argument, a Chazakah that provides a weak logical argument, and a Chazakah that provides no logical argument.
</p><p>
The Chezkas ha'Guf provides a strong logical argument that the woman should receive the Kesuvah. The Chezkas ha'Guf argues that physical bodies normally do not change. Hence, if we see that a Mum did appear on her, it is most logical to assume that it developed at the latest possible moment. Since this is based on a reality of physical nature, it is the strongest of the Chazakos.
</p><p>
The 'Chazakah that he was unaware of the Mum' and the countering 'Chazakah that he checked and accepted the Mum' are based on arguments concerning the psychology of men. These two Chazakos provide logical arguments that are not based on a reality in the physical world, but on the cognitive nature of people. That is why these Chazakos are not as strong as a Chezkas ha'Guf.
</p><p>
The Chezkas Mamon is the weakest of Chazakos, because it provides no logical reason why the husband should be exempt from paying the Kesuvah. It merely says that when in doubt, leave the money where it is.
</p><p>
Rashi holds that when there is a Chezkas ha'Guf, even though we do not have actual evidence as to when the Mum developed, the Chezkas ha'Guf is a strong enough proof that the Mum came after the Nisu'in that the situation is no longer considered to be one of doubt. Hence, the Chezkas Mamon does not come into play, since it only is used when entirely in doubt. 
</p><p>
When the Chezkas ha'Guf has a weakness (such as when the Mum was found during the Erusin, before the Nisu'in), then the imperfection of the Chezkas ha'Guf -- that is, the element of 'Kan Nimtza, Kan Hayah' -- is enough to make the situation be considered one of doubt, and therefore the Chezkas Mamon comes into play to determine the Halachah.
</p><p>
However, when we have the added factor that the husband probably checked her out before Nisu'in (the 'Chazakah that he checked and accepted the Mum'), the Chezkas ha'Guf's logical argument is strengthened again. We have enough logical reasons to say that it is not a doubt anymore and the Chezkas Mamon can no longer be considered a factor. The 'Chazakah that he was unaware of the Mum' <i>would</i> be considered a factor to counter the Chezkas ha'Guf, since it involves a logical argument, but it is not a strong enough argument to overpower both the logical arguments of Chezkas ha'Guf and the 'Chazakah that he checked and accepted the Mum.'
</p><p>
That is why Rashi writes that when there is a Chezkas ha'Guf (without a weakness, or with a weakness but supported by the other Chazakah), the Chezkas Mamon is a non-entity (or as Rashi puts it, 'Lav Klum Hi'). (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> (He refers to the Reisha of our Mishnah, a Mum 
          found in a) Kalah in her father's house.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> There is different! There, the father must 
          bring a proof to collect from the husband. Shmuel 
          requires Shimon to bring a proof to keep the cow he is 
          holding!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (R. Aba):</font></b> (He refers to the Seifa, a) Kalah in 
          her father-in-law's house.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> There is different! There, the husband must 
          bring a proof to weaken the father's Chazakah. In 
          Shmuel's case, Shimon must bring a proof to establish his 
          Chazakah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #3 (Rav Nachman bar Yitzchak):</font></b> He discusses a 
          Kalah in her father's house, regarding the Kidushin 
          money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not only like the opinion that Kidushin 
               money is returned (if the Chasan dies). Rather, even 
               the opinion that Kidushin money is not returned says 
               so only about a Vadai Kidushin. Here, regarding a 
               mistaken Kidushin, if the father cannot bring a 
               proof he must return the money.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If a needle was found in the Beis 
          ha'Kosos (a double fold of flesh at the end of the Keres 
          stomach) and it protrudes from one side, the animal is 
          Kosher. If it protrudes from both sides, it is Tereifah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If blood is found on it, it was there before the 
               slaughter (so the animal is Tereifah). If not, it 
               came after the Shechitah (and the animal is Kosher).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the wound formed a scab, the needle was there 
               three days before the Shechitah. If not, the one who 
               wants to take money must bring a proof.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the butcher already paid for the animal, he 
                    must bring proof to recover his money. 
                    According to Shmuel, the seller should need to 
                    bring a proof to keep his money!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, the butcher did not yet pay. (The 
          seller must bring proof to force the butcher to pay.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Why should we say that the Tana discusses only 
          this case? (This is left difficult.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rami bar Yechezkel):</font></b> Do not heed what my brother (Rav 
          Yehudah) says in Shmuel's name. Rather, (when the cow was 
          traded for the donkey) Shmuel said that the burden of 
          proof is on the one in whose Reshus the doubt arose. The 
          (entire) Mishnah of a Kalah supports this (like Rava 
          explained).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If a needle was found in the Beis 
          ha'Kosos...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the butcher did not yet pay for the animal, the 
               owner must bring proof to get paid. According to 
               Shmuel, the butcher should need to bring a proof to 
               avoid paying!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, the butcher paid.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> Why should we say that the Tana discusses only 
          this case?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> People do not (normally) give their animals 
          before being paid.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH 'MUMIM' NECESSITATE DIVORCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Chachamim say that this applies only to Mumim 
          in hidden places.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> If a woman has epileptic fits, this is 
          considered a hidden Mum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is if it comes at fixed times (she is careful 
               to be secluded at these times). If not, it is like 
               an exposed Mum.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Mumim arose in a man, we do not force him 
          to divorce his wife;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Shimon ben Gamliel says, this applies to small Mumim. 
          Regarding big Mumim, we force him to divorce her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara - Rav Yehudah):</font></b> The Mishnah says 'arose';
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Chiya bar Rav):</font></b> The text says 'were'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The opinion that says 'arose' holds that all the 
               more so if the Mum was there (he need not divorce 
               her), for she saw the Mum and accepted it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The opinion that says 'were', would say that we 
               force him to divorced if Mumim arose
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Mishnah - R. Shimon ben Gamliel):</font></b> This applies 
          to small Mumim. Regarding big Mumim, we force him to 
          divorce her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand this according to the text 'arose'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But according to the text 'were', what difference 
               does it make if they are small or big? She saw them 
               and accepted them!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> She thought she could bear them. Now she sees 
          that she cannot bear them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (R. Shimon ben Gamliel):</font></b> The following are big Mumim: his 
          eye was blinded, his arm was cut off, or his leg was 
          broken. (Bach - this is a Mishnah. It seems that the Rif 
          and Rosh agree.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Rav Acha bar Yakov, citing R. Yochanan):</font></b> The Halachah 
          follows R. Shimon ben Gamliel.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rava):</font></b> The Halachah follows Chachamim.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> Did R. Yochanan really (need to) say that 
          (here) the Halachah follows R. Shimon ben Gamliel?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar bar Chanah, citing R. Yochanan):</font></b> The 
               Halachah always follows R. Shimon ben Gamliel in the 
               Mishnayos, except for three places: a co-signer, the 
               case in Tzidon, and bringing a later proof.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Acha and Rabah argue about what R. Yochanan 
          said.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MAJOR 'MUMIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a husband has any of the following Mumim or 
          occupations, we force him to divorce his wife: leprosy, 
          Pulipus, a Mekametz, a Metzaref of copper (these will be 
          explained), or a tanner, whether these preceded the 
          marriage or came during the marriage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir says, regarding all of them, even if he 
               stipulated with her she can say 'I thought that I 
               could bear it, but now I see that I cannot.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that she must bear it, except for a 
               leper, for this harms her.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A case occurred in Tzidon and a tanner's wife fell to 
          Yibum to a tanner. Chachamim said that she can claim 'I 
          could bear your brother, but not you.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> What is Pulipus?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Shmuel):</font></b> It is a smell that comes from the 
          nose.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Beraisa):</font></b> It is a smell that comes from the 
          mouth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Asi switched the opinions, and gave a Siman to 
               remember who said which:</font></b> 'Shmuel's mouth has not 
               ceased in this entire Perek.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> What is a Mekametz?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> It is one who gathers dung of dogs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> A Mekametz is a tanner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> The Mishnah lists both a Mekametz 
               and a Borsi (a tanner)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> A Mekametz is one who tans few hides. A 
               Borsi is a large-scale tanner!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The question from the Beraisa remains difficult for 
               Rav Yehudah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Tana'im argue about the meaning of a Mekametz.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A Mekametz is a tanner;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Some say that it is one who gathers dung of dogs.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> What is a Metzaref of copper?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1 (Rav Ashi):</font></b> It is one who smelts it and makes 
          pots.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2 (Rabah bar bar Chanah):</font></b> It is one who quarries 
          it from its source.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> A Metzaref is one who quarries copper 
          from its source.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHOM WE FORCE TO DIVORCE HIS WIFE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav):</font></b> If one says 'I will not feed or support my wife', 
          we force him to divorce her and pay her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Elazar said this in front of Shmuel.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Shmuel:</font></b> Feed to Elazar barley (like an animal)! Rather 
          than forcing the husband to divorce her, force him to 
          feed her!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that a person cannot live with a snake in 
               one basket. (We do not force her to live with an 
               antagonizing husband.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Binyamin bar Yefet said in the name of R. Yochanan 
          like Rav.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  R. Zeira:</font></b> R. Elazar was fed barley for teaching thusly!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Rav Yehudah, citing Rav Asi):</font></b> We force a husband to 
          divorce his wife only if she is forbidden to him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Rav Yehudah citing Shmuel):</font></b> This applies in cases such 
          as a widow married to a Kohen Gadol, a divorcee or 
          Chalutzah to a regular Kohen, a Mamzeres or Nesinah to a 
          Yisrael, or a Bas Yisrael to a Nasin or Mamzer. We do not 
          force a man who has been married for 10 years without 
          children.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Rav Tachlifa citing Shmuel):</font></b> We force even a man who has 
          been married for 10 years without children.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a husband has any of the following Mumim, 
          we force him to divorce his wife: leprosy, Pulipus...
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  This is not difficult for Rav Asi. He can say that the 
          Mishnah lists only cases when mid'Rabanan we force him to 
          divorce her, not when mid'Oraisa he must divorce her.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> According to Rav Tachlifa, the Mishnah should 
          have listed a man who has been married for 10 years 
          without children!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #1 (Rav Nachman):</font></b> The Mishnah discusses cases when 
          we force with lashes. If a man has been married for 10 
          years without children, we force only with words.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Objection (R. Aba):</font></b> 'A slave will not fix his ways due to 
          words!'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #2 (R. Aba):</font></b> In both cases we force with lashes. 
          In our Mishnah, we do not force if she wants to stay with 
          him. We force a childless man in any case.
<br>
<br>

sjt:
<font><b>1) HALACHAH: GETTING DIVORCED AFTER TEN YEARS OF CHILDLESSNESS</b></font><b>
<br>OPINIONS:</b> Rav Asi says that if a couple have not had children after being married for ten years, Beis Din does not force them to get divorced. Rav Tachlifa in the name of Shmuel argues and says that Beis Din does force them to get divorced. (See Yevamos 64a.) 
</p><p>
What is the Halachah?
</p><p>
(a) <b>RASHI</b> (Yevamos 65b, DH Hu and DH Hi) says that Beis Din forces a man to divorce his wife. This is also the ruling of the <b>RIF</b> and the <b>RAMBAM</b> (Hilchos Ishus 15:7). They write that Beis Din forces him to divorce her, even if it means that they must use physical force, in order to have him fulfill the Mitzvah of Piryah v'Rivyah. (The <b>ROSH</b> (6:15-16) adds that this means that Beis Din also forces him to marry another wife; otherwise there would be no point in divorcing the first one. Similarly, he adds, Beis Din is enjoined to force, at a certain point, a bachelor who refuses to get married.)
</p><p>
(b) <b>TOSFOS</b> (Yevamos 64a, DH Yotzi) and <b>RABEINU CHANANEL</b> (ibid.) rule, based on the <b>YERUSHALMI</b> (Kesuvos 11:7), that Beis Din does not force the man to divorce his wife. Rather, Beis Din tells him that he is obligated to divorce his wife and that if he does not, it will be permitted to call him a sinner. 
</p><p>

<b>HALACHAH:</b>
<br>(a) Regarding the question <i>who</i> is enjoined to remarry after ten years:
</p><p>
1. The Poskim cite the <b>YERUSHALMI</b> which states that the Halachah of our Sugya applies not only to someone who did not have children or who had stillborns, but even to a person who had children who died and he no longer has any living children (or grandchildren). Such a person must divorce his wife if ten years pass and they do not have any more children so that he can fulfill the Mitzvah of Piryah v'Rivyah.
</p><p>
2. The Gemara here, and the Mishnah in Yevamos says that this applies if ten years pass 'without giving birth.' The <b>RAMBAN</b> and other Rishonim infer from here that if a man's wife bore him a single child, he does not have to divorce her (even though he has not fulfilled the Mitzvah of Piryah v'Rivyah with the birth of only one child). The <b>REMA</b> cites this ruling. The <b>PISCHEI TESHUVAH</b> adds, quoting the <b>ME'IL TZEDAKAH</b> (#93), that even if the wife is no longer capable of having children and they will never have a second child, Beis Din still does not force him to marry another wife.
</p><p>
(b) Regarding the current practice in such a situation:
</p><p>
1. The <b>SHULCHAN ARUCH</b> (EH 154:10) cites the <b>RIF</b> and the <b>RAMBAM</b> who rule that Beis Din forces the man to get divorced after ten years. However, others limit -- or entirely do away with -- this practice for various reasons:
</p><p>
2. A number of Rishonim (<b>RASHI</b>, <b>HAGAHOS MAIMONI</b>; see Insights to Yevamos 64:1) rule that the Halachah of the Gemara applies only in Eretz Yisrael and not in Chutz la'Aretz. 
</p><p>
3. The Hagahos Maimoniyos (Hilchos Ishus 15:4) adds in the name of the <b>AVI'ASAF</b> that nowadays even in Eretz Yisrael, Beis Din does not force a person to divorce after ten years. This is because of the Gemara in Bava Basra (60b), which states that the Chachamim wanted to make a Gezeirah prohibiting marriage from the time that the nations started persecuting the Jewish people, on the grounds that it is better for us to refrain from having children and cause our own end than for our enemies to destroy us. The Chachamim, though, could not make such a stringent Gezeirah on the people. Nevertheless, the proposition of such a Gezeirah suffices for Beis Din to have reason not to force a person to fulfill the Mitzvah of Piryah v'Rivyah.
</p><p>
4. The <b>REMA</b> (EH 1:3, 154:10) concludes that nowadays, it is not the practice of Beis Din to use force (in all matters of Ishus).
</p><p>
Regarding whether the person himself should divorce his wife l'Chatchilah even though Beis Din does not force him to do so, the <b>PISCHEI TESHUVAH</b> cites the <b>SEFER BIGDEI KEHUNAH</b> (#1) who rules that if a man's wife is a G-d-fearing woman and they are happily married, then they may remain married even l'Chatchilah, because of the opinions which maintain that in Chutz la'Aretz one does not need to divorce his wife. Secondly, one can never know for sure that the source of the problem is not his own inability to have children (and thus divorcing her and marrying someone else will not help). Therefore, he should remain with his wife.
</p><p>
This has been seen to be the practice of many great Talmidei Chachamim who, Rachmana Litzlan, did not have children, as mentioned by <b>RAV MOSHE STERNBUCH</b>, shlit'a, in <b>TESHUVOS V'HANHAGOS</b> (1:790). Rav Sternbuch adds that even if the couple are living in Eretz Yisrael, nowadays we are so sullied with sin that we cannot be sure that it is not one's sins causing him not to have children. (In his Teshuvah, Rav Sternbuch describes some interesting Segulos that he recommends for couples trying to have children.)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection:</font></b> The Mishnah lists a leper, even though we do 
          not allow her to stay with him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - Chachamim):</font></b> (She must bear him,) except 
               for a leper, since this harms her.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> Regarding a leper, if she wants to remain with 
          him with witnesses (who will ensure that they do not have 
          Bi'ah), we allow her. We do not allow a childless man to 
          keep his wife even with witnesses.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>LEPROSY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa - R. Yosi):</font></b> There are 24 types of leprosy. For 
          all of them, Bi'ah is harmful. The worst is Ba'alei 
          Ra'asan (there is a Sheretz in the brain).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What causes it?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> If one has Bi'ah after bloodletting, 
          the children will be weak. If they have Bi'ah after both 
          let blood, the children will be Ba'alei Ra'asan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> This applies only if they did not eat in 
               between. If they ate in between, there is no 
               problem.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  The signs of Ba'alei Ra'asan are:</font></b> his eyes tear, his nose 
          drips, saliva comes from his mouth, and flies hover about 
          him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What is the cure?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> Take mint, alum, bark of a nut tree, 
          shearings of leather, lily, and red date-shells, and cook 
          them together. Bring the sick one into a marble house, or 
          whose walls are seven half bricks thick. Pour 300 cups of 
          the potion on his head, until his skull softens. Cut the 
          skull; put a myrtle leaf under each leg of the Sheretz, 
          and remove it with tongs; burn the insect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If you do not burn it, it will return to him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Yochanan warned people to beware of the flies from 
          Ba'alei Ra'asan. R. Zeira would not sit downwind from 
          them. R. Elazar would not enter the same tent as them. R. 
          Ami and R. Asi would not eat eggs from an alley with 
          Ba'alei Ra'asan.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  R. Yehoshua ben Levi would cling to them and engage in 
          Torah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'And it (Torah) gives grace (to those who learn it)' 
               - all the more so, it protects them!
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>R. YEHOSHUA BEN LEVI'S JOURNEY TO 'GAN EDEN'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  When R. Yehoshua ben Levi was about to die, the Satan 
          (angel of death) was told to accede to his desires. The 
          Satan appeared to him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Yehoshua ben Levi asked to see where his place will be 
          (in Gan Eden). The Satan consented.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Yehoshua ben Levi asked for the Satan's knife, lest it 
          scare him on the way; he gave it to him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  When they got there, the Satan lifted him up and showed 
          him. R. Yehoshua ben Levi jumped to the other side, held 
          onto his garment and swore that he will not leave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Hash-m:</font></b> If he ever annulled an oath, he will go 
               back; if not, not. (He had not.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  The Satan asked him to return his knife. R. Yehoshua ben 
          Levi refused.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> A voice from Heaven:</font></b> Return it, for it is needed for 
               the world. (R. Yehoshua ben Levi returned it.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Eliyahu:</font></b> Make room for the son of Levi! Make room for the 
          son of Levi!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Yehoshua ben Levi found R. Shimon bar Yochai sitting 
          on 13 gold chairs.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Shimon bar Yochai:</font></b> Are you the son of Levi?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yehoshua ben Levi:</font></b> Yes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Shimon bar Yochai:</font></b> Was a rainbow seen in your 
               day?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yehoshua ben Levi:</font></b> Yes.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Shimon bar Yochai:</font></b> If so, you are not worthy of 
               this proclamation. (The rainbow is Hashem's sign not 
               to destroy the world. Your merit did not suffice to 
               protect the world!)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Really, the rainbow was not seen in his day. R. 
                    Yehoshua ben Levi did not want to take credit 
                    for this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  R. Chanina bar Papa was the Satan's close friend. When he 
          was about to die, the Satan was told to accede to his 
          desires; he appeared to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chanina bar Papa:</font></b> Give me 30 days to review my 
               learning. The angel of death agreed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Happy is the one who comes to the world to come 
                    and remembers his learning.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  The Satan returned after 30 days.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Chanina bar Papa asked to see where his place will be. 
          The Satan consented.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  R. Chanina bar Papa asked for the Satan's knife, lest it 
          scare him on the way
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The Satan:</font></b> Do you want to do to me as your friend 
               did?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chanina bar Papa:</font></b> Bring a Sefer Torah, and see if 
               there is anything in it I didn't fulfill.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> The Satan:</font></b> Did you cling to Ba'alei Ra'asan and 
               engage in Torah?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Even though he had not, when he died, a pillar of 
               fire separated him from everyone else.	This happens 
               for only one or two in a generation.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  R. Alexandri came close and asked (that the fire cease) 
          for the honor of Chachamim. The fire continued. He asked 
          'for the honor of your father'; the fire continued. He 
          asked 'for your own honor'; the fire abated.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Abaye:</font></b> The fire was to keep away anyone who did not 
          fulfill everything in the Torah.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rav Ada bar Masnah:</font></b> This includes yourself! You do not 
          have a railing on your roof!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Really, Abaye had a railing. The wind had blown it 
               down.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  R. Chanina:</font></b> There are no Ba'alei Ra'asan in Bavel, 
          because they eat beets and drink beer made from hops that 
          grow between prickly shrubs.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> There are no lepers in Bavel, because they 
          eat beets, drink beer and bathe in the Pras River.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN A MARRIED WOMAN SELL HER PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Beis Shamai and Beis Hillel agree that an 
          Arusah may sell or give for a gift property that fell to 
          her before Kidushin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Beis Shamai say, even if it fell after Kidushin, she may 
          sell;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Beis Hillel say, she may not sell.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  They agree that if she sold or gave it, the sale or gift 
          stands.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  R. Yehudah:</font></b> Chachamim said in front of R. Gamliel 'Since 
          her husband acquires her, he should acquire the 
          property!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Gamliel (to Chachamim):</font></b> We are embarrassed about 
               the new property (we say that if she sold after 
               Nisu'in, the husband takes it from the buyers). Do 
               you suggest to say the same about the old property?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Beis Shamai and Beis Hillel agree that if property fell 
          to her after Nisu'in, if she sold it the husband takes it 
          from the buyers.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Gamliel says, if property fell to her before Nisu'in, 
          and she sold or gave it after Nisu'in, it stands.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  R. Chanina ben Akavya:</font></b> Chachamim said in front of R. 
          Gamliel: Since the husband acquires the woman, doesn't he 
          acquire the property?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> We are embarrassed about the new 
               property. Do you suggest this about the old 
               property?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  R. Shimon distinguishes between different types of 
          property:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the husband knew about it, she may not sell it. 
               If she did, the sale or gift is void;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the husband did not know about it, she may not 
               sell it. If she did, the sale or gift stands.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Why do they agree in the Reisha 
          (property that fell before Kidushin), and argue in the 
          Seifa (when it fell after Kidushin)?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1 (d'Vei R. Yanai):</font></b> In the Reisha, the property 
          falls to her. In the Seifa, it falls to him (due to his 
          rights in her property).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Objection:</font></b> If it falls to him, if she sold it the sale 
          would not stand!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #2:</font></b> Rather, in the Reisha, the property falls to 
          her. In the Seifa, it is a Safek whether it falls to her 
          or to him (Eirusin is like Safek Nisu'in);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> L'Chatchilah, she should not sell. If she sold or 
               gave it, it stands.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THOSE WHO DISAGREE WITH R. GAMLIEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Yehudah):</font></b> Chachamim said to R. Gamliel... 
          (he should acquire the property)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Does R. Yehudah challenge Beis Shamai's opinion 
          that she may sell, or Beis Hillel's opinion that her sale 
          stands?
<br>
<br>

sjt:
<font><b>1) THE WOMAN'S INTENTION BEHIND HER GIFT</b></font><b>
<br>QUESTIONS:</b> The Gemara records the case of a widow who wanted to prevent her new husband from acquiring all of her property. To this end, she gave away all of her property as a gift to her daughter so that her husband would not receive it. Later, when her husband divorced her, Rav Nachman ruled that her property returns to her and does not belong to her daughter, because she only gave to her daughter to keep it away from her husband.
</p><p>
How do we know that she only gave it to her daughter in order to keep it away from her husband? <b>RASHI</b> explains that she informed the witnesses (who signed on the Shtar of the gift) that she was giving the gift only in order to keep the property away from her husband, but she did not intent that if she becomes widowed or divorced that her daughter should actually keep the property.
</p><p>
According to Rashi, the Gemara is discussing a case where the woman specified at the time of the gift that she is only giving away her property in order to prevent her husband from getting it. <b>TOSFOS</b>, the <b>ROSH</b>, and other Rishonim pose a number of strong questions on Rashi's explanation.
</p><p>
First, the Gemara later (79a) says that Rava would have agreed to Rav Nachman's ruling had the woman gifted her property to a <i>stranger</i>. But since she wrote it to her daughter, there is reason to believe that she really intended for her daughter to keep it. According to Rashi, though, who says that she explicitly stated to witnesses that she is not giving it to the daughter for her to keep it but only to keep it away from her husband, what difference does it make whether the recipient is a stranger or her daughter? The Kinyan should not be valid because she revealed her intentions for it not to be valid!
</p><p>
Second, the Gemara concludes that the recipient of the 'gift' does not receive the property only when the woman gives away <i>all</i> of her possessions, since we know that she would not leave her self penniless and therefore she must not really intend to give it all away. When she gives away only part of her property, the Gemara says that the recipient <i>does</i> keep it. According to Rashi, though, if the woman <i>specified</i> that she was only giving it away in order to prevent her husband from getting it, why should the property belong to the recipient?
</p><p>
Third, Rav Anan questioned Rav Nachman's ruling even in the case where the woman gifts her property to a stranger. According to Rashi, though, what doubt could there be if the woman expressly stated that she was giving the gift only to keep it away from the husband? In fact, the Gemara in Bava Basra (151a) states clearly that the case of our Gemara is where the woman did <i>not</i> reveal her intentions at the time she gave the gift. If she reveals her intentions at the time of she gives the gift, then there is no question that the Kinyan does not take effect. How, then, can Rashi here assert that she <i>did</i> reveal her intentions?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS RID</b> asserts that there is a printer's error in Rashi, and the words of Rashi should instead read, 'She did <i>not</i> tell the witnesses [of her intentions],' instead of, 'She did tell the witnesses.' 
</p><p>
However, all of the Rishonim quote the words of Rashi as they appear in our text.
</p><p>
(b) The <b>RAMBAN</b> cites other Rishonim who explain that there is a difference between a case where a woman specifies that she is giving the gift in order to keep it away from her husband (the case in our Gemara), and where she specifies the inverse, that she does not want the gift to belong to the recipient for any other purposes (the case in Bava Basra). In the case in our Gemara, since she only spells out one side of her conditional gift, it is not clear that she does <i>not</i> want the property to belong to the recipient if the husband <i>does</i> die. Perhaps she is giving it away in order to prevent the husband from getting it, and she does not mind that the recipient takes full possession of it even if the husband later dies.
</p><p>
However, Rashi seems to say that in our Sugya she even states the inverse condition, that she does not want the recipient to acquire the property if the husband does die.
</p><p>
(c) The <b>RITVA</b> suggests that the woman told the witnesses of her intentions at the time that they signed the Shtar, before she actually gave the Shtar to her daughter to give her the gift. Since she did not specify at the time that she gave the gift (in front of the recipient), we are not sure what she had in mind at that moment; perhaps she changed her mind and decided to give the property away completely. In contrast, the Gemara in Bava Basra is discussing a case where the woman specified <i>at the time that she gave over the Shtar</i> that her intentions were to give it over entirely. This is also the way the <b>PNEI YEHOSHUA</b> and others explain Rashi.
</p><p>
Why does Rashi not explain like all of the other Rishonim, that the woman specified nothing at the time she wrote the Shtar, nor when she gave it over to her daughter, but rather we just assume that she is doing it in order to keep her property away from her husband (since she gave away all of her property, as the Gemara says later)?
</p><p>
Rashi might have been bothered by the question that the Rishonim ask on our Sugya from the Gemara in Kidushin (49b). The Gemara there discusses a person who sold his property because he was leaving to Eretz Yisrael, but he did not mention his intentions at the time of the sale. His plans then changed and he was unable to go to Eretz Yisrael. Even though he says that he sold his property only on condition that he would be leaving town, we rule that since he did not say so explicitly, the intentions in his heart are not effective -- 'Devarim she'b'Lev Einam Devarim.' Similarly, when a woman gives away all of her property, why should we assume that her intention is only to give it away in order to prevent her husband from getting it? Since she does not verbally state her intentions, they should be considered 'Devarim she'b'Lev' and not be effective!
</p><p>
The Rishonim, citing the <b><b><b>RI</b></b> MI'GASH</b>, answer this question by saying that the Gemara is discussing a woman who gave away all of her property and immediately thereafter she became married. Her subsequent marriage reveals to us clearly what her intentions were. This is an 'Umdena,' a strongly-based assumption, which has the status of a verbal statement and is not considered 'Devarim she'b'Lev.' 
</p><p>
Rashi might have rejected this answer because the 'Umdena' is based on an action that happens <i>after</i> she gives away her property. At the time that she gives away her property, though, there is no way of knowing why she is giving it away. Therefore, her intentions should remain 'Devarim she'b'Lev.'
</p><p>
The Ritva (79a, DH Amar Abaye) also seems to have been bothered by this point. He writes that our Gemara's ruling only applies when she gives away all of her property <i>after</i> she had committed herself to marrying the man ('Shiduchim'). Under such conditions, there is an 'Umdena' at the time of the giving of the gift that she only intends to keep her property away from her husband, and not to really give it away unconditionally. 
</p><p>
Rashi, though, holds that even though she is engaged to be married, this is not a strong enough 'Umdena.' Even though the gift was given after she committed herself to get married, there is no way to relate her giving of the gift directly to her forthcoming marriage in order to have a clear assumption that she was giving it away because of the marriage.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Beraisa - R. Yehudah):</font></b> Chachamim said in front of 
          R. Gamliel: A Nesu'ah is his wife and also an Arusah is 
          his wife. Just like a Nesu'ah's sale is void, also an 
          Arusah's sale is void!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that he holds that even b'Di'eved, the 
               sale is void.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Beraisa - R. Chanina ben Akavya):</font></b> R. Gamliel did not 
          answer that way, rather like this:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> No. A Nesu'ah's sale is void, since he 
               receives her Metzi'os and earnings and he can annul 
               her vows alone. We do not say so about an Arusah, in 
               whom he lacks these privileges!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> That explains if she sold before Nisu'in. 
               What if she sold after Nisu'in?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> Also then she may sell or give, and it 
               stands.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> Since he acquires the woman, he should 
               acquire the property!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> We are embarrassed about the new 
               property. Do you suggest this about the old 
               property?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  Contradiction (Mishnah - R. Gamliel) After Nisu'in, if 
          she sold...(but she may not sell l'Chatchilah)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1 (Rav Zvid):</font></b> The Mishnah should say 'she may 
          sell.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa):</font></b> The Mishnah is how R. Yehudah 
          understood R. Gamliel. The Beraisa is how R. Chanina 
          understood him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Does R. Chanina hold (that R. Gamliel holds) 
          like Beis Shamai?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> No. He says that Beis Hillel agree with Beis 
          Shamai (that she may sell l'Chatchilah).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN THE HUSBAND CAN RECLAIM THE PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav and Shmuel):</font></b> Whether the property fell before 
          Kidushin or during Eirusin, (if she sold) after Nisu'in, 
          the husband takes the property from the buyers.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Who is this like? It is not like R. Yehudah, 
          nor like R. Chanina!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> It is like Raboseinu;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Raboseinu reconsidered, voted and 
               concluded that whether the property fell before 
               Kidushin or during Eirusin, (if she sold) after 
               Nisu'in, the husband takes the property from the 
               buyers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> After Nisu'in, they agree...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Suggestion:</font></b> The enactment of Usha is taught in our 
          Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> In Usha they enacted that if 
               a woman sold her Melug property in the life of her 
               husband and she died, he takes the property from the 
               buyers.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> No. Our Mishnah teaches that he may take the 
          property from the buyers in her lifetime to eat the 
          Peiros. The enactment of Usha applies to the land itself, 
          after she dies.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Shimon distinguishes between different 
          types of property...
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What is called known property, and what is 
          unknown?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1 (R. Yosi bar Chanina):</font></b> Land is known; 
          Metaltelim are unknown.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (R. Yochanan):</font></b> Both of these are known;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Unknown property is what she inherits from an 
               overseas relative while she is here.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> Unknown property is what she inherits 
          overseas while she is here.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DOCUMENT TO DIVERT PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  A woman about to have Nisu'in wanted to divert her 
          property from her husband. She wrote a document giving 
          her property to her daughter, had Nisu'in, and was 
          divorced.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  The document came in front of Rav Nachman; he tore it up.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Rav Anan (to Mar Ukva, the Av Beis Din). Nachman the 
          farmer (i.e. he is not proficient in monetary laws) tears 
          up people's documents!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Mar Ukva (after hearing the entire story):</font></b> You discuss a 
          document to divert? Shmuel said that he would tear up 
          such a document! (Rav Nachman acted correctly.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rava, to Rav Nachman):</font></b> Did you tear it up 
          because a person would not abandon himself and give his 
          money to others? That applies to others, but one does 
          give to his daughter!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> Even so, a person takes precedence 
          over his daughter.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Beraisa - R. Shimon ben Gamliel):</font></b> If one wants 
          to divert property from her husband, she writes to 
          someone else a document of Pasim (she appeases the 
          recipient to accept the property to divert it from her 
          husband);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, the recipient can keep the property 
               and laugh at her, unless she wrote 'From today until 
               when I want'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> If she did not write this, 
               the document is valid!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (R. Zeira):</font></b> If the document gives all her 
          property, it is invalid even if this was not written. If 
          it gives part of her property, it is valid unless the 
          clause was written.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> If the receiver does not get the property, the 
          husband should get it!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> It is considered like property unknown to 
          the husband. This is like R. Shimon.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH PROFITS DOES THE HUSBAND RECEIVE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a wife inherited money, the husband buys 
          land with it and eats the Peiros. The same applies if she 
          inherited Peiros detached from the ground;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Meir says, if she inherited attached Peiros, we 
          evaluate how much the Peiros add to the value of the 
          land. The husband buys land (for her) for this amount, 
          and he eats the Peiros;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Chachamim say, attached Peiros are his. Detached Peiros 
          are hers, and he buys land with them and eats the Peiros;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Shimon says, at the end of the marriage the husband 
          has less rights in the matter in which he had more rights 
          at the start of the marriage. He has more rights (at the 
          end) in the matter in which he had less rights at the 
          start;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> At the start of the marriage he gets attached 
               Peiros; at the end of the marriage, they are hers. 
               At the start, detached Peiros are hers; at the end, 
               they are his.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara):</font></b> (When he and she disagree about how to invest 
          the money,) clearly the preferred investment for the 
          money is land, followed by houses (they are second best), 
          followed by date trees, followed by other trees, followed 
          by vines.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Some say that a forest of trees (that do not bear 
          considerable fruit, but are cut for lumber) and a pond of 
          fish are considered like Peiros (and the wood and fish 
          belong to the husband);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Others say that they are like principal (the husband 
               buys land with them and eats the Peiros, but the 
               land is his wife's).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The rule is, things that grow back are Peiros. 
               Things that do not grow back are principal.
<br>
<br>

sjt:
<font><b>1) PREVENTING HER HUSBAND FROM RECEIVING HER PROPERTY</b></font><b>
<br>QUESTIONS:</b> The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The husband normally receives the rights to the Peros (fruits) of his wife's property and to inherit it from her when she dies. The woman is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage ('Mavrachas'). As a result, the property no longer belongs to her as far as the husband is concerned.
</p><p>
The Gemara says that when the woman makes such a Kinyan, the recipient does <i>not</i> fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies, the property belongs to <i>her</i>, and the recipient of the 'gift' has no rights at all to the property.
</p><p>
The Gemara explains that this technique applies only when the woman gives away <i>all</i> of her property as a gift to someone else before the marriage. If she only gives away <i>part</i> of her property, then the recipient indeed acquires it fully, unless she specifies at the time of the Kinyan that she is giving it away 'from today, when I want.' (We will discuss this conditional Kinyan later.)
</p><p>
The Gemara asks at the end of the Sugya that since the recipient to whom she gives all of her property does not really acquire it, the Kinyan is not a valid Kinyan. If so, the husband should receive the Peros of the property and inherit it when she dies! (The Gemara answers that when the woman 'gives away' her property, it becomes like 'property that is unknown to the husband' to which he does not receive any rights, as Rebbi Shimon in the Mishnah (78a) states.)
</p><p>
There are two basic ambiguities in this Gemara. To what extent is the Kinyan with which the woman gives all or part of her property to a third party valid? Is it merely a symbolic act intended to fool the husband, or does it have some real validity to it? After all, the Gemara only seems to question the status of the land when the woman becomes <i>divorced</i> (or when her husband dies). What about while she is still married, or if the woman dies before her husband? Who is the true owner of the property at that point: the woman or the recipient of her 'gift?'
</p><p>
If the act of Kinyan does have some validity, why does the Gemara ask that since the Kinyan is <i>not</i> valid the husband should receive all rights to the property?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS RID</b> indeed proves from the fact that the Gemara asks that the property should go to the husband since the recipient does not actually acquire it,  that the recipient has no rights at all to the property. He may not eat the Peros, nor does he inherit it when the woman dies. (The <b>AVNEI MILU'IM</b> EH 90:7 understands from <b>RASHI</b> DH v'Iy Lo Kananhi that Rashi also learns that the recipient has no rights at all to the property, but this inference may be argued.) The woman, therefore, may eat the Peros of the property and sell the property (through a non-Mavrachas, valid sale) while she is alive, and if she does not sell it her heirs (other than the husband) inherit it when she dies before her husband. The only accomplishment of the Kinyan is that it keeps the property away from her husband.
</p><p>
(b) However, the <b>ROSH</b> (8:2) writes that it is logical that the recipient does receive the Peros of the property while the woman is alive, and he does inherit it after the woman dies. With regard to these two consequences (receiving the Peros and inheriting the property after the woman's death), the Kinyan is valid. 
</p><p>
His logic is that the only reason why the Kinyan is not valid is because we have an automatic assumption ('Umdena') that a woman does not give away all of her property leaving herself penniless, and therefore she really does not have intention to give it away (see Rashi DH Ha b'Chula). On the other hand, there is also an assumption ('Umdena') that she <i>does</i> want the recipient to acquire the property if she dies, so that her husband will not get it. Her purpose is to keep the property away from the husband, the Rosh explains, and if the recipient does not receive it then her husband will certainly inherit it, because he is the closest-related family member. The <b>RAMBAN</b> writes a similar line of reasoning. The same applies with regard to the Peros of the property. She certainly wants the recipient to have the Peros -- both so that the husband will not get them, and so that the recipient will tend to the field and take care of it.
</p><p>
The <b>AVNEI MILU'IM</b> (EH 90:8) questions this. What Kinyan has been made that can take the rights of the property away from the husband after she dies? Obviously, she has not given it fully to the recipient of the 'gift,' because the Gemara makes it clear that if her husband dies before she does, the property then belongs to <i>her</i> and not to the recipient of her gift. In addition, the Rosh himself writes that if the woman wants to sell the property to someone else, she may do so at any point. It is for this reason that the Gemara asks that the husband should indeed receive the property since the recipient does not truly own it. Accordingly, when she dies, her husband should automatically inherit the property!
</p><p>
The logic suggested later by the Gemara that this property is like 'property unknown to the husband' (from which the husband does not receive certain benefits) clearly does not suffice to prevent the husband from inheriting the property according to the Rosh. The Rosh writes that if the recipient would not acquire the property, then the husband would get it. Apparently he maintains that property unknown to the husband <i>is</i> inherited by the husband. What the Mishnah says about such property is just that if the wife sells or gives away the property before she dies, the transaction is valid and the husband no longer can inherit it. (We will discuss this more in answer (c) below.) Thus, with regard to the Peros, the recipient would be permitted to eat them because the woman allows him to take her Peros as they grow, essentially 'giving' them away to him one by one. With regard to inheriting the property after she dies, though, why should the recipient be able to take it away from the husband? It automatically becomes the husband's as soon as his wife dies!
</p><p>
An answer could be suggested according to what the Avnei Milu'im himself writes later (EH 90:10). The Avnei Milu'im says that we rule that 'Mitzvah l'Kayem Divrei ha'Mes' -- 'it is a Mitzvah to fulfill the request of a dying person after his death.' For this reason we must give his property to whomever he specified before he died, if the property was set aside during his lifetime for that purpose (see <b>SHULCHAN ARUCH</b> Choshen Mishpat 252). Here, too, perhaps the woman's property is given to the recipient because of 'Mitzvah l'Kayem Divrei ha'Mes,' since the property was already set aside during her lifetime to be given away to him (since he, and not the husband, was already eating the Peros of the property). Alternatively, the woman might intend to give the recipient her property 'from today, if anything is left of it after I die' ('v'Acharai li'Ploni,' see Bava Basra 137a). When such a Kinyan is made, the recipient does not own the Peros of the property until the giver dies, and if the giver sells it before she dies the recipient has no claim to it. (M. Kornfeld)
</p><p>
What, then, is the Gemara asking when it says that the husband should have the rights to the property since the recipient does not own it? The recipient <i>does</i> have the Peros of the property! (It is clear from the Rosh and Ramban that the Gemara's question is directed to the case of a woman who gives <i>all</i> of her property away, and not the case of a woman who gives part of her property away.)
</p><p>
The answer is that the Gemara's question is that the recipient does not really <i>own</i> the Peros or property after the woman dies. Rather, he is receiving the Peros each day due to the woman's Mechilah; it is as if she is giving him the Peros as a gift as they grow (<b>AVNEI MILU'IM</b> 90:8). With regard to the fate of the property after her death, the recipient receives the inheritance because of 'Mitzvah l'Kayem Divrei ha'Mes.'
</p><p>
(c) The <b>TOSFOS RID</b> originally wanted to rule similarly to the Rosh, that the recipient may eat the Peros during the husband's lifetime and he inherits the woman if she dies, but not because of the 'Umdena' that she wants the recipient to receive the property as suggested by the Rosh. Rather, he suggests that  in those cases there is <i>no</i> 'Umdena' that she does <i>not</i> want the recipient to receive it. After her death she does not care if she has no money, and while she is married she also does not care since her husband supports her. Therefore, the gift would be valid during her lifetime with regard to the Peros during her marriage and with regard to inheriting the property from her (just like the sale is valid when she gives away only part of her property).
</p><p>
The Tosfos Rid rejects this explanation, though, because of the difficulty involved in interpreting the Gemara's question that the husband should receive the property since the recipient does not receive it. According to this explanation, the recipient <i>does</i> have a valid Kinyan on the property during the marriage and after the wife's death!
</p><p>
The <b>RAN</b>, however, points out that it seems that the <b>RAMBAM</b> does explain the Gemara in this manner. In answer to the Tosfos Rid's question, the Rambam explains that the Gemara is not asking that the gift is not valid when she gives all of her property away. Rather, it is asking that the gift is not valid when she gives <i>part</i> of her property away and says that she is giving it 'from today, when she wants.' In such a case, the Kinyan would be valid only if she later expresses her will that the Kinyan be valid, as Rashi explains. The Gemara is asking that if she dies without expressing her will that the Kinyan be valid, the Kinyan should <i>not</i> be valid and the husband should inherit her property! To this the Gemara answers that the property is like 'property unknown to the husband' and therefore the husband has no rights to it, the Ran explains.
</p><p>
(According to the Rambam, it seems that if the woman gives away <i>all</i> of her property, then the recipient has full rights to it during her lifetime. Therefore, even if she decides to give it or sell it to someone else, she may not do so, because she fully gave it to the recipient (unless her husband dies). The Rosh and Rishonim who do not agree with this and say that she <i>may</i> sell the property during her husband's lifetime base their ruling on the Gemara's question, that the husband should own it since the recipient has no rights to it. According to the Rambam, though, that question is not referring to a woman who gives away <i>all</i> of her property.)
</p><p>
The Ran questions this approach, though. Even according to Rebbi Shimon (who distinguishes between property known to the husband and property unknown to him) we do not find that the husband loses his right to <i>inherit</i> 'property unknown to the husband.' Rebbi Shimon of our Mishnah says only that if the wife sells such property, the sale is valid. As long as she does not sell it, the husband inherits the property!
</p><p>
This point seems to be the topic of dispute among the Rishonim. From the Tosfos Rid, it seems that according to Rebbi Shimon, the husband does not even receive the Peros or inherit the property that was unknown to him. From the Ran, it seems that the husband has the right to inherit the property but does not receive the Peros. The Ramban (78a) implies that the husband both receives the Peros and inherits the property; the only right he does not have is the right to object if she sells the property. (See <b>AVNEI MILU'IM</b> EH 90:10.)
</p><p>
The Ran cites an answer to his question from 'some who say' that the woman who gives away her property in such a manner indeed does <i>not</i> prevent her husband from inheriting her, unless she sells her property. The Ran himself rules like this as well, in the case where the woman gives away part of her property. However, the Rambam says that the husband <i>does not</i> inherit her in a case where she gives away part of her property (because it becomes 'property unknown to the husband,' as the Gemara says). The Ran explains that the Rambam must be ruling that way because of a Takanah d'Rabanan: since the husband's right to  inherit the woman is only mid'Rabanan according to the Rambam (Hilchos Ishus 12), and here the woman shows that she does not want her husband to inherit her, the Rabanan did not give him the inheritance.
</p><p>


<font><b>2) GIVING A GIFT AND THEN CHANGING ONE'S MIND</b></font><b>
<br>QUESTION:</b> The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The woman is able to prevent her husband from receiving the property by giving away the property as a gift to someone else before the marriage. As a result, the property no longer belongs to her as far as the husband is concerned.
</p><p>
The Gemara says that when the woman makes such a Kinyan, the recipient does <i>not</i> fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies, the property belongs to <i>her</i>, and the recipient of the 'gift' has no rights to the property (see previous Insight).
</p><p>
The Gemara explains that this applies only when the woman gives away <i>all</i> of her property as a gift to someone else before the marriage. If she only gives away <i>part</i> of her property, then the recipient indeed acquires it fully, unless she specifies at the time of the Kinyan that 'this property is being giving as a gift to you <i>from today, when I want</i>.' If the husband later attempts to take the property, she will simply say that she wants to give it to the recipient. If the recipient attempts to take the property, she will simply say that she does not want to give it as a gift.
</p><p>
How can she change her mind? Once she says that she wants to give it to the recipient (when her husband has come to claim it), how can she change her mind and take it away from the recipient? The property has already become his!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RE'AH</b> explains that both the husband and the recipient are afraid to claim the property, because each one knows that the woman is able to give it to the other one. Therefore, neither one will actually make a claim for it.
</p><p>
(b) The <b>CHAZON ISH</b> (76:13) says that she may continually say to each one that she has not yet made up her mind. As a result. neither one will be able to take the property.
</p><p>
(c) When the woman stipulates that the property will belong to the recipient 'when I want,' she means that if she decides in her heart that she wants to give it to him, then it will be his. Consequently, even if she says otherwise, we do not know what is in her heart, and she can always claim later that 'I only told my husband that I wanted to give it to you because I wanted to keep it away from him, but I really wanted to keep it for myself and I had no intention for you to acquire it.' The rule of 'Devarim sheb'Lev Einam Devarim' will not apply here, since she specifically stipulated that the gift should depend on what she thinks <i>in her heart</i>. (M. Kornfeld -- this might be Rashi's intention here.)
</p><p>
(d) <b>RABEINU CHANANEL</b> (cited by the Rosh) and the <b>TOSFOS RID</b> and others explain the woman's stipulation differently than Rashi. She does not mean that the gift should take effect from today when she later wants it to take effect. Rather, she means that the gift should take effect <i>now</i>, and when she later wants <i>to annul</i> the Kinyan, it should be annulled. (The <b>RITVA</b> says that this does not fit with the wording of the Gemara at all.)
</p><p>
According to this explanation, while her husband is alive she does not say anything, and therefore the husband does not get the Peros, and the recipient does. If she dies before her husband, the recipient continues to get the Peros and he fully acquires the property. If the husband dies first, then she annuls the Kinyan so that the recipient no longer has rights to the property. 
</p><p>
The <b>KORBAN NESANEL</b> (8:2:50) explains that the Rishonim seem to be following their respective opinions elsewhere. The Gemara earlier (73b) cites a Machlokes Tana'im regarding what a person means when he marries a woman and says that the marriage will take effect only 'on condition that my father consents.' Does he mean that it should only take effect if his father explicitly says that he consents (but if his father remains silent, the marriage does not take effect), or that it takes effect automatically and it only becomes annulled if his father explicitly says that he does <i>not</i> consent (but if his father remains silent, it takes effect)?
</p><p>
The <b>ROSH</b> rules in the latter manner, that the stipulation is fulfilled as long as there is no explicit annulment, and that is why he cites Rabeinu Chananel who says that here, also, the Kinyan loses its effect if the woman later says that she does not want it to take effect (but if she remains silent, it takes effect). The <b>RAMBAM</b>, who learns like Rashi that when the woman says 'when I want,' she means that the Kinyan will only take effect when she explicitly states that she wants it to take effect, is following his view (Hilchos Ishus 7:1) that 'on condition that my father consents' means that the marriage only takes effect when his father explicitly consents and says 'yes' to the marriage.
</p><p>


<font><b>3) TRYING TO FOOL ONE'S HUSBAND WHO IS A TALMID CHACHAM</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The woman is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage. As a result, the property no longer belongs to her as far as the husband is concerned, but it does not really belong to the recipient of the gift because she only gave it to him in order to prevent it from going to her husband.
</p><p>
The Gemara asks at the end of the Sugya that since the recipient to whom she gives all of her property does not really acquire it, the Kinyan is not a valid Kinyan, and thus the husband should receive it! The Gemara answers that when the woman 'gives away' her property, it becomes 'like property that is unknown to the husband' to which he does not receive any rights, as Rebbi Shimon in the Mishnah (78a) states. Since the husband does not expect to receive the property that the woman gave away, it is considered unknown to him and thus he does not receive it.
</p><p>
Is this true, however, for a husband who is a Talmid Chacham and who knows that his wife's gift was meaningless and that she still owns the property? In such a case the husband <i>does</i> know that the property is actually his. Will he get the property, or will the recipient still be able to take it?
</p><p>
(a) <b>RASHI</b> (DH k'Nechasim) explains that when he married her, he was under the impression that she gave away her property to someone else as a full-fledged gift. According to Rashi, the husband does not receive the property because we assume that he was not aware that she stipulated when she gave away the property that it is only being given away in order to thwart him. But if he proves that he was aware of her intentions, then perhaps the property does belong to him. 
</p><p>
(Rashi might be following his own opinion elsewhere. On the bottom of 78b Rashi explains that the husband loses rights to the property only if the wife <i>stipulated verbally</i> at the time of the gift that she is only giving it away to thwart her husband (see Insights to 78b). According to the other Rishonim, no verbal stipulation is necessary. Any time the wife gives away all of her property immediately prior to the marriage, it is assumed that she meant to thwart her husband. If so, the husband himself can easily inquire whether or not the property was given away immediately before the wedding, and he will immediately discover that the Kinyan was not really valid.)
</p><p>
(b) The <b>RASH</b> (cited by the <b>ROSH</b> 8:2) and the <b>RE'AH</b> explain that when the Gemara says that the property she gave away is 'like property that is unknown to the husband,' it does not mean that the husband does not know about it. Rather, it means that the <i>Rabanan enacted</i> that this property has the same status as Rebbi Shimon gives to 'property unknown to the husband.' The Rabanan made this enactment in order to help the woman.
</p><p>
<b>TOSFOS</b> and the <b>ROSH</b> reject this approach because the Gemara says that it is 'like property that is unknown to the husband, <i>and</i> according to Rebbi Shimon.' This implies that only if we hold like Rebbi Shimon will this answer be true. According to the Rash, though, it will be true even if we do not hold like Rebbi Shimon; the Gemara is saying that when a woman gives away her property before she gets married in order to keep it away from her husband, the Rabanan enacted that it attains the status which Rebbi Shimon gives to 'property that is unknown to the husband.'
</p><p>
(c) The <b>TOSFOS RID</b> rejects Tosfos' explanation as well. He explains that the extra word 'and' does not imply that this answer is only true according to Rebbi Shimon, because then the Gemara still could have left out the extra word 'and.' The word 'and' implies that the answer of the Gemara is based on the <i>logic</i> of Rebbi Shimon, but that in the Gemara's case, that logic will be accepted even by the Rabanan. 
</p><p>
The Gemara means that Rebbi Shimon rules that the husband does not have rights to the 'property that is unknown' to him because he does not expect to own that property ('Ye'ush'). Similarly, in this case, where the woman gives away her property, the husband does not expect to receive that property and thus he relinquishes all rights to it. Even though the Rabanan argue with Rebbi Shimon in the case where the husband actually did not know about the property, in this case, where the husband knows about it but he still does not expect to receive it, then even the Rabanan will agree, since he knowingly relinquishes his rights to the property.
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (R. Zeira):</font></b> (If a thief is convicted for stealing, he 
          pays twice the value of what he stole.) If the child of a 
          Melug animal was stolen, the extra payment goes to the 
          wife.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> This is not like Chachamim, nor like Chananyah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The child of a Melug animal belongs to 
               the husband; the child of a Melug slave belongs to 
               the wife;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chananyah ben Achi Yoshiyah says, mid'Rabanan the 
               child of a Melug slave is like the child of a Melug 
               animal.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> R. Zeira's law can be according to both opinions.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It was enacted only that the husband eats Peiros (of 
               principal); but not Peiros of Peiros (such like the 
               extra payment for the child of the Melug animal).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> We understand Chananyah. He is not concerned 
          for death (of the mother animal or slave, so the children 
          are like Peiros that grow back). But how do Chachamim 
          hold?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they are concerned for death, even the child of 
               an animal should be considered principal. If they 
               are not concerned for death, even the child of a 
               slave should be Peiros!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> They are concerned for death. However, when an 
          animal dies, there is still the hide. The principal is 
          not entirely consumed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Rav Huna):</font></b> The Halachah follows Chananyah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rava):</font></b> Chananyah admits that if she is divorced, she may 
          pay the value of the slaves' children and keep them, for 
          this is the honor of her father's house.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  (Rava):</font></b> If she brought in a goat for milk, a sheep for 
          shearings, a hen for eggs, or a date tree for dates, the 
          husband consumes them until the principal is finished.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> If she brought in a cloak, he may wear it 
          until it wears out, since it is considered like Peiros.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  This is like Chachamim in the following Beraisa (who say 
          that any usage in which even a small remnant remains is 
          considered Peiros):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Salt and sand are considered Peiros;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, a reserve of sulfur or alum is 
               considered principal;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, it is like Peiros.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  (Mishnah - R. Shimon):</font></b> The place where the husband has 
          more rights...
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Question:</font></b> The previous Tana (Chachamim) also says so!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> They argue about attached Peiros when she 
          leaves. (Chachamim say that they are his; R. Shimon says 
          that they are hers.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HONOR OF HER FATHER'S HOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If she inherited old slaves, they are sold. He 
          buys land with the money and eats the Peiros;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Shimon ben Gamliel says, they are not sold (if she 
          protests), because they are the honor of her father's 
          house.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If she inherited old olive trees and vines, they are 
          sold. He buys land with the money and eats the Peiros;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Yehudah says, they are not sold, because they are the 
          honor of her father's house.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara - Rav Kahana):</font></b> They argue about trees in her 
          field. If they are in another person's field all agree 
          that they are sold, because the principal will be 
          consumed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection (Rav Yosef):</font></b> Slaves are like trees in another's 
          field (there is no remnant if they die), and Tana'im 
          argue about them in our Mishnah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Correction (Rav Kahana):</font></b> Rather, they argue about trees 
          in another's field. If they are in her field all agree 
          that they are not sold, due to the honor of her father's 
          house.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE HUSBAND'S EXPENDITURES ON HIS WIFE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a husband spent money to upkeep his wife's 
          property, whether he spent much and ate little, or spent 
          little and ate much, there is no compensation;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he spent and did not eat, he swears how much he spent 
          and receives this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> How much is considered (eating) 
          little?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (R. Asi):</font></b> It is even one dried fig, if he ate 
          it honorably.
<br>

sjt:
<p>
<font><b>4) CONSUMABLE PROPERTY THAT THE WOMAN BRINGS TO THE MARRIAGE</b></font><b>
<br>QUESTION:</b> The Mishnah and Gemara teach that a husband and his wife each have the right to ensure that the property which she brings into the marriage, the Nichsei Milug, do not become entirely depleted. Therefore, any item that will become entirely consumed or depleted when used is to be sold, and the proceeds are to be invested in the purchase of land (non-consumable property). The husband is entitled to the fruits of the land, while the land itself remains the property (Nichsei Milug) of the woman. If an item itself will not become consumed through use, then the husband may reap the fruits of the item itself without first investing it in land.
</p><p>
Chananyah and the Rabanan argue regarding the ownership of the offspring of an animal or a Shifchah (maidservant) which the woman brought into the marriage as Nichsei Milug. Chananyah says that the husband is entitled to the offspring. He explains that the mother animal or mother Shifchah is not considered consumable property, since we do not expect them to die, and therefore the husband may use them as much as he wants. Since we do not expect them to die, we do not have to keep the offspring in the woman's possession in order to take its mother's place when its mother dies. Rather, the husband may take the offspring and use it for whatever purposes he wants.
</p><p>
The Rabanan argue in the case of the offspring of the Shifchah. They say that the offspring of the Shifchah must be reserved for the wife, because they hold that we <i>do</i> fear that the Shifchah will die, in which case the offspring will have to take the mother's place in order to keep the property of the wife from becoming depleted. Therefore, the husband may not do anything he wants with the offspring of the Shifchah (such as sell it). (If they sell the original Shifchah and buy land with the proceeds, that is the best way of protecting its value and preventing the wife's possessions from becoming depleted. However, the Rabanan did not go so far as to require that they sell the Shifchah, since there is no actual depletion right now and the concern that it will die is not such a strong concern -- <b>RAMBAN</b> and others).)
</p><p>
However, regarding the offspring of the woman's animal, the Rabanan hold that the offspring does not have to be kept for the wife in order to replace its mother even though there is a concern that the mother animal might die, because even if it does die, its hide will remain. Since something will remain of the animal, the wife's property will not become completely depleted even if the animal dies.
</p><p>
The Amora'im rule like Chananyah that the offspring in both cases belong to the husband.
</p><p>
The Gemara then tells us that Rav Nachman rules that if the wife brings into the marriage a milk-producing goat or a fleece-growing lamb or an egg-laying chicken, 'the husband may consume them until they are all used up.' <b>RASHI</b> (DH Ochel v'Holech) explains that this means that the husband may continue milking and using these animals until they no longer provide any milk or other products. The reason we do not fear that the wife's property will be depleted, Rashi explains, is because even after the animals die, their hides (or feathers) remain.
</p><p>
Why does Rashi need to say that the hides will remain, and that is why the wife's property will not be depleted? Rav Nachman rules like Chananyah, who says that we are not concerned that an animal might die and become depleted from the wife's property! Thus, the reason why the animal will not be depleted is because we are not afraid it will die -- and not because the hide will remain! The reason that the hide will remain was the reason of the Rabanan (who are concerned that the animal will die), but we rule like Chananyah! (<b>RAMBAN</b>, <b>RITVA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> suggests that Rashi is explaining that once the Gemara proposes the logic according to the Rabanan that the hide remains and that is why the item does not become depleted, then Chananyah, too, holds that the animal is not depleted only because its hide will remain, and not because we do not fear that it will die. Even though Chananyah says that we do not fear that a Shifchah will be depleted even though, if she dies, she leaves no hide, that is because he holds that with regard to a Shifchah, who is a person, we do <i>not</i> fear that she will die, because 'Adam Is Lei Mazal' -- a person has Mazal (Shabbos 53b, Bava Kama 2b). Animals, on the other hand, do not have Mazal, and thus we are afraid that they will die. Hence, even according to Chananyah, the only reason there is no concern that the animal will become completely depleted is because its hide remains.
</p><p>
This approach is problematic. What forced Rashi to change the simple understanding of Chananyah's opinion? Chananyah anyway must hold in the case of the Shifchah that we are not afraid that it will die. so why does he not say the same in the case of an animal? Moreover, <b>TOSFOS</b> (DH Sha'ani Hasam) points out that the logic that the hide remains should not be sufficient reason, because then the husband should be able to slaughter the animal itself. We know, though, that he is not allowed to slaughter the animal itself, but only the offspring. Why, then, does Rashi explain that Chananyah holds of this logic, if it is not necessary to explain Chananyah that way?
</p><p>
(b) <b>RASHI</b> might have been bothered by the implication of the next Mishnah. The Mishnah says that if a woman inherits elderly servants, then they must be sold and land bought with them in order that they not die and become depleted. As the Rishonim point out, even though we are not afraid that a young servant or animal will die, if the servant is already old, then even Chananyah agrees that we are afraid that it will die, and therefore it must be sold and exchanged for land.
</p><p>
According to the Mishnah later, how could the Gemara say that the husband may use up all the milk until the animal no longer provides milk? This implies that the husband may use the animal even when it becomes old. At that point, however, it should be like old servants (as mentioned in that Mishnah) that must be sold in order to protect the woman's principle. Why, then, may the husband continue milking the animal?
</p><p>
It must be that Chananyah agrees with the Rabanan that if the hide will remain, there is no concern for depletion of her property. Chananyah only says that we are not concerned about for death in the case of a <i>young</i> animal. In the case of an old animal, though, the only reason for why there is no depletion of her property is because the hide remains. Since an old Shifchah has no hide, it will become depleted upon death and therefore it must be sold, like the next Mishnah says.
</p><p>
According to this, it is clear what Rav Nachman is teaching us when he says that the husband may use up the milk: he is teaching that even Chananyah agrees that since the hide remains and the woman's property is not depleted, an old goat does not have to be sold. (This answers the Ritva's question, who asks what new point Rav Nachman is teaching according to Rashi's explanation.)
</p><p>
Further proof to this principle -- that even if the object has a long life, when it comes close to depletion it must be sold and exchanged for land -- can be found in the Beraisa cited by the Gemara which says that a pit of Gafris (sulfer) is considered Peros and is not consumable, because when the sulfur is depleted, the actual pit still remains. We see that even though there is a large supply of sulfur in the pit, the only reason the husband may consume it until the end is because the pit will remain. Otherwise, he would have to sell it (and exchange it for land) before consuming all the sulfur, although it will take many years to deplete it (and therefore it is similar in this way to an animal or slave, which will live a long life and is not expected to die in the near future according to Chananyah).
</p><p>
The <b>RAMBAN</b>, <b>RITVA</b>, and others disagree with Rashi with regard to milking a goat. They explain that Rav Nachman is discussing a goat that the woman does not actually own, but rather she only has rights to milk it, like the <b>RIF</b> explains. The Gemara is teaching that the milk is considered Peros and therefore the husband may use it even though, when it is depleted, <i>nothing</i> will be left for the wife since she does not own the goat itself. The reason why the husband is permitted to continue milking it until it no longer produces milk is because Rav Nachman holds like Chananyah who says that we are not afraid that the goat will die, and thus we assume that the husband will be able to milk the goat for a very long time and it will not become depleted.
</p><p>
The <b>ROSH</b> (8:7) rejects this explanation. He asks how can we let the husband continue milking the animal indefinitely? Its ability to produce milk will eventually stop and then the woman's supply will be depleted!
</p><p>
It seems that the Rif and other Rishonim explain that we are only obligated to protect the property of the woman according to its state at the time that the husband receives it. If, when the husband receives the property, it looks like it will last for a very long time (like an animal which we are not afraid will die), then the woman's property is considered to be protected. If, at a later time, the animal becomes old or the milk supply wanes, then we have not abused the property of the woman since we did what was necessary to protect it at the time that the husband received it (that is, we made sure that it had the potential for many years of service). This explains why we are not concerned that the husband will use up all the milk.
</p><p>
In fact, the Ramban and Ritva clearly state this with regard to the pit of sulfur. They explain that according to Chananyah, even if the woman owns the sulfur and not the pit the husband may still use the sulfur, since there is a large supply at the time of marriage and we are not afraid that it will become used up. It is only when the servants or animals were old <i>at the time they were brought into the husband's possession</i> that we require him to sell them and buy land in exchange. This is why the Ritva wonders why Rashi says that the hide will remain when the husband milks the goat for many years; the Ritva holds that it is not necessary for anything to remain, since at the time it entered his possession, there was a large supply. (M. Kornfeld)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE HUSBAND'S EXPENDITURES ON HIS WIFE'S PROPERTY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2 (R. Aba):</font></b> It is even crushed dates.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (Rav Bivi):</font></b> Are the remnants of dates (after 
          making beer) sufficient?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> If the food is not eaten honorably, what is the 
          quantity?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (an Amora in Eretz Yisrael):</font></b> It is the value of 
          an Isar (one part in 24 or 32 of a Dinar).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (a different Amora in Eretz Yisrael):</font></b> It is the 
          value of a Dinar.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Judges of Pumbedisa):</font></b> A case occurred, and Rav Yehudah 
          considered vine branches (fed to an elephant) as 
          sufficient.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  This is consistent with what Rav Yehudah taught 
          elsewhere:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If a buyer ate (used branches) from a 
               field of Orlah, Kilayim, or in the Shemitah year 
               (the produce is forbidden), this counts as a year of 
               eating for Chazakah (to establish that the land is 
               his).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (R. Yakov):</font></b> If one spent money to upkeep the property of 
          his (mid'Rabanan) wife, a minor, he is like one who spent 
          on a stranger's property. (If she does Mi'un, we evaluate 
          the increased value, and he receives a share like a 
          sharecropper.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is an enactment to encourage him to upkeep her 
               property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  A woman inherited 400 Zuz in Bei Chuzoy. Her husband 
          spent 600 Zuz on the trip to get the money. On the way, 
          he needed one Zuz of the inheritance, and used it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Ami:</font></b> The Mishnah says that since he spent and 
               ate, there is no compensation.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> That applies only when he eats profits of 
               her property. Here, he took from the principal!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Ami:</font></b> If so, it is as if he did not eat. He swears 
               how much he spent, and receives.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He swears how much he spent, and receives.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  R. Asi:</font></b> This applies when her property improved as much 
          as he spent.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> What does this teach?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> If the improvement exceeded the 
          expense, he receives his expenditures without an oath.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> If so, he may come to scheme (and claim 
          expenditures almost as much as the improvement).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Rather, if the expenditures exceeded 
          the improvement, he only receives as much as the 
          improvement; he must swear.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A HUSBAND'S JURISDICTION OVER HIS WIFE'S FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If a husband hired a sharecropper to farm his 
          wife's field in his stead, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a sharecropper expects to get paid from the 
               husband's rights to the Peiros, then if the husband 
               gets no compensation (e.g. he divorces his wife 
               after having eaten something), neither does the 
               sharecropper;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he considers himself to be working on 
               the field. He gets his share no matter who gets the 
               Peiros, for in any case the land must be farmed by a 
               sharecropper!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rava bar Rav Chanan):</font></b> Why is this unlike 
               one who spends money on a stranger's field, without 
               permission? There, we evaluate the improvement, and 
               he receives his expenditures or the improvement, 
               whichever is smaller!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> There, no one else would have improved the 
               field. Here, if not for the sharecropper, the 
               husband would have worked the field.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Huna brei d'R. Yehoshua):</font></b> If the husband is a 
          sharecropper, if he leaves without compensation, so does 
          his sharecropper. If the husband is not a sharecropper, 
          the land was destined to be worked by a sharecropper in 
          any case (so he is paid).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> If a husband sold his right to eat the Peiros 
          of his wife's property, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that he sold what he owns (it is valid)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps Chachamim enacted that he eat the Peiros 
               only so there will be more food in the house, and 
               the wife will benefit?
<br>
<br>

sjt:
<font><b>1) SELLING THE FRUITS OF THE WIFE'S FIELD</b></font><b>
<br>QUESTION:</b> The Gemara explains that although the husband is entitled use the property his wife owns at the time of his marriage (Nichsei Milug), his rights are limited to reaping the Peros (fruits) and using them for personal consumption. He may not <i>sell to someone else</i> the rights to reap the fruit.
</p><p>
The Gemara gives two reasons for this limitation. Rava says that the reason the Peros are given to the husband is for the sake of 'Revach Beisa' -- in order to provide for and benefit the entire household, including the wife. If the husband were to sell the Peros, the household would not benefit (but only the husband would).
</p><p>
Abaye says that the Rabanan did not permit the husband to sell the Peros, because the buyer might not take care of the field, knowing that he has only purchased the rights to reap the fruits of the field and has not purchased the field itself. The buyer will misuse the field, consequently causing a loss to the wife's property.
</p><p>
Rava's reason for not allowing the husband to sell the Peros is unclear. If the husband does not bring in the Peros for the family to eat, but he instead sells the Peros, why will this not be considered 'Revach Beisa?' The money he receives from the sale will be used for the family's benefit, thus constituting 'Revach Beisa!' The Gemara itself says that if the husband takes the profits of the sale of the Peros and invests them ('Iska'), the income is 'Revach Beisa,' since the family benefits from his investment. In a similar manner, anytime he sells the Peros, the family should benefit from the increased income!
</p><p>
Second, the Gemara only says that the husband cannot sell 'Karka la'Peros' -- he cannot sell the <i>land</i> with regard to reaping the Peros (that is, he cannot give the buyer ownership in the land insofar as keeping its produce). This clearly implies that the husband is permitted to sell the <i>Peros</i> after reaping them from the land, as long as he does not sell the land itself. Indeed, we do not find that the family must eat each and every fruit. Presumably, the reason for this is that the whole household will benefit from the sale of the fruits. Why, then, is he not permitted to sell the <i>land</i> as well, if he sells it only with regard to reaping the Peros? The whole household will benefit from that sale too!
</p><p>
<b>ANSWER:</b> 
<br>(a) The <b>RITVA</b> explains that if the husband sells the Peros after picking them, certainly some of the fruit will be eaten by members of his household. In contrast, when he sells all of the land with regard to reaping the Peros, and the husband does not even pick the Peros, it is not possible for them to eat any of it. That is why it is not considered 'Revach Beisa.'
</p><p>
It is possible that the Ritva would answer our first question in a similar manner. The Gemara only permits investing the profits of the sale (when the land is sold with regard to Peros) if it is invested in land or commodities from which the family can directly benefit. He may not invest the money in, for instance, a bank account or stock investment, which returns money and not usable commodities. 
</p><p>
(b) The <b>ROSH</b> (8:11) writes that if he sells the Peros as he picks them each year, then the profit that he makes and invests is certainly going to benefit the entire family and is considered Revach Beisa.' In our Gemara, however, he sells the land for its Peros for a long period of time (for example, he sells to someone the rights to reap all of the Peros of the land for ten years). Since he receives the value of a few year's Peros at once, he will probably spend in one year all of the profits he has received for the fruits that the buyer will reap in the next few years. As a result, there will be no 'Revach Beisa' from the land during the <i>following years</i>, since the money for the sale has already been spent.
</p><p>
This answers our first question as well. What is the difference between selling 'Karka la'Peros,' and selling the Peros themselves and investing the profits? If the profits are invested in some sort of marketable merchandise, the husband is not going to use up all of the profits at once, but will continue to trade with those goods and profit from them each year. If, however, he just receives a lump sum of cash (or consumable goods) for the rights to reap the fruits and he does not invest it in another commodity, he will probably spend it all on consumable goods (or consume it all, if he received consumable goods) during that year and there will be no further benefit from the Peros of the field in the following years.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Mar bar Mereimar, citing Rava):</font></b> The sale 
          stands.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa, citing Rava):</font></b> The sale is void.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rav Papa:</font></b> Mar bar Mereimar did not hear Rava say that the 
          sale stands. He inferred this from the following episode:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A woman brought two slaves into her marriage. Her 
               husband married a second wife, and gave one slave to 
               serve the second wife. The first wife complained to 
               Rava; Rava did not heed her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The one who saw this thought that Rava did not heed 
               her because the husband may sell the Peiros of his 
               wife's property.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> This is wrong! The husband 
               eats Peiros in order to improve the standard of 
               living in the house. This is fulfilled, even if the 
               slave serves the other wife!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  The Halachah is, the sale is void.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Why is the sale void?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> We are concerned lest the buyer 
          decrease the value of the property. (He will not care for 
          it properly, for he knows that he will not keep it. A 
          husband anticipates that perhaps he will inherit his wife 
          and keep it.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> There will not be enough improvement in 
          the standard of living in the house.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> What is the practical difference between these 
          opinions?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #1:</font></b> The field is close to the city (they can see 
          if the buyer is harming the property).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #2:</font></b> The husband will work the property like a 
          sharecropper (also here we are not concerned for damage 
          to the property).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #3:</font></b> The husband will invest the money paid for the 
          Peiros (there will be enough improvement in the standard 
          of living).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHO INHERITS A 'SHOMERES YAVAM'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a Shomeres Yavam (awaiting Yibum or 
          Chalitzah) inherited property, Beis Shamai and Beis 
          Hillel agree that she may sell or give it as a gift.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> If she dies, who inherits her Kesuvah and the 
          (Melug) property that enters and leaves with her? (Rashi 
          - 'Kesuvah' refers to Tzon Barzel property that she 
          brought in. Her husband may use it as he wishes, but if 
          she collects her Kesuvah he must return to her its 
          original value.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1 (Beis Shamai):</font></b> The heirs of the Mes (her 
          deceased husband) split it (the Melug property) with the 
          heirs of her father;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Beis Hillel):</font></b> The property keeps its Chazakah. 
          The Mes' heirs keep her Kesuvah, and her father's heirs 
          keep the Melug property.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  If his brother left money or detached produce, it is used 
          to buy land, and the Yavam eats the Peiros;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  R. Meir says, if his brother left attached produce, we 
          evaluate how much this increases the value of the land. 
          This amount is used to buy land, and the Yavam eats the 
          Peiros;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Chachamim say, attached produce belongs to the Yavam. 
          Detached produce (or money) belongs to whoever takes it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Yavam takes it, he keeps it. If the Yevamah 
               takes it, it is used to buy land, and the Yavam eats 
               the Peiros.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  If he does Yibum, she is like his wife in all respects, 
          except that her Kesuvah is paid from the Mes' property.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  He (the Yavam) should not tell her 'your Kesuvah is on 
          the table' (e.g. if he is a moneychanger who has coins on 
          his table). Rather, there is a lien on all his property 
          to pay the Kesuvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, no man should tell his wife 'your Kesuvah 
               is on the table.' Rather, there is a lien on all his 
               property to pay the Kesuvah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  If he (the Yavam) divorces her, she collects only her 
          Kesuvah. If he remarries her, she is like any other 
          woman, and has only her (original) Kesuvah.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHO BURIES A 'SHOMERES YAVAM'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> If a Shomeres Yavam dies, who buries 
          her?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mes' heirs bury her, since they inherit her 
               Kesuvah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps her father's heirs bury her, since they 
               inherit her Melug property!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Amram - Beraisa):</font></b> If a Shomeres Yavam dies, 
          her heirs who inherit her Kesuvah must bury her.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO BURIES A 'SHOMERES YAVAM'? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Support (Abaye - Mishnah):</font></b> A widow is fed from the 
          orphans' property. They receive her earnings, and need 
          not bury her. Her heirs who inherit her Kesuvah must bury 
          her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Which widow has two sets of heirs? (The 
               Mishnah needed to specify which heirs, i.e. those 
               who inherit her Kesuvah!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is a Shomeres Yavam.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (Rava):</font></b> Why can't the Yavam say 'I inherit my 
          brother (including the 200 Zuz he was prepared to pay if 
          necessary. I do not inherit a dowry from her, so) I will 
          not bury his wife'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> Her heirs can force him to accept one of 
          the following terms:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do you say 'I inherit my brother (and the Kesuvah 
               was never due to be paid, for I am in place of him, 
               so it is as if she died first)'? If so, you must 
               bury her (like he would have had to bury her)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If you will not bury her, you must pay her Kesuvah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Rava):</font></b> (He need not accept either of these. 
          Even though he is not totally like his brother,) her 
          Kesuvah was never due to be paid in his brother's 
          lifetime (because she was never permitted to marry 
          someone else)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> Only Beis Shamai expound the text of the 
          Kesuvah (that it is due to be paid only when she may 
          remarry). They consider a document destined to be 
          collected as if it was collected!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - Beis Shamai):</font></b> If a Sotah died before she 
               drank, she receives her Kesuvah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Hillel say, either she drinks or does not 
               receive her Kesuvah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> She cannot drink, for we cannot fulfill 
               'The man will bring his wife'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, since she does not drink, she 
               does not receive a Kesuvah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why do Beis Shamai say that she receives 
               her Kesuvah? Her claim to a Kesuvah is Safek (if she 
               is guilty she deserves nothing), but his heirs 
               surely inherit!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Beis Shamai consider a document destined to 
               be collected as if it was collected.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Why do they consider the Kesuvah as if it was 
          collected? The Kesuvah says 'When you will (be permitted 
          to) marry another (man), you will collect.' A Shomeres 
          Yavam cannot marry another!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> The Yavam is considered 'another'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS THE 'KESUVAH' CONSIDERED TO BE COLLECTED IN HIS LIEFTIME?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rava, against Abaye):</font></b> A Kesuvah is not 
          considered to be collected in the lifetime of the Yavam!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Aba):</font></b> If a Yavam wants to sell 
               property that he inherited from his brother:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is a Kohen, he should appease his wife so 
                    she will agree;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If he is a Yisrael, he can divorce her and 
                    remarry her.
<br>
<br>

sjt:
<font><b>1) SELLING THE PROPERTY OF ONE'S DECEASED BROTHER</b></font><b>
<br>QUESTIONS:</b> The Chachamim instituted that a Yavam may not sell or give away any of the possessions that he inherits from his deceased brother, because those possessions are designated for the payment of the Yevamah's Kesuvah. 
</p><p>
Even though, when the wife is not a Yevamah, there is a Shibud on all of a husband's possessions for the collection of the Kesuvah and yet he is allowed to sell his possessions, the Chachamim found it necessary to protect the Kesuvah in the case of a Yevamah. This is because the Yavam's own possessions, both present and future, do not become Meshubad towards the payment of the Kesuvah. Since there is less available for the collection of the Kesuvah, the Chachamim prohibited the Yavam from selling his brother's possessions and causing the Yevamah extra trouble by having to collect it from the buyers.
</p><p>
 (If the dead brother left no possessions, or if nothing remains from them, not even in the hands of a buyer, then the Chachamim instituted that the woman may collect her Kesuvah from the Yavam's property. However, if anything remains from the deceased husband's possessions -- even if she must collect it from a buyer -- then she may not collect her Kesuvah from the Yavam's property. This explains why the Yavam may not sell the brother's property -- so that the wife should not have to trouble herself to collect it from the hands of the buyers.)
</p><p>
The Gemara discusses what happens if, b'Di'eved, the Yavam sold the property. Rav Yosef says that since the Chachamim enacted that he not sell it, it is clear that the sale should <i>not</i> take effect. The Gemara questions Rav Yosef's opinion from the Mishnah (78a) that states that according to Beis Hillel, an Arusah may not sell property that she inherits during Erusin, but if, b'Di'eved, she sold it, then the sale is valid nonetheless. We see from the Mishnah there that even though the Arusah went against the enactment of the Chachamim, her sale still takes effect.
</p><p>
(a) Why does the Gemara not relate Rav Yosef's ruling to the well-known Machlokes in Temurah (4b) regarding 'Iy Avid Lo Mehani?' In that Gemara, Abaye and Rava argue whether the Kinyan takes effect b'Di'eved or not in a case where a person tries to make a Kinyan that the Torah prohibits. The same Machlokes should apply when someone transgresses an enactment of the Chachamim, trying to make a Kinyan that they prohibit. Thus the ruling of Rav Yosef should depend on the Machlokes in Temurah! If there is an opinion that 'Iy Avid Mehani' (b'Di'eved the Kinyan is valid) where one went against the Torah, then certainly where someone sells something against a Takanah d'Rabanan, the Kinyan should be valid, unlike Rav Yosef states!
</p><p>
(b) How can the Gemara compare a Yavam who sells his deceased brother's property, to an Arusah who sells what she inherited during Erusin? The Gemara earlier (78a) says that an Arusah may not sell the property she receives during Erusin because Erusin is considered a Safek Nisu'in (that is, it might or might not have the status of Nisu'in), and therefore it is not clear whether the right to sell the property belongs to her or to him (Rashi 78a, DH Eimar). Since it is a Safek, it is obvious that l'Chatchilah she should not sell it, and if she sold it anyway, then b'Di'eved the sale takes effect (because 'ha'Motzi me'Chaveiro Alav ha'Ra'ayah'). 
</p><p>
In our Gemara, in contrast, there is no Safek. Rather, the Rabanan enacted that one is not permitted to sell the property of his Yevamah's husband. Therefore, the sale should <i>not</i> take effect! (See <b>PORAS YOSEF</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>HAGAHOS MORDECHAI</b> in Shavuos (end of Perek 2) cited by <b>RAV SHLOMO EIGER</b> (in Gilyon Maharsha) indeed relates Rav Yosef's ruling to the rule of 'Iy Avid Lo Mehani' -- a Kinyan is not valid if one transgressed the Torah in order to effect it. It is possible that, according to the Mordechai, both Rava and Abaye would agree that one cannot make a Kinyan which contradicts a <i>Rabbinical</i> enactment. because the Chachamim are more stringent with their enactments than they are with Mitzvos that are mid'Oraisa. This is because of the principle that 'the Chachamim made [enactments of] Chizuk for their words more than for the [Mitzvos in the] Torah,' as the Gemara says earlier (56a). 
</p><p>
However, Rav Shlomo Eiger cites his father, <b>REBBI AKIVA EIGER</b> (Teshuvos 1:129, DH Gam), who in turn cites the <b>PANIM ME'IROS</b> who distinguishes between our case and the cases in Temurah, in which we say Iy Avid Lo Mehani. This Takanah was made for the benefit of the woman. If the sale would be valid, then the woman for whom the enactment was made would lose as a result. Since another person will be affected adversely, it is logical that the Chachamim invalidated the sale even b'Di'eved. In contrast, the cases in Temurah are discussing cases of Isur v'Heter that do not affect any other person. (Although the Gemara in Temurah does discuss the case of separating Ma'aser before separating Terumah, which does affect the Kohen's gift, there are grounds for differentiating that case from other cases where a specific person is affected).
</p><p>
(b) Even though the Gemara says that an Arusah is a Safek Nesu'ah, the Gemara does not mean that we should consider her status to be in question, as <b>TOSFOS</b> (DH Seifa) points out. If her status had been that of a Safek, then the Arusah would certainly have been allowed to sell the property even l'Chatchilah, since the land (the 'Guf') itself belongs to her (even if she is considered a Nesu'ah). The only question involves the Peiros, but since 'Ein Safek Motzi Midei Vadai' (the Safek that she is a Nesu'ah cannot override the certain fact ('Vadai') that she is in possession of the land itself), she may also sell the Peiros. 
</p><p>
Rather, the Gemara means that because there is a possibility that the Erusin will not lead to a full marriage, her husband therefore does not have full rights to what she inherits while she is an Arusah. The Chachamim <i>instituted</i> that she may not sell the property because the husband retains some rights to the property which she inherits. (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we consider the Kesuvah to be collected in his 
               lifetime, he could designate an amount sufficient to 
               pay the Kesuvah and sell the rest!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question (Abaye):</font></b> Why didn't you ask from 
               the Mishnah?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> He (a Yavam) should not tell her 
                    'Your Kesuvah is on the table.' Rather, there 
                    is a lien on all his property to pay the 
                    Kesuvah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That is merely good advice (Ri - lest he be 
               quick to divorce her; Rashba - lest he be unable to 
               spend the money; Rashi - lest he spend it and need 
               to write a new Kesuvah).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Support (Seifa):</font></b> Similarly, a man should not tell 
               his wife 'Your Kesuvah is on the table.' Rather, 
               there is a lien on all his property to pay the 
               Kesuvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Surely a married man can sell his property! 
                    Rather, this is just advice. Also regarding the 
                    Yavam, it is just advice.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  The Beraisa is still difficult (if he could designate 
          enough for the Kesuvah, surely this is better than 
          divorcing her)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Also that is good advice, to avoid resentment. 
          (Designating money for the Kesuvah makes it look like he 
          plans to divorce her. If he divorces her and immediately 
          remarries her, she realizes that this was only to be able 
          to use the money.)
.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN A 'YAVAM' SELL THE PROPERTY OF THE DECEASED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  A woman fell to Yibum in Pumbedisa. Levi planned to give 
          to her a Get (which forbids her mid'Rabanan to all the 
          brothers), to prevent his older brother Reuven from doing 
          Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reuven:</font></b> Do you seek to prevent me from (doing Yibum 
               and) inheriting our brother's property myself? I 
               will split it with you!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Yosef):</font></b> Since Chachamim said that the property may 
          not be sold, Reuven's sale (or gift) is void.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a woman fell to Yibum, even if the Mes 
               left 100 Maneh and the Kesuvah is only one Maneh, 
               there is a lien on all the property. The Yavam may 
               not sell any of it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> Sometimes Chachamim forbade selling, 
          but b'Di'eved the sale is valid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - Beis Shamai):</font></b> (If property fell to an 
               Arusah,) she may sell it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Hillel say, she may not sell it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They agree that if she sold or gave it, the sale or 
               gift stands.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (R. Chanina bar Papi):</font></b> Rav Yosef's ruling is 
          correct.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Abaye:</font></b> What good is his answer? He did not give any 
          reason!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Rav Minyomi brei d'Rav Nechumi agreed with Abaye, but 
          asked if Rav Yosef could find support for his ruling.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Support (Rav Yosef for himself - Beraisa):</font></b> Reuven owed 
          money to his brother Levi. Levi died and his wife fell to 
          Yibum. Reuven cannot say 'since I inherit, the money will 
          stay by me.' Rather, we take the money from him, buy land 
          with it, and he eats the Peiros.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection (Abaye):</font></b> Perhaps the Beraisa is merely good 
          advice.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> It says 'we take from him.' You 
          cannot say that this is just good advice!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rav Minyomi:</font></b> Rav Nachman said that this Beraisa is 
          erroneous.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> What is wrong?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> A loan is like Metaltelim, and a Kesuvah 
               is not collected from Metaltelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps the Beraisa is like R. Meir, who 
               says that a Kesuvah is collected from Metaltelim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> He can say to her 'you have no claim 
               against me.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps the Beraisa is like R. Nasan!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Nasan):</font></b> 'v'Nasan la'Asher Asham 
                    Lo (to whom the principal belongs)' teaches 
                    that if Shimon owes to David and David to 
                    Moshe, we take from Shimon to pay Moshe.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN A 'YAVAM' SELL THE PROPERTY OF THE DECEASED? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, the Beraisa is erroneous because we do 
          not find a Tana who agrees with two stringencies 
          (favoring collection) of a Kesuvah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We find only R. Meir (who allows collecting it from 
               Metaltelim) or R. Nasan (who allows collecting it 
               from one who owes the husband).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rava:</font></b> Now I understand why I heard Abaye say 'This 
          Beraisa is erroneous.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  A woman fell to Yibum. Moshe planned to give to her a 
          Get, to prevent his older brother Aharon from doing 
          Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Aharon:</font></b> Do you seek to prevent me from inheriting 
               our brother's property myself? I will split it with 
               you!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Moshe:</font></b> I fear that you will do like the trickster of 
               Pumbedisa (81b, who later retracted)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Aharon:</font></b> If you want, I will divide the property with 
               you now!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mar bar Rav Ashi):</font></b> Here, the division is void. This case 
          is unlike R. Yochanan's law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Dimi citing R. Yochanan):</font></b> If Reuven told Shimon 
               'do Meshichah (take it to your premises) on this 
               cow, but it is not yours until 30 days from now', 30 
               days later he acquires it, even if it is in a swamp. 
               (It is not in the buyer's Reshus, but Meshichah 
               works there.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> There, Reuven could give the cow now. Here, the 
               Yavam cannot give the property (until he does Yibum 
               and inherits it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Contradiction (Ravin citing R. Yochanan):</font></b> The cow is not 
          acquired 30 days later.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Dimi discusses when he said 'acquire from 
          now.' In Ravin's case, he did not say this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question #1:</font></b> If he did Yibum and then divided the 
          property, is the division valid?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Ula):</font></b> No. (This is like Rav Yosef above.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question #2:</font></b> If he divided the property and then did 
          Yibum, is the division valid?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Ula):</font></b> No.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If it is invalid after Yibum, we need not 
               ask about before Yibum!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> These questions were asked in cases that 
               arose. (The second questioner had not heard the 
               first answer.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Ravin):</font></b> Whether he divided the property before or after 
          doing Yibum, the division is void.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  This is the Halachah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Mishnah - Chachamim):</font></b> Attached produce is his.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> Why is this? There is a lien on all (attached) 
          property of the Mes to pay the Kesuvah!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Correction (Reish Lakish):</font></b> The Mishnah should say 'it is 
          hers'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE RESULTS OF 'YIBUM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he does Yibum, she is like his wife.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What does this teach?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (R. Yosi bar Chanina):</font></b> It teaches that he may 
          divorce her with a Get and remarry her.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> Obviously he may divorce her with a Get!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that 'V'Yibmah' teaches 
          that she is still like a Yevamah, and a Get does not 
          suffice to divorce her, rather Chalitzah is needed!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection:</font></b> Obviously he may remarry her!
<br>
<br>

sjt:
<font><b>1) THE PROPERTY OF A MAN WHO DIES CHILDLESS, LEAVING HIS WIFE AS A YEVAMAH</b></font><b>
<br>QUESTION:</b> The Mishnah discusses the status of the property of a man who dies childless, leaving his wife as a Shomeres Yavam who must do either Yibum or Chalitzah. Rebbi Meir says that the Peiros (fruits) that have been harvested from the deceased man's fields are sold and land is purchased with the profits. That land is set aside for the Yevamah's Kesuvah. When Peiros are still attached to the field, we evaluate the difference in the value of the field with Peiros and the value of the field without Peiros, and we purchase land with the amount of the difference. The Yavam eats the Peiros of the land, and the land itself is set aside for the Yevamah's Kesuvah.
</p><p>
The Chachamim disagree with Rebbi Meir with regard to Peiros that are no longer attached. They say that since the Peiros are Metaltelin (mobile property), they are not designated for the Kesuvah unless the woman was holding them during her husband's lifetime. Regarding Peiros that are attached to the ground, the Chachamim maintain that those Peiros 'belong to him' ('Shelo'), implying that the Peiros are given to the Yavam and are not designated for the Yevamah's Kesuvah.
</p><p>
The Gemara is perplexed by this ruling. We know that any land left by the deceased brother is designated for the Yevamah's Kesuvah. The Yavam may not sell it (see Insights to 81b). How could the Chachamim say that it belongs to the Yavam?
</p><p>
Reish Lakish answers that the Mishnah should actually read 'Shelah' -- the Peiros 'belong to <i>her</i>' and not to him. <b>RASHI</b> explains that according to Reish Lakish, Rebbi Meir and the Chachamim are not arguing with regard to Peiros that are attached.
</p><p>
If the Chachamim in the Mishnah are actually saying that the Peiros 'belong to her,' then why do the Chachamim discuss Peiros that are attached to the ground in the first place? They are not arguing with Rebbi Meir on the matter!
</p><p>
Moreover, now that they are discussing the issue of attached Peiros, if they are not arguing with Rebbi Meir then why do they word their ruling differently than Rebbi Meir? Instead of saying 'Shelah,' the Peiros 'belong to her,' they should have said that the Peiros are sold in order to purchase land from which the Yavam eats the Peiros! (<b>TOSFOS YOM TOV</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS YOM TOV</b> explains that the wording of the Chachamim and Rebbi Meir (until the point at which the Chachamim discuss detached Peiros) is copied from the Mishnah earlier (79a). There, the Chachamim <i>do</i> argue with Rebbi Meir regarding Peiros that are attached when they say that they 'belong to him' ('Shelo'), and they do not say that the Peiros are used to purchase land. The Tana of our Mishnah wrote our Mishnah with a parallel wording, as is commonly found in Mishnayos. He wanted the style of the Mishnayos to conform, even though it is not necessary to record the view of the Chachamim here with regard to attached Peiros since they do not argue with Rebbi Meir. The only difference in this Mishnah is that here the Chachamim say that the Peiros 'belong to her' ('Shelah') and not to him ('Shelo'). This is what caused the Tana who authored our Mishnah to mistakenly write 'Shelo' in place of 'Shelah.'
</p><p>
(b) The <b>MAHARSHA</b> answers that had it not been for Rashi's explanation, he would have suggested that there is indeed a Machlokes between Rebbi Meir and the Chachamim regarding attached Peiros. Rebbi Meir holds that immediately upon the death of the husband we evaluate how much more the field is worth with the Peiros than without them. The fruit that grows after that time is <i>not</i> evaluated for the woman and given to her, but rather the Yavam gets to keep it.
</p><p>
The Chachamim argue and say simply 'Shelah,' the Peiros 'belong to her,' referring to all of the fully grown fruit. They hold that even the fruit that ripens after the death of the husband is also designated for the Kesuvah.
</p><p>
While this explains the wording of the Mishnah, it is not clear why this should be true. Since the Peiros grew after the death of the husband, why should it be designated for the Kesuvah?
</p><p>
The <b>TOSFOS RID</b> explains in a manner similar to the Maharsha, but instead of saying that the Chachamim give the woman the Peiros that ripen after the husband's death, he says that the Chachamim give only the fruit on the tree as they are at the time of the husband's death. The Chachamim differ with Rebbi Meir with regard to how the Peiros are evaluated. Rebbi Meir says that we evaluate them by appraising the difference in value of the field as a whole with Peiros and without Peiros. The Chachamim say that we evaluate the value of the Peiros themselves (if they were to be sold in that semi-ripened condition). Even though this sum will be slightly greater than Rebbi Meir's sum (see Rashi in Bava Kama 55b, DH Shamin), the Chachamim were not concerned that they were giving the woman slightly more than they might actually be worth, since land is purchased with that money and the husband eats the Peiros of that land in any case.
</p><p>
(c) <b>RAV ELAZAR MOSHE HOROWITZ</b> suggests an approach opposite that of the Maharsha. The Gemara in Bechoros (52a) explains that although a normal lender may collect from the increase ('Shevach') that accrued to the borrower's field (that was designated as security for the loan) even <i>after</i> the borrower sold the field, a Kesuvah, on the other hand, may only be collected from the property as it was worth at the time the husband died, before the heirs inherited it. The reason is because the Chachamim were lenient to the family of the husband with regard to the collection of the Kesuvah. This implies that if the Halachah of Kesuvah would be mid'Oraisa, then the Kesuvah <i>could</i> be collected from the Shevach of the property as well.
</p><p>
Rebbi Meir, who indeed holds that the Kesuvah is d'Oraisa (Kesuvos 56b), says that we evaluate the fully grown fruits, <i>including</i> what grew after the death of the husband. The Chachamim, though, hold that Kesuvah is d'Rabanan, and therefore they say that the Peiros are designated to the Kesuvah only in the state in which they were at the time of the husband's death.
</p><p>
According to this, both the expressions 'Shelo' and 'Shelah' are true. The Peiros, after they are grown, are partially the Yavam's and partially the Yevamah's. Hence, the Tana is justified in saying 'Shelo,' meaning that part of the fruit (that ripened after the husband's death) belongs to the Yavam. When Reish Lakish says that the Chachamim mean 'Shelah,' he means that the other part of the Peiros (that which grew before the husband's death) belongs to the Yevamah. Reish Lakish is not changing the wording of the Mishnah, but he is explaining the Mishnah. (We often find often that 'Teni' does not necessarily mean to emend the Mishnah, but rather to explain it; see Tosfos in Kesuvos 4b, DH u'Mi; Yoma 40a, DH Ha; Bava Kama 49b, DH v'Teni.)
</p><p>
(d) We could suggest another explanation that will conform with Rashi's explanation that Rebbi Meir and the Chachamim are not arguing. When Reish Lakish says 'Teni,' he does not mean to change the Mishnah. If the Mishnah's wording, 'Shelo,' was an error, then why did the Gemara bother preserving the mistake and then changing it? Rather, the Mishnah might mean as follows.
</p><p>
When the Chachamim say that the attached Peiros are 'Shelo,' they do not mean that they belong to the Yavam. They mean that they belong to <i>his deceased brother</i>. Since they are part of the deceased brother's property, they are designated for the Kesuvah (to <i>her</i>, as Reish Lakish says)!
</p><p>
The Chachamim are telling us that the Peiros belonged to the deceased brother in order to explain the reasoning behind their argument with Rebbi Meir regarding detached Peiros. Why is it that the Chachamim do not allow the woman to collect her Kesuvah from the Metaltelin that the Yavam inherits? The reason is because the obligation to pay the Kesuvah rests on the woman's husband, and not on those who inherit his property. Whatever they inherit becomes their money and no longer belongs to the deceased husband, and therefore it cannot be designated for the payment of the Kesuvah. Only when there is a Shibud on the property does the property remain reserved for the payment of the Kesuvah (or repayment of the loan) even after the man's death. Since there is a Shibud on it from the time that the husband was alive, it is as if the woman is collecting it from her deceased husband and not from the heirs. Metaltelin, mobile property, on the other hand, can have no Shibud upon them, and therefore she cannot collect her Kesuvah from them since such property would be coming from the heirs and not from the husband. 
</p><p>
This is what the Chachamim mean when they say that the attached Peiros are 'Shelo,' they belong to him -- the Peiros that are attached are coming from the deceased husband and therefore they can be used for the Kesuvah. In contrast, the detached Peiros do not come from the deceased husband but from his heirs, and thus they are not reserved for the Kesuvah. 
</p><p>
This explains the reasoning for why the woman may collect even from <i>detached</i> Peiros if she took possession of them before the Yavam, as the Chachamim in the Mishnah rule. Rashi (80b, DH Kol ha'Kodem) explains that the Yevamah only gets the Peiros if she takes them before her husband dies. Since she took possession of the Peiros while her husband was alive, the payment of the Kesuvah would be coming from the husband and not from his heirs, and therefore they are considered to have been set aside for her Kesuvah. (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that he did the Mitzvah 
          the Torah imposed upon him, and now she is forbidden due 
          to Eishes Ach;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Why don't we say this?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> 'He will take her for a wife' - once he takes 
          her, she is like his wife.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE 'KESUVAH' OF A 'YEVAMAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> However, her Kesuvah is paid from the property 
          of the deceased.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Why is this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Shamayim caused him to acquire her (so he should 
          not have to pay her Kesuvah from his own property).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If she cannot collect a Kesuvah from the property of the 
          deceased, she gets it from the Yavam, so it should not be 
          light in his eyes to divorce her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He should not say 'your Kesuvah (is on the 
          table...)'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Why does the Mishnah continue 'Similarly, a man 
          should not tell his wife...?'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that regarding a Yevamah 
          one should not designate money, for he did not write 
          'There is a lien on all property I acquired and will 
          acquire to pay your Kesuvah.' But since one writes this 
          to a regular wife, he may designate, since she is 
          confident of collecting!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he divorces her, she collects only her 
          Kesuvah (and he may sell the rest of the property).
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  This is only after he divorces her. Before this, he may 
          not sell any property (lest it be needed to pay her 
          Kesuvah), like R. Aba taught (81a).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he remarries her, she is like any woman, 
          and collects only her (original) Kesuvah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> Why is this needed? Another Mishnah (89b) 
          teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one divorced his wife and remarried 
               her, it is understood that he remarries her on 
               condition that she has only her original Kesuvah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that this is only 
          regarding a regular wife, since he wrote the original 
          Kesuvah, but a Yavam, who did not write the original 
          Kesuvah, must now write an additional Kesuvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE ENACTMENT TO COLLECT A 'KESUVAH' FROM ALL PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> Initially, there was no lien on property 
          to pay a Kesuvah. Men did not find women to marry, until 
          Shimon ben Shetach enacted a lien on all a man's property 
          to pay the Kesuvah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> Initially, there was no lien on 
          property to pay a Kesuvah. Men did not find women to 
          marry;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They enacted that he leave the Kesuvah (100 or 200 
               Zuz) in her father's house.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This caused that when a man got angry at his wife, 
               he would divorce her (since the money was out of his 
               hands anyway).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They enacted that he leave the Kesuvah in his 
               father's house. The Kesuvah would be a silver or 
               gold basket for rich wives, or a copper basket for 
               poor wives.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Still, when he got angry at his wife, he would 
               divorce her (since he could not use the Kli anyway).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Shimon ben Shetach enacted a lien on all a man's property 
          to pay the Kesuvah.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A MAN WHO WAIVED HIS RIGHTS TO HIS WIFE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man wrote to his wife 'I have no claim or 
          dealings in your property', he eats the Peiros of her 
          property in her lifetime, and inherits her if she dies;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why did he write this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If she sold it or gave it away, it stands.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he wrote 'I have no claim or dealings in your property 
          nor in its Peiros', he does not eat the Peiros in her 
          lifetime, but inherits the property if she dies;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Yehudah says, he always eats the Peiros of the Peiros, 
          unless he writes, 'I have no claim or dealings in your 
          property nor in its Peiros nor in the Peiros of its 
          Peiros Ad Olam (ad infinitum)'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If he wrote 'I have no claim or dealings in your 
          property, nor in its Peiros, nor in the Peiros of its 
          Peiros, in your lifetime and after your death', he does 
          not eat the Peiros in her lifetime, and does not inherit 
          her if she dies;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  R. Shimon ben Gamliel says, if she dies he inherits her, 
          because he stipulated contrary to Torah. Any stipulation 
          contrary to Torah is void. (He holds that a husband 
          inherits his wife mid'Oraisa.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara - R. Chiya - Beraisa):</font></b> The Mishnah applies (even) 
          if he only <i>said</i> this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Even if he wrote this, why should it take 
          effect?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a man wrote to his friend (Rashi - his 
               partner) 'I have no claim or dealings in this 
               field', 'I have no business in it', (or) 'my hand is 
               removed from it', these words are void. (Since he 
               already owns it, he must give a gift to transfer 
               it.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (d'Vei R. Yanai):</font></b> The case is, he wrote to his 
          wife during Eirusin. (He did not yet acquire her 
          property.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  This is like the laws of Rav Kahana and Rava:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> One may stipulate not to inherit an 
               inheritance that does not come through his ancestors 
               (e.g. inheriting his wife).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> If one says 'I do not want Chachamim's 
               enactment' <i>in a case like this</i> (the enactment was 
               for his benefit), we heed him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What case did Rava refer to?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He referred to Rav Huna's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Huna):</font></b> A woman can tell her husband 'Do 
                    not feed me and I will not work for you' (since 
                    the enactment that he feeds her and receives 
                    her productivity was for her benefit).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> If this is like the laws of Rav Kahana and 
          Rava, it should apply even if he wrote during Nisu'in!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> After Nisu'in, the husband's Yad 
          (power of acquisition) is equal to his wife's Yad (in her 
          property. He is like a partner, so it is not enough to 
          merely renounce his rights.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> His Yad is stronger than her Yad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye and Rava (do not argue here. They) only argue 
               about (property that falls to) a Shomeres Yavam.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> If he made a Kinyan (acquisition through 
          transferring a Kli) to waive his claims (Rashi - to the 
          field, in the Beraisa; Tosfos - to his Nesu'ah), is this 
          binding?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #1 (Rav Yosef):</font></b> The Kinyan was for claims (but the 
          property is still his)!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer #2 (Rav Nachman):</font></b> The Kinyan was for the property 
          itself.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  (Abaye):</font></b> Presumably, Rav Yosef said only his law in a 
          case when he immediately protested. If he protests only 
          later, he agrees that he waived his rights to the 
          property.
<br>
<br>

sjt:
<font><b>1) THE HUSBAND'S RIGHTS TO RECEIVE 'PEIRI PEIROS'</b></font><b>
<br>QUESTION:</b> The Mishnah states that according to Rebbi Yehudah, when the husband forgoes his rights to the Peiros (fruits) of the field of the wife, he only loses his rights to the Peiros but not to the Peiri Peiros (the fruits of the fruits). It is clear from the Mishnah that when the husband makes no statement relinquishing his rights to the Peiros, everyone agrees that he has the rights to the Peiri Peiros. 
</p><p>
How can this be reconciled with the Gemara earlier (79b) that says that the Rabanan instituted only that the husband receives the Peiros and not the Peiri Peiros? 
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RIF</b> (79b) points out that the Gemara later (83b) gives an example of the Peiri Peiros which the Mishnah is discussing. If the husband sold the produce of the wife's land in order to buy more land, and that second land produced Peiros, those Peiros are called Peiri Peiros. The Rif explains that it is only when the husband did not benefit from the original Peiros -- but rather he sold it and bought land for his wife from the Peiros -- that he receives the Peiri Peiros, because they take the place of the original Peiros from which he received no benefit.
</p><p>
The Gemara earlier (79b) is discussing a case where the wife's animal bore offspring, and that offspring was stolen, and the thief was found and is obligated to pay Kefel (double) to the owner of the offspring. Since the husband receives the offspring (Peiros), the Kefel (Peiri Peiros) goes to the wife. Presumably, the same applies to the offspring of the offspring; since the husband took the original offspring, the next generation goes back to the wife.
</p><p>
(b) However, the other Rishonim disagree, saying that it is not logical that the offspring of the wife's animal  belongs to the <i>husband</i>, while the offspring of that offspring belongs to the <i>wife</i>! Rather, <b>TOSFOS</b>, citing the <b>RIVAN</b>, explains that the Gemara there (79b) does not mean to differentiate between Peiros and Peiri Peiros per se. Rather, it is differentiating between what is derived directly from the Peiros and what is derived indirectly from the Peiros. If the husband takes fruit and plants it, all the produce belongs to him, since the produce was derived directly from the fruit. If someone steals the fruit and is caught and must pay Kefel, the Kefel goes to the wife because it derives only indirectly from the fruit.
</p><p>


<font><b>2) RELINQUISHING ONE'S RIGHT TO RECEIVE A BENEFIT</b></font><b>
<br>QUESTION:</b> The Mishnah discusses a case where a man forgoes his rights to the Peiros of his wife's property. The Gemara cites two more cases wherein a person relinquishes his rights to something that he or she is legally entitled to receive. First, Rav Kahana says that a man can make a precondition that he will not inherit his wife's property if she dies, even though he is entitled to it. Second, Rava says that a woman can exempt her husband from supporting her with Mezonos (and exempt herself in return from giving her earnings to her husband) by saying that she does not wish to receive spousal support from him.
</p><p>
The Gemara explains that the reason a woman may forgo her rights to Mezonos is because it was the Rabanan who instituted -- for her benefit -- that she receive the Mezonos in the first place. The Rabanan said that if she prefers not to receive the benefits of the Takanah that they instituted for her, she may decline by saying 'Iy Efshi b'Takanas Chachamim.' It seems that this is also the reason why the husband is able to forgo his rights to inherit his wife's property, and why he may forgo his rights to receive the Peiros of her property. Since the Takanah granting him those rights was only instituted for his benefit, he may decline to receive them.
</p><p>
Why do we need the principle of 'Iy Efshi b'Takanas Chachamim' in these cases? Why does the Gemara say that the only way in which one can forgo his or her rights is through the mechanism of saying 'since the Takanah was made for me, I am entitled to relinquish its benefit?' Our Mishnah holds that one may make a condition that counters what the Torah says -- one may be 'Masneh Al Mah she'Kasuv ba'Torah' (see 56a, and Rashi at the end of the Mishnah here), and that Tenai will effectively alter the Torah's intended destination for the property! If a Tenai can affect a Din d'Oraisa, then obviously it is not working through the mechanism of 'Iy Efshi b'Takanas Chachamim,' because a Din d'Oraisa is not a Takanah! 'Masneh Al Mah she'Kasuv ba'Torah' works because when it comes to monetary matters that affect only him, a person has the right to alter what he would otherwise be entitled to receive. If so, certainly he should be able to use a Tenai to change what the Rabanan entitled him to receive! Why, then, do we need the separate logic of 'Iy Efshi b'Takanas Chachamim,' which applies only where the Chachamim made a Takanah for his benefit?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (end of DH k'd'Rav Kahana) asks this question on the Mishnah; why does the Mishnah not say that one may avoid receiving something by making a Tenai. Tosfos answers that one <i>could</i> use a Tenai to avoid acquiring something, but the words of the Mishnah, 'Din u'Devarim Ein Li...,' do not connote a Tenai, but rather a removal of his rights, and a removal of rights can only be done when those rights are granted to him by a Takanah d'Rabanan, but not when it is the Torah giving him those rights. (When Raban Shimon ben Gamliel, in the end of the Mishnah, argues and says that one may not be 'Masneh Al Mah she'Kasuv ba'Torah,' he means that even if one did specify a Tenai, he still cannot lose the rights to the Yerushah of his wife, and certainly he cannot remove himself from those rights if he says only 'Din u'Devarim Ein Li....')
</p><p>
However, this does not explain why Rav Kahana -- who says that a person can make a Tenai not to inherit his wife -- must rely on the mechanism of 'Iy Efshi b'Takanas Chachamim.' <b>RASHI</b> (DH mi'Makom Acher) and the <b>RACH</b> (cited by the Tosfos Rid) write clearly that Rav Kahana indeed holds that a Tenai would <i>not</i> work to remove one's rights to his wife's Yerushah if that Yerushah had been d'Oraisa. The only reason he holds that one may remove one's rights to his wife's Yerushah is because that Yerushah is d'Rabanan, and 'Iy Efshi b'Takanas Chachamim' works for a Takanah d'Rabanan. Why, though, does Rav Kahana hold that a Tenai does not work (as <b>REBBI AKIVA EIGER</b> asks on Rashi).
</p><p>
The answer seems to be that both Rav Kahana and Rava are explaining how one can relinquish privileges <i>after</i> the Kinyan of Nisu'in has already been made. Since the Nisu'in has already been made, one cannot make a Tenai. A Tenai can only be made prior to the time that the Kinyan takes effect, in order to alter the way the Kinyan takes effect. Once it has already taken effect and the man and woman already have certain privileges as a result of the Nisu'in, the only way to remove those privileges is by saying 'Iy Efshi b'Takanas Chachamim.'
</p><p>
The Gemara asks that a person should be able to remove himself from the right to receive the Peiros of his wife's property even <i>after</i> the Nisu'in takes effect, since 'Iy Efshi' (or 'Siluk' -- 'removal') works even after the Kinyan takes effect. The Gemara answers that in the case of Peiros, 'Iy Efshi' will not work, because 'his acquisition is like hers' ('Yado k'Yadah'). This means that the husband has not only the rights to receive the Peiros as they grow, but he is even considered a partner in the ownership of the land itself, for he co-owns the land with his wife, at least as far as benefiting from its Peiros are concerned. He owns the land with regard to what it produces. Since he is an owner, he cannot remove himself from the ownership of the property through 'Siluk' (rather, he must give it away as a gift in order to relinquish his ownership of it).
</p><p>
In summary, both Tenai and 'Iy Efshi' ('Siluk') can be used to relinquish one's rights if they are specified before the Kinyan (which gives the person those rights to the item) takes effect. After the Kinyan takes effect, if the item has not yet entered the world and the person only has the rights to receive it but not full ownership of the item, he may remove himself from the rights to the item before they come ('Siluk'). If the Kinyan has taken effect, and in addition he already has full ownership of the item that the Kinyan entitles him to (i.e. it already exists), then he can only remove himself from its ownership by giving it away as a gift. 
</p><p>
According to Tosfos, the cases of relinquishing rights to the Peiros of the wife's property (in the Mishnah), of inheriting the wife's property (Rav Kahana), and of relinquishing rights to Mezonos (Rava) are all cases of 'Siluk,' or <i>resigning</i> from one's rights to receive what he is entitled to, after the Kinyan has taken effect but before the item comes into the world.
</p><p>
(b) The <b>RASHBA</b> understands that the case in which a man forgoes his rights to his wife's Yerushah (the case of Rav Kahana), involves a <i>Tenai</i>, not just a 'Siluk.' The Rashba writes that he can only remove himself from receiving the Yerushah <i>before</i> the Nisu'in, and when he does so he can remove himself even from a Yerushah <i>d'Oraisa</i>, since his removal is working with the mechanism of a Tenai and not with the mechanism of 'Iy Efshi b'Takanas Chachamim.'
</p><p>
According to the Rashba, why does Rava mention that it is the mechanism of 'Iy Efshi b'Takanas Chachamim' which allows the woman to relinquish her rights to receive Mezonos? She should be able to do it with a Tenai, just like the man may relinquish his rights to his wife's Yerushah with a Tenai! The answer is, like we mentioned above in Tosfos, that Rava is discussing how a woman may forgo her rights <i>after</i> the Nisu'in, at which point it is too late to do so with a Tenai.
</p><p>
The Rashba might agree with Tosfos that in the Mishnah the husband is forgoing his rights to the Peiros through Siluk and not through a Tenai, since the he did not use the proper wording for a Tenai.
</p><p>
In summary, according to the Rashba, the husband relinquishes his rights to the Peiros, and the woman relinquishes her rights to Mezonos, through 'Siluk,' by saying 'Iy Efshi b'Takanas Chachamim,' as Tosfos explained. The case of Rav Kahana, though, where the husband declines the rights to his wife's Yerushah, is discussing the implementation of a <i>Tena</i>i, which is effective even in avoiding a Yerushah d'Oraisa.
</p><p>
(c) <b>RASHI</b> (DH mi'Makom Acher), however, equates the case of Rav Kahana, in which the husband wants to avoid receiving his wife's Yerushah, with the case of Rava, where the wife wants to avoid receiving Mezonos. Rashi must be learning that both cases are working through the same mechanism. However, it does not seem that Rashi agrees with Tosfos that they are working through 'Siluk,' because Rashi (56a, DH d'Rabanan, and 56b, DH Mai Kosev) writes that even in our Mishnah the husband is losing the rights to the Peiros through a <i>Tenai</i> and not just through saying 'Iy Efshi' (or 'Siluk').
</p><p>
It seems that Rashi holds that there is no way to remove ones rights to an object through Siluk without using a Tenai; there is no separate mechanism of 'Siluk.' The only way to relinquish the rights to something that one is entitled to receive is by specifying a Tenai before receiving those rights.
</p><p>
Why, then, does Rava mention the logic of 'Iy Efshi b'Takanas Chachamim?' A Tenai should work even to relinquish rights that the Torah entitles a person to receive! It seems that the Gemara is giving a reason why one's Tenai works to annul a Takanah d'Rabanan, even according to the opinion (i.e. Raban Shimon ben Gamliel in the Mishnah) that holds that a Tenai <i>cannot</i> annul the rights to receive something that one is entitled to receive mid'Oraisa. The reason is that since the Rabanan instituted this Takanah only for the person's own benefit, they never made the Takanah in a situation where he is not interested in receiving it.
</p><p>
Why does Rav Kahana have to say that one can make a Tenai not to receive his wife's Yerushah <i>only</i> because of 'Iy Efshi' (i.e. the Yerushah is mid'Rabanan), according to Rashi? Does Rav Kahana hold that when one makes a Tenai that is 'Masneh Al Mah she'Kasuv ba'Torah,' the Tenai is null and void? The Halachah, though, is that the Tenai works! (This is the question of Rebbi Akiva Eiger, as cited in answer (a) above.)
</p><p>
The answer may be that if a man inherits his wife mid'Oraisa, her Yerushah is not a privilege that he receives directly because of the <i>Kinyan</i> of Nisu'in. Rather, when a man and woman get married, they became related to each other ('She'er,' see Bamidbar 27:11). As a result of being related he receives her Yerushah as a relative. Therefore, no Tenai that he makes in the <i>Kinyan</i> of Nisu'in can limit his rights to the Yerushah, because the rights to the Yerushah come not from the Kinyan of Nisu'in, but from the change in their relationship as a result of the Nisu'in. Tena'im cannot be made in such things as a change in relationship since that change is not something that the husband brings about directly. (This is essentially the reason why Tena'im cannot be made in the type of Kinyan which a person cannot accomplish through a Shali'ach, Kesuvos 74a.)
</p><p>
In summary, Rashi maintains that all three cases work through the mechanism of Tenai, and not Siluk. (M. Kornfeld)
</p><p>
According to Rashi, though, how does 'Iy Efshi b'Takanas Chachamim' work in the case where the woman forgoes her rights to receive Mezonos? She is attempting to relinquishing those rights <i>after</i> the Nisu'in, when they have already taken effect, and her Tenai must be made <i>before</i> the Kinyan that creates the husband's obligation takes effect!
</p><p>
The answer is that Rashi seems to hold that the Takanas Chachamim was that the woman receives Mezonos from her husband in return for giving her earnings to him. Therefore, each day of earnings that she produces and gives to her husband obligates him <i>anew</i> to give her Mezonos in return. Accordingly, before she works and produces earnings for a certain day, she can make a Tenai and say that she wants to keep her earnings for herself and not receive Mezonos in exchange. Since her Tenai is made before the husband's obligation to give her Mezonos takes effect, her Tenai is valid.
</p><p>
The Gemara considers the possibility that such a Tenai can also be made to remove the husband's rights to the Peiros, even when he makes the Tenai after the Nisu'in. Since the Peiros are given to him in return for the obligation to redeem her, we might think that he receives each day's Peiros in return for the obligation to redeem her if she is captured on that day. Therefore, before the Peiros of that day grow, he can say that he wants to be obligated to redeem her even without receiving Peiros in return. It will be like a Tenai made before the rights to receive the Peiros were granted to him.
</p><p>
The Gemara rejects this, saying that the obligation to redeem her and the rights to the Peiros that come in return for that obligation all take effect at the time of the Nisu'in, when he becomes a partner with her in the ownership of the field. Hence, he cannot relinquish the rights afterwards.
</p><p>
Tosfos and the other Rishonim -- who learn that 'Iy Efshi' is a removal of oneself from an entitlement ('Siluk') and not a Tenai -- might have learned that the obligation of Mezonos, too, comes at the time of the Nisu'in, and afterwards she cannot remove herself from those rights through a Tenai, but only through 'Siluk.' (See Tosfos 47b, DH Zimnin, who discusses exactly when the Chiyuv of Mezonos takes effect.)
</p><p>


<font><b>3) JOINT OWNERSHIP</b></font><b>
<br>OPINIONS:</b> The Gemara asks whether the wording of 'Din u'Devarim Ein Li...' which a person says in order to remove himself from receiving property is effective when it is accompanied by a Kinyan (that is, a Kinyan Chalifin). Do we assume that the person is strengthening his statement by making the Kinyan on the words that he stated when he said that he has no claim to the property (and since the statement is meaningless when he already owns the property, the Kinyan is also meaningless), or do we assume that the Kinyan was made not on his statement, but in order to effect a direct transfer of ownership through a Kinyan?
</p><p>
What case of 'Din u'Devarim' is the Gemara discussing?
</p><p>
(a) <b>RASHI</b> explains that when the Gemara asks on what the person made the Kinyan, the Gemara is referring to the case discussed in the Beraisa -- a field owned by two partners, and one said to the other 'Din u'Devarim Ein Li b'Sadeh Zu' ('I want nothing to do with this field').
</p><p>
(b) <b>TOSFOS</b> rejects Rashi's explanation. Tosfos asserts that when one partner says to the other, 'Din u'Devarim Ein Li...,' he is not expressing any intent to <i>give</i> the field to his partner, but rather the intent to make it Hefker, ownerless. Since his intention is to make it ownerless, how could the Kinyan that he made be construed as being an act of transferring ownership of the field to his partner? The words that he said carry no implication of a transfer of ownership!
</p><p>
Instead, Tosfos explains that the Gemara is referring to a case where a husband says to his wife <i>after</i> the Nisu'in that he does not want to inherit her property -- 'Din u'Devarim Ein Li...' (unlike the Mishnah, which is discussing when he said it before Nisu'in). In such a case, since the woman owns the actual body of the field ('Guf'), when the husband says 'I am removing my rights to receive the field,' he implies that since he is removing his rights to the field's Peiros, her ownership of the field will extend to the Peiros as well. Thus, if a Kinyan is made, the Kinyan can work to transfer to her the rights to the Peiros.
</p><p>
It is clear why Rashi does not explain like Tosfos. The Gemara says that the Kinyan that the person makes might be taking effect on the 
<br>'body of the field.' This implies that the person saying 'Din u'Devarim Ein Li...' already has ownership in the body of the field and not just the Peiros. Accordingly, the Gemara must be referring to a case of a normal partnership where two people own a field, and not to a case of a husband and a wife, where the wife owns the body of the field and the husband has only the rights to the Peiros.
</p><p>
How, though, does Rashi answer the question of Tosfos? In the case of two partners who own a field together and one says 'Din u'Devarim Ein Li...,' where is there an implied transfer of ownership? There seems to be nothing more than a statement of making his share in the field Hefker!
</p><p>
It seems that there is an underlying dispute between Rashi and Tosfos in the basic understanding of a partnership ('Shutfus'). Tosfos says that in a partnership, each person owns only half of the property. If one person makes his half Hefker, ownerless, then anyone can come and make a Kinyan on and acquire that half. There is no reason for it to belong to the other partner more than to anyone else.
</p><p>
Rashi, though, seems to hold that when a field is owned by a partnership, each of the partners really have rights to the <i>full</i> ownership of the <i>entire</i> field. The only thing preventing each one's ownership from taking hold over the entire field is the ownership of the other partner, as the <b>RAN</b> explains in Nedarim (45b). Therefore, if one partner makes his share in the field Hefker, the ownership of the other partner will automatically extend to the other half of the field as well, and no one else will be able to take it. Therefore, when one partner says 'Din u'Devarim Ein Li...,' he indeed implies that he wants the other partner to acquire the entire field.
</p><p>
This dispute might be the root of another Machlokes between Rashi and Tosfos. In Gitin (47b), Rashi (DH Tevel) writes that when a field is jointly owned by partners, each and every grain that is produced is owned equally by each partner. Tosfos, on the other hand, writes that somewhere in the field each partner has his own portion, which is fifty percent of the grain; any given grain, though, could belong entirely to one of the partners.
</p><p>
Rashi holds that each person has the rights to a full ownership of the entire field, and therefore they have equal rights to everything that grows anywhere in the field. Tosfos, though, who says that each partner owns only half of the land somewhere in the field, maintains that since we do not know where each person's portion is located, we do not know which grain belongs to which partner.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  (Ameimar):</font></b> The Halachah is, he waived his rights to the 
          property.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Is this when he protested later, or 
          even if he protested right away?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This determines whether Ameimar holds like Rav 
               Yosef.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer (Ameimar):</font></b> I do not hold like Rav Yosef.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FROM WHAT DID HE WAIVE HIS RIGHTS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If so, why did he write to her?...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> She should be able to tell him that he waived 
          all his rights!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> One who holds a document has the lower 
          hand (we say that he waived the smallest right, i.e. that 
          if she sold it, the sale stands).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he waived the right to the 
               Peiros (but keeps possession of the land itself)!!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Abaye):</font></b> It is better to have a small 
               gourd now than rights to a large one later. (It is 
               better to have produce now, and to allow a future 
               sale to take effect, so we assume that this was his 
               intent.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he waived the right to inherit 
               her property! (This applies only if he outlives 
               her.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Abaye):</font></b> A person waives his right to 
               something that is uncommon (that she will sell her 
               property), and not to something common (that he will 
               inherit her).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> He wrote 'in your <i>property'</i> - not 
          in its produce; 'in <i>your</i> property', not after your 
          death (when it is no longer hers).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah - R. Yehudah):</font></b> He always eats Peiros of the 
          Peiros...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If she brings in land and it yields produce, 
          they are Peiros. If he sold the produce and bought land, 
          the produce of that land is Peiros of Peiros.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Yehudah, must he say 'Peiros of 
          Peiros' or 'Ad Olam (ad infinitum)' or both?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If he must say only 'Peiros of Peiros', 
               why does the Mishnah say 'Ad Olam'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that saying 'Peiros of Peiros' 
               is like saying 'ad infinitum'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If he must say only 'Ad Olam', why does 
               the Mishnah say 'Peiros of Peiros'?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that even though he said 
               'Peiros of Peiros', he must still say 'ad 
               infinitum'.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is the rationale to require both?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> If he says only 'Peiros of Peiros', perhaps 
               he forfeits them, but eats Peiros of Peiros of 
               Peiros. If he says only 'Ad Olam', perhaps (he does 
               not mean 'ad infinitum', rather, forever, and) he 
               permanently forfeits Peiros, but does not forfeit 
               Peiros of Peiros.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  (The Gemara did not explicitly answer the question. 
          According to the Rambam and the Ge'onim who say that the 
          Halachah follows every 'Im Timtzi Lomar', perhaps both 
          must be said.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> If he wrote, 'I have no claim or dealings in 
          your property, nor the Peiros of its Peiros', does he eat 
          the Peiros?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Did he waive his rights only to Peiros of Peiros, 
               but not to Peiros?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he totally removed himself from the 
               Peiros?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> Clearly, he totally removed himself. If he 
          retained rights to the Peiros, he will eat them, and 
          there will not be any Peiros of Peiros!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection - Question:</font></b> If so, how will you explain the 
          Mishnah? R. Yehudah says, he always eats the Peiros of 
          Peiros... Since she eats the Peiros, there will not be 
          Peiros of Peiros!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that the Mishnah teaches the 
               law for when she leaves over Peiros (and they were 
               used to buy land). Similarly, perhaps he stipulates 
               not to receive Peiros of Peiros if he will happen to 
               leave over Peiros and use them to buy land!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN HE WAIVE HIS RIGHT TO INHERIT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Shimon ben Gamliel):</font></b> If she dies he 
          inherits...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav):</font></b> The Halachah follows R. Shimon ben Gamliel, but 
          not for his reason.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What does Rav mean?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1:</font></b> Rav agrees that the Halachah is, if she dies, 
          he inherits her. R. Shimon holds that a stipulation 
          contrary to Torah is void, whereas Rav holds that such a 
          stipulation is valid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that a husband inherits mid'Rabanan, and 
               Chachamim strengthened their enactment more than 
               Torah laws (a stipulation against a mid'Rabanan law 
               is void).
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN HE WAIVE HIS RIGHT TO INHERIT? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Rejection:</font></b> Rav holds that a stipulation against the Torah 
          is void!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If one says 'I sell this to you on condition 
               that you cannot claim Ona'ah (reimbursement for 
               being overcharged)', the buyer can claim Ona'ah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says, he cannot.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #2:</font></b> Rav holds like R. Shimon, that a stipulation 
          contrary to Torah is void, but R. Shimon holds that when 
          she dies, he inherits her, and Rav holds that he does 
          not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> This is like R. Shimon ben Gamliel's reason, 
          but unlike his law!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #3:</font></b> Rav says that the Halachah follows R. Shimon 
          ben Gamliel, that when she dies, he inherits her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon holds that a stipulation contrary to Torah 
               is void, but a stipulation contrary to a mid'Rabanan 
               law works. Rav holds that in both cases it is void.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> If so, Rav agrees to the law and to the 
          reason, he merely adds (that a stipulation even against 
          mid'Rabanan laws is void)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #4:</font></b> Rav holds like R. Shimon, that when she dies 
          he inherits her; but not for his reason;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon holds that a husband inherits his wife 
               mid'Oraisa, and a stipulation contrary to Torah is 
               void. Rav holds that a husband inherits his wife 
               mid'Rabanan, and Chachamim strengthened their 
               enactments as much as Torah law.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Rav holds that a husband inherits his wife 
          mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yochanan ben Berokah):</font></b> If a man 
               inherited his wife, he returns the property to her 
               family (in Yovel), and deducts from the money (i.e. 
               they pay a small amount).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Does R. Yochanan ben Berokah say that a 
               husband inherits mid'Oraisa or mid'Rabanan?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he inherits mid'Oraisa, why must he return 
                    the property?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If he inherits mid'Rabanan, why must they pay 
                    him?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav):</font></b> He holds that he inherits mid'Oraisa. 
               The case is, he inherited a burial site.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  To avoid reproach to the family, Chachamim said 
                    that he returns the property, and they pay for 
                    it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why does he deduct from the price?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> He deducts the value of his wife's grave.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One who sells his gravesite, the path to 
               his gravesite, or the places of stopping during the 
               procession or eulogizing, his family can bury him 
               there against the will of the buyer, to avoid 
               reproach to the family.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> Rav explained R. Yochanan ben Brokah's opinion. 
          Rav himself holds that a husband inherits mid'Rabanan.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTION OF DEBTS AND A 'KESUVAH' FROM AN ESTATE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Tarfon):</font></b> If Levi died, leaving a widow, a 
          creditor and heirs, and someone else had a deposit from 
          Levi or owed a loan to him, it is given to the weakest of 
          them (among the widow, creditor and heirs. The Gemara 
          will discuss who is weakest. Normally, there is no lien 
          on inherited Metaltelim to pay a Kesuvah or debt. Here is 
          different, because they are not in the heir's Reshus.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Akiva says, we do not show mercy in judgment. Rather, 
          the heirs get it, since a widow or creditor collects only 
          with an oath, but heirs do not need to swear.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If he left detached Peiros, whoever seizes them first 
          keeps them;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Tarfon says, if the widow or creditor grabbed more 
          than she or he is entitled to, the excess is given to the 
          weakest of them;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  R. Akiva says, we do not show mercy in judgment. Rather, 
          the heirs get it, since a widow or creditor collects only 
          with an oath, but heirs do not need to swear.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Why must it teach both the case of a 
          deposit and of a loan?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Had it taught only about a loan, we would have 
          thought that only in this case R. Tarfon said the heirs 
          do not get it, because a loan is given to be spent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a deposit, which is intact, he would agree 
               with R. Akiva that the heirs get it. (It is as if it 
               is already in the heir's Reshus.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about a deposit, we would have 
               thought that only in this case R. Akiva argues; but 
               regarding a loan, he would agree with R. Tarfon (for 
               the above reason).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What does 'the weakest' mean?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1 (R. Yosi bar Chanina):</font></b> It is the one with the 
          weakest proof (the latest document, for he has the least 
          ability to collect from sold property).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (R. Yochanan):</font></b> It is the widow, to encourage 
          marriage (Rashi - so women will be eager to marry; Tosfos 
          - to encourage men to marry the widow).
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  The following Tana'im argued similarly:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Binyamin):</font></b> It goes to the one with the 
               weakest proof. This is proper;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Elazar says, it goes to the widow, to encourage 
               marriage.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he left detached Peiros...
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> R. Akiva should say that all go to the heirs, 
          not only the excess (since the others may not collect 
          without an oath)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> Indeed, he says so! Since R. Tarfon discussed 
          only the excess, R. Akiva did, too.
<br>
<br>

sjt:
<font><b>1) A DISPUTE BETWEEN A DEAD MAN'S WIDOW, CREDITOR, AND HEIRS</b></font><b>
<br>QUESTION:</b> The Mishnah discusses the case of a man who dies, leaving money that he lent in the hands of a borrower, or a Pikadon in the hands of a Shomer. The man's heirs would like to collect the loan or the Pikadon as their inheritance, while the man's widow would also like to collect the money or the object as her Kesuvah, and a creditor would like to collect the money or the object as repayment for his loan to the deceased man.
</p><p>
Rebbi Tarfon rules that we give the loan or Pikadon not to the heirs, but 'to the weaker of them,' which the Gemara explains to mean either the widow (Rebbi Yochanan and Rebbi Elazar) or whoever's document of debt has the latest date written in it (Rebbi Yosi bar'Rebbi Chanina and Rebbi Binyamin). 
</p><p>
Rebbi Akiva argues with Rebbi Tarfon and says that the heirs receive the loan or Pikadon.
</p><p>
We find earlier (81b) a Machlokes between Rebbi Meir and the Rabanan whether Metaltelin (mobile property) may be collected as the payment for a Kesuvah. Rebbi Meir is of the opinion that a woman <i>may</i> collect Metaltelin for her Kesuvah. Since the Mishnah here is discussing a loan of money or a Pikadon of an item, which are obviously items that are Metaltelin, and Rebbi Tarfon says that the woman may be eligible to collect it as her Kesuvah, our Mishnah must be following the opinion of Rebbi Meir.
</p><p>
Even though the heirs should automatically inherit all of the property of their father, and the lender should not be able to collect from them without making a Shevu'ah (and even with a Shevu'ah, he should only be able to collect land and not Metaltelin). The reason Rebbi Tarfon gives the property to the lender or the widow is because he holds that since they were in possession (Tefisah) of the item before it reached the hands of the heirs, they may keep it. Rebbi Akiva argues that physical possession (Tefisah) of the Metaltelin which the heirs are entitled to inherit does not work to effect acquisition of the item (<b>RASHI</b> DH Yinasnu l'Yorshim), even if the heirs have not yet taken possession of the Metaltelin; Tefisah only works when the lender or widow took possession of the item while the man was still alive (84b).
</p><p>
Why does Rebbi Tarfon consider the property to be already in the possession (with Tefisah) of the lender or the widow? If anything, the Yorshim are in possession of it ('Muchzak'), because the person who borrowed money from their father now owes the money to the man's heirs. The person who is guarding the object was guarding it for the father of the heirs and now that the father died, he is guarding it for the heirs! It should be no less in their possession than an object that is placed in a Simta (alleyway), which is considered to be the domain of everyone, and where the lender and widow cannot take possession of the item because it has already come into the possession of the heirs (Rashi 84b, DH Aval b'Simta)!
</p><p>
The simple answer would seem to be that the lender and widow are considered to be holding the object through the principle of 'Shibuda d'Rebbi Nasan' (82a). Rebbi Nasan states that in a case where Reuven owes Shimon money, and Shimon owes Levi money, Reuven is considered to owe Levi money. In this case, too, the person holding the money or object must return it to the father who died, and the father then must give the money to the lender or widow, and thus it is considered that the person who has the money now is holding it for the lender or widow (for he will owe it to them as soon as the father dies).
</p><p>
However, if it is true that Rebbi Tarfon is following the view of Rebbi Nasan, then Rebbi Tarfon is following the views of both Rebbi Meir (that a woman may collect her Kesuvah from Metaltelin) and Rebbi Nasan (that a woman may collect her Kesuvah from someone who owes money to the deceased husband). The Gemara earlier (82a), though, states that there is no Tana who holds of <i>both</i> the opinion of Rebbi Meir <i>and</i> the opinion of Rebbi Nasan! If our Tana does not hold like Rebbi Nasan, then in what way are the lender and the widow considered to have possession of the item?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> (82a) explains that the lender and the widow are indeed <i>not</i> considered to be in possession as long as the money is in the hands of the borrower, or the Pikadon is in the hands of the Shomer. However, when the borrower approaches Beis Din and asks to whom he should give the money, he is asking whether or not he should give the money to the lender or widow and thereby give them possession. Beis Din tells him that it is a Mitzvah (that is, it is preferable) to give it to the weaker person, since that person otherwise will not be able to collect what is owed to him or her and thus we have mercy on the weaker party. Rebbi Akiva argues and says that 'we do not have mercy' on the weaker party at the expense of the orphans.
</p><p>
(b) However, <b>TOSFOS</b> (82a, DH Lo) cites this explanation but does not want to conclusively say that the Mishnah is merely teaching what is more preferable to do. 
</p><p>
Rather, he says that perhaps our Mishnah means that the borrower <i>must</i> give the money or item to the lender or widow and not to the heirs, even though the lender or widow is not considered to be in possession of the item. Even if the borrower does not want to give it to the lender or widow, he is forced to give it, not because it is considered as if they are in possession, but because the <i>heirs</i> are <i>not</i> in possession, for they do not have the money or the item in their domain. 
</p><p>
Rebbi Tarfon holds that the Metaltelin of heirs are indeed Meshubad to a lender, as long as the property has not yet come into the domain of the <i>heirs</i>. (See also Tosfos Bechoros, 52a, DH v'Lo b'Ra'uy).
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> Does R. Akiva say that seizing never helps?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> Seizing in his lifetime helps.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PROPERTY SEIZED AFTER DEATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Tarfon (who says that seizing 
          Peiros after death helps), where are the Peiros? (They 
          cannot be in the heir's house, for then seizure would not 
          help!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav and Shmuel):</font></b> They are in a Reshus 
          ha'Rabim, but not in a Simta (a corner near a Reshus 
          ha'Rabim. Meshichah acquires in a Simta, so it is as if 
          the Peiros are in the heirs' house.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (R. Yochanan and Reish Lakish):</font></b> It can even be 
          in a Simta.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  A case occurred, and judges ruled like R. Tarfon. Reish 
          Lakish overturned the ruling.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> You treat R. Akiva's law like mid'Oraisa! 
          (Even b'Di'eved, you do not accept a ruling against it.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Suggestion #1:</font></b> Reish Lakish holds that if a judge makes a 
          clear mistake, the ruling is overturned; R. Yochanan says 
          that it is not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Suggestion #2:</font></b> All agree that if a judge makes a clear 
          mistake, we overturn the ruling. R. Yochanan holds that 
          the Halachah follows R. Akiva when he disagrees with a 
          colleague, but not against his Rebbi (R. Tarfon). Reish 
          Lakish holds that we follow R. Akiva even against his 
          Rebbi.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Suggestion #3:</font></b> All agree that the Halachah follows R. 
          Akiva when he disagrees with a colleague, but not against 
          his Rebbi. R. Yochanan holds that R. Tarfon was R. 
          Akiva's Rebbi; Reish Lakish holds that he was his 
          colleague.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Suggestion #4:</font></b> All agree that R. Tarfon was R. Akiva's 
          colleague. Reish Lakish holds that the Halachah follows 
          R. Akiva against his colleague; R. Yochanan holds that we 
          merely lean towards R. Akiva's opinion.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Yochanan's relatives seized property from a Simta. He 
          ruled that they seized properly. They came to Reish 
          Lakish, and he said that they must return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> What can I do? My equal argues against 
               me.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  A shepherd was watching cattle of orphans; a creditor 
          seized a cow. The creditor said that he seized it in the 
          life of the father; the shepherd said that he seized it 
          after death.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Do you have witnesses that he seized 
               it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The shepherd:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Since he could claim that he bought the 
               cow, he is believed to say that he seized it in the 
               father's lifetime.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Reish Lakish taught that custody of an 
               animal does not prove ownership! (One is not 
               believed to say that he bought it, for perhaps he 
               found it wandering outside.)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> He did not refer to animals being watched by 
               a shepherd (they are not left to wander).
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  The Nasi's house seized a slave of orphans from a Simta.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  R. Avahu, R. Chanina bar Papi and R. Yitzchak Nafcha:</font></b> You 
          made a valid seizure. (This is like the Rashash, who says 
          that the text should say 'Amru'.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Aba:</font></b> Do you flatter them because they are from 
               the Nasi's house?! Judges ruled like R. Tarfon, and 
               Reish Lakish overturned the ruling!
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SEIZURE BY CREDITORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Ploni owed money to Yeimar bar Chashu. Ploni died and 
          left a boat. Yeimar sent a Shali'ach to seize it for him; 
          the Shali'ach did so. Rav Papa and Rav Huna brei d'Rav 
          Yehoshua (who were also creditors of Ploni) saw him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Papa and Rav Huna:</font></b> You seize for a creditor in a 
               case where it harms others (e.g. other creditors 
               such as ourselves). R. Yochanan says that such 
               seizure is invalid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rav Papa and Rav Huna seized the boat. Rav Papa conducted 
          it with oars; Rav Huna led it by the ropes. Each said 
          that he acquired it himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rav Pinchas bar Ami:</font></b> Rav and Shmuel say that seizure 
          helps only in a Reshus ha'Rabim!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rav Papa and Rav Huna:</font></b> We seized the boat in the middle 
          of the river, which is like a Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> You are stealing! Rav Nachman ruled that 
               seizure works only in the borrower's lifetime!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  Avimi the son of R. Avahu owed money. He sent Chama the 
          son of Rabah bar Avahu to pay it. After paying, he asked 
          for the document. The creditors refused, saying that they 
          took the money for a different loan for which there was 
          no document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Avahu (to Chama):</font></b> Do you have witnesses who saw 
               you pay?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chama:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Avahu:</font></b> If so, since they could say that you 
               didn't pay, they are believed to say they took 
               payment for a loan without a document.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Must the Shali'ach suffer the loss?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> If he was told 'take the document and 
          give the money', he suffers the loss. If he was told 
          'give the money and take the document', he is exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> No, in either case, he suffers the loss.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The borrower tells him 'I sent you to help me, not 
               to mess me up'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  A man had deposited documents with a woman to whom he 
          owed money. After his death, his heirs requested the 
          documents.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The woman:</font></b> I seized them when he was alive, to be 
               collateral for my debt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Do you have witnesses that he asked for 
               his documents, and you refused to return them?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> The woman:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> If so, this is considered seizure after 
               death, and it does not help. (Even though she had 
               them during his lifetime, she was watching them for 
               him. Seizure helps only if he was about to die, and 
               it was taken for the sake of collection.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHOM MAY A JUDGE RELY ON?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Rava judged a case, and ruled that the defendant must 
          swear.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava's wife:</font></b> I know that she is suspected to swear 
               falsely!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rava changed his ruling, and said that the claimant must 
          swear.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Rava judged a case involving a document. Rav Papa told 
          Rava that he knew that the document had been paid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Do you have someone else who knows this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> If so, you are only one witness. Your 
               testimony does not help.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Ada bar Masnah:</font></b> Is Rav Papa less credible than 
               your wife?!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rava:</font></b> I am certain that my wife would not lie. I am 
               not certain about Rav Papa.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rav Papa:</font></b> Since you say that a judge may rely on someone 
          whom he knows does not lie, I would tear a document on 
          the word of someone like my son Aba Mar.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Can that really be?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Correction:</font></b> Rather, I would not allow one to collect with 
          it (Tosfos - without swearing).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SEEMINGLY FALSE MATTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Rav Bivi bar Abaye ruled that a certain woman must swear 
          to avoid paying. The claimant requested that she swear in 
          her home city, for perhaps she would be ashamed to swear 
          falsely there.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  The woman:</font></b> First write a document saying that I swore and 
          was acquitted, and they will give it to me after I swear.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rav Bivi:</font></b> Write it for her.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Rav Papi):</font></b> Rava said that if a validation (of 
          a document) was written before the witnesses affirmed the 
          signatures, it is invalid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A matter that appears false is invalid. The same 
               applies here (we cannot write that she swore, before 
               she swears)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> From Rav Nachman, we see that Rav Papi is 
          wrong.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> R. Meir used to say that if a man 
               finds a Get in the trash with the proper names, if 
               he told witnesses to sign it and gave it to his 
               wife, she is divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim only argue because they say that a Get 
               must be written Lishmah (with intent for the man and 
               woman). They agree about other documents!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Asi):</font></b> If a document was paid up, it may 
                    not be used for another loan, because its power 
                    to obligate payment had been pardoned.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If not for this, it could be used, even though 
                    it appears to be false!
<br>
<br>

sjt:
<font><b>1) ANNULLING A DEBT THAT IS NOT IN ONE'S POSSESSION</b></font><b>
<br>QUESTION:</b> The Gemara teaches that a lender can forgive a loan after selling the contract of debt to someone else. That is, Reuven, who loaned money to Shimon, sells the Shtar Chov (contract of debt) to Levi. Reuven can be Mochel (forgive) the debt even after the Shtar is purchased by Levi, and consequently Shimon does not have to pay Levi. (The Gemara on 86a discusses whether or not Reuven has to reimburse Levi.)
</p><p>
How could a person forgive a loan that he has already sold and which is no longer in his possession? 
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU CHANANEL</b> (cited anonymously by the <b>RIF</b>, and attributed to Rabeinu Chananel by the Ran) explains that the person who sells the Shtar Chov can cancel the debt even after its sale since he can say that he checked his records and found that the debt had already been paid, or that he is not sure whether or not the debt was already paid.
</p><p>
The Rif and others reject this approach for a number of reasons. First, from the Gemara's wording it seems that the creditor did not say that the debt was paid, but that he is <i>forgiving</i> the loan. How can he do that? Second, even if the creditor does admit that the debt was paid, how can that prevent the buyer of the Shtar Chov from collecting it? We learned earlier (19a) that a person's own admission is not believed if it causes a loss to others. If so, the seller should not be able to cause the buyer of the Shtar Chov a loss by 'admitting' that there is no longer any debt!
</p><p>
(b) <b>TOSFOS</b> (DH ha'Mocher) in the name of the <b><b><b>RI</b></b></b> explains that mid'Oraisa a person cannot sell a loan, because it is not an object upon which a Kinyan can be made.
</p><p>
It is true that if the borrower owns property, there can be a Shibud (lien) placed upon the real estate. A lien constitutes a partial Kinyan, and thus it is something that the lender <i>can</i> sell. If, however, the borrower has no real estate, then the lender has nothing of the borrower's to sell, since there is no such thing as a lien on movable property (Metaltelin). Therefore, the sale is not valid mid'Oraisa. It is only a rabbinical institution that a person can sell a loan.
</p><p>
Since mid'Oraisa the debt still belongs to Reuven, he is able to forgive it. The Mechilah, which is mid'Oraisa  uproots the sale of the loan, since the sale is only mid'Rabanan.
</p><p>
Would the Ri maintain that one <i>cannot</i> forgive a debt he has sold if the borrower has real estate? The Ri does not differentiate between whether the borrower actually had land at the time of the sale or not. It seems that since the lender intends to sell the loan alone (and not the Shibud) when the borrower does not have any land and there is no Shibud to sell, so, too, anytime the lender sells a Shtar Chov, his intention is to sell the loan and not the Shibud (even when the borrower does have land).
</p><p>
Tosfos points out that because of this, if a loan is transferred in a manner that works mid'Oraisa, then the lender cannot forgive the loan once it is no longer in his possession. Such a transfer that works mid'Oraisa includes, according to various opinions, a Matnas Shechiv Mera (the gift of a dying person; see Bava Basra 147b, as cited by Tosfos here), a case of Shibuda d'Rebbi Nasan (where Reuven owed someone else money before he lent money to Shimon, he may transfer his loan to his own creditor; see Kesuvos 19a and Tosfos there, DH u'Chegon), and Ma'amad Shelashtan (where the lender transfers the loan in the presence of the borrower; see Gitin 13b and Tosfos there).
</p><p>
(c) Tosfos here writes that <b>RABEINU TAM</b> also rules that the sale of a loan is mid'Rabanan. However, Rabeinu Tam later retracted this view (<b>TOSFOS SHANTZ</b>) and decided that the sale of a loan is valid mid'Oraisa. Why, then, can the lender forgive the loan that is no longer in his possession?
</p><p>
The <b>ROSH</b> (9:10), <b>RAN</b> and other Rishonim write in the name of Rabeinu Tam that the original lender can forgive the loan for a different reason. A loan creates two different Shibudim (obligations) upon the borrower. First, there is a 'Shibud ha'Guf' -- the borrower becomes personally obligated to repay the loan that was given to him. It is a personal obligation, which the Gemara (86a) refers to when it says, 'Peri'as Ba'al Chov Mitzvah' (the repayment to a creditor is a Mitzvas Aseh). The lender cannot sell this part of the loan.
</p><p>
Second, besides the Shibud ha'Guf, the borrower's property becomes collateral to the lender, so that the lender has the right to collect from any assets that the borrower owns at the time that the loan comes due, whether that property is land or mobile property -- the only requirement is that it be in the borrower's possession, i.e. he has not sold it. (Rabeinu Tam calls this is a 'Shibud Nechasim,' even though it is not what is usually referred to by the words 'Shibud Nechasim.' What is usually referred to as 'Shibud Nechasim' allows a person to collect from land even after it leaves the borrower's possession, and it does not take effect on mobile property.) The right to collect from the borrower's possessions is based on the principle that 'a person's possessions are his guarantors.' (Bava Basra 174a). They take responsibility for the repayment of any loans that the person himself fails to repay.
</p><p>
This second Shibud -- the right to collect from the property of the borrower -- <i>is</i> transferable, and that is what the lender sells; this sale is valid mid'Oraisa. However, if the lender forgives the loan after the sale, then the Shibud ha'Guf, the first Shibud, which the lender did <i>not</i> sell (since it is not transferable), becomes annulled. Once there is no longer a Shibud ha'Guf on the borrower, the Shibud ha'Nechasim is annulled too, since the borrower's property is no longer obligated to repay the loan for him if his loan has been annulled. That is why the buyer of the Shtar can no longer collect the debt.
</p><p>


lvr: 32
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>JUDGMENTS BASED ON ESTIMATION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Levi (claims that he) deposited seven pearls wrapped in a 
          garment with R. Miyasha. R. Miyasha died, without leaving 
          any instructions.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  R. Ami:</font></b> (We believe Levi.) Firstly, R. Miyasha is not 
          estimated to be rich. Secondly, Levi has an identifying 
          Siman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only if Levi is not frequent in the 
               house. If he is, perhaps another man deposited them, 
               and Levi saw the pearls there.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  David (claims that he) deposited a silver cup with Chasa. 
          Chasa died, without leaving any instructions.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rav Nachman:</font></b> I know that Chasa is not rich. Also, David 
          has an identifying Siman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only if David is not frequent in the 
               house. If he is, perhaps another man deposited it, 
               and David saw it there.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  Yakov deposited a silk garment with Rav Dimi. Rav Dimi 
          died, without leaving any instructions.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  R. Aba:</font></b> I know that Rav Dimi is not rich. Also, Yakov has 
          an identifying Siman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only if Yakov is not frequent in the 
               house. If he is, perhaps another man deposited it, 
               and Yakov saw it there.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  A (dying) man said that 'My property should go to Tuvya.' 
          After he died, Tuvya showed up.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> He gets the property.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  If he said 'to Tuvya', and Rav Tuvya came, we do not give 
          to him. The man said 'Tuvya', not Rav Tuvya;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if he is familiar with and informal with 
               Rav Tuvya, he would call him Tuvya.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  If two men called Tuvya come, and one is a neighbor and 
          the other a Chacham, the Chacham receives it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one is a relative, the other a Chacham, the 
               Chacham receives it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> Who comes first, a neighbor or a relative?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> 'A close neighbor is better than a distant 
          brother.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  If both are Chachamim, both are relatives, or both are 
          neighbors the judges gives it to whom they sees fit 
          (Rashi - to whom they think the giver intended; R. Tam - 
          to whichever man the judges prefer).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>PARDONING A SOLD DEBT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rava):</font></b> Shmuel said that if Yakov sold a loan document he 
          can pardon the debt. Even Yakov's heir can pardon it. 
          However, if a woman brought a loan document into 
          marriage, Shmuel would agree that she cannot pardon the 
          debt, since her husband has an equal hand in her 
          property.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A relative of Rav Nachman sold her Kesuvah (the buyer 
          bought rights to collect it if she will be widowed or 
          divorced). She was divorced, and then died. The buyer 
          came to collect from her daughter (who inherited her, and 
          claimed her mother's Kesuvah from her father).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Won't someone counsel her to pardon her 
               father's obligation to pay her mother's Kesuvah (and 
               then she will inherit that money from her father)?
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PARDONING A SOLD DEBT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  The daughter heard the counsel, and pardoned the Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> I acted like a lawyer (and I regret 
               this).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Why did he originally give the counsel, and 
          later regret it?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Originally, he applied 'Do not neglect your 
          flesh.' Later, he felt that an important person should 
          refrain in such a case (lest others do so even for 
          strangers).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Shmuel):</font></b> One who sells a loan document can pardon the 
          debt. Even his heir can pardon it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Huna brei d'Rav Yehoshua):</font></b> If the buyer is clever, 
          he will offer money to the borrower to write a loan 
          document obligating himself to the buyer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Ameimar):</font></b> According to the opinion that one must pay for 
          Garmi (indirect damage), one who pardons a sold debt must 
          pay the full value of the document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The opinion that exempts for Garmi says that the 
               buyer bought a mere piece of paper.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  A case occurred, and Rafram overwhelmed Rav Ashi (with 
          proofs), and Rav Ashi obligated the person to pay the 
          full value.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW WE FORCE PEOPLE TO PAY DEBTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Ameimar):</font></b> If a man must pay a creditor and a Kesuvah, 
          and he has land and money, each receives according to his 
          law: the creditor gets money, and his ex-wife gets land. 
          (The case is, the dates of the loan document and the 
          Kesuvah are the same.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If there is only land, it is given to the creditor.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> A woman wants to get married more than a man does 
          (so she will not refrain even if she has poor rights of 
          collection. People might refuse to lend if they have poor 
          collection rights.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rav Papa (to Rav Chama):</font></b> Did you cite Rava to say that if 
          a creditor demands to be paid money and the borrower only 
          has land, that we force him to sell his land?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rav Chama:</font></b> No.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rav Papa:</font></b> What was the case?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rav Chama:</font></b> The borrower (falsely) claimed that the money 
          in his possession belongs to a Nochri. Since he acted 
          improperly, we treated him improperly, and forced him to 
          sell his land.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question (Rav Kahana, to Rav Papa):</font></b> You hold that it is a 
          Mitzvah to pay a debt. If the borrower says 'I do not 
          want to do the Mitzvah', what happens?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Rav Papa - Beraisa):</font></b> Forty lashes apply to 
          Chayavei Lavin; but if someone refuses to do a Mitzvas 
          Aseh, e.g. to make a Sukah or take a Lulav, we lash him 
          until he fulfills it or until he dies.
<br>
<br>

sjt:
<font><b>1) A WOMAN WHO SOLD THE RIGHTS TO HER KESUVAH AND THEN DIED</b></font><b>
<br>QUESTION:</b> The Gemara (85b-86a) relates an incident about a relative of Rav Nachman who sold the rights to collect her Kesuvah in the event that her husband dies or divorces her. She was later divorced, but she died before her husband gave her the Kesuvah. The Gemara says that the buyers came to the daughter of the woman to claim the Kesuvah money that her mother sold to them. Rav Nachman suggested to the daughter a way to legally extract herself from the obligation to give the Kesuvah money to the buyers and to keep it for herself. He told her to forgive the debt that her father owes her (i.e. the Kesuvah). Even though her mother already sold the rights to collect that debt, a person is able to forgive and annul a debt that was already sold (see Insights to 85b). 
</p><p>
The Gemara continues that even though she forgives the debt of the Kesuvah, she will still receive the money that she would have received from the Kesuvah, since anyway she inherits her father's estate. The buyers of the Kesuvah will not be entitled to receive anything.
</p><p>
Why does the Gemara say that the buyers came to the <i>daughter</i> to collect the Kesuvah? Obviously, the Kesuvah was not yet in the hands of the daughter -- because it was still a debt that the father owed to her which she had the ability to forgive and annul, as Rav Nachman suggested to her that she do. Why, then, did the buyer not go directly to her <i>father</i> and demand from him the money of the Kesuvah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (85b, DH Asu) explains that the daughter had already approached her father to ask him for the Kesuvah. Therefore, the buyers, upon seeing her approach her father to collect the Kesuvah, went to her to inform her that the Kesuvah is not hers to collect. They were not actually trying to collect anything from her.
</p><p>
(b) The <b>ROSH</b> and <b>RITVA</b> say that not only did the girl's mother die, but the girl's father also died after divorcing his wife. Hence, as heir to her father's property, the buyers had to approach <i>her</i> to claim the Kesuvah. This also explains why Rav Nachman was so sure that if she forgives the debt of the Kesuvah, she would still get the money as a Yerushah, and he was not concerned that the father would use it up or that she would die before her father; since the father was already dead, she would immediately inherit his estate.
</p><p>
Why does Rashi not accept this simple explanation? The answer is that the Gemara in Bava Kama (109a) explains that a person cannot forgive a debt that he owes to himself. If he owes it to himself, it is considered as though it has been collected already and there is nothing to forgive! Therefore, if the girl's father had already died, she cannot forgive the debt of the Kesuvah that he owes her, because since she inherited his estate, she owes herself the money of the Kesuvah and there is no debt to speak of that she could forgive! It is as if she has already collected it, and thus the buyers are entitled to receive it.
</p><p>
The Rosh and Ritva, on the other hand, maintain that our Sugya teaches that a person <i>is</i> able to forgive a debt owed to himself and it is not considered to be already collected. They learn that this Sugya disagrees with the Sugya in Bava Kama regarding whether or not one may forgive a debt that he owes to himself. (See the <b>RASHBA</b> in Bava Kama there, who explains that even if our Sugya is discussing a situation where the father already died, it does not contradict the Sugya in Bava Kama, since the Gemara in Bava Kama that says one cannot forgive a debt owed to himself is discussing a specific, limited situation.)
</p><p>
The <b>RAMBAN</b> (81b) points out that Rashi's opinion that one cannot forgive a debt owed to himself answers a question that Tosfos poses (81b, DH Lo). The Gemara there says that if a man owes money to his brother, and his brother dies with no children, making the brother who borrowed money into a Yavam who must do Yibum with his lender's wife, the Yavam cannot say that 'since I inherit my brother's property through Yibum, I now owe myself money, and the money belongs to me [and is not Meshubad to the Kesuvah of the Yevamah].' Rather, the money must remain designated for the collection of the Kesuvah of the Yevamah.
</p><p>
Tosfos asks why the Yavam cannot simply forgive the debt. Since the living brother owes his deceased brother money, and the living brother inherits the property of -- and the debts owed to -- his deceased brother, he should be able to act on behalf of his brother and annul the debt (since the heir of a debt can forgive the debt)!
</p><p>
According to Rashi, this question does not begin. Once a person owes money to himself, it is considered as though he paid it already, and it is too late to forgive the debt. The money therefore already became Meshubad towards the payment ofn the Yevamah's Kesuvah.
</p><p>


lvr: 32
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A 'GET' LEFT ON THE SIDE OF A 'RESHUS HA'RABIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rami bar Chama):</font></b> If her husband gave her Get 
          and said 'you are not divorced until 30 days from now' 
          and she left the Get on the side of a Reshus ha'Rabim 
          (near the wall, where most people do not walk. If the Get 
          was still there at the end of 30 days), what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Version #1 - Answer #1 (Rav Chisda):</font></b> We learn from Rav 
          and Shmuel that she is not divorced (because it is not 
          considered her Reshus. A Get must be put 'b'Yadah', into 
          her hand or Reshus).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav and Shmuel):</font></b> Seizure of orphans' property helps 
               only if the property is in a Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The side of a Reshus ha'Rabim is like a Reshus 
               ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2:</font></b> Just the contrary, we learn from Rav Nachman 
          that she is divorced!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If Reuven told Shimon 'be Moshech 
               this cow, but it is not yours until 30 days', he 
               acquires it then, even if it is in a swamp.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> A swamp is like the side of a Reshus 
               ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> No, a swamp is different.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Version #2 - Answer #1 (Rav Chisda):</font></b> We learn from Rav 
          Nachman that she is divorced;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A swamp is like the side of Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2:</font></b> Just the contrary, we learn from Rav and 
          Shmuel that she is not divorced!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The side of a Reshus ha'Rabim is like a 
               Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> No, they are different.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CAN ONE MAKE HIS WIFE SWEAR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one appointed his wife to sell his produce 
          or oversee his affairs, he can make her swear (that she 
          did not embezzle money) whenever he wants;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Eliezer says, he can make her swear even about the 
          thread she spins or the dough she bakes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Does R. Eliezer say that he can make 
          her swear only through Gilgul (if she must swear about 
          something else, she must include in the oath about the 
          thread or dough)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Or, can he make her swear about these by themselves?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Beraisa - Chachamim (to R. Eliezer)):</font></b> A person 
          cannot live with a snake in a basket.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Granted, if he can make her swear on these 
               alone, this is intolerable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if he can only make her include these when 
               swearing about other things, what difference does it 
               make to her?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> Still, she can say that she cannot live with 
          someone who is so exacting with her.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (Beraisa):</font></b> If a man did not exempt his wife 
          from vows and oaths and appointed her to sell his produce 
          or oversee his affairs, he can make her swear whenever he 
          wants;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he did not appoint her to sell or oversee 
               matters, he cannot impose an oath on her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer says, even if he did not appoint her to 
               sell or oversee matters, he can make her swear 
               whenever he wants, since every woman is sometimes 
               like an overseer over her thread and dough.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chachamim:</font></b> A person cannot live with a snake in a 
               basket.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that R. Eliezer says that he can 
                    make her swear about these alone.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man wrote to his wife 'I have no vow or 
          oath against you', he cannot make her swear, but he can 
          impose an oath on her heirs or someone who bought her 
          Kesuvah (when they come to collect her Kesuvah after she 
          was divorced and (regarding heirs) died).
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  If he wrote 'I have no vow or oath against you, your 
          heirs, or one who buys your Kesuvah', he cannot impose an 
          oath on her, her heirs, or one who bought her Kesuvah; 
          but his heirs can impose an oath on them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  If he wrote 'I, my heirs, or one who buys my property 
          have no vow or oath against you, your heirs, or one who 
          buys your Kesuvah', this takes effect.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  If she went from burying her husband to her father's 
          house, or returned to her father-in-law's house, and did 
          not become an overseer, the heirs cannot make her swear.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  If she became an overseer, the heirs can make her swear 
          about the future (after he died), but not about the past 
          (in his lifetime).
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHICH OATH DID HE EXEMPT HER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Gemara):</font></b> Which oath is this (from which he exempts her)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav Yehudah):</font></b> It is the oath about when she 
          was an overseer in the life of her husband.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rav Nachman):</font></b> It is even the oath that 
          Chachamim imposed on one who received part of her Kesuvah 
          and requests the rest.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Rav Mordechai):</font></b> Granted, according to Rav 
          Nachman a woman anticipates that she may need to be paid 
          part of the Kesuvah in advance, and she would ask her 
          husband to exempt her from swearing on the rest;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But according to Rav Yehudah, did she expect to be 
               an overseer and ask to be exempted from that oath?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> You learn that Rav Yehudah explained 
          the Reisha (therefore you have a difficulty). We learn 
          that he discussed the Seifa (and Rav Nachman explains the 
          Reisha);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If she went from burying her husband to her 
               father's house, or returned to her father-in-law's 
               house, and did not become an overseer, the heirs 
               cannot make her swear. If she became an overseer, 
               the heirs can make her swear about the future, but 
               not about the past.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is an oath about the past (from which 
               she is exempt)?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Rav Yehudah):</font></b> It is the oath about when 
               she was an overseer in his lifetime. His heirs can 
               make her swear about from his death until the 
               burial. (The property fell to them, so his 
               stipulation does not exempt her.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Rav Masnah):</font></b> They cannot make her swear 
               even about the period from his death until the 
               burial.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Chachamim of Nehardai):</font></b> To pay for head-tax, 
                    burial or food, we sell property of orphans 
                    without waiting the usual 30 days of auctioning 
                    (because there is no time. Likewise, she does 
                    not have time before burial to sell for the 
                    proper price, so we exempt her from swearing.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH EXPRESSIONS EXEMPT FROM AN OATH TO THE HEIRS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rabah citing R. Chiya):</font></b> If a man wrote '(I have against 
          you) no vow and no oath', he cannot make her swear, but 
          his heirs can;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote 'clean vow, clean oath (you are exempt 
               from a vow or oath)', neither he nor his heirs can 
               make her swear.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He meant that she is totally clean from the 
                    need to swear.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Yosef citing R. Chiya):</font></b> If he wrote 'no vow and no 
          oath', he cannot make her swear, but his heirs can;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote 'clean vow, clean oath', both he and his 
               heirs can make her swear.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He meant that if she is suspected she will 
                    clear herself by swearing.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (R. Zakai):</font></b> Whether he wrote 'no oath', 'clean oath', 'no 
          vow', or 'clean vow', if he said 'in (Bach - from) <i>my</i> 
          property', he cannot make her swear, but his heirs can;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote 'from <i>these</i> properties', neither he 
               nor his heirs can make her swear.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Version #1 (Rav Nachman, citing Aba Sha'ul ben Eima 
          Miryam):</font></b> Whether he 'no oath', 'clean oath', 'no vow', or 
          'clean vow', whether he wrote 'from <i>my</i> property' or 
          'from <i>these</i> properties', neither he nor his heirs can 
          make her swear;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But what can I do? We learned that one can collect 
               from orphans' property only if he swears!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Version #2 (Beraisa - Aba Sha'ul ben Eima Miryam):</font></b> 
          Whether he 'no oath', 'clean oath', 'no vow', or 'clean 
          vow', whether he wrote 'from my property' or from these 
          properties', neither he nor his heirs can make her swear;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But what can I do? We learned that one can collect 
               from orphans' property only if he swears!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> The Halachah follows Aba Sha'ul.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CASES THAT ALWAYS REQUIRE AN OATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> In all the following cases, a woman must swear 
          to receive her Kesuvah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She admits that she already received partial 
               payment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One witness says that it was paid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> She collects from orphans.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> She collects from buyers.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> She collects in her ex-husband's absence.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  An example of partial payment is when the Kesuvah was 
          1000 Zuz, he says that she received it all, and she says 
          that she received only 100. She collects only with an 
          oath.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  A case of one witness is when the Kesuvah was 1000 Zuz; 
          he says that she received it, she denies this, and one 
          witness says that it was paid. She collects only with an 
          oath.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  The case of collecting from buyers is when her husband 
          sold his property to others, and she collects from them. 
          She collects only with an oath.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  The case of collecting from orphans is when he died and 
          left his property to orphans, and she collects from them. 
          She collects only with an oath.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  The case of collecting in her husband's absence is when 
          he went overseas, and she collects in his absence. She 
          collects only with an oath;
<br>
<br>

sjt:
<font><b>1) EXEMPTING ONE'S WIFE FROM A SHEVU'AH</b></font><b>
<br>QUESTION:</b> The Mishnah (end of 86b) describes how a husband can exempt his wife from having to make a Shevu'ah to him or to his heirs when she wants to collect her Kesuvah. The Gemara here cites Aba Shaul who says that if a husband exempts his wife from a Shevu'ah, whether he says, 'There should be no Shevu'ah,' or 'You should be clean from a Shevu'ah,' whether he exempts her from a Shevu'ah or a Neder in such manners, she really <i>should</i> be exempt from making a Shevu'ah when she collects her Kesuvah either from him or from his heirs, but, says Aba Shaul, 'What can I do? The Chachamim said that when collecting the Kesuvah from orphans, she must make a Shevu'ah!'
</p><p>
What does Aba Shaul mean by this? If the husband exempted her from a Shevu'ah, then she should not have to make a Shevu'ah even when she collects from the orphans, like our Mishnah states!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RIF</b> and <b>RAMBAM</b> (Hilchos Ishus 16:20) explain that to exempt one's wife from making a Shevu'ah when collecting from his heirs, the husband must say a clear and explicit wording of exemption to her, such as the wording used in our Mishnah. When he says a slightly ambiguous wording (such as, 'There should be no Shevu'ah,' or 'You should be clean from a Shevu'ah'), his statement is not able to exempt her from making a Shevu'ah to collect from the heirs, even though it does exempt her from making a Shevu'ah to collect from <i>him</i>. The reason for this, as the <b>RAMBAN</b> explains, is that the Rabanan instituted that a woman must make an oath in order to collect her Kesuvah from the orphans, and we do not assume that the husband intended to uproot this rabbinic enactment unless he stated so unequivocally.
</p><p>
(b) However, the other Rishonim (<b><b><b>RI</b></b></b>, <b>RASHI</b> according to the <b>RITVA</b>, the <b>ROSH</b>, and others) point out that the Gemara later (88b) implies that the Chachamim argue with Aba Shaul, and they hold that the man can exempt the woman from a Shevu'ah even when collecting from the orphans. If so, our Mishnah is following the opinion of the Chachamim and Aba Shaul is indeed arguing with the opinion expressed in the Mishnah. Aba Shaul holds that even though the husband can exempt her from the Shevu'ah of an Apotropos or the Shevu'ah of a Pogemes, he cannot exempt her from the Shevu'ah of collecting from orphans.
</p><p>
The <b>SHITAH MEKUBETZES</b> (citing <b>TALMIDEI RABEINU YONAH</b> and <b>RIVASH</b>) points out that this explains Aba Shaul's strange phraseology: 'She should be exempt, but what can I do, for the Chachamim ruled that a woman must swear before collecting from the Yesomim.' What he meant was, she will indeed be exempt from the Shevu'ah of an <i>Apotropos or Pogemes</i>, but that will not help her, practically, since as soon as she tries to collect her Kesuvah she will have to swear the Shevu'ah of a woman who collects her Kesuvah from the orphans, which includes all that an Apotropos or Pogemes must swear about.
</p><p>
The Rishonim point out that even according to Aba Shaul, there is a way to exempt a wife from a Shevu'ah when collecting from the orphans:
</p><p>
1. Aba Shaul is only discussing a case where the husband <i>verbally</i> exempts her from a Shevu'ah, but when he <i>writes</i> in a contract that she is exempt from a Shevu'ah, she is indeed exempt (according to the <b>RASHBA</b>). 
<br>2. The <b>RASHBA</b> and <b>TALMIDEI RABEINU YONAH</b> also say that the wife is exempt from a Shevu'ah to the orphans when the husband makes a Kinyan on his declaration of her exemption. 
<br>3. Furthermore, Talmidei Rabeinu Yonah add that if the husband points to specific items of his property and he says that she may collect from those items without making a Shevu'ah, then the exemption is effective -- since the heirs only inherit that property with the pre-existing condition that the wife will not have to swear upon its collection.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (EH 98) rules like the Rambam, that a clear, unambiguous wording <i>does</i> exempt the woman from making a Shevu'ah to collect her Kesuvah from the orphans. The <b>REMA</b>, on the other hand, rules like the Rosh, that even an explicitly worded exemption cannot exempt her, since we rule like Aba Shaul and not like the Mishnah.
</p><p>
However, if the wife dies before collecting the Kesuvah, her children <i>can</i> collect the Kesuvah from the husband's heirs without a Shevu'ah. If we were to make them make a Shevu'ah, they would not be able to collect at all, since the Shevu'ah was actually the mother's requirement, and a person cannot bequeath to her children the requirement to make a Shevu'ah ('Ein Adam Morish Shevu'ah l'Vanav'). We are not so stringent on the woman's family as to uphold the requirement for her to make a Shevu'ah  even if it causes her children to become unable to collect the Kesuvah at all.
</p><p>
Regarding the other exceptions that the Rishonim mention where even Aba Shaul will agree that the husband can exempt his wife from a Shevu'ah to collect from the orphans, the <b>CHELKAS MECHOKEK</b> writes that since the Rema does not mention them, apparently he does not accept those opinions, and he does not make exceptions to Aba Shaul's ruling.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Shimon says, whenever she claims her Kesuvah, the 
          heirs can make her swear. If she does not claim her 
          Kesuvah, they cannot make her swear.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Gemara - Rami bar Chama):</font></b> The oath (in the Reisha) is 
          mid'Oraisa. She claims 200, and he admits to 100. This is 
          Modeh b'Miktzas. In every case of partial admission one 
          must swear!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection #1 (Rava):</font></b> In every mid'Oraisa oath, one swears 
          to avoid paying. Here, she swears to receive!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection #2 (Rava):</font></b> Oaths (mid'Oraisa) do not apply when 
          the contested debt has a lien to be paid from land!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rava):</font></b> Rather, the oath is mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who pays is meticulous, but one who is paid is 
               not so careful. Chachamim imposed an oath on her so 
               that she will be more exact.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> If witnesses say that she received part of her 
          Kesuvah, must she swear to receive the rest?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he paid the rest at another time, also then he 
               would have paid it in front of witnesses (so she 
               need not swear);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps there just happened to be witnesses when 
               he paid part (but he is not careful to pay in front 
               of witnesses)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer (Mishnah):</font></b> Every oath mid'Oraisa is to avoid 
          paying. The following swear (mid'Rabanan) to receive:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A worker;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who was robbed;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One who was wounded;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One who claims payment from one who (may not swear 
               because he) is suspected to swear falsely;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If Reuven told Shimon to pay Reuven's workers, and 
               Shimon says that he paid, and the workers deny this, 
               Shimon and the workers swear and receive.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> One who admits that his loan document was partially 
               paid, not in front of witnesses.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Inference:</font></b> Had witnesses seen the partial payment, 
               he would not swear!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b> No, the Mishnah teaches that even if there are 
          no witnesses, he swears.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is not so surprising that when there are 
               witnesses, he swears. When there are no witnesses, 
               one might have thought that admitting to partial 
               payment is like Hashavas Aveidah (returning a lost 
               object), and he receives the rest without swearing. 
               The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> If she admits that her Kesuvah was partially 
          paid, and includes payments of less than a Perutah, must 
          she swear to receive the rest?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that since she is so exacting, surely she 
               is telling the truth?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps this is a scheme (to make us think that 
               she is exact, so we will exempt her from swearing)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Question:</font></b> If she admits that she is not entitled to the 
          amount written in her Kesuvah, must she swear about what 
          she says that she is entitled to in order to receive it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is this like admitting to partial payment? If so, 
               she must swear;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, is it different because she does not admit to 
               any partial payment?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> One who admits that she is not entitled 
          to the amount written in her Kesuvah receives the rest 
          without an oath.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Kesuvah says 1000, he says that he paid it, 
               and she denies this but she admits that she accepted 
               that it be only 100, she is paid without swearing.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why does she receive (100)? Her Kesuvah is 
               an invalid document!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rava brei d'Rabah):</font></b> She says that he 
               authorized the witnesses to write a Kesuvah for 
               1000, just she promised him that she will claim only 
               100.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SWEARING AGAINST ONE WITNESS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one witness says that it was paid...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rami bar Chama):</font></b> The oath is mid'Oraisa. 'One witness 
          will not obligate a person for any sin...', but he can 
          force a person to swear.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Wherever two witnesses would obligate a person to 
               pay, one witness forces him to swear.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection #1 (Rava):</font></b> In every mid'Oraisa oath, one swears 
          to avoid paying. Here, she swears to receive!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection #2 (Rava):</font></b> Oaths (mid'Oraisa) do not apply when 
          the contested debt has a lien to be paid from land!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rava):</font></b> Rather, the oath is mid'Rabanan, to appease the 
          husband.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW TO FORCE HER TO TAKE AN OATH OF THE 'TORAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Papa):</font></b> If he is clever, he will force her to take an 
          oath mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He pays the Kesuvah again in front of a different 
               witness. He joins the two witnesses (so she cannot 
               deny receiving her Kesuvah), and claims that the 
               first payment was a loan. (Since she contradicts the 
               witness who saw the first payment, she must swear 
               mid'Oraisa.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection (Rav Shisha brei d'Rav Idi):</font></b> The two witnesses 
          cannot be joined (since they saw different matters. She 
          could contradict both of them and collect a third time!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav Shisha):</font></b> Rather, the second time, he pays her in 
          front of the original witness and another witness. Now, 
          he can prove that he paid once, and he claims that the 
          first payment was a loan.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Rav Ashi):</font></b> She can claim that she had two 
          Kesuvos, and this is what he paid her! (The first witness 
          supports her!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> Rather, he must tell the witnesses why he is 
          doing this, and that there was only one Kesuvah. (She is 
          not believed to say that she had two Kesuvos, for this is 
          unusual.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GETTING PAID FROM OTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> (When she collects) from buyers...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Also orphans collect only with an oath.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> From whom do they collect?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is from the borrower.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Their father would have collected without 
               an oath. Must they make an oath?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Orphans who collect from orphans must swear.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Zrika):</font></b> This is only when the borrower's children 
          say 'our father said that he borrowed and paid.' If they 
          say 'our father said that he never borrowed', they do not 
          pay.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> Just the opposite! Denying the loan is 
          admission that it was not paid! (And a document says that 
          there was a loan!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Correction (Rav Zrika):</font></b> Orphans who collect from orphans 
          must swear, only when the borrower's children say 'our 
          father said that he borrowed and paid.' If they say 'our 
          father said that he never borrowed', they pay, and no 
          oath is needed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Denying a loan is like admitting that it was not 
               paid.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Mishnah):</font></b> One who is paid up in her husband's absence 
          must swear.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav Acha):</font></b> A case occurred, and R. Yitzchak said that 
          only a Kesuvah is paid up in the husband's absence to 
          encourage marriage, but a loan is not paid in the 
          borrower's absence.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Rava):</font></b> Also a loan is not paid in the borrower's 
          absence, lest borrowers take the money and go abroad. If 
          Beis Din would not collect in such a case, people would 
          be hesitant to lend.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>R. SHIMON'S OPINION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Shimon):</font></b> (The heirs can make her swear 
          only) when she demands payment of her Kesuvah...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Which case does R. Shimon discuss?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1 (R. Yirmiyah):</font></b> Chachamim (86a) taught that one 
          who is paid in her husband's absence must swear, whether 
          she demands food or her Kesuvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon argues and says that the heirs can make 
               her swear only when she demands her Kesuvah.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A SHEVU'AH D'ORAISA AND A SHEVU'AH D'RABANAN</b></font><b>
<br>QUESTIONS:</b> The Mishnah (87a) lists the Shevu'os d'Rabanan that a woman might need to make in order to collect her Kesuvah. Among these are listed the Shevu'ah of 'Pogemes' (which is made when the husband claims that he paid her all of the Kesuvah, and she admits that she received part of it) and the Shevu'ah of 'Ed Echad' (which is made when a single witness supports the husband's claim that he paid the Kesuvah).
</p><p>
The Gemara tells us that in the case of the Shevu'ah of Ed Echad, if the husband is cunning, there is a way for him to require her to make a Shevu'ah d'Oraisa instead of the Shevu'ah d'Rabanan that she is supposed to make. By paying the Kesuvah to her a second time in front of witnesses, thereby turning one of the two payments of her Kesuvah into a loan, he can then require her to make a Shevu'ah d'Oraisa in order to exempt herself from repaying the loan. She will either have to make the Shevu'ah d'Oraisa, or repay one of the payments.
</p><p>
<b>RASHI</b> explains that the advantage in having her make a Shevu'ah d'Oraisa is that it is a much more serious Shevu'ah, since it is done with the name of Hash-m and while holding a Sefer. Hence, she is more likely to back out from making a Shevu'ah d'Oraisa than a Shevu'ah d'Rabanan.
</p><p>
Why does Rashi explain that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a Shevu'ah d'Oraisa is made with the name of Hash-m and while holding a Sefer? Earlier (87b), when Rami bar Chama initially thought that the Shevu'ah of a Pogemes is a Shevu'ah d'Oraisa, Rashi explains that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a person who is obligated to make a Shevu'ah d'Rabanan can 'reverse' the Shevu'ah and ask the other litigant to swear. In contrast, if the person is obligated to make a Shevu'ah d'Oraisa and he does not want to, he has to pay and he has no option of reversing the Shevu'ah. Since the Shevu'ah of Pogemes in our Mishnah is d'Rabanan, if the woman does not want to swear in order to receive her Kesuvah, she can tell her husband to swear that he paid her in order to be exempt from paying the Kesuvah. If he does not make a Shevu'ah, she will take the Kesuvah.
</p><p>
Why does Rashi not explain the same way here? Rashi could explain that the Gemara here is saying that if the husband is cunning and he wants to prevent the woman from reversing the Shevu'ah onto him, he could turn it into a Shevu'ah d'Oraisa! (Indeed, this is the way <b>TOSFOS</b> and other Rishonim explain the Gemara)!
</p><p>
(b) Conversely, why does Rashi (87b) explain that when Rami bar Chama mistakenly thought that the Shevu'ah of Pogemes was a Shevu'ah d'Oraisa, he thought so with regard to allowing the Shevu'ah to be reversed onto the husband? Why does Rashi there not explain that Rami bar Chama though that it was a Shevu'ah d'Oraisa with regard to the severity of the Shevu'ah, like Rashi explains here?
</p><p>
<b>ANSWERS:</b>
<br>(a) The Acharonim suggest a number of answers to our first question:
</p><p>
1. The <b>MAHARSHA</b> explains that Rashi does not want to explain that the Gemara's advice to the husband is merely to help him avoid having the Shevu'ah reversed onto him. Having the Shevu'ah reversed onto him is not necessarily a bad thing! After all, we are assuming that the husband is telling the truth and the husband <i>did</i> pay the Kesuvah, so he should prefer to have to swear truthfully and keep his money, than for his wife to swear falsely and wrongfully take money from him. The reversal of the Shevu'ah should be to his advantage, so the Gemara would not suggest that the husband make the woman's Shevu'ah into a Shevu'ah d'Oraisa, which she could not reverse onto him!
</p><p>
2. The <b>PNEI YEHOSHUA</b> adds that in Shevu'os (41a) there is an Amora who is of the opinion that even a Shevu'ah <i>d'Oraisa</i> could be reversed onto one's opponent. Rashi earlier (87b) is explaining the Gemara only according to the Amora who says that a Shevu'ah d'Oraisa <i>cannot</i> be reversed (we will explain soon why Rashi there explains according to that opinion). Here, Rashi is giving a universal difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, that applies according to all of the Amora'im.
</p><p>
3. <b>REBBI AKIVA EIGER</b> suggests that Rashi understood from our Gemara that even <i>after</i> she has already sworn a Shevu'ah d'Rabanan, the husband can still cause the wife to swear <i>again</i> a Shevu'ah d'Oraisa, by using the tactic described in our Gemara -- as the <b>RA'AVAD</b> explains our Gemara, according to the <b>YAM SHEL SHLOMO</b> (Bava Kama 9:47). Beis Din would require a second Shevu'ah after she has already sworn only if the first Shevu'ah did not fulfill the requirements of the second Shevu'ah -- for instance if the first Shevu'ah did not require that she use the Holy Name and hold a Sefer, but the second one does. That is why Rashi must explain that the <i>way a woman swears</i> a Shevu'ah d'Oraisa is more stringent that the way she swears a Shevu'ah d'Rabanan. (Rebbi Akiva Eiger also suggests another explanation for Rashi based on the <b>SHACH</b> in CM 87:35.)
</p><p>
(b) Why does Rashi on the previous Daf (87b) not say that a Shevu'ah d'Oraisa is more severe than a Shevu'ah d'Rabanan, instead of saying that a Shevu'ah d'Oraisa cannot be reversed? 
</p><p>
1. The <b>PNEI YEHOSHUA</b> explains that our Mishnah groups together the Shevu'ah of Pogemes with the Shevu'ah that the woman must make in order to collect her Kesuvah from the orphans (Yesomim) or from buyers who purchased land from the husband (Lekuchos). Since the Mishnah groups them together without differentiating between them, it implies that the Halachos of the two are similar. Hence, if a Shevu'ah d'Oraisa must be done with the name of Hash-m and while holding a Sefer, then Rami bar Chama -- who thought that the Shevu'ah of Pogemes is d'Oraisa -- must have held that a Shevu'ah d'Rabanan also is done with the name of Hash-m and while holding a Sefer! (This is in fact the opinion of <b>TOSFOS</b> on 88a, DH Mayesi, and <b>RASHI</b> in Gitin 35a cited by Tosfos.)
</p><p>
Rashi therefore explains that according to Rami bar Chama, who thought that the Shevu'ah of Pogemes is mid'Oraisa, the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan must be whether one can reverse the Shevu'ah onto one's opponent. Even though this difference does exist between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, the Mishnah nevertheless groups together the Shevu'ah of Pogemes with the Shevu'ah of collecting from Yesomim and Lekuchos, because when it comes to collecting from Yesomim and Lekuchos it is obvious that one cannot reverse a Shevu'ah d'Rabanan on them, since they have no way of knowing whether or not the debt was repaid. 
</p><p>
(See also <b>HAFLA'AH</b> 87b who suggests other ways to answer this question.)
</p><p>
2. Perhaps we may explain Rashi's words (87b) in a different manner. The reason Rashi does not say that Rami bar Chama thought that Shevu'as Pogemes has the <i>severity</i> of a Shevu'ah d'Oraisa is because, as the Ritva asks, Rami bar Chama would not have made such a mistake. It says clearly in the Mishnah in Shevu'os (which the Gemara here quotes) that there is no Shevu'ah d'Oraisa that is 'Nishba v'Notel' -- a Shevu'ah which a person makes in order to <i>take</i> money (as opposed to <i>exempt</i> himself from giving money) <i>must</i> be d'Rabanan. How, then, could Rami bar Chama have thought that this is a Shevu'ah d'Oraisa?
</p><p>
The Rishonim (Ritva, Rashba in Teshuvos 2:54) answer that Rami bar Chama did not really mean to say that the Shevu'ah of Pogemes was a Shevu'ah d'Oraisa, but that it is as severe as a Shevu'ah d'Oraisa since it looks similar to a Shevu'ah d'Oraisa (i.e. Modeh b'Miktzas, where one litigant claims all, and the other admits half). Rava either did not understand that this was Rami bar Chama's intention (Ritva), or he is arguing that it should not have the severity of a Shevu'ah d'Oraisa, since it has no conceptual similarity to a Shevu'ah d'Oraisa; Rava holds the Rabanan would not have given it the severity of a Shevu'ah d'Oraisa.
</p><p>
In defense of Rami bar Chama, the reason Rami bar Chama insists that the Shevu'ah d'Rabanan of the Mishnah is on the same degree as a Shevu'ah d'Oraisa and is different than a normal Shevu'ah d'Rabanan might be because of the question that Rashi (DH Ela Amar) asks. Rashi points out that even if the wife does <i>not</i> admit to having received any of the Kesuvah, the husband can require her to make a Shevu'ah d'Rabanan that she was not yet paid (like the Gemara says in Shevu'os 41a). What, then, is the point of the Shevu'ah of our Mishnah? Rami bar Chama answers that the point of the Shevu'ah of our Mishnah is that since she was Pogemes and admitted to receiving part of the Kesuvah, the Shevu'ah is more strict than the normal Shevu'ah d'Rabanan, and she cannot reverse the Shevu'ah onto her husband.
</p><p>
This, then, is why Rashi does not explain that Rami bar Chama holds that the Shevu'ah is d'Oraisa with regard to using the name of Hash-m and holding a Sefer (even though that would have been a better distinction, since the distinction Rashi makes regarding reversal of the Shevu'ah is disputed by the Amora'im in Shevu'os, as mentioned above, (a):1). Rami bar Chama agrees that the Shevu'ah is only mid'Rabanan, and the Rabanan certainly would not enact that the name of Hash-m be used simply to make the Shevu'ah more severe. Instead, Rashi explains that Rami bar Chama holds that the Rabanan gave it the severity of a Shevu'ah d'Oraisa insofar as not letting the woman reverse the Shevu'ah onto the husband. (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon and Chachamim argue as Chanan and Bnei 
               Kohanim Gedolim do:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #1 - Chanan):</font></b> If a man went overseas 
                    and his wife demands food, she does not swear 
                    now, only when she will collect her Kesuvah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Bnei Kohanim Gedolim say, she swears also now.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>R. Shimon holds like Chanan; Chachamim hold 
                    like Bnei Kohanim Gedolim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Rav Sheshes):</font></b> Our Mishnah says that the 
          <i>heirs</i> make her swear. If the case is like in Mishnah 
          #1, it should say that Beis Din makes her swear!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rav Sheshes):</font></b> Chachamim (86b) taught 'if she 
          went from burying her husband to her father's house, or 
          returned to her father-in-law's house, and did not become 
          an overseer, the heirs cannot make her swear. If she 
          became an overseer, the heirs can make her swear about 
          the future, but not about the past.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon teaches that they can make her swear only 
               if she claims her Kesuvah (but not for being an 
               overseer).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue as Aba Sha'ul and Chachamim do:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> An overseer appointed by the father 
                    must swear to the orphans. One appointed by 
                    Beis Din does not swear;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Aba Sha'ul says oppositely. An overseer 
                    appointed by Beis Din must swear. One appointed 
                    by the father does not swear.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>R. Shimon holds like Aba Sha'ul, and Chachamim 
                    hold like Chachamim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection (Abaye):</font></b> R. Shimon says '<i>whenever</i> she demands 
          her Kesuvah...' (implying that he holds that they can 
          make her swear in more cases than Chachamim). According 
          to you, it should say <i>if</i> she demands her Kesuvah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #3 (Abaye):</font></b> Chachamim (86b) taught 'if he wrote 
          'I, my heirs, or those who come in my stead have no vow 
          or oath on you, your heirs, or those who come in your 
          stead', then he, his heirs, or those who come in his 
          stead cannot impose an oath on them';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon teaches that whenever she claims her 
               Kesuvah, they can make her swear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue as Aba Sha'ul ben Eima Miryam and 
               Chachamim do. (On 87a, Aba Sha'ul ben Eima Miryam 
               said 'whether he wrote 'not an oath', 'clean 
               oath'... 'from my property', or 'from these 
               properties', neither he nor his heirs can make her 
               swear. But what can I do? We learned that one can 
               collect from orphans' property only if he swears!' 
               We may infer that Chachamim argue with him (and 
               exempt), for Rav Nachman said that the Halachah 
               follows Aba Sha'ul.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon holds like Aba Sha'ul ben Eima Miryam, 
               Chachamim hold like Chachamim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection (Rav Papa):</font></b> This explains why R. Shimon said 
          'whenever she claims her Kesuvah, they can make her 
          swear.' It does not explain why he concluded, 'if she 
          does not claim her Kesuvah, they cannot make her swear'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #4 (Rav Papa):</font></b> His concluding words come to argue 
          with R. Eliezer and the Chachamim who argue with him. (On 
          86b, R. Eliezer and Chachamim hold that they can make her 
          swear if she was an overseer, even if she does not claim 
          her Kesuvah.)
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT PROOF IS NEEDED TO COLLECT A 'KESUVAH'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a woman shows a Get without a Kesuvah, she 
          collects a Kesuvah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  In the following cases, one need not pay:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She shows a Kesuvah without a Get and says that she 
               lost her Get, and he says that (Beis Din tore her 
               Get when he paid her Kesuvah, and) he lost his 
               receipt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A creditor shows a loan document (from before 
               Shemitah) without a Pruzbul (a document showing that 
               the loan was given over to Beis Din before Shemitah, 
               which permits collecting it after Shemitah).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon ben Gamliel says, after there were decrees not 
          to keep Mitzvos (we destroy a Get after it is given and a 
          Pruzbul after it is written), a woman collects her 
          Kesuvah without a Get, and a creditor collects his debt 
          without a Pruzbul.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> We learn from our Mishnah that (if a 
          creditor lost his document, we force the borrower to pay 
          and) we write a receipt (even though the borrower might 
          be forced to pay again if he loses the receipt).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we do not write a receipt, we should be concerned 
               lest she collect with her Get, and show her Kesuvah 
               (after her ex-husband dies, claim that she was 
               widowed) and collect again! (Tosfos - this is 
               difficult for the Amora'im who say that we do not 
               write receipts. Rashi - this is difficult, for the 
               Halachah is we do not write receipts!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav):</font></b> (Normally, we do not write receipts.) The 
          Mishnah discusses a place where Kesuvos are not written 
          (so there is no concern).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Shmuel):</font></b> The Mishnah discusses even a place where 
          Kesuvos are written.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Does Shmuel hold that we write a receipt?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Rav Anan):</font></b> No. Shmuel explained to me that in a 
          place where Kesuvos are not written, if he claims that he 
          wrote a Kesuvah, he must bring proof (or pay). In a place 
          where Kesuvos are written, if she claims that he did not 
          write a Kesuvah, she must bring proof (to collect).
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  Rav retracted from what he had said.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Retraction (Rav):</font></b> Whether or not Kesuvos are written 
               or not in the place, if she shows (only) a Get, she 
               receives the basic Kesuvah (100 or 200, but no 
               additions to this). If she shows (only) a Kesuvah, 
               she receives any Tosefes (but not the basic Kesuvah, 
               lest she collect it again by showing her Get).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav:</font></b> If anyone has any objection to this, say it!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Mishnah):</font></b> If she shows a Kesuvah without a Get 
          and says that she lost her Get, and he says that he lost 
          his receipt, or if a creditor shows a loan document 
          without a Pruzbul, the husband or borrower need not pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel can establish the Mishnah to be in a place 
               where Kesuvos are not written. He claims that 
               previously she showed her Get, and he was unable to 
               prove that he had written a Kesuvah, and was forced 
               to pay. Therefore, he does not pay now;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But according to Rav, he should pay the Tosefes!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> The case is, there are no witnesses 
          who saw the divorce.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Migo (since) he would be believed to say that he 
               never divorced her, he is believed to say that he 
               divorced her and paid the Kesuvah.
<br>
<br>

sjt:
<font><b>1) BELEIVING A WOMAN WHO SAYS SHE IS DIVORCED</b></font><b>
<br>QUESTION:</b> The Mishnah states that if a woman brings her Kesuvah to Beis Din and claims that her husband did not yet pay her, and the husband claims that he already paid the Kesuvah but that he lost the receipt, he is not obligated to pay her (until she proves her claim).
</p><p>
In the Gemara, Rav explains that whenever a woman presents her Get without the Kesuvah, she is entitled to receive the principle of the Kesuvah (100 Zuz for an Almanah, 200 Zuz for a Besulah), and when she presents the Kesuvah itself she is entitled to receive the Tosefes (the extra amount that the husband added to the Kesuvah at the time of the marriage). Hence, when she comes with a Kesuvah but without her Get, she does not get the principle amount of the Kesuvah (but only the Tosefes), since she might have collected it already with the Get.
</p><p>
The Gemara questions Rav's ruling from the Mishnah. The Mishnah states that if she comes with only her Kesuvah, the husband does not have to pay her anything. According to Rav, he should have to give her the Tosefes, since there is no way for her to collect the Tosefes on the basis of the Get!
</p><p>
The Gemara answers that the Mishnah is referring to a case where she has no proof that she is divorced. Since the husband would be believed to say he did not divorce her and thus does not owe her anything, he is believed now when he admits that he divorced her but says that he already paid her the Kesuvah.
</p><p>
The answer of the Gemara is based on the assumption that if a woman says that she is divorced and the husband denies it, we believe the husband. This seems to contradict the Gemara earlier (22b) that says that if a woman says in her husband's presence that he divorced her, she is believed! How are these two Gemaras to be reconciled?
<br> 
<br><b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Migu) answers that the reason the woman is not believed to say that she is divorced in the case of our Gemara is because she is accompanying the claim that she is divorced with a demand for payment. When she demands money, she is not believed to say that she is divorced because we are concerned that she is saying that she is divorced only in order to collect the money. In the Gemara earlier (22b), though, she is not making a claim for money when she says that she is divorced, and therefore she is believed.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Ishus 16:26) writes that a woman is believed to say that she is divorced even if she comes to collect her Kesuvah. The Rambam continues and says that although she is believed and collects her Kesuvah, she can only collect the principle Kesuvah (100 or 200) but not the Tosefes.
</p><p>
According to this ruling of the Rambam, we can answer our question as follows. Our Gemara is dealing with whether or not the woman is believed with regard to collecting the <i>Tosefes</i>, and the Gemara concludes that the husband is believed to say that he did not divorce her. According to the Rambam, our Gemara does not contradict the earlier Gemara that states that the woman is believed, since the woman is believed only with regard to the principle Kesuvah and not with regard to the Tosefes!
</p><p>
The obvious question, though, is why is the woman believed to say that she is divorced only with regard to the principle Kesuvah, and not with regard to the Tosefes? Why should she be believed with regard for one and not the other?
</p><p>
The <b>MAGID MISHNEH</b> (ad loc.) writes that the Rambam is of the opinion that the concept of 'Midrash Kesuvah' (basing the laws and guidelines for the collection of the Kesuvah on the words with which the Kesuvah is written) applies only to the principle Kesuvah and not to the Tosefes.
</p><p>
The explanation of this is as follows. The logic to believe a woman who says that she is divorced (in her husband's presence) is that she would not have the audacity to lie in front of her husband. We permit her to remarry on the basis of this logic when she makes such a claim. Although we rely on this logic for matters of Isurim (permitting a woman to marry someone else), it is not sufficient to enable her to collect money, because monetary law requires a clear proof and not just strong logic (see Rambam, Hilchos Gitin 7:24, and Hilchos Avadim 7:2). 
</p><p>
The words in the Kesuvah state, 'Whenever you will be permitted to remarry, you may collect the Kesuvah.' Based on this, it is not necessary to have a <i>clear proof</i> of divorce in order to collect the Kesuvah, since the fact that the Beis Din permits her to remarry fulfills this condition of the Kesuvah! (See Yevamos 117a.) The Rambam is of the opinion that this condition was written only with regard to the main Kesuvah and not the Tosefes. In order to collect the Tosefes, the woman must have clear proof of divorce, like any other monetary matter. Therefore, she may collect only the main Kesuvah based on her claim that she is divorced, but not the Tosefes! (E. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question (Seifa - R. Shimon ben Gamliel):</font></b> From the time 
          of decrees, a woman collects her Kesuvah without a Get, 
          and a creditor without a Pruzbul.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that she has witnesses who saw the 
               divorce. If not, how can she collect?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> R. Shimon ben Gamliel taught the entire Mishnah. 
          It is abbreviated, and it means as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They do not collect (without a Get or Pruzbul). This 
               is when she does not have witnesses who saw the 
               divorce. If she has witnesses, she collects the 
               Tosefes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She collects the basic Kesuvah (100 or 200) only if 
               she shows a Get;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> From the decrees and onwards, even if she does not 
               show the Get she collects, for R. Shimon says that 
               after the decrees a woman collects her Kesuvah 
               without a Get, and a creditor collects without a 
               Pruzbul.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW A WIDOW COLLECTS HER 'KESUVAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rav Kahana to Rav):</font></b> You hold that the basic 
          Kesuvah is collected only with a Get. How does a widow 
          from Nisu'in collect?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You must say that she collects through witnesses 
               that her husband died. We should be concerned lest 
               she was divorced, and she will collect again with 
               her Get!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1:</font></b> The witnesses know that she was living with 
          her husband just before he died.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps he divorced her right before he died!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> If so, he caused that she will be able to collect 
          twice.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> How can a widow from Eirusin collect? If we 
          rely on witnesses that her husband died, we should be 
          concerned lest she was divorced and will collect again 
          with her Get!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (and Answer #2 to Question (a)):</font></b> When there is no 
          other solution, Rav agrees that we write a receipt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not, when she collects with witnesses of death, 
               we should be concerned lest she collect again with 
               other witnesses in a different Beis Din!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS THE SOURCE THAT AN 'ARUSAH' GETS A 'KESUVAH'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Mar Kashisha brei d'Rav Chisda):</font></b> How do we know 
          that a widow from Eirusin receives a Kesuvah (even if he 
          did not write one)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Mishnah):</font></b> If she is widowed or divorced, 
          whether from Eirusin or Nisu'in, she receives everything 
          (her full Kesuvah).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps that is when he wrote for her a 
          Kesuvah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If he wrote for her a Kesuvah, this is 
               obvious! Why did the Mishnah need to teach it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Tana teaches unlike R. Eliezer ben 
               Azaryah, who says that he wrote (Tosefes) only on 
               condition that they have Nisu'in.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Support (Mishnah):</font></b> She collects everything.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is reasonable if he wrote a Kesuvah. But if he 
               didn't write one, why does it say <i>everything</i>? She 
               is entitled to only 100 or 200!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi - Rav Chiya bar Avin's Beraisa):</font></b> If 
          an Arusah dies, her husband is not an Onen. He need not 
          (may not, if he is a Kohen) become Tamei for needs of her 
          burial, and he does not inherit her. Similarly, if he 
          dies she is not an Onenes, and she need not become Tamei 
          for him, but she collects her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps this is when he wrote a Kesuvah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, this is obvious! What does the 
               Beraisa teach?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It teaches that when she dies, he does not 
               inherit her (even though he wrote a Kesuvah and was 
               close to Nisu'in).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rav Nachman):</font></b> According to Rav, who says that 
          she collects the basic Kesuvah with a Get, we should be 
          concerned lest she collect with it again in another Beis 
          Din!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You cannot say that we tear it up when she collects, 
               for she needs it to prove that she may remarry!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Rav Huna):</font></b> We tear it, and write on the back that 
          it was not torn because it is invalid, rather, so she 
          should not collect the Kesuvah again.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A WOMAN WHO REMARRIED HER EX-HUSBAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a woman has two Gitin and two Kesuvos, she 
          collects two Kesuvos. (The date of the first Get is in 
          between the dates on the Kesuvos.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If she has two Kesuvos and one Get (dated after both of 
          them), or one Kesuvah and two Gitin, or one Kesuvah and 
          one Get and witnesses to her husband's death, she 
          collects only one Kesuvah. This is because one who 
          remarries his ex-wife does so on condition that she will 
          receive only her original Kesuvah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> In the Seifa she can collect either 
          Kesuvah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Suggestion:</font></b> This refutes Rav Nachman!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If there are two documents (for the 
               same loan or sale) with different dates, the latter 
               proves that the former is invalid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> No. Rav Papa said that Rav Nachman agrees that 
          if the second document adds to the first, even a date 
          tree, it was written for the addition. (She can opt to 
          collect the first from land sold from the earlier date, 
          or the second from the latter date).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here also, the case is that the second Kesuvah is 
               greater than the first.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A WOMAN WHO REMARRIED HER EX-HUSBAND (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If she has a Get, a Kesuvah and witnesses of 
          death:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Get precedes the Kesuvah, she collects two 
               Kesuvos. If the Kesuvah is before the Get, she 
               collects one Kesuvah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because a man who remarries his ex-wife does 
               so on condition that she will receive only her 
               original Kesuvah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A 'KESUVAH' WRITTEN FOR A PRIOR MARRIAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Yakov married his son Yosef, a minor, to a 
          woman, and Yosef remained with her in adulthood, he 
          consents that the Kesuvah written when he was a minor 
          should be valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If a Nochri converted with his wife, he remains with her 
          on condition that her Kesuvah should be valid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Rav Huna):</font></b> Only 100 or 200 (the basic Kesuvah) 
          is valid, but any addition he had written is invalid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> She is entitled even to the addition.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If he made a new addition to her 
          Kesuvah, she receives the addition.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If he did not add now, she would not 
               receive any (even a previous) addition!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> It means, she receives also the new addition.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection (Seifa):</font></b> If he added to her Kesuvah, she 
          receives the addition. If he did not add, she receives 
          only 100 or 200.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Rav Yehudah is refuted.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  The Mishnah caused Rav Yehudah to err. He understood 'Her 
          Kesuvah is valid' to mean the entire Kesuvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Really, it refers only to the basic Kesuvah.
<br>
<br><b>PEREK <b><b>MI</b></b> SHE'HAYAH</b>
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH WIFE COLLECTS HER 'KESUVAH' FIRST?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man had two wives and he died, his first 
          wife collects before the second, and her heirs collect 
          before the heirs of the second;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he married a woman and she died, then he married a 
          second woman and he died, the second woman or her heirs 
          collect before the heirs of the first wife.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Version #1:</font></b> The Mishnah says that the first wife 
          collects before the second. It does not say that the 
          first collects and the second does not. This implies that 
          if the second wife seized property, she keeps it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Inference:</font></b> If a man owed money to two creditors and the 
          latter collected his debt before the former, the 
          collection stands.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps the collection does not stand;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah says that the first collects before the 
               second, even b'Di'eved!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like the Mishnah that says that a son 
               inherits before a daughter (and clearly, even if she 
               seized property it reverts to the son).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #2:</font></b> The Mishnah does not say that if the second 
          wife seized property, she keeps it. This implies that if 
          she seized property, she does not keep it!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Inference:</font></b> If a man owed money to two creditors and the 
          latter collected his debt before the former, the 
          collection is invalid.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps the collection stands;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa says that the second wife or her heirs 
               come before the heirs of the first wife. (There we 
               could not teach that if the first heirs collected, 
               b'Di'eved they keep it, for this is not true.) For 
               parallel structure, the Reisha said that the first 
               wife comes before the second (even though if the 
               latter collected, b'Di'eved she keeps it).
<br>
<br>

sjt:
<font><b>1) A KESUVAH OF AN INVALID MARRIAGE THAT BECAME VALID</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a father marries off his son when he was a Katan, and the son remains married until he reaches adulthood, the original Kesuvah remains intact and binding. The Mishnah states that the same Halachah applies to a couple who were married as Nochrim and converted. We assume that they remain married with intention that the original Kesuvah (written while they were Nochrim) remain intact and binding.
</p><p>
The Gemara says that in each case, only the principle amount of the Kesuvah (100 Zuz for an Almanah, or 200 Zuz for a Besulah) remains. The husband is not required to pay the Tosefes (the extra money that he wrote in the original Kesuvah) because, as Rashi explains, the original Kesuvah document itself was not valid (since the original marriage was not a legal Jewish marriage). The husband's only obligation to his wife is based on the 'Tenai Beis Din' that requires every husband to give his wife the basic Kesuvah, whether or not a Kesuvah document has been written.
</p><p>
If the original Kesuvah indeed is null and void, then why does the Mishnah state that 'the original Kesuvah is intact... because he kept her as his wife on that condition?' Even without the original Kesuvah the husband is automatically required to pay his wife the basic amounts of the Kesuvah (because of the Tenai Beis Din), so in what way is the original Kesuvah is intact? (<b>TOSFOS</b> DH Lo)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim cite <b>RABEINU TAM</b> (see Tosfos ha'Rosh, Ritva) who answers that the Mishnah is teaching that even though the document has no validity with regard to the time <i>before</i> the marriage took effect legally, it is considered a valid document from the time that the marriage took effect legally (i.e. after the Katan reached adulthood or after the Nochrim converted). Hence, any land of the husband's that was sold before the legal marriage cannot be collected for the Kesuvah; it is not considered Nechasim Meshubadim. But any land of the husband's that was sold after the legal marriage <i>can</i> be collected for the Kesuvah.
</p><p>
Normally, a pre-dated contract of debt is invalid because it implies that the lien on the property started from the earlier date written in the document and thus it will cause a loss to the buyers who purchased the property from the borrower (or husband) before the actual date of the loan (or marriage). The Mishnah, though, is teaching that in the case of a Kesuvah of a Katan who matured there is no such concern, and the original document, although pre-dated, may be used, because no one could have purchased land from the Katan before he reached adulthood and the marriage became valid, since a Katan does not have the authority to sell land! Therefore, the document is valid even though it is pre-dated.
</p><p>
(b) The <b>TOSFOS HA'ROSH</b> does not accept this explanation, since it does not answer why the Kesuvah of the Ger is acceptable, because a Ger was able to sell land when he was a Nochri. The Tosfos ha'Rosh also asserts that the manager (Apotropos) of the estate of a Katan may sell property on behalf of the Katan, and thus there should be a concern that the buyers will lose their property!
</p><p>
The Tosfos ha'Rosh, as well as <b>TOSFOS</b> (DH Lo), therefore maintain that the Mishnah is teaching us that although the original Kesuvah is not valid, the woman nevertheless receives a Kesuvah of a Besulah (200 Zuz) like she would have received had the original marriage been valid, even though at the time that the marriage took effect she was no longer a Besulah. In that sense, the original Kesuvah obligation still remains.
</p><p>
The reason for this is apparently because the Kesuvah of a Besulah is greater because of the more intimate relationship a man has with his wife if he first married her as a Besulah (see Tosfos 4a DH Be'ilas; <b>RASHBA</b> 11a on the second Mishnah). Since the present marriage of the Katan is a continuation of the marriage-like relationship he had with his 'wife' before he reached maturity, we consider their relationship to be that of a man and his Besulah wife, rather than that of a man and his Be'ulah wife. (<b>TOSFOS</b> in Sanhedrin 76b proves from our Mishnah that although the act of Nisu'in performed by a Katan is not valid, nevertheless his Bi'ah is not considered Be'ilas Z'nus. We see from here that the logic that the man gives the woman the Kesuvah based on her status at the <i>beginning</i> of their relationship applies only if the beginning of the relationship was not deemed Z'nus. If it was started with Z'nus, she would only receive a Kesuvah of 100 Zuz. See also <b>DAGUL MEREVAVAH</b> EH 67:6).
</p><p>
An important question may be posed on Tosfos' answer. Why should a Ger be required to give the wife he converted with the Kesuvah of a Besulah (200 Zuz)? We learned earlier (11a) that a Nochris older than three years of age is always considered to be a Be'ulah. Thus, even when the Nochri originally married her, she had the status of a Be'ulah! Consequently, she should not be entitled to receive 200 Zuz for her Kesuvah, but she should receive only 100 Zuz! 
</p><p>
The Rishonim suggest a number of answers to this question:
</p><p>
1. The <b>TOSFID RID</b> says that the case of the Mishnah is where a Nochri (before he converted) married a Jewess, and thus she was indeed a Besulah at the time of the marriage.
</p><p>
The Rishonim strongly reject this explanation, because the wording of the Mishnah implies that both the husband and wife became Gerim. Moreover, the Mishnah would not be teaching a Halachah with regard to someone who performed an Isur (i.e. a woman who married a Nochri).
</p><p>
2. The <b>RIVASH</b> and others say that the case of the Mishnah is where a Nochri married a Nochris when she was under three years old. In such a case, she was certainly a Besulah when she was married (see Mishnah, 11a), and thus she receives 200 Zuz for her Kesuvah.
</p><p>
3. The <b>CHELKAS MECHOKEK</b> (EH 67:13) says that Tosfos is of the opinion that the woman receives 200 Zuz only when he actually wrote her a Kesuvah when they were Nochrim. Even though he is not obligated to give her 200 Zuz based on what he originally wrote in the Kesuvah, we still assume that he remains married with her with the <i>intention</i> of keeping the original obligation, since <i>he</i> considered her a Besulah at the time (see also <b>IGROS MOSHE</b> EH 1:101).
</p><p>
However, the <b>RAMBAM</b> (Hilchos Ishus 11:7; see also Shitah Mekubetzes in the name of 'Rabeinu Moshe') is of the opinion that in the case of the Ger, the woman indeed only receives 100 Zuz for her Kesuvah, even though her original Kesuvah was for 200 Zuz. According to the Rambam, we must find another explanation for what the Mishnah means by saying that 'the original Kesuvah remains intact.'
</p><p>
(c) The <b>RITVA</b> answers that the Mishnah is not teaching anything about the <i>amount</i> of the Kesuvah that she receives. Rather, it is teaching that she is <i>eligible</i> to receive the Kesuvah. 
</p><p>
He explains that even though the couple did not have a formal marriage after the Katan reached adulthood, or after the Nochri converted, they are considered legally married because of 'Ein Adam Oseh Be'ilaso Be'ilas Z'nus'; a person does not want his relations to be extra-marital. This type of marriage happens without <i>explicit</i> intent for marriage on the part of the husband, but through the assumption ('Umdena') that he would certainly prefer marriage to extra-marital relations. One might have thought that for an 'unplanned' marriage such as this, the Rabanan did not institute a Kesuvah. Therefore the Mishnah teaches that this is not so; his wife has the rights to a Kesuvah since 'he kept her as his wife on that condition.' This might be the way the Rambam (see end of (b), above) explained our Mishnah as well.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he married the first...
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  We learn three things from the Mishnah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Kesuvas Benin Dichrin (the enactment that sons 
               inherits their mother's Kesuvah) applies even when 
               the husband dies in the middle (one wife dies before 
               him and the other after him), and we are not 
               concerned for quarrels. (The latter woman's sons 
               might say 'we inherited our mother's Kesuvah <i>from 
               her</i>. You should not inherit <i>from our father</i> (who 
               inherited your mother's Kesuvah) more than us!')
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We learn this from the wording of the Mishnah. 
                    It says that the second wife and her heirs come 
                    before the heirs of the first wife. This 
                    implies that if there is enough property, the 
                    heirs of the first wife also receive.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We learn that collection of a Kesuvah from the 
               estate is considered like having an extra Dinar 
               above the Kesuvos, and the enactment applies 
               (whenever the husband dies in the middle. Kesuvas 
               Benin Dichrin does not apply when it would totally 
               uproot inheritance (52b), but here it is as if the 
               heirs inherited and the latter Kesuvah was collected 
               from them.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We learn this from the fact that the Mishnah 
                    does not say that there must be an extra Dinar.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We learn that Kesuvas Benin Dichrin is not collected 
               from sold land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it would be, the heirs of the first wife 
                    would collect from the heirs of the second.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Objection #1 (Rav Ashi):</font></b> The Mishnah does not prove the 
          first law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps Kesuvas Benin Dichrin does not apply when 
               the husband dies in the middle. Rather, the Mishnah 
               teaches that the heirs of the second wife inherit 
               before heirs of the first wife.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> If the first wife's sons do not 
                    inherit through her, why are they called <i>her</i> 
                    heirs?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> They are called her heirs for parallel 
                    structure with the Seifa (which discusses heirs 
                    of the second wife who inherit her Kesuvah from 
                    her).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Objection #2 (Rav Ashi):</font></b> The Mishnah does not prove the 
          second law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps a Kesuvah is not like an extra Dinar. The 
               case is, there is an extra Dinar in the estate!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN THE HUSBAND DIED IN THE MIDDLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Suggestion:</font></b> Tana'im argue about whether or not Kesuvas 
          Benin Dichrin applies when the husband dies in the 
          middle.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Ben Nanas):</font></b> If the husband died in the 
               middle, sons of the first wife to die can tell sons 
               of the second 'you are children of a creditor. Take 
               your mother's Kesuvah, and leave (we receive the 
               rest through Kesuvas Benin Dichrin)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, the inheritance has already jumped 
               from the first wife's sons to the second wife's 
               sons.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Ben Nanas holds that Kesuvas Benin 
               Dichrin applies when he died in the middle. R. Akiva 
               holds that it does not.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rejection #1 (Rabanan):</font></b> No, all agree that it applies. 
          They argue about whether or not a Kesuvah is considered 
          like an extra Dinar. The argument also applies if payment 
          of a debt from the estate is considered like an extra 
          Dinar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ben Nanas says that payment of a Kesuvah or debt is 
               considered like an extra Dinar. R. Akiva says that 
               it is not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection #2 (Rabah):</font></b> No, all agree that payment of a 
          debt from the estate is considered like an extra Dinar. 
          They only argue about whether or not a Kesuvah is 
          considered like an extra Dinar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rav Yosef):</font></b> If so, why does R. Akiva say 
               that the inheritance has already jumped from the 
               first wife's sons to the second wife's sons? He 
               should say that this applies only if there is an 
               extra Dinar!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rav Yosef):</font></b> They argue about whether or not Kesuvas 
          Benin Dichrin applies when he died in the middle, like 
          originally suggested.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Suggestion:</font></b> The following Tana'im also argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If he married a woman and she died, he 
               married a second woman and he died, this (second) 
               woman's sons collect her Kesuvah after her death;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, if there is an extra Dinar, these 
               collect their mother's Kesuvah and these collect 
               their mother's Kesuvah. If not, they divide the 
               estate equally.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Shimon holds that Kesuvas Benin 
               Dichrin applies when the husband dies in the middle; 
               the first Tana says that it does not.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN THE HUSBAND DIED IN THE MIDDLE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Explanation #1:</font></b> They argue about whether the extra Dinar 
          must be land, or if it can even be Metaltelim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana holds that it must be land. R. Shimon 
               holds that it can even be Metaltelim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rejection (the coming Mishnah - R. Shimon):</font></b> Even if there 
          is extra Metaltelim, the enactment applies only if there 
          is an extra Dinar of land.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Explanation #2:</font></b> They argue about whether or not the extra 
          Dinar may be sold land, or if it must be Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana requires Bnei Chorin. R. Shimon 
               allows sold land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> If so, why does R. Shimon say '<i>if</i> there is 
          an extra Dinar...'? He should say '<i>because</i> there is an 
          extra Dinar!'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Explanation #3:</font></b> They argue about whether a full extra 
          Dinar is required, or if even less than a Dinar suffices.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana requires a full Dinar; R. Shimon 
               allows even less than a Dinar.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection:</font></b> R. Shimon says that there must be an extra 
          Dinar! (This connotes a full Dinar.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps we misunderstood the Beraisa. Really, 
          the first Tana says that the enactment applies (even with 
          less than a Dinar), and R. Shimon says that it applies 
          only when there is a (full) extra Dinar!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Rashi - the first Tana means, (even) this (i.e. the 
               <i>first</i>) woman's sons collect her Kesuvah after her 
               death (due to Kesuvas Benin Dichrin), even without 
               an extra Dinar. Tosfos - the first Tana said that 
               there is no enactment when there is no excess. When 
               there is <i>any</i> excess, it applies.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> In the coming Mishnah, R. Shimon and the 
          Chachamim who argue with him agree that a Dinar is 
          required!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Defense of Explanations #1 and #2:</font></b> We switch our 
          understanding of the Beraisa. The first Tana says that 
          the enactment applies even if the extra Dinar is 
          Metaltelim, or (in Explanation #2) sold land. R. Shimon 
          says that it applies only if the extra Dinar is of land 
          (in Explanation #1 it must be Bnei Chorin).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Mar Zutra):</font></b> The Halachah is, Kesuvas Benin Dichrin 
          applies when the husband dies in the middle. The Halachah 
          is, a Kesuvah is considered like an extra Dinar.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> We understand why it was not enough to say only 
          that Kesuvas Benin Dichrin applies when he dies in the 
          middle, for we might have thought that a Kesuvah is not 
          considered like an extra Dinar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why didn't he just say that a Kesuvah is considered 
               like an extra Dinar? We could deduce that Kesuvas 
               Benin Dichrin applies when he dies in the middle!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that the case is that he 
          married three women, two of whom died before him and the 
          third died after him, and she left only a daughter (and 
          the collection of her Kesuvah counts as an extra Dinar);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if a woman who left sons died after him 
               there is no enactment, lest there be quarrels! Mar 
               Zutra teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN DOES THE ENACTMENT APPLY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man married two women and died after 
          them, and the orphans demand the Kesuvah of their mother 
          and there is enough only to pay the Kesuvos, the heirs 
          split the estate equally;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If there is a Dinar more than the Kesuvos, the sons of 
          each mother receive their mother's Kesuvah. If orphans 
          (of one mother) request to accept property at an inflated 
          price, in order that the estate will be considered to 
          have an extra Dinar, we do not accede. Rather, Beis Din 
          evaluates the property.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Property that was destined to fall to the father is not 
          part of the calculation;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Shimon says, even if there is extra Metaltelim, it 
          means nothing. We require an extra Dinar of land.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> If the Kesuvos are 1000 and 500, if 
          there is an extra Dinar, each woman's sons receive their 
          mother's Kesuvah. If not, they split the property 
          equally.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Obviously, if there was an extra Dinar when he died, but 
          the property depreciated (and when it is appraised, there 
          is not an extra Dinar), the orphans (whose mother had the 
          larger Kesuvah) already merited. (The enactment applies.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> If there was not an extra Dinar when he died, 
          but the property went up in value, does the enactment 
          apply?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> Such a case came before Rav Amram. He told the 
          sons (whose mother had the small Kesuvah) to appease the 
          sons of the other mother; if not, he will excommunicate 
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They came before Rav Nachman. He said that just like 
               when there was an extra Dinar and the property 
               depreciated, the orphans already merited, so too 
               when there was not an extra Dinar and the property 
               rose in value (Rashi - the sons whose mother had the 
               small Kesuvah merited that the enactment does not 
               apply. Tosfos - the sons whose mother had the large 
               Kesuvah merited that the enactment applies.)
<br>
<br>

sjt:
<font><b>1) COLLECTING A DEBT FROM HEIRS OF THE BORROWER</b></font><b>
<br>OPINIONS:</b> The Gemara records a case of a man who died with a debt to a lender of 100 Zuz. The man had land worth 50 Zuz. The lender came to the man's heirs to collect his money and he took the land worth 50 Zuz. The heirs then paid him 50 Zuz in order to get the land back. The lender then collected the remaining 50 Zuz by taking the property that they had just taken back from him. Abaye ruled that the money that the heirs paid (in order to get back the land from the lender) was a fulfillment of their Mitzvah to repay their father's debt, and it was not a purchase of the father's property. That is, they were simply asking the lender to settle for cash instead of taking their property towards the payment of the loan. Therefore, the lien on the land was still binding and the lender was entitled to take it as repayment for the remaining debt of 50 Zuz.
</p><p>
The Gemara explains that Abaye's ruling applies only when the heirs did not specify why they were giving the money to the lender. However, if they explicitly told him that they are giving him the money in order to <i>purchase</i> back the land, then the lender may not expropriate the land again in order to collect the remaining 50 Zuz  (since his lien was 'used up' through his collection of the property towards the loan, and he no longer has any lien on the property).
</p><p>
Rashi and the Rishonim learn from here that Beis Din may only  <i>force</i> heirs to pay their father's debt when they inherited land. If they inherited only money, then although it is a Mitzvah for them to repay (as Abaye states), Beis Din cannot force them to repay.
<br> 
<br>On the other hand, the Gemara (86a) says that Beis Din does force one who owes money to pay his debts. When can Beis Din force a person to pay his debts, and when is it only a Mitzvah?
</p><p>
(a) <b>TOSFOS</b> (86a, DH Peri'as Ba'al Chov Mitzvah) and the <b>RAMBAM</b> maintain that if the heirs inherit land, then Beis Din forces them to pay their father's debts. If they inherit only mobile property (Metaltelin), there is a Mitzvah to repay the debts, but Beis Din does not force them to repay. If they do not inherit anything, then there is not even a Mitzvah to pay their father's debts.
</p><p>
The logic behind this is that Beis Din enforces the lien on the property that is inherited, since the lender has monetary rights to the land which is secured as the lien. Since there is no lien on mobile objects, if the heirs inherit only mobile objects, they are required to pay back the debt only to keep the Mitzvah of Kibud Av. (See Kidushin 31b, where the Gemara says that one is required to honor his parents after their deaths.) Beis Din does not <i>force</i> people to keep this Mitzvah, though, since the reward for this Mitzvah is explicitly stated in the Torah. (This is <i>not</i> the way Rashi here understands the Mitzvah to repay one's father's debts.) If the children do not inherit anything from their father, they are not required to pay his debts since the Halachah does not require one to spend his own money for the Mitzvah of Kibud Av. (<b>HAGAHOS ASHIRI</b> to the Rosh 9:14)
</p><p>
(b) <b>RABEINU CHANANEL</b> and the <b>RASHBA</b> (86a, see also <b>RAN</b>) disagree with the other Rishonim. They maintain that when the heirs inherit mobile objects, Beis Din <i>does</i> force them to pay their father's debts. When they inherit nothing from their father, then there is still a <i>Mitzvah</i> to pay their father's debts, but they are not forced to do so.
</p><p>
These Rishonim understand that our Gemara is discussing a case where the children did not inherit anything, and therefore Beis Din does not force them to pay their father's debts, but nevertheless it is a Mitzvah for them to do so (in order to show honor to their father, 'Kevod Avihem'). 
</p><p>
Why, though, does Beis Din force them to repay their father's debts when they inherit mobile property? It cannot be that there is a lien even on mobile property, and therefore the lender has monetary rights to the objects that the heirs inherit. We know that no liens take effect on mobile property. 
</p><p>
Furthermore, the Gemara says explicitly that 'Metalteli d'Yasmi Lo Mishtabdi l'Ba'al Chov' -- the mobile property of heirs are <i>not</i> Meshubad towards the payment of their [father's] lender (Kesuvos 92a)!
</p><p>
In answer to the first question, the <b>KETZOS HA'CHOSHEN</b> (39:1) explains that the Rashba holds that the principle that there is no lien on mobile property is only mid'Rabanan; mid'Oraisa, though, all property, whether land or mobile property is Meshubad to the lender. (As for our second question, the Gemara on 92a only means that when mobile objects are <i>purchased</i> from a borrower, the lien does not allow the lenders to collect the object from the one who purchased them.)
</p><p>


