Babylonian Talmud: Tractate Kethuboth

Folio 109a

LET [HIS DAUGHTER] REMAIN [SINGLE]¹  UNTIL HER HAIR GROWS GREY.²  ADMON RULED: SHE MAY SAY,³  'HAD I MYSELF PROMISED THE SUM ON MY BEHALF I WOULD REMAIN [SINGLE]¹  UNTIL MY HAIR GREW GREY, BUT NOW THAT MY FATHER HAS PROMISED IT, WHAT CAN I DO? EITHER MARRY ME OR SET ME FREE'. R. GAMALIEL SAID: ADMON'S WORDS HAVE MY APPROVAL.

GEMARA. Our Mishnah does not [uphold the same view] as that of the following Tanna. For it was taught: R. Jose son of R. Judah stated, There was no difference of opinion between Admon and the Sages that, where a man promised a sum of money to his [prospective] son-in-law and then defaulted, his daughter may say³  My father has promised on my behalf, what can I do?' They only⁴  differ where she herself promised a sum of money on her own behalf, in which case the Sages ruled: Let her remain [single]⁵  until her hair grows grey, while Admon maintained that she could say, 'I thought that my father would pay for me [the promised amount], but now that my father does not pay for me, what can I do? Either marry me or set me free'. Said R. Gamaliel: Admon's words have my approval.⁶

A Tanna taught: This⁷  applies only to a woman who is of age but in the case of a minor compulsion may be used. Who is to be compelled? If the father [be suggested], should [not the ruling. it may be retorted,] be reversed?⁸  — But, said Raba, compulsion is exercised against the [prospective] husband that he may give her a letter of divorce.

R. Isaac b. Eleazar laid down on the authority of Hezekiah: Wherever R. Gamaliel stated, 'Admon's words have my approval', the halachah agrees with him. Said Raba to R. Nahman, Even in the Baraitha?⁹  — The other replied, Did we say 'In the Mishnah?' What we said was, 'Wherever R. Gamaliel stated'.¹⁰

Said R. Zera in the name of Rabbah b. Jeremiah: As to the two rulings which Hanan has laid down, the halachah is in agreement with him who followed his view,¹¹  but in respect of the seven rulings that were laid down by Admon, the halachah is not in agreement with him who followed his view.¹²  What does he¹³  mean? If it be suggested that he means this: As to the two rulings which Hanan has laid down, the halachah is in agreement with himself and with him who followed his view, and that in respect of the seven rulings that were laid down by Admon, the halachah is neither in agreement with himself nor with him who followed his view,¹²  [it may be objected:] Did not R. Isaac b. Eleazar lay down on the authority of Hezekiah that 'wherever R. Gamaliel stated, "Admon's words have my approval", the halachah agrees with him'? — What he¹³  meant, however, must have been this: As to the two rulings which Hanan has laid down, the halachah is in agreement with himself and with him who followed his view,¹⁴  but in respect of the seven rulings that were laid down by Admon, the halachah does not agree with him who followed his view¹⁵  but agrees with himself in all his rulings. But, surely, R. Isaac b. Eleazar laid down on the authority of Hezekiah that 'wherever R. Gamaliel stated, "Admon's words have my approval" the halachah agrees with him'. [Does not this imply:] Only¹⁶  where he stated;¹⁷  but not where he did not state? — The fact, however, is that he¹³  meant this; As to the two rulings which Hanan has laid down, the halachah is in agreement with himself and with him who followed him,¹⁴  but of the seven rulings that were laid down by Admon, there are some concerning which the halachah is in agreement with himself and with him who followed his view¹⁸  while there are others concerning which the halachah does not agree with him¹⁹  but with him who followed his view,¹⁵  [the rule being that] wherever R. Gamaliel stated, 'Admon's words have my approval' is the halachah in agreement with him, but not elsewhere.²⁰

MISHNAH. IF A MAN CONTESTS [THE OWNERSHIP OF] A FIELD ON [THE DEED OF SALE OF] WHICH HE IS SIGNED AS A WITNESS,²¹  ADMON RULED; [HIS CLAIM IS ADMISSIBLE BECAUSE] HE CAN SAY,²²  '[LITIGATION WITH] THE SECOND²³  IS EASIER FOR ME, SINCE THE FIRST²⁴  IS A MORE DIFFICULT PERSON THAN HE'.²⁵  THE SAGES, HOWEVER, RULED THAT HE HAS LOST HIS RIGHT.²⁶  IF [THE SELLER]²⁷  MADE IT²⁸  A [BOUNDARY] MARK FOR ANOTHER PERSON²⁹  [THE CONTESTANT]³⁰  HAS LOST HIS RIGHT.³¹

GEMARA. Abaye said: This³²  was taught only [in respect of] A WITNESS, but a judge³³  does not lose his title;³⁴  for R. Hiyya taught Witnesses may not sign a deed unless they have read it³⁵

1. Unmarried and undivorced.
2. Sc. the son-in-law cannot be compelled either to marry her or to set her free.
3. To her prospective husband.
4. Lit., 'concerning what?'
5. Unmarried and undivorced.
6. Tosef. Keth. XII.
7. The ruling of the Baraitha.
8. If compulsion is to be resorted to, this should not be in the case of a minor whose actions have no legal validity, but in that of one who is of age, whose undertaking is legally valid (v. Strashun).
9. Just cited, where the dispute relates to a promise made by the daughter herself (cf. Rashi s.v. [H] and Tosaf. s.v. [H] a.l.). [R. Nissim; Does this principle apply elsewhere also in a Baraitha? — though here the halachah has been fixed according to the version of our Mishnah].
10. The halachah, apparently contradictory, being determined by the version of the Mishnah and Baraitha respectively, (cf. Tosaf. l.c.). [Cf. however n. 6].
11. [H], lit., 'like he who goes out with him', sc. R. Johanan b. Zakkai (cf. the Mishnahs supra 105a and 107b). This is discussed anon. aliter; 'Like that which goes out with it', i.e., rulings similar to those laid down by Admon (v. Tosaf.) [According to Adreth a case similar to that of Admon's is provided by one who pays his fellow's debt to his creditor without his instructions. and where the claim is, say, for wheat and barley and the admission is only in regard to one of these, we have an instance similar to that of Admon].
12. Sc. R. Gamaliel (cf. the Mishnahs supra 108b f). Cf. also p. 697, n. 8 mutatis mutandis.
13. R. Zera.
14. V. p. 697, n. 8.
15. I.e., R. Gamaliel (cf. supra note I) who agreed with him in three rulings only, for the halachah agrees with Admon in all his rulings.
16. Lit., 'yes'.
17. Is the halachah in agreement with Admon.
18. Sc. the three rulings (cf supra n. 4).
19. Rashal on the interpretation of Tosaf. (v. p. 697, n. 8) emends: 'agrees neither with him nor with etc.'
20. Lit., 'not those', sc. the rulings of Admon of which R. Gamaliel expressed no approval.
21. His plea being that the seller has taken it from him by violence.
22. So separate edd. of the Mishnah, Alfasi and Asheri.
23. The buyer.
24. The seller.
25. Sc. he might plead that he signed as a witness, not because he acknowledged the seller to be the lawful owner, but in the hope that it would be easier for him to recover his field from the buyer than from the seller.
26. By signing the deed of sale he is presumed to have acknowledged the seller as the lawful owner of that field.
27. Whose title to the field is contested.
28. The contested field.
29. To whom he has sold a field adjacent to it.
30. Who signed as a witness to the deed of sale in which the contested field was described as the property of the seller, and given as one of the boundaries of the field sold.
31. Even according to Admon. The plea that the contestant preferred to litigate with the buyer is obviously inadmissible here, and the reason given supra note 6, applies.
32. The ruling that the contestant HAS LOST HIS TITLE.
33. Who attested the Signatures of the witnesses to a deed of sale.
34. To the field sold and, despite his Signature, may reclaim it. A judge is concerned only with the attestation of the witnesses' signature and not with the contents of the deed.
35. Since it is the contents of the deed to which they must testify.

but judges¹  may sign even though they have not read it.²

IF [THE SELLER] MADE IT A [BOUNDARY] MARK FOR ANOTHER PERSON. Abaye said: This was taught Only [where it was] FOR ANOTHER PERSON, but [if it was made a boundary mark] for himself³  he does not lose his right; for he can say, 'Had I not done that⁴  for him he would not have sold the field to me'. What [possible objection can] you have?⁵  That he should have made a declaration [to that effect]? Your friend [it can be retorted] has a friend, and the friend of your friend has a friend.⁶

A certain man once made a field⁷  a [boundary] mark for another person,⁸  [and one of the witnesses,] having contested [its ownership,]⁹  died, when a guardian was appointed [over his estate].¹⁰  The guardian came to Abaye¹¹  who quoted to him: 'IF [THE SELLER] MADE IT A [BOUNDARY] MARK FOR ANOTHER PERSON [THE CONTESTANT] HAS LOST HIS RIGHT'. 'If the father of the orphans had been alive', the other retorted, 'could he not have pleaded, "l have conceded to him¹²  only one furrow"?'¹³  — 'You speak well', he said, 'for R. Johanan stated, If he submitted the plea, "l have conceded to you only one furrow", he is believed'. 'Proceed at any rate [Abaye later¹⁴  told the guardian] to give him one furrow'.¹⁵  On that [furrow, however,] there was a nursery of palm trees, and [the guardian] said to him, 'Had the father of the orphans been alive, could he not have submitted the plea, "I have re-purchased it from him"?'¹⁶  — 'You speak well', [Abaye] said to him, 'for R. Johanan ruled, If he submitted the plea, "I have re-purchased it from him" he is believed'.¹⁷  Said Abaye: Anyone who appoints a guardian should appoint one like this man who understands how to turn [the scales]¹⁸  in favour of orphans.

MISHNAH. IF A MAN WENT TO A COUNTRY BEYOND THE SEA AND [IN HIS ABSENCE] THE PATH TO HIS FIELD WAS LOST,¹⁹  ADMON RULED: LET HIM WALK [TO HIS FIELD]²⁰  BY THE SHORTEST WAY.²¹  THE SAGES, HOWEVER, RULED: LET HIM EITHER PURCHASE A PATH FOR HIMSELF EVEN THOUGH IT [COST HIM] A HUNDRED MANEH OR FLY THROUGH THE AIR.

GEMARA. What is the Rabbis'²²  reason? Does not Admon speak well?²³  — Rab Judah replied in the name of Rab: [The ruling²⁴  refers to a field], for instance, which [the fields of] four persons surrounded on its four sides.²⁵  If that be so, what can be Admon's reason?²⁶  — Raba explained: Where four persons²⁷  succeeded²⁸  [to the adjacent fields] by virtue of the rights of four [persons respectively]²⁹  or where four persons succeeded²⁸  [to them]³⁰  by virtue of one,²⁹  all agree that these may turn him away.³¹  They³²  only differ where one person succeeded³³  [to all the surrounding fields] by virtue of four persons.³⁴  Admon is of the opinion that [the claimant can say to that person,] 'At all events³⁵  my path is in your territory'; and the Rabbis hold the opinion [that the defendant might retort,] 'If you will keep quiet, well and good,³⁶  but if not I will return the deeds to their respective original owners whom you will have no chance of calling to law'.³⁷

A [dying man]³⁸  once instructed [those around him] that a palm tree shall be given to his daughters but the orphans proceeded to divide the estate and gave her no palm tree. R. Joseph [in considering the case] intended to lay down that it involved the very same principle as that of our Mishnah.³⁹  But Abaye said to him: Are [the two] alike? There,⁴⁰  each one can send [the claimant to the path] away;⁴¹  but here, the palm tree is in their common possession.⁴²  What is their way out?⁴³  — They must give her a palm tree and divide [the estate] all over⁴⁴  again.

A [dying man]⁴⁵  once instructed [those around him] that a palm tree shall be given to his daughter. When he died he left⁴⁶  two halves of a palm tree.⁴⁷  Sat R. Ashi [discussing the case] and grappled with this difficulty; Do people call two halves of palms trees a palm tree' or not? — Said R. Mordecai to R. Ashi, Thus said Abimi of Hagronia⁴⁸  in the name of Raba: People do call two halves of palm trees 'a palm tree'.⁴⁹

1. Cf. supra n. 13.
2. A judge's signature on a deed consequently does not prove that beyond the Signatures of the witnesses he was at all aware of its contents.
3. Sc. if the contestant himself bought a field from the man whom he accuses of having stolen an adjacent field from him, and the latter, inserting the field in dispute as a boundary, described it as his own.
4. Lit., 'thus', i.e., agreed to the description of the stolen field as the property of the seller.
5. Against this plea.
6. Popular saying. The declaration would eventually reach the ears of the seller who might in consequence cancel the sale.
7. Which he was accused of having stolen.
8. To whom he had sold a field adjacent to it.
9. Cf. supra p. 699, n. I.
10. To manage it for the orphans.
11. To claim the field on behalf of his wards.
12. Of the field in dispute.
13. That was immediately next to the sold field. The orphans should, therefore, be entitled to reclaim the rest of the field.
14. After proof had been adduced that the field had been stolen from the father of the orphans.
15. The minimum which the deceased must have conceded.
16. After it had been ascribed to him.
17. [The reason for this ruling. according to Rashi, is because the field is known to have belonged to the contestant and but for his signature referred to, the present occupier has no proof of his title to the field. This admission on the part of the contestant is, however, cancelled by his declaration of having repurchased the field, v. supra 16a.]
18. Lit.,'to turn over'.
19. It being unknown in which of the surrounding fields it lay.
20. He must be allowed a short path through one of the surrounding fields. (This is further explained infra).
21. The minimum. He cannot claim more than what is, at all events, due to him.
22. THE SAGES.
23. The assumption now being that all the surrounding fields belonged to one person who must obviously be held responsible for the lost path.
24. In our Mishnah.
25. So that each person can shift responsibility on the others.
26. How can one be held responsible when all the four are equally involved?
27. The respective owners of the four surrounding fields.
28. Lit., 'came'.
29. Sc. by purchase or gift.
30. After the path was lost.
31. Cf. supra note 8.
32. Admon and the Sages.
33. Lit., 'came'.
34. Sc. by purchase or gift.
35. In whichever field the path was lost.
36. Lit., 'you will keep quiet' (bis). He will sell him a path at a reasonable price (cf. Rashi). V. however, Tosaf. Yeb. 37b, s.v. [H].
37. Lit., 'and you will not be able to talk law with them'. Cf supra p. 701, n. 8.
38. The verbal instructions of one in such circumstances have the force of a legally written document.
39. Like the owners of the adjacent fields each of whom shifts the responsibility for the path on to the others. so can each brother shift the responsibility for the palms tree on to the other brothers.
40. The case in our Mishnah.
41. The One path can lie only in one person's held, and each of the defendants can, therefore, well plead that it did not lie in his.
42. Lit., 'with them', the instructions of the deceased having been given before the division of the estate, and the duty of carrying out his wish is incumbent upon all the heirs jointly.
43. Lit., 'their correction', 'redress'.
44. Lit., 'from the beginning'.
45. V. supra note 2.
46. Among his many palm trees.
47. Sc. two palm trees in each of which he owned a half, and the heirs desired to assign them to the daughter in fulfilment of their father's instructions.
48. One of the suburbs of Nehardea.
49. And the brothers can assign these to the daughter despite the greater trouble involved in their cultivation.