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1 ‎[1] The Gemara asks: **And** does **Rav** actually **hold** that if one stipulates counter to Torah law, **his condition is valid? But it was stated: One who says to another:** I am selling this to you **on the condition that you have no** claim of **fraud against me,** i.e., though there is a prohibition against fraud by Torah law, the purchaser agrees to forgo his right to register a complaint on this basis. **Rav said: He does have** the right to a claim of **fraud against him,** and therefore the seller must reimburse the purchaser, as he cannot abrogate the Torah prohibition “And you shall not wrong one another” (Leviticus 25:17). **And Shmuel said: He does not have** the right to a claim of **fraud against him.** It is evident from here that according to Rav, one cannot make a stipulation that contradicts Torah law.
‎[2] **Rather,** Rav said: **The *halakha* is in accordance with** the opinion of **Rabban Shimon ben Gamliel, who said: One who stipulates counter to that which is written in the Torah, his condition is void, but not** because of **his** line of **reasoning. As Rabban Shimon ben Gamliel holds** that if the wife **died, he inherits** from **her, and Rav holds** that if **she died he does not inherit from her.**
‎[3] The Gemara asks: If this is what Rav meant, he should have said the opposite of what he said. **This** statement would be because of **his** line of **reasoning but not in accordance with his *halakha*,** whereas Rav said that the *halakha* is in accordance with the opinion of Rabban Shimon ben Gamliel but not because of his line of reasoning.
‎[4] **Rather,** Rav said: **The *halakha* is in accordance with** the opinion of **Rabban Shimon ben Gamliel, who said** that **if she died he inherits** from **her, but not** because of **his** line of **reasoning. As Rabban Shimon ben Gamliel holds** that **in** a case where one stipulated counter to **Torah** law **his condition is void,** indicating that **in** a case where his stipulation was counter to **rabbinic** law **his condition is valid; and Rav holds** that **even in** a case where one stipulated counter to **rabbinic** law, **his condition is void.**
‎[5] The Gemara asks: **This** statement would be **in accordance with his** line of **reasoning and in accordance with his *halakha*, and Rav is** merely **adding** a detail to the *halakha* of Rabban Shimon ben Gamliel.
‎[6] **Rather,** Rav said: **The *halakha* is in accordance with** the opinion of **Rabban Shimon ben Gamliel, who said** that **if she died he inherits** from **her, but not** because of **his** line of **reasoning. As Rabban Shimon ben Gamliel holds** that **the inheritance of a husband** is **by Torah** law, **and whoever stipulates counter to that which is written in the Torah, his condition is void; and Rav holds** that **the inheritance of a husband** is **by rabbinic** law, but his stipulation is nevertheless void, as **the Sages reinforced their pronouncements with** the severity **of Torah law** and ruled that their laws cannot be abrogated.
‎[7] The Gemara asks: **And** does **Rav hold** that **the inheritance of a husband** is **by rabbinic** law? **But didn’t we learn** in a mishna (*Bekhorot* 52b) that **Rabbi Yoḥanan ben Beroka says: One who inherits** from **his wife must return** the property **to** her **family members** in the Jubilee Year **and deduct for them** part **of the monetary** value of the property? He can claim only part, but not all, of the property’s value from the wife’s relatives.
‎[8] **And we discussed** this *halakha*: **What does** Rabbi Yoḥanan ben Beroka **hold? If** he **holds** that **the inheritance of a husband** is **by Torah** law, **why must he return** the property to his wife’s relatives? An inheritance is not given back in the Jubilee Year. **And if** he holds that the inheritance is **by rabbinic** law, **what is the purpose of** the **money** that he receives from his wife’s relatives in exchange for the land? By Torah law, the property belongs to the woman’s family and they should not have to pay him anything.
‎[9] **And Rav said: Actually,** he **holds** that **the inheritance of a husband** is **by Torah** law, **and** he is discussing a case **where his wife bequeathed to him** her family’s **graveyard. Due to** the need to avoid **a family flaw,** i.e., harm to the family name if the wife’s family would have to be buried in plots belonging to others, **the Sages said** that **he should take compensation** from them **and return** the graveyard to them.
‎[10] The Gemara continues: **And what is** the meaning of: **And deduct for them** part **of the monetary** value of the property? This is referring to the **monetary** value **of his wife’s grave.** A husband is obligated to pay for his wife’s burial, and therefore he must deduct the value of her burial plot from the value of the field. **As it is taught** in a *baraita* that there are *halakhot* connected with burial to uphold family honor: In the case of **one who sells his grave, or** the **path** to **his grave,** or **the place** where visitors would **stand** to comfort the mourners, **or the place of his eulogies, the members** of his **family may come and bury him** in his ancestral plot **against** the purchaser’s **wishes due to** the need to avoid **a family flaw,** i.e., harm to the family name if a member of their family had to be buried in a graveyard of strangers. In any case, it is evident from here that Rav believes that the inheritance of a husband is by Torah law, in contrast to what the Gemara had said earlier.
‎[11] The Gemara answers: This is not proof that Rav himself is of the opinion that the inheritance of a husband is by Torah law, as **Rav spoke in accordance with the reasoning of Rabbi Yoḥanan ben Beroka.** In other words, he was explaining the reason for the ruling of the *tanna*, **but he himself does not hold accordingly.**
‎[12] **MISHNA:** With regard to **one who died and left** behind **a wife, and a creditor** to whom he owed money, **and heirs,** all of whom claim payment from his property, **and he had a deposit or a loan in the possession of others, Rabbi Tarfon says:** The deposit or the loan **will be given to the weakest** one **of them,** i.e., the one most in need of the money. **Rabbi Akiva says: One is not merciful in judgment.** If the *halakha* is that it belongs to one party, one follows the *halakha* and leaves aside considerations of mercy. **Rather,** the *halakha* is that the money **will be given to the heirs, as all** people who wish to exact payment from orphans **require an oath** before they collect their debt, **but the heirs do not require an oath.** They therefore have a more absolute right than the others to their father’s property.
‎[13] If the deceased **left** behind **produce** that was **detached from the ground, whoever first** took possession **of them** as compensation for what was owed, whether the creditor, the wife, or the heirs, **acquired** the produce. If the **wife acquired** this produce and it was worth **more than** the payment of **her marriage contract, or the creditor** acquired this produce and it was worth **more than** the value of **his debt,** what should be done with **the surplus? Rabbi Tarfon says:** It **will be given to the weakest** one **of them,** either the creditor or the wife, depending on the circumstances. **Rabbi Akiva says: One is not merciful in judgment. Rather, it will be given to the heirs, as all** people who wish to exact payment from orphans **require an oath** before they collect their debt, **but the heirs do not require an oath.**
‎[14] **GEMARA:** The Gemara asks about the wording of the mishna: **Why do I** need the *tanna* **to teach** this *halakha* in the case of **a loan,** and **why do I** need him **to teach** it in the case of **a deposit?** Either example alone would have sufficed. The Gemara explains: It is **necessary** to teach the *halakha* in both cases, **for if he** had **taught** the *halakha* only in the case of **a loan,** one could have said: **In that** case **Rabbi Tarfon says** what he says **due to** the fact that **a loan is given to be spent.** Since there is no already existing property here, but only an obligation to pay back the loan, it can be given to the weakest party. **However,** in the case of **a deposit, which exists in its pure,** unadulterated form and not just as an obligation, one might **say** that **he concedes to Rabbi Akiva** that it belongs to the heirs.
‎[15] **And** conversely, **if** the *tanna* had **taught that** *halakha* **only** in the case of a deposit, one could have said that **in that** case **Rabbi Akiva says** his ruling that the deposit belongs to the heirs. However, **in this** case of a loan, one could **say that he concedes to Rabbi Tarfon** that the loan is given to the weakest party. It is therefore **necessary** for the *halakha* to be taught in both cases.
‎[16] The mishna taught that according to Rabbi Tarfon, the money should be given to the weakest party. The Gemara asks: **What** is the meaning of: **To the weakest? Rabbi Yosei, son of Rabbi Ḥanina, says:** It means that the money is given **to the one** whose **proof** is the **weakest,** i.e., the one with the latest date on the document attesting to the debt. His document is the weakest, as one can collect from property that was sold by the deceased only if it was sold subsequent to his incurring the debt. Therefore, the others can collect from property that has been sold before the date listed on his document. **Rabbi Yoḥanan says:** It is referring **to the wife’s marriage contract.** The Sages instituted *halakhot* in marriage contracts that were to the advantage of women and to make them feel more secure in their marriages, **due to** the fact that they wanted men to find **favor** in the eyes of women.
‎[17] The Gemara comments: This discussion is **like** a dispute between ***tanna’im*: Rabbi Binyamin says:** The money is given **to the one** whose **proof** is the **weakest, and this is** the **proper** way to act. **Rabbi Elazar says:** It is referring **to the wife’s marriage contract, due to** the fact that they wanted men to find **favor** with women.
‎[18] § The mishna taught that if the husband **left** behind **produce that was detached,** the claimant who first seizes it acquires it, and there is a dispute as to what should be done with the surplus. The Gemara asks: **And** according to **Rabbi Akiva, why** discuss **specifically** this case of the **surplus? All** of the produce, not only the surplus, **also** belongs to **the heirs,** as he holds that the entire property goes to the heirs, even if the others took possession of it first. The Gemara answers: **Yes, it is indeed so.** Certainly Rabbi Akiva does not distinguish between a deposit and detached produce, **but since Rabbi Tarfon spoke** of **a surplus, he also taught** his *halakha* with regard to **a surplus.** However, according to Rabbi Akiva, the *halakha* is the same with regard to detached produce.
Version: William Davidson Edition - English
Source: https://korenpub.com/collections/the-noe-edition-koren-talmud-bavli-1
License: CC-BY-NC