Footnote 15
(ט) אֵין הַתְּשׁוּבָה וְלֹא יוֹם הַכִּפּוּרִים מְכַפְּרִין אֶלָּא עַל עֲבֵרוֹת שֶׁבֵּין אָדָם לַמָּקוֹם כְּגוֹן מִי שֶׁאָכַל דָּבָר אָסוּר אוֹ בָּעַל בְּעִילָה אֲסוּרָה וְכַיּוֹצֵא בָּהֶן. אֲבָל עֲבֵרוֹת שֶׁבֵּין אָדָם לַחֲבֵרוֹ כְּגוֹן הַחוֹבֵל אֶת חֲבֵרוֹ אוֹ הַמְקַלֵּל חֲבֵרוֹ אוֹ גּוֹזְלוֹ וְכַיּוֹצֵא בָּהֶן אֵינוֹ נִמְחַל לוֹ לְעוֹלָם עַד שֶׁיִּתֵּן לַחֲבֵרוֹ מַה שֶּׁהוּא חַיָּב לוֹ וִירַצֵּהוּ. אַף עַל פִּי שֶׁהֶחֱזִיר לוֹ מָמוֹן שֶׁהוּא חַיָּב לוֹ צָרִיךְ לְרַצּוֹתוֹ וְלִשְׁאל מִמֶּנּוּ שֶׁיִּמְחל לוֹ. אֲפִלּוּ לֹא הִקְנִיט אֶת חֲבֵרוֹ אֶלָּא בִּדְבָרִים צָרִיךְ לְפַיְּסוֹ וְלִפְגֹּעַ בּוֹ עַד שֶׁיִּמְחל לוֹ. לֹא רָצָה חֲבֵרוֹ לִמְחל לוֹ מֵבִיא לוֹ שׁוּרָה שֶׁל שְׁלֹשָׁה בְּנֵי אָדָם מֵרֵעָיו וּפוֹגְעִין בּוֹ וּמְבַקְּשִׁין מִמֶּנּוּ. לֹא נִתְרַצָּה לָהֶן מֵבִיא לוֹ שְׁנִיָּה וּשְׁלִישִׁית. לֹא רָצָה מְנִיחוֹ וְהוֹלֵךְ לוֹ וְזֶה שֶׁלֹּא מָחַל הוּא הַחוֹטֵא. וְאִם הָיָה רַבּוֹ הוֹלֵךְ וּבָא אֲפִלּוּ אֶלֶף פְּעָמִים עַד שֶׁיִּמְחל לוֹ:
(9) Neither repentance nor the Day of Atonement atone for any save for sins committed between man and God, for instance, one who ate forbidden food, or had forbidden coition and the like; but sins between man and man, for instance, one injures his neighbor, or curses his neighbor or plunders him, or offends him in like matters, is ever not absolved unless he makes restitution of what he owes and begs the forgiveness of his neighbor. And, although he make restitution of the monetory debt, he is obliged to pacify him and to beg his forgiveness. Even he offended not his neighbor in aught save in words, he is obliged to appease him and implore him till he be forgiven by him. If his neighbor refuses a committee of three friends to forgive him, he should bring to implore and beg of him; if he still refuses he should bring a second, even a third committee, and if he remains obstinate, he may leave him to himself and pass on, for the sin then rests upon him who refuses forgiveness. But if it happened to be his master, he should go and come to him for forgiveness even a thousand times till he does forgive him.
Footnote 19
(א) הַחוֹבֵל בַּחֲבֵרוֹ חַיָּב לְשַׁלֵּם לוֹ חֲמִשָּׁה דְּבָרִים וְאֵלּוּ הֵם. נֵזֶק וְצַעַר וְרִפּוּי וְשֶׁבֶת וּבשֶׁת. וַחֲמִשָּׁה דְּבָרִים אֵלּוּ כֻּלָּן מִשְׁתַּלְּמִים מִן הַיָּפֶה שֶׁבִּנְכָסָיו כְּדִין כָּל הַמַּזִּיקִין:
(1) If a man wounded a fellow man, he must pay him compensation on five counts, namely: injury, pain, medical treatment, forced idleness, and humiliation. These things are paid out of the defendant's best property, in keeping with the law concerning all injurers.
(א) הַחוֹבֵל בַּחֲבֵרוֹ חַיָּב עָלָיו מִשּׁוּם חֲמִשָּׁה דְבָרִים, בְּנֶזֶק, בְּצַעַר, בְּרִפּוּי, בְּשֶׁבֶת, וּבְבֹשֶׁת. בְּנֶזֶק כֵּיצַד. סִמָּא אֶת עֵינוֹ, קָטַע אֶת יָדוֹ, שִׁבֵּר אֶת רַגְלוֹ, רוֹאִין אוֹתוֹ כְּאִלּוּ הוּא עֶבֶד נִמְכָּר בַּשּׁוּק וְשָׁמִין כַּמָּה הָיָה יָפֶה וְכַמָּה הוּא יָפֶה. צַעַר, כְּוָאוֹ בְשַׁפּוּד אוֹ בְמַסְמֵר, וַאֲפִלּוּ עַל צִפָּרְנוֹ, מְקוֹם שֶׁאֵינוֹ עוֹשֶׂה חַבּוּרָה, אוֹמְדִין כַּמָּה אָדָם כַּיּוֹצֵא בָזֶה רוֹצֶה לִטֹּל לִהְיוֹת מִצְטַעֵר כָּךְ. רִפּוּי, הִכָּהוּ חַיָּב לְרַפְּאֹתוֹ. עָלוּ בוֹ צְמָחִים, אִם מֵחֲמַת הַמַּכָּה, חַיָּב. שֶׁלֹּא מֵחֲמַת הַמַּכָּה, פָּטוּר. חָיְתָה וְנִסְתְּרָה, חָיְתָה וְנִסְתְּרָה, חַיָּב לְרַפְּאֹתוֹ. חָיְתָה כָל צָרְכָּהּ, אֵינוֹ חַיָּב לְרַפְּאֹתוֹ. שֶׁבֶת, רוֹאִין אוֹתוֹ כְּאִלוּ הוּא שׁוֹמֵר קִשּׁוּאִין, שֶׁכְּבָר נָתַן לוֹ דְמֵי יָדוֹ וּדְמֵי רַגְלוֹ. בֹּשֶׁת, הַכֹּל לְפִי הַמְבַיֵּשׁ וְהַמִּתְבַּיֵּשׁ. הַמְבַיֵּשׁ אֶת הֶעָרֹם, הַמְבַיֵּשׁ אֶת הַסּוּמָא, וְהַמְבַיֵּשׁ אֶת הַיָּשֵׁן, חַיָּב. וְיָשֵׁן שֶׁבִּיֵּשׁ, פָּטוּר. נָפַל מִן הַגָּג, וְהִזִּיק וּבִיֵּשׁ, חַיָּב עַל הַנֶּזֶק וּפָטוּר עַל הַבֹּשֶׁת, שֶׁנֶּאֱמַר (דברים כה) וְשָׁלְחָה יָדָהּ וְהֶחֱזִיקָה בִּמְבֻשָׁיו, אֵינוֹ חַיָּב עַל הַבֹּשֶׁת עַד שֶׁיְהֵא מִתְכַּוֵּן:
(1) One who injures another is liable to pay compensation for that injury due to five types of indemnity: He must pay for damage, for pain, for medical costs, for loss of livelihood, and for humiliation. How is payment for damage assessed? If one blinded another’s eye, severed his hand, broke his leg, or caused any other injury, the court views the injured party as though he were a slave being sold in the slave market, and the court appraises how much he was worth before the injury and how much he is worth after the injury. The difference between these two sums is the amount that one must pay for causing damage. How is payment for pain assessed? If one burned another with a skewer [beshapud] or with a hot nail, or even if one burned another on his fingernail, which is a place where he does not cause a bruise that would affect the victim’s value on the slave market, the court evaluates how much money a person with a similar threshold for pain as the victim is willing to take in order to be made to suffer in this way. The one who burned the victim must then pay this amount. How is payment for medical costs assessed? If one struck another, then he is liable to heal him by paying for his medical costs. In a case where growths, e.g., blisters or rashes, appeared on the injured party, if the growths are due to the blow, the one who struck him is liable; if the growths are not due to the blow, the one who struck him is exempt. In a case where the wound healed, and then reopened, and again healed, and then reopened, the one who struck him remains liable to heal the injured party by paying for his medical costs, as it is apparent that the current wound resulted from the original injury. If the injury healed fully, the one who struck him is not liable to heal him by paying for any subsequent medical costs. How is payment for loss of livelihood assessed? The court views the injured party as though he were a watchman of cucumbers, and the one who caused him injury must compensate him based on that pay scale for the income that he lost during his convalescence. This indemnity does not take into account the value of the standard wages of the injured party because the one who caused him injury already gave him compensation for his hand or compensation for his leg, and that compensation took into account his professional skills. How is payment for humiliation assessed? It all depends on the stature of the one who humiliates the other and the one who is humiliated. One who humiliates a naked person, or one who humiliates a blind person, or one who humiliates a sleeping person is liable, but a sleeping person who humiliates another is exempt. If one fell from the roof onto another person, and thereby caused him damage and humiliated him, then the one who fell is liable for the indemnity of damage, since a person is always considered forewarned, and exempt from the indemnity of humiliation, as it is stated: “and putting out her hand, she takes hold of his private parts” (Deuteronomy 25:11); a person is not liable for humiliation unless he intends to humiliate the other person.
Footnote 44
(כב) מִי שֶׁהָיָה חוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים וְנָפַל עָלָיו שׁוֹר וַהֲרָגוֹ. בַּעַל הַשּׁוֹר פָּטוּר. וְאִם מֵת הַשּׁוֹר נוֹטֵל בַּעַל הַשּׁוֹר דְּמֵי שׁוֹרוֹ מִיּוֹרְשֵׁי בַּעַל הַבּוֹר:
(22) If a man dug a pit in a public domain and an ox fell upon him and killed him, the owner of the ox is exempt. If the ox died too, the owner of the ox can collect for his ox from the heirs of the owner of the pit.
מכלל דתנא קמא סבר ניתן לחזרת עמידת ב"ד א"ר יוסף במלוה על פה גובה מן היורשין קמיפלגי תנא קמא סבר מלוה על פה גובה מן היורשין ור"ש בן אלעזר סבר אינו גובה מן היורשין רבה אמר דכ"ע מלוה על פה אינו גובה מן היורשין והכא במלוה הכתובה בתורה ככתובה בשטר קמיפלגי תנא קמא סבר ככתובה בשטר דמיא ור' שמעון בן אלעזר סבר לאו ככתובה בשטר דמיא מיתיבי החופר בור ברשות הרבים ונפל עליו שור והרגו פטור ולא עוד אלא שאם מת השור יורשי בעל הבור חייבין לשלם דמי שור לבעליו א"ר אילא אמר רב כשעמד בדין והא הרגו קתני אמר רב אדא בר אהבה כשעשאו טריפה והאמר רב נחמן תני חגא מת וקברו והילכתא דייתבי דייני אפומא דבירא תנו רבנן היוצא ליהרג מזין עליו מדם חטאתו ומדם אשמו חטא באותה שעה אין נזקקין לו מאי טעמא א"ר יוסף מפני שאין מענין את דינו א"ל אביי אי הכי אפילו רישא נמי כגון שהיה זבחו זבוח באותה שעה אבל אין זבחו זבוח מאי לא אדתני חטא באותה שעה אין נזקקין לו ליפלוג וליתני בדידה בד"א בשהיה זבח זבוח באותה שעה אבל אין זבח זבוח לא ה"נ קאמר בד"א שהיה זבח זבוח באותה שעה אבל אין זבח זבוח נעשה כמי שחטא באותה שעה ואין נזקקין לו: מתני׳ האשה שיצאה ליהרג אין ממתינין לה עד שתלד האשה שישבה על המשבר ממתינין לה עד שתלד האשה שנהרגה נהנין בשערה בהמה שנהרגה אסורה בהנאה: גמ׳ פשיטא גופה היא איצטריך ס"ד אמינא הואיל וכתיב (שמות כא, כב) כאשר ישית עליו בעל האשה ממונא דבעל הוא ולא ליפסדיה מיניה קמ"ל ואימא ה"נ אמר רבי אבהו אמר רבי יוחנן אמר קרא (דברים כב, כב) ומתו גם שניהם לרבות את הוולד והאי מיבעי ליה עד שיהו שניהן שוין דברי רבי יאשיה כי קאמרת מגם: ישבה על המשבר וכו': מ"ט כיון דעקר גופא אחרינא הוא: אמר רב יהודה אמר שמואל האשה היוצאה ליהרג מכין אותה כנגד בית הריון כדי שימות הוולד תחילה כדי שלא תבא לידי ניוול למימרא דהיא קדמה ומתה ברישא והא קיימא לן דוולד מיית ברישא דתנן תינוק בן יומו נוחל ומנחיל ואמר רב ששת נוחל בנכסי האם להנחיל לאחין מן האב דווקא בן יום אחד אבל עובר לא דהוא מיית ברישא ואין הבן יורש את אמו בקבר להנחיל לאחין מן האב הני מילי לגבי מיתה איידי דוולד זוטרא חיותיה עיילא טיפה דמלאך המות ומחתך להו לסימנין אבל נהרגה היא מתה ברישא והא הוה עובדא ופרכיס עד תלת פרכוסי מידי דהוי אזנב הלטאה דמפרכסת א"ר נחמן אמר שמואל האשה שישבה על המשבר ומתה בשבת מביאין סכין ומקרעים את כריסה ומוציאין את הוולד פשיטא מאי עביד
The Gemara asks: If so, can one conclude by inference that the first tanna holds that one who is being taken to be executed can be brought back to stand before the court for judgment? This is clearly erroneous, as the court is not permitted to delay his execution. Rav Yosef says: Everyone agrees that his execution may not be delayed. Rather, they disagree as to whether or not one who is owed money from a loan by oral agreement can collect from the heirs. The first tanna holds that one who is owed money from a loan by oral agreement can collect from the heirs, and therefore the injured party can collect from the heirs after the execution. But Rabbi Shimon ben Elazar holds that one who is owed money from a loan by oral agreement cannot collect from the heirs, and therefore the heirs are exempt from payment for the injury. Rabba said: Actually, everyone agrees that one who is owed money from a loan by oral agreement cannot collect from the heirs; and here the tanna’im disagree with regard to whether a loan that is written in the Torah, e.g., one’s obligation to pay if he causes damage, is considered as though it is written in a document. The first tanna holds that a loan that is written in the Torah is considered as though it is written in a document, and may be collected from the heirs. And Rabbi Shimon ben Elazar holds that it is not considered as though it is written in a document, and therefore it may not be collected. The Gemara raises an objection against the opinion that one cannot collect a loan that is written in the Torah from the heirs, from a baraita (Tosefta, Bava Kamma 6:2): If one was digging a pit in the public thoroughfare, and an ox fell on the digger of the pit and killed him, the owner of the ox is exempt from paying damages, as the digger of the pit should not have dug the pit. Moreover, if the ox died as a result of the fall, the heirs of the owner of the pit are liable to pay the value of the ox to its owner. This shows that an obligation that is written in the Torah, such as compensation for damage, is collected from heirs. Rabbi Ila said that Rav said: The baraita is dealing with a case where the digger of the pit stood trial for the damage before he died, and once judgment is rendered by a court the resulting financial obligation is comparable to a written loan, not one that is written in the Torah. The Gemara raises an objection: But it is taught in the baraita that the ox killed him. Rav Adda bar Ahava said: The baraita does not mean that the ox literally killed him, rather, that it rendered him as one who has a wound that will cause him to die within twelve months [tereifa], and there was enough time before his death to sentence him to pay damages. The Gemara raises an objection: But doesn’t Rav Naḥman say that Ḥagga teaches a slightly different version of the baraita, that if the digger of the pit died from the impact of the ox, and the ox effectively buried him in the ground at the bottom of the pit, his heirs have to pay damages to the owner of the ox? In this scenario, how could it be possible for the digger to stand trial? The Gemara answers: The halakha in the baraita, that the owner of the ox collects from the heirs of the digger, is dealing with a case where judges sat at the opening of the pit and rendered the digger liable to pay damages before he died. § The Sages taught another baraita on the same topic: With regard to one taken to be executed, they sprinkle for his sake on the altar from the blood of his sin offering and from the blood of his guilt offering, which he brought earlier. But if he sinned at that time, obligating him to bring a sin offering or a guilt offering, the court does not attend to his obligation, and his execution is not delayed so that he can sacrifice the offering. The Gemara asks: What is the reason for this? Rav Yosef said: It is because the court may not afflict him by forcing him to wait for his judgment, his execution, until the offering is sacrificed. Abaye said to Rav Yosef: If so, if the offering is not sacrificed in order to avoid afflicting the sentenced by delaying his execution, then this should apply even in the first clause as well, where he had already brought the offering. Why does the court delay his execution until the blood is sprinkled? Rav Yosef answered: The first clause is referring to a case where his offering was already slaughtered at that time, and all that remained to be done was the sprinkling of the blood. Delaying the execution for such a short time is not a problem. The Gemara asks: But then in a case where he set aside his offering but it was not yet slaughtered, what is the halakha? Is it true that they do not delay his execution in order to sacrifice the offering? If so, instead of teaching a new case and stating: But if he sinned at that time and thereby became obligated to sacrifice a sin offering or a guilt offering, the court does not attend to his obligation, let the baraita distinguish and teach a distinction within the case of where he already brought the offering itself: In what case is this statement, that the blood is sprinkled, said? When his offering was already slaughtered at that time. But if his offering was not yet slaughtered, his execution is not delayed. The Gemara answers: That is indeed what he is saying: In what case is this statement said? When his offering was already slaughtered at that time. But if his offering was not yet slaughtered, it is considered as though he sinned at that time, and therefore the court does not attend to his obligation. MISHNA: In the case of a pregnant woman who is taken by the court to be executed, the court does not wait to execute her until she gives birth. Rather, she is killed immediately. But with regard to a woman taken to be executed who sat on the travailing chair [hamashber] in the throes of labor, the court waits to execute her until she gives birth. In the case of a woman who was killed through court-imposed capital punishment, one may derive benefit from her hair. But in the case of an animal that was killed through court-imposed execution, e.g., for goring a person, deriving benefit from the animal is prohibited. GEMARA: Isn’t it obvious that the court executes the pregnant woman rather than waiting? After all, it is part of her body. The Gemara answers: It was necessary for the mishna to teach this, as it might enter your mind to say that since it is written: “And if men strive together, and hurt a woman with child, so that her offspring depart…he shall be fined, as the woman’s husband shall place upon him” (Exodus 21:22), the fetus is considered to be the property of the husband. If so, the court should wait until she gives birth before executing her, and not cause him to lose the fetus. Consequently, the mishna teaches us that the court does not take this factor into account. The Gemara asks: But why not say that indeed the court should delay her execution until she gives birth? Rabbi Abbahu says that Rabbi Yoḥanan says: The verse states: “If a man be found lying with a woman married to a husband, then they shall also both of them die, the man that lay with the woman, and the woman” (Deuteronomy 22:22). The amplifying term “both of them” serves to add her fetus, teaching that it dies together with her. The Gemara asks: But this phrase is required for the following halakha: Neither of the two adulterers mentioned in the verse is punished until both of them are equal, i.e., they have both reached majority. This is the statement of Rabbi Yoshiya. The Gemara answers: When you say that the child also dies, it is derived from the word “also,” whereas the halakha that they must be equal is learned from the term “both of them.” § The mishna teaches: With regard to a woman taken to be executed who sat on the travailing chair in the throes of labor, the court waits to execute her until she gives birth. The Gemara asks: What is the reason for delaying the execution in this case? The Gemara answers: Once the fetus uproots from its place and begins to leave the woman’s body, it is considered an independent body and may not be killed together with the mother. Rav Yehuda says that Shmuel says: In the case of a pregnant woman who is taken by the court to be executed, one strikes her opposite the womb, i.e., on the abdomen, so that the fetus dies first and so that she not suffer disgrace as a result of publicly bleeding from labor. The Gemara asks: Is this to say that according to Shmuel if a pregnant woman dies, she dies first, before the fetus? It is clear that this is Shmuel’s assumption, as he mandates killing the fetus before the mother, lest the live fetus bring about the onset of labor as a reaction to the woman’s death. Were the fetus to perish first, before the woman, there would be no need for this. But this is difficult, as we maintain that the fetus dies first. As we learned in a mishna (Nidda 43b–44a): A baby boy, one day old, inherits the estate of his relatives who died on the day of his birth, and if he dies, he bequeaths that inheritance to his relatives. And Rav Sheshet says: This mishna is teaching that a day-old child inherits his mother’s property when she died after he was born, to bequeath it to his heirs who are not the mother’s heirs, e.g., to his paternal brothers. The Gemara explains the difficulty: It is specifically in a case where the boy is one day old that he inherits and bequeaths, but a fetus who died while still in the womb does not inherit and bequeath. The reason is that we presume that the fetus died first, before its mother, and a son does not inherit through his mother while in the grave, in order to bequeath her property to his paternal brothers. The Gemara answers: This matter, i.e., the presumption that the fetus dies first, applies only in a case of natural death. In such a situation, since the fetus’s vitality is minimal, the Angel of Death’s drop of poison enters his body and cuts the two organs that must be severed in ritual slaughter, i.e., the windpipe and the gullet [simanim], thereby killing him before his mother. But in a case where the mother was killed, e.g., if she was executed, she dies first. The Gemara asks: Is it true that the fetus always dies first when the mother dies naturally? But there was an incident where the mother died naturally and the fetus made three spasmodic motions afterward. The Gemara answers: That is just as it is with the tail of the lizard, which jerks after being severed from the lizard; it is just a spasmodic motion, which does not indicate that it is still alive. § Rav Naḥman says that Shmuel says: In the case of a woman who sat on the travailing chair in the throes of labor, and died on Shabbat, one brings a knife, and tears open her abdomen, and removes the fetus, as it might still be alive, and it could be possible to save its life. The Gemara asks: But isn’t it obvious that this is permitted? After all, what is the person who cuts her abdomen doing?
הוֹצִיא עָלָיו כְּתַב יָדוֹ שֶׁהוּא חַיָּיב לוֹ גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין עָרֵב הַיּוֹצֵא לְאַחַר חִיתּוּם שְׁטָרוֹת גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין מַעֲשֶׂה וּבָא לִפְנֵי רַבִּי יִשְׁמָעֵאל וְאָמַר גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין אָמַר לוֹ בֶּן נַנָּס אֵינוֹ גּוֹבֶה לֹא מִנְּכָסִים מְשׁוּעְבָּדִים וְלֹא מִנְּכָסִים בְּנֵי חוֹרִין אָמַר לוֹ לָמָּה אָמַר לוֹ הֲרֵי הַחוֹנֵק אֶת אֶחָד בַּשּׁוּק וּמְצָאוֹ חֲבֵירוֹ וְאָמַר לוֹ הַנַּח לוֹ [ וַאֲנִי אֶתֵּן לָךְ] פָּטוּר שֶׁלֹּא עַל אֱמוּנָתוֹ הִלְוָהוּ אֶלָּא אֵיזֶה הוּא עָרֵב שֶׁהוּא חַיָּיב הַלְוֵהוּ וַאֲנִי נוֹתֵן לָךְ חַיָּיב שֶׁכֵּן עַל אֱמוּנָתוֹ הִלְוָהוּ וְאָמַר רַבִּי יִשְׁמָעֵאל הָרוֹצֶה שֶׁיַּחְכִּים יַעֲסוֹק בְּדִינֵי מָמוֹנוֹת שֶׁאֵין לָךְ מִקְצוֹעַ בַּתּוֹרָה יוֹתֵר מֵהֶן וְהֵן כְּמַעְיָין הַנּוֹבֵעַ וְהָרוֹצֶה שֶׁיַּעֲסוֹק בְּדִינֵי מָמוֹנוֹת יְשַׁמֵּשׁ אֶת שִׁמְעוֹן בֶּן נַנָּס: גְּמָ׳ אָמַר עוּלָּא דְּבַר תּוֹרָה אֶחָד מִלְוֶה בִּשְׁטָר וְאֶחָד מִלְוֶה עַל פֶּה גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים מַאי טַעְמָא שִׁעְבּוּדָא דְּאוֹרָיְיתָא וְאֶלָּא מַה טַּעַם אָמְרוּ מִלְוֶה עַל פֶּה אֵינוֹ גּוֹבֶה אֶלָּא מִנְּכָסִין בְּנֵי חוֹרִין מִשּׁוּם פְּסֵידָא דְלָקוֹחוֹת אִי הָכִי מִלְוֶה בִּשְׁטָר נָמֵי הָתָם אִינְהוּ נִינְהוּ דְּאַפְסִידוּ אַנַּפְשַׁיְיהוּ וְרַבָּה אָמַר דְּבַר תּוֹרָה אֶחָד מִלְוֶה בִּשְׁטָר וְאֶחָד מִלְוֶה עַל פֶּה אֵינוֹ גּוֹבֶה אֶלָּא מִנְּכָסִים בְּנֵי חוֹרִין מַאי טַעְמָא שִׁעְבּוּדָא לָאו דְּאוֹרָיְיתָא וּמַה טַּעַם אָמְרוּ מִלְוֶה בִּשְׁטָר גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים כְּדֵי שֶׁלֹּא תִּנְעוֹל דֶּלֶת בִּפְנֵי לֹוִין אִי הָכִי מִלְוֶה עַל פֶּה נָמֵי הָתָם לֵית לֵיהּ קָלָא וּמִי אָמַר רַבָּה הָכִי וְהָא אָמַר רַבָּה גָּבוּ קַרְקַע יֵשׁ לוֹ גָּבוּ מָעוֹת אֵין לוֹ וְכִי תֵּימָא אֵיפוֹךְ דְּרַבָּה לְעוּלָּא וּדְעוּלָּא לְרַבָּה וְהָא אָמַר עוּלָּא דְּבַר תּוֹרָה בַּעַל חוֹב דִּינֵיהּ בְּזִבּוּרִית אֶלָּא רַבָּה טַעְמָא דִּבְנֵי מַעְרְבָא קָאָמַר וְלֵיהּ לָא סְבִירָא לֵיהּ רַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ מִלְוֶה עַל פֶּה אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת מַאי טַעְמָא שִׁעְבּוּדָא לָאו דְּאוֹרָיְיתָא רַבִּי יוֹחָנָן וְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ דְּאָמְרִי תַּרְוַיְיהוּ מִלְוֶה עַל פֶּה גּוֹבֶה בֵּין מִן הַיּוֹרְשִׁין וּבֵין מִן הַלָּקוֹחוֹת מַאי טַעְמָא שִׁעְבּוּדָא דְּאוֹרָיְיתָא מֵיתִיבִי הַחוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים וְנָפַל עָלָיו שׁוֹר וַהֲרָגוֹ פָּטוּר וְלֹא עוֹד אֶלָּא שֶׁאִם מֵת הַשּׁוֹר יוֹרְשֵׁי בַּעַל הַבּוֹר חַיָּיבִים לְשַׁלֵּם דְּמֵי שׁוֹר לִבְעָלָיו אָמַר רַבִּי אִלְעָא אָמַר רַב בְּשֶׁעָמַד בַּדִּין וְהָא הֲרָגוֹ קָתָנֵי אָמַר רַב אַדָּא בַּר אַהֲבָה שֶׁעֲשָׂאוֹ טְרֵפָה וְהָא אָמַר רַב נַחְמָן תָּנֵי תַּנָּא מֵת וּקְבָרוֹ הָתָם דְּיָתְבִי דַּיָּינֵי אַפּוּמָּא דְבֵירָא וְחַיְּיבוּהוּ
If one presents to a debtor a document in the handwriting of the debtor stating that he owes money to him, but without witnesses signed on the document, the creditor can collect only from unsold property. In the case of a guarantor whose commitment emerged after the signing of the promissory note, the creditor can collect the sum only from unsold property of the guarantor. The mishna relates: An incident occurred where such a case came before Rabbi Yishmael, and he said: The creditor can collect the sum from unsold property of the guarantor, but not from liened property that he has sold to others. Ben Nannas said to Rabbi Yishmael: The creditor cannot collect the sum from the guarantor at all, not from liened property that has been sold, nor from unsold property. Rabbi Yishmael said to him: Why not? Ben Nannas said to him: If one was strangling someone in the marketplace, demanding repayment of a loan, and another person found him doing so and said to the attacker: Leave him alone and I will give you the money he owes, the person who intervened is exempt from paying, as the creditor did not loan the money in the first place based on his trust of the one who intervened. Rather, who is a guarantor who is obligated to repay the loan he has guaranteed? One who tells the creditor before the loan takes place: Lend money to him, and I will give you the repayment, as in that case the creditor did loan the money based on his trust of the guarantor. And Rabbi Yishmael thereupon said: One who wants to become wise should engage in the study of monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring. And, he added, one who wants to engage in the study of monetary law should attend to, i.e., become a disciple of, Shimon ben Nannas. GEMARA: Ulla says: By Torah law, a creditor, whether in the case of a loan with a promissory note or the case of a loan by oral contract, can collect the debt from liened property that has been sold by the debtor subsequent to his receiving the loan. What is the reason for this? The property of a debtor at the time of the loan, even an oral loan, is liened by Torah law. And what is the reason the Sages said that one who gives a loan by oral contract can collect the debt only from unsold property? Because of the loss that would be incurred by purchasers of land if the seller’s creditors could seize the land they have purchased. The Gemara asks: If so, a loan with a promissory note should also not be collected from purchasers of property, as this would cause them a loss. The Gemara answers: There, in the case of a loan recorded in a promissory note, the purchasers, who neglected to investigate the financial status of the seller before purchasing land from him, brought the loss upon themselves. By contrast, loans by oral contract are often impossible to discover, even with a thorough investigation. And Rabba says: By Torah law, a creditor, whether in the case of a loan with a promissory note or the case of a loan by oral contract, can collect the debt only from the debtor’s unsold property. What is the reason for this? The property of a debtor is not liened by Torah law. And what is the reason the Sages said that one who gives a loan with a promissory note can collect the debt from liened property that has been sold? So as not to lock the door in the face of potential borrowers. If one could not collect a debt by taking liened property that has been sold, people would be hesitant to put their money at risk by lending it. The Gemara asks: If that is so, that there is a desire to encourage people to lend money by granting greater power of collection to creditors, a loan by oral contract should also be collectible from liened property that has been sold. The Gemara answers: There, in the case of a loan by oral contract, it has no publicity associated with it, so that purchasers often cannot find out about it, even after a thorough investigation, and it would be an unfair burden on them to have the property purchased by them seized in such cases. The Gemara asks: And did Rabba really say this? But doesn’t Rabba say, in the case of a firstborn son, that if he and his brothers collected a debt from land, he has the right to receive a double portion of that payment, but if they collected a debt from money, he does not have the right to a double portion? A firstborn son is entitled to a double share of inheritance of any property that was owned by his father at the time of his death, but not to profits or income that accrue to the estate after his death. If a debt owed to the father is collected from land after his death, Rabba said that the firstborn is entitled to a double portion, indicating that the land was considered in the father’s possession even before he died, which indicates that Rabba holds that the property of a debtor is liened to a creditor by Torah law. And if you would say: The opinions as they were cited earlier are attributed incorrectly, and it is necessary to reverse the two opinions, and exchange the opinion of Rabba for that of Ulla, and that of Ulla for that of Rabba, there is a difficulty: But doesn’t Ulla say elsewhere: By Torah law the halakha of a creditor is to collect his debt only from inferior-quality land? The Gemara resolves the contradiction between Rabba’s two statements: Rather, Rabba was stating an explanation for the opinion of the people of the West, Eretz Yisrael, cited earlier (125a), but he himself does not hold accordingly, as he holds that a firstborn son is not entitled to a double portion of a debt collected from land. The Gemara continues to discuss the issue of the extent of liens on a debtor’s property. Rav and Shmuel both say: In the case of a loan by oral contract, the creditor can collect the debt only from the one who took the loan, but not from the heirs of the debtor after his death, and not from purchasers of his property. What is the reason for this? They maintain that the property of a debtor is not liened by Torah law. Rabbi Yoḥanan and Rabbi Shimon ben Lakish both say: In the case of a loan by oral contract, the creditor can collect the debt both from the heirs of the debtor after his death and from the purchasers of his property. What is the reason for this? They maintain that the property of a debtor is liened by Torah law. The Gemara raises an objection to the opinion of Rav and Shmuel from a baraita (Tosefta, Bava Kamma 6:2): If one was digging a pit in the public domain, and an ox fell on him and killed him as he was in the pit, the owner of the ox is exempt from paying for the damage caused, as it is the one who dug the pit who is at fault. Moreover, if it occurred that the ox died as a result of the fall, the heirs of the owner of the pit are liable to pay the value of the ox to its owner. Compensation for damages is comparable to a loan by oral contract, and yet the baraita states that the heirs of the culpable party must pay it. Rabbi Ela says that Rav says: The baraita is discussing a case in which the one who dug the pit stood trial for the damage before he died, and once judgment is rendered by a court, the resulting financial liability is comparable to a loan with a promissory note. The Gemara objects: But it is taught in the baraita that the ox killed him by falling on him. How then can one say that he stood trial? Rav Adda bar Ahava says: The baraita does not mean that the ox killed him instantly, but that it rendered him one who has a wound that will cause him to die within twelve months [tereifa], and there was enough time before his death to try him and deem him liable to pay for damages. The Gemara objects that there is a different version of the baraita according to which this interpretation is not possible: But doesn’t Rav Naḥman say that a certain tanna taught the baraita with a different formulation, stating that the one who dug the pit died from the impact of the ox and the ox in effect buried him in the ground at the bottom of the pit? In this scenario it would be impossible to take the one who dug the pit to court to stand trial. The Gemara answers: There, according to that second version, it is discussing a case where judges sat at the opening of the pit and deemed liable the one who dug the pit to pay for the damage before he died.
Footnote 45
(ב) מִי שֶׁהָיָה נָשׂוּי שְׁתֵּי נָשִׁים וּמֵתוּ וְאַחַר כָּךְ מֵת הוּא, וִיתוֹמִים מְבַקְשִׁים כְּתֻבַּת אִמָּן וְאֵין שָׁם אֶלָּא שְׁתֵּי כְתֻבּוֹת, חוֹלְקִין בְּשָׁוֶה. הָיָה שָׁם מוֹתַר דִּינָר, אֵלּוּ נוֹטְלִין כְּתֻבַּת אִמָּן וְאֵלּוּ נוֹטְלִין כְּתֻבַּת אִמָּן. אִם אָמְרוּ יְתוֹמִים, אֲנַחְנוּ מַעֲלִים עַל נִכְסֵי אָבִינוּ יָתֵר דִּינָר, כְּדֵי שֶׁיִּטְּלוּ כְתֻבַּת אִמָּן, אֵין שׁוֹמְעִין לָהֶן, אֶלָּא שָׁמִין אֶת הַנְּכָסִים בְּבֵית דִּין:
(2) In the case of one who was married to two women and the women died, and subsequently he died, and the orphans of one of the wives are now seeking to collect the payment specified in their mother’s marriage contract, i.e., the marriage contract concerning male children, but there is only enough in the estate to pay the value of the two marriage contracts, the marriage contract concerning male children cannot be collected, and the sons distribute the estate equally among themselves according to the biblical laws of inheritance. If there was a surplus of a dinar left there, in the estate, beyond the value of the two marriage contracts, then these sons collect their mother’s marriage contract and those sons collect their mother’s marriage contract, and the remaining property valued at a dinar is divided equally among all the sons. If the orphans who are entitled to receive the marriage settlement of greater value say: We inflate the value of our father’s property by a dinar, i.e., we agree to evaluate the property we will receive for our mother’s marriage settlement at a value higher than the market value so that there will be a dinar left in the estate after the two marriage contracts have been paid, so that they can collect their mother’s marriage contract, the court does not listen to them. Rather, the value of the property is appraised in court, and the distribution of the estate is based on that evaluation.
תְּנָא נָמֵי הָרִאשׁוֹנָה קוֹדֶמֶת לַשְּׁנִיָּה נָשָׂא אֶת הָרִאשׁוֹנָה שְׁמַע מִינַּהּ תְּלָת שְׁמַע מִינַּהּ אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וְלָא חָיְישִׁינַן לְאִינְּצוֹיֵי מִמַּאי מִדְּקָתָנֵי שְׁנִיָּה וְיוֹרְשֶׁיהָ קוֹדְמִים לְיוֹרְשֵׁי רִאשׁוֹנָה מִיקְדָּם הוּא דְּקָדְמִי הָא אִיכָּא שָׁקְלִי וּשְׁמַע מִינַּהּ כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ מִמַּאי מִדְּלָא קָתָנֵי אִם יֵשׁ שָׁם מוֹתַר דִּינָר וּשְׁמַע מִינַּהּ כְּתוּבַּת בְּנִין דִּכְרִין לָא טָרְפָה מִמְּשַׁעְבְּדִי דְּאִי סָלְקָא דַּעְתִּין טָרְפָה מִמְּשַׁעְבְּדִי לֵיתוֹ בְּנֵי רִאשׁוֹנָה וְלִטְרְפִינְהוּ לִבְנֵי שְׁנִיָּה מַתְקֵיף לַהּ רַב אָשֵׁי מִמַּאי דִּלְמָא לְעוֹלָם אֵימָא לָךְ אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ אֵין לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וּמַאי קוֹדְמִין לְנַחֲלָה קָתָנֵי וְכִי תֵּימָא יוֹרְשֵׁי הָרִאשׁוֹנָה לְמָה לִי אַיְּידֵי דִּתְנָא שְׁנִיָּה וְיוֹרְשֶׁיהָ תְּנָא נָמֵי לְיוֹרְשֵׁי הָרִאשׁוֹנָה וּדְקָאָמְרַתְּ כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ דִּלְמָא לְעוֹלָם אֵימָא לָךְ אֵין כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ וְהָכָא הוּא דְּאִיכָּא מוֹתַר דִּינָר וְאַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ תַּנָּאֵי הִיא דְּתַנְיָא מֵתוּ אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ בֶּן נַנָּס אוֹמֵר יְכוֹלִין בְּנֵי הָרִאשׁוֹנָה לוֹמַר לִבְנֵי הַשְּׁנִיָּה בְּנֵי בַּעֲלַת חוֹב אַתֶּם טְלוּ כְּתוּבַּת אִמְּכֶם וּצְאוּ רַבִּי עֲקִיבָא אוֹמֵר כְּבָר קָפְצָה נַחֲלָה מִלִּפְנֵי בְּנֵי הָרִאשׁוֹנָה וְנָפְלָה לִפְנֵי בְּנֵי הַשְּׁנִיָּה מַאי לָאו בְּהָא קָא מִיפַּלְגִי דְּמָר סָבַר אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וּמָר סָבַר אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ אֵין לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין אָמַר רַבָּה אַשְׁכַּחְתִּינְהוּ לְרַבָּנַן דְּבֵי רַב דְּיָתְבִי וְקָאָמְרִי דְּכוּלֵּי עָלְמָא אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וְהָכָא בִּכְתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ וְהוּא הַדִּין לְבַעַל חוֹב קָמִיפַּלְגִי מָר סָבַר כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ וְהוּא הַדִּין לְבַעַל חוֹב וּמַר סָבַר אֵין כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ וְהוּא הַדִּין לְבַעַל חוֹב וְאָמֵינָא לְהוּ אֲנָא בְּבַעַל חוֹב כּוּלֵּי עָלְמָא לָא פְּלִיגִי דְּהָוֵי מוֹתָר כִּי פְּלִיגִי בִּכְתוּבָּה מַתְקֵיף לַהּ רַב יוֹסֵף אִי הָכִי רַבִּי עֲקִיבָא אוֹמֵר כְּבָר קָפְצָה נַחֲלָה אִם יֵשׁ מוֹתַר דִּינָר מִיבְּעֵי לֵיהּ אֶלָּא אָמַר רַב יוֹסֵף בְּאַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ קָא מִיפַּלְגִי וְהָנֵי תַּנָּאֵי כִּי הָנֵי תַּנָּאֵי דְּתַנְיָא נָשָׂא אֶת הָרִאשׁוֹנָה וָמֵתָה נָשָׂא אֶת הַשְּׁנִיָּה וּמֵת הוּא בָּאִין בָּנֶיהָ שֶׁל זוֹ לְאַחַר מִיתָה וְנוֹטְלִין כְּתוּבַּת אִמָּן רַבִּי שִׁמְעוֹן אוֹמֵר אִם יֵשׁ מוֹתַר דִּינָר אֵלּוּ נוֹטְלִין כְּתוּבַּת אִמָּן וְאֵלּוּ נוֹטְלִין כְּתוּבַּת אִמָּן וְאִם לָאו חוֹלְקִין בְּשָׁוֶה מַאי לָאו בְּהָא קָא מִיפַּלְגִי דְּמָר סָבַר אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וּמָר סָבַר אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ אֵין לָהֶם כְּתוּבַּת בְּנִין דִּכְרִין לָא דְּכוּלֵּי עָלְמָא אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין
it taught the first clause as well with the same wording: The first woman precedes the second, without elaborating that the property would not be expropriated from the second if she were to seize it in payment of her marriage contract. § The mishna taught: If he married the first woman, etc. The Gemara notes: Conclude three conclusions from this statement: Conclude from it that if one of the man’s wives died in his lifetime and the other one died following his death, then the sons of the first wife are entitled to collect the marriage contract concerning male children and we are not concerned that this would lead to quarreling. The Gemara asks: From where is it known that this is correct? From the fact that it teaches: The second wife and her heirs precede the heirs of the first wife, it can be inferred that they precede the heirs of the first, but if there are enough funds in the estate for all the claims against it, then the children of the first wife do take their share of the dowry. The second point one can conclude from it is that one marriage contract becomes surplus for the other. The Sages ruled that each son may claim his mother’s marriage settlement only when the value of the estate exceeds the sum total of the marriage contracts by at least one dinar, so that the biblical laws of inheritance can be fulfilled. Since the marriage settlement collected by the heirs of the second wife is considered a debt owed by the estate, this sum is considered to have been paid equally by all the heirs. The biblical laws of inheritance have thereby been fulfilled, and the sons of the first wife can claim the marriage contract concerning male children even if nothing will be left in the estate after they have collected their payment. The Gemara asks: From where is it known that this is correct? The Gemara answers: From the fact that it does not teach in the mishna: If there is a surplus of a dinar in addition to the value of all the marriage contracts. And conclude from it a third point, that when one collects the payment for the marriage contract concerning male children, he cannot seize liened property that his father sold to others, as one can when collecting a debt. As, if it should enter your mind that it can be repossessed from liened property, then let the sons of the first wife come and repossess land already claimed by the sons of the second wife as payment for their mother’s marriage contract, since the land the sons of the second wife took was previously liened, due to the marriage contract of the first wife. Rather, the children of the first wife are viewed not as creditors but as heirs, who cannot repossess property sold by their father. Rav Ashi objects to two of the three conclusions stated above: From where is it known that all of this is correct? Perhaps I could actually say to you that if one wife died in his lifetime and one died following his death, then no one is entitled to collect the marriage contract concerning male children. And what does the mishna mean when it says precede? It does not mean that if there are enough assets remaining, the sons of the first wife receive the sum of their mother’s marriage settlement. Rather, it is teaching that after the sons of the second wife receive the sum of their mother’s marriage settlement, the sons from both marriages inherit equal shares of the remaining estate. And if you would say that if the mishna is referring to the inheritance of the remainder of the estate, why do I need the mishna to mention the heirs of the first wife; since it is teaching a halakha concerning their inheritance from their father and not their inheritance from their mother, why refer to them as the heirs of the first wife? One could reply that since it taught: The second wife and her heirs, the mishna also taught the parallel phrase: The heirs of the first wife, but no halakhic conclusions should be drawn from this. And concerning what you said that one marriage contract becomes surplus for the other, this too can be rejected: Perhaps I could actually say to you that one marriage contract does not become surplus for the other, and that the case under discussion here is where there is a surplus of an additional dinar, and the reason why it was not explicitly mentioned is because it is not the subject of our mishna. § The Gemara notes that in a case where one wife died in his lifetime and one died following his death, there is a dispute between tanna’im if the sons of the wife who died in her husband’s lifetime are entitled to collect their mother’s marriage settlement. As it is taught in a baraita: If they died, one in his lifetime and one following his death, ben Nanas says: The sons of the first wife can say to the sons of the second wife: You are the children of a creditor, so collect your mother’s marriage contract and leave, and we will inherit the rest of the estate due to the marriage contact concerning male children. Rabbi Akiva says: When the husband died, the inheritance already eluded the sons of the first wife and came into the possession of the sons of the second wife as an inheritance, i.e., the Sages did not institute the marriage contract concerning male children in a case where one of the wives was alive when the husband died. Consequently, after the sons of the second wife collect their mother’s marriage settlement, the remainder of the estate is divided evenly between all the man’s sons. The Gemara comments: What, is it not that they disagree about this: One Sage, ben Nanas, holds that in a case where one wife died in his lifetime and one died following his death, the first wife’s sons are entitled to collect the marriage contract concerning male children. And the other Sage, Rabbi Akiva, holds that in a case where one wife died in his lifetime and one died following his death, the first wife’s sons are not entitled to collect the marriage contract concerning male children. Rabba said: I found the Sages of the school of Rav sitting and saying: Everyone agrees that in a case where one wife died in his lifetime and one died following his death, the first wife’s sons are entitled to collect the marriage contract concerning male children. Here, however, they disagree with regard to the question of whether or not one marriage contract becomes surplus for the other in a case where there is no surplus of an additional dinar with which to fulfill the biblical laws of inheritance. And the same is true with regard to payment made to a creditor, i.e., they disagree whether paying a creditor of their father is a sufficient fulfillment of the biblical laws of inheritance to allow collection of the marriage contract concerning male children. One Sage, ben Nanas, holds that one marriage contract becomes surplus for the other, and the same is true with regard to payment made to a creditor, and one Sage, Rabbi Akiva, holds that one marriage contract does not become surplus for the other, and the same is true with regard to the debt owed to a creditor. Rabba continues: And I said to them: With regard to payment made to a creditor, everyone agrees that it is considered surplus and fulfills the biblical laws of inheritance, even given the lien attached to it. When they disagree it is with regard to whether a marriage contract can be considered surplus. Rav Yosef objects to this. If that is so, then why did it say in the baraita that Rabbi Akiva says: The inheritance already eluded them? Rather, it should have said: If there is a surplus of a dinar, since that is the actual focal point of the disagreement. Rather, Rav Yosef said: They disagree with regard to the basic issue of whether the Sages instituted the marriage contract concerning male children in a case where one wife died in his lifetime and one died following his death, as was explained initially. And these tanna’im, ben Nanas and Rabbi Akiva, are like those other tanna’im, who debated this very same point, as it is taught in a baraita: If he married a first woman and she subsequently died, and he then married a second woman and he subsequently died, the sons of this woman, i.e., the second wife, come after her death and collect payment of their mother’s marriage contract if she did not collect it while she was alive, while the rest of the estate is distributed equally between all the sons. Rabbi Shimon says: If there is a surplus of a dinar, these sons of the first wife collect their mother’s marriage contract, namely, the marriage contract concerning male offspring, and these sons of the second wife collect their mother’s marriage contract, and if not, they divide the entire estate equally among themselves. What, is it not that they disagree with regard to the following: One Sage, Rabbi Shimon, holds that in a case where one wife died in his lifetime and one died following his death, the sons of the first wife are entitled to collect the marriage contract concerning male children; and one Sage, the first tanna, holds that in a case where one wife died in his lifetime and one died following his death, the sons of the first wife are not entitled to collect the marriage contract concerning male children, and only the second wife’s sons collect their mother’s marriage contract. The Gemara rejects this: No, it is possible to say that everyone agrees that in a case where one wife died in his lifetime and one died following his death, the sons of the first wife are entitled to collect the marriage contract concerning male children,
וְהָכָא בְּדִינָר מְקַרְקְעֵי קָמִיפַּלְגִי מָר סָבַר מְקַרְקְעֵי אִין מִטַּלְטְלֵי לָא וּמָר סָבַר אֲפִילּוּ מִטַּלְטְלִי וּמִי מָצֵית אָמְרַתְּ הָכִי וְהָתְנַן רַבִּי שִׁמְעוֹן אוֹמֵר אֲפִילּוּ יֵשׁ שָׁם נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת אֵינָן כְּלוּם עַד שֶׁיְּהֵא שָׁם נְכָסִים שֶׁיֵּשׁ לָהֶן אַחְרָיוּת יָתֵר עַל שְׁתֵּי כְּתוּבּוֹת דִּינָר אֶלָּא הָכָא בְּדִינָר מְשַׁעְבְּדִי קָמִיפַּלְגִי מָר סָבַר מִבְּנֵי חוֹרִין אִין מִמְּשַׁעְבְּדִי לָא וּמָר סָבַר אֲפִילּוּ מִמְּשַׁעְבְּדִי אִי הָכִי רַבִּי שִׁמְעוֹן אוֹמֵר אִם יֵשׁ שָׁם מוֹתַר דִּינָר כֵּיוָן שֶׁיֵּשׁ שָׁם מוֹתַר דִּינָר מִיבְּעֵי לֵיהּ אֶלָּא בְּפָחוֹת מִדִּינָר קָמִיפַּלְגִי מָר סָבַר דִּינָר אִין פָּחוֹת מִדִּינָר לָא וּמָר סָבַר אֲפִילּוּ פָּחוֹת מִדִּינָר וְהָא רַבִּי שִׁמְעוֹן דִּינָר קָאָמַר וְכִי תֵּימָא אֵיפוֹךְ תַּנָּא קַמָּא דְּמַתְנִיתִין נָמֵי דִּינָר קָאָמַר אֶלָּא כִּי הָנָךְ תְּרֵי לִישָּׁנֵאי קַמָּאֵי וְאֵיפוֹךְ אָמַר מָר זוּטְרָא מִשְּׁמֵיהּ דְּרַב פָּפָּא הִלְכְתָא אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין וּכְתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ בִּשְׁלָמָא אִי אַשְׁמְעִינַן אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּיכְרִין וְלָא אַשְׁמְעִינַן כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ הֲוָה אָמֵינָא אִי אִיכָּא מוֹתַר דִּינָר אִין אִי לָא לָא אֶלָּא לַישְׁמְעִינַן כְּתוּבָּה נַעֲשֵׂית מוֹתָר לַחֲבֶרְתָּהּ וַאֲנָא יָדַעְנָא מִשּׁוּם דְּאַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ יֵשׁ לָהֶן כְּתוּבַּת בְּנִין דִּכְרִין אִי אַשְׁמְעִינַן הָכִי הֲוָה אָמֵינָא כְּגוֹן שֶׁנָּשָׂא שָׁלֹשׁ נָשִׁים וָמֵתוּ שְׁתַּיִם בְּחַיָּיו וְאַחַת בְּמוֹתוֹ וְהָךְ דְּמָיֵית לְאַחַר מִיתָה יוֹלֶדֶת נְקֵבָה הִיא וְלָאו בַּת יְרוּשָּׁה הִיא אֲבָל אַחַת בְּחַיָּיו וְאַחַת בְּמוֹתוֹ וְהָא דִּלְאַחַר מִיתָה יוֹלֶדֶת זָכָר הִיא אֵימָא לֵיחוּשׁ לְאִינְּצוֹיֵי קָא מַשְׁמַע לַן מַתְנִי׳ מִי שֶׁהָיָה נָשׂוּי שְׁתֵּי נָשִׁים וָמֵתוּ וְאַחַר כָּךְ מֵת הוּא וִיתוֹמִים מְבַקְּשִׁין כְּתוּבַּת אִמָּן וְאֵין שָׁם אֶלָּא שְׁתֵּי כְתוּבּוֹת חוֹלְקִין בְּשָׁוֶה הָיָה שָׁם מוֹתַר דִּינָר אֵלּוּ נוֹטְלִים כְּתוּבַּת אִמָּן וְאֵלּוּ נוֹטְלִים כְּתוּבַּת אִמָּן אִם אָמְרוּ יְתוֹמִים אֲנַחְנוּ מַעֲלִים עַל נִכְסֵי אָבִינוּ יָפֶה דִּינָר כְּדֵי שֶׁיִּטְּלוּ כְּתוּבַּת אִמָּן אֵין שׁוֹמְעִין לָהֶן אֶלָּא שָׁמִין אֶת הַנְּכָסִים בְּבֵית דִּין הָיוּ שָׁם נְכָסִים בְּרָאוּי אֵינָן כִּבְמוּחְזָק רַבִּי שִׁמְעוֹן אוֹמֵר אֲפִילּוּ יֵשׁ שָׁם נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת אֵינָן כְּלוּם עַד שֶׁיִּהְיוּ שָׁם נְכָסִים שֶׁיֵּשׁ לָהֶן אַחְרָיוּת יוֹתֵר עַל שְׁתֵּי הַכְּתוּבּוֹת דִּינָר גְּמָ׳ תָּנוּ רַבָּנַן לָזוֹ אֶלֶף וְלָזוֹ חֲמֵשׁ מֵאוֹת אִם יֵשׁ שָׁם מוֹתַר דִּינָר אֵלּוּ נוֹטְלִין כְּתוּבַּת אִמָּן וְאֵלּוּ נוֹטְלִין כְּתוּבַּת אִמָּן וְאִם לָאו יַחְלְקוּ בְּשָׁוֶה פְּשִׁיטָא מְרוּבִּין וְנִתְמַעֲטוּ כְּבָר זָכוּ בָּהֶן יוֹרְשִׁין מוּעָטִין וְנִתְרַבּוּ מַאי תָּא שְׁמַע דְּנִיכְסֵי דְּבֵי בַּר צַרְצוּר מוּעָטִין וְנִתְרַבּוּ הֲווֹ וַאֲתוֹ לְקַמֵּיהּ דְּרַב עַמְרָם אֲמַר לְהוּ זִילוּ פַּיְּיסִינְהוּ לָא אַשְׁגַּחוּ אֲמַר לְהוּ אִי לָא מְפַיְּיסִיתוּ לְהוּ מָחֵינָא לְכוּ בְּסִילְוָא דְּלָא מַבַּע דְּמָא שַׁדְּרִינְהוּ לְקַמֵּיהּ דְּרַב נַחְמָן אָמַר לָהֶן כְּשֵׁם שֶׁמְּרוּבִּין וְנִתְמַעֲטוּ
and here they disagree about a dinar’s worth of real estate: One Sage, the first tanna, holds that if the surplus was in the form of real estate, meaning that there was sufficient real estate to cover the sums specified in the marriage contracts and one dinar’s worth of land was still left over, then yes, each can claim his mother’s marriage contract, but if the surplus of the dinar was only in movable property, then no, they cannot; and one Sage, Rabbi Shimon, holds that the heirs may claim the marriage contracts even if the surplus is in movable property. The Gemara asks: But how can you say that? Didn’t we learn in the mishna (91a) that Rabbi Shimon says: Even if there is property that does not serve as a guarantee for a loan, i.e., movable property, it is considered as nothing, unless there is property that serves as a guarantee for a loan with a promissory note, i.e., land, exceeding the value of the two marriage contracts by at least one additional dinar. Rather, here they disagree about a dinar of liened property: One Sage, the first tanna, holds that if the surplus was in the form of unsold property, then yes, each can claim the sum specified in his mother’s marriage contract, but if the surplus was only in liened property then no, he cannot. And one Sage, Rabbi Shimon, holds that it is deemed a surplus even if it was in the form of liened property. The Gemara asks: If that is so, the baraita should not have stated Rabbi Shimon’s opinion using the conditional: Rabbi Shimon says: If there is a surplus of a dinar. In this case such a surplus certainly exists, and therefore it should have said: Since there is a surplus of a dinar. Rather, the dispute can be explained differently: They disagree about a case where there is less than a dinar of surplus: One Sage, the first tanna, holds that if the surplus was worth a dinar, then yes, each can claim his mother’s marriage contract, but if it was less than a dinar then no, he cannot. And one Sage, Rabbi Shimon, holds that it is deemed a surplus even if it was less than a dinar. The Gemara asks: But Rabbi Shimon said: If there is a surplus of a dinar, and not less. And if you would say: Reverse the interpretation of the opinion of the first tanna in the baraita cited above, that would be unacceptable, because the first tanna of the mishna (91a), who is presumably identical to the first tanna of the baraita, also said that the surplus must be at least one dinar. The Gemara concludes: Rather, the dispute in the baraita must be explained according to those first two formulations cited above, that they disagree about a surplus in movable property or about a surplus in liened property. And reverse the interpretation of the opinion of the first tanna, so that he holds that the sons of the first wife may collect her marriage settlement if there is a surplus in their father’s estate of one dinar worth of movable property or liened property, whereas Rabbi Shimon holds that there must be a surplus of one dinar worth of land that is not liened. Mar Zutra said in the name of Rav Pappa: The halakha in the case where one wife died in his lifetime and one died following his death is that the sons of the first wife are entitled to the collect the marriage contract concerning male children, and furthermore, that one marriage contract becomes surplus for the other. The Gemara wonders: Granted, if Mar Zutra would have taught us only that in a case where one wife died in his lifetime and one died following his death, the sons of the first wife are entitled to collect the marriage contract concerning male children, and he would not have taught us that one marriage contract becomes surplus for the other, I would say that if there is a surplus of a dinar after the payment of both marriage settlements, then yes, the sons of the first wife can claim their mother’s marriage settlement, but if not, then no, they cannot. However, let him teach us only that one marriage contract becomes surplus for the other, and I would know that it is due to the fact that if one wife died in his lifetime and one died following his death, the sons of the first wife are entitled to claim payment of the marriage contract concerning male children. The Gemara answers: If he would have taught us only that, that a marriage contract can serve as a surplus, I would say that this applies specifically in a case where an individual married three women, and two of them died in his lifetime and one after his death, and that wife who died after his death had given birth to a daughter but no sons, and the daughter does not inherit any part of the estate. Although the daughter is entitled to be sustained from her father’s estate, she has no claim to a share in the inheritance. Consequently, there is no concern for quarreling, as all the heirs are in the same situation. However, in a case where one wife died in his lifetime and one died after his death, where the one who died after his death had given birth to a son who is suing for his portion of the estate, one could say that there is a concern about quarreling arising from the complaints of the son of the second wife. Therefore, Mar Zutra mentions both halakhot explicitly in order to teach us that this concern is not taken into account. MISHNA: In the case of one who was married to two women and the women died, and subsequently he died, and the orphans of one of the wives are now seeking to collect the payment specified in their mother’s marriage contract, i.e., the marriage contract concerning male children, but there is only enough in the estate to pay the value of the two marriage contracts, the marriage contract concerning male children cannot be collected, and the sons distribute the estate equally among themselves according to the biblical laws of inheritance. If there was a surplus of a dinar left there, in the estate, beyond the value of the two marriage contracts, then these sons collect their mother’s marriage contract and those sons collect their mother’s marriage contract, and the remaining property valued at a dinar is divided equally among all the sons. If the orphans who are entitled to receive the marriage settlement of greater value say: We inflate the value of our father’s property by a dinar, i.e., we agree to evaluate the property we will receive for our mother’s marriage settlement at a value higher than the market value so that there will be a dinar left in the estate after the two marriage contracts have been paid, so that they can collect their mother’s marriage contract, the court does not listen to them. Rather, the value of the property is appraised in court, and the distribution of the estate is based on that evaluation. If there was potential inheritance there, meaning that there was no surplus of a dinar in the existing properties of the estate, but there was property that was expected to be paid to the estate and which would increase the overall value of the estate so that there would be a surplus of a dinar after the payment of the marriage contracts, these properties are not considered to be in the possession of the estate in determining the total value of the estate. Rabbi Shimon says: Even if there is property that does not serve as guarantee for a loan, i.e., movable property, there in the estate, it does not have any impact on the value of the estate. The marriage contracts concerning male children are not collected unless there is property that serves as a guarantee, i.e., land, exceeding the value of the two marriage contracts by at least one additional dinar. GEMARA: The Sages taught in a baraita: If this wife had a marriage contract valued at one thousand dinars and that wife had a marriage contract valued at five hundred dinars, if there is a surplus of one dinar, then these sons collect their mother’s marriage contract and those sons collect their mother’s marriage contract. And if not, they divide the inheritance equally. The Gemara notes: It is obvious that if there were abundant properties, i.e., there was a surplus of a dinar above the value of the two marriage settlements at the time of the man’s death, but they depreciated before the sons collected the marriage settlements, the heirs have already acquired rights to the marriage settlements. However, what is the halakha if the estate’s holdings were few, i.e., there was no surplus at the time of the man’s death, but they appreciated before the sons divided the estate, so that there was a surplus? Do the sons collect the mothers’ marriage settlements? The Gemara suggests: Come and hear a solution based upon the following case: The properties of the house of bar Tzartzur were few, i.e., there was no surplus beyond his wives’ marriage settlements, and they appreciated. The sons of the two wives came before Rav Amram to discuss the matter. He said to the sons of the wife who had the more valuable marriage contract: Go appease the sons of the other wife and give them some of your share. They did not heed his advice. He said to them: If you will not appease them, I will strike you with a thorn [silva] that does not draw blood, i.e., I will excommunicate you. He sent them before Rav Naḥman. Rav Naḥman said to them: Just as the halakha is that if the properties were abundant but depreciated,