The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
Aside from the personal relationship that is created between husband and wife at the time of their marriage, the marriage agreement involves agreement between them in other areas, as well. The economic union that the marriage creates is largely open to definition between the two parties. Thus, for example, the husband can choose to concede some of the obligations that his wife has towards him. Ha-kotev le-ishto, the ninth chapter in Masechet Ketubot, which begins on our daf, deals primarily with two such concessions. The first is a situation where the husband agrees to concede – entirely or partially – his rights to derive benefit from his wife’s property. The second is when he agrees not to demand an oath from her should she demand payment of her ketubah.
Much of the discussion in the Gemara is about the language that the husband uses when offering the concession to his wife. The Mishnah teaches that saying “I have no claim whatsoever on your property” – din u’devarim ein li be-nikhasayikh – will effectively allow her to sell the property, even though he will retain his rights to inheriting the property and continuing to benefit from it during her lifetime as long as she owns it. The Mishnah explains that he would have to be more specific if he wants to remove himself from those rights to her property.
Regarding the specific language used, our Gemara quotes a baraita that teaches that if someone says “I have no concern in this field and I entirely dissociate myself from it,” his statement is of no effect. The implication of this baraita is that these statements have no legal validity because they do not clearly express the man’s intent; Tosafot says that it is lashon geru’ah – it is a poor expression. The rishonim point out, however, that there are cases where statements such as these are viewed as being significant. Specifically, we rule that someone who says one of these things to his non-Jewish slave successfully sets him free.
Rabbeinu Tam explains that we must distinguish between a field and a slave. The slave is able to take possession of himself, and as such, a statement that releases him from the owner’s control effectively releases him. A field cannot own itself, so a statement that is not clear enough will have no effect.
Can a person make a condition that negates a Torah obligation?
Although Rabbi Shimon ben Gamliel in our Mishnah rejects such a possibility, some suggest that in situations that are purely monetary we may say tenai she-be-mamon kayyam – making a condition on a Torah law that has to do with money is acceptable.
One example that is brought by the Gemara is the case of ona’ah (unfair business practices). According to the Torah (See Vayikra 25:14, 17) business transactions must be fair and one side cannot take advantage of another. Thus, overcharging or underpaying is forbidden by the Torah, and the forbidden profits will need to be returned or the transaction voided. What would be the halakha if someone said to his friend “I am selling this to you on the condition that the rule forbidding ona’ah does not apply”? Here we find a disagreement between Shmuel who permits such a condition, permitting the sale and Rav who insists that ona’ah still applies.
The source for this discussion of ona’ah appears in Masechet Bava Metziah (51a). In truth, it is not only a question of whether a person can make an agreement to dispense with the rules of the Torah with regard to money matters, but also a more basic question of how to define the law of ona’ah. Some argue that ona’ah has two sides to it. On the one hand there is a question of money, on the other hand there are elements of issur – of forbidden practices – involved, as well. It is therefore possible that even if a person can choose to forgo the Torah rules with regard to money, his agreement to forgo the rule of ona’ah will have no legitimacy because of the issur involved.
According to the Rambam (Hilkhot Mekhirah 13:3) and the Shulchan Arukh (Choshen Mishpat 227:21), even though a person cannot make a condition that ona’ah does not apply, if he clearly states the true value of the item at the time of sale and explains that the price that he is demanding is out of line with its cost in the marketplace, the buyer can choose to purchase the item without the rules of ona’ah applying.
Our Gemara tells a fascinating story. In Rava‘s courtroom a woman appeared who was obligated to take an oath. (It should be noted that in Jewish courts the obligation to take an oath does not rest on witnesses, who are assumed to be reliable unless we know otherwise, rather the defendant may be called upon to swear that he does not owe money, for example, if there was only a single witness against him.) Rava’s wife, who was Chisda’s daughter, informed him that she knew the woman to be unreliable. Based on that information, Rava did not allow her to take an oath, but asked the other party to take the oath instead. Hipukh shevua – switching the oath to the other party – is not an unusual ruling. In all cases where one party cannot take the oath (swearing that he owes no money), the shevua is switched to the plaintiff who will be asked to swear that the money is really owed to him.
Subsequently, a promissory note was brought into Rava’s courtroom with a request that the court obligate the borrower to pay. Rav Papa stated that he had personal knowledge that this note had already been paid. Once Rava ascertained that there were no other witnesses and that Rav Papa was the only one who could testify, he rejected Rav Papa’s testimony, arguing that a single witness could not be accepted in court. Rav Ada bar Matana objected that Rava had accepted his wife’s statement with no compunctions! In response, Rava explained that he trusted his wife implicitly, and knew with certainty that she would never lie. With regard to Rav Papa, however, he could only follow the letter of the law, which required two witnesses.
This story is the source for the Rambam‘s ruling (see Hilkhot Sanhedrin 24:1) that with regard to cases dealing with money, a judge has the right and the responsibility to rule according to his understanding of the case, even if the all of the legal requirements with regard to testimony have not been fully met. Nevertheless, the Rambam continues (see ibid 24:2), even though this is the halacha, due to concerns with unreliable courts, we no longer practice this rule. Thus, if a judge believes that the witnesses before him are offering false testimony, if he is unsuccessful in disproving them, his only choice is to recuse himself and allow another judge to rule.
There is a Rabbinic ordinance that allows a person who suspects that his business partner or his employee has cheated him, or has made an error in calculating what is owed to him, to demand that his partner or his worker take an oath attesting to the veracity of the accounts. This is true even if the person has no evidence or witnesses to support his claim (see the Mishnah, Shavuot 7:8). The Rambam explains the reasoning behind this rule, by arguing that people who are responsible for other people’s money often rationalize to themselves that they are allowed to take a little more than agreed, since they work so hard, and the profits of the business are to their credit. Thus, forcing them to take an oath that all their transactions are above board will help ensure that they will be particularly careful with their partner’s or employer’s money (see Rambam, Hilchot Shutfim 9:1).
The Mishnah on our daf teaches that this rule also applies to a wife who works in her husband’s store or is put in charge of his investments. Rabbi Eliezer extends this even to everyday household tasks. If the husband suspects that she is taking dough or wool that she is working with for herself, he can demand that she take an oath that she has not taken what does not belong to her.
The Gemara explains that Rabbi Eliezer’s position is rejected by the other Sages because ein adam dar im nachash be-kefifah – a person cannot live together with a snake in a basket. This concept is explained by the Talmud Yerushalmi to mean that there cannot possibly be shalom bayit – peace in the house – if the husband is so concerned with the ownership of every small item, and any normal wife will refuse to live in such a situation. The Yerushalmi explains that this extends also to situations where, for example, the wife inadvertently breaks dishes in the house, where it is completely inappropriate to discuss whether she has the obligations of a shomer sakhar (a paid watchman, who has a higher level of responsibility) or a shomer hinam (a volunteer watchman who has a lower lever of responsibility) rather she is free of any obligation – because otherwise it would be an impossible situation at home.
In the event that a divorced woman comes to court and demands that she be paid her ketubah, but she admits that part of what was owed to her was already paid, if her husband claims to have paid the full amount we will not allow her to collect unless she takes an oath indicating how much she is still owed.
The Gemara quotes Rami ban Hama as comparing this to a standard case of modeh be-miktzat – someone who is brought to court by a debtor who claims to have lent a sum of money, and the modeh be-miktzat admits to having borrowed, but argues that the amount that he owes is less than what is being claimed. In such a case, the Torah requires the modeh b’miktzat to pay what he admits he owes and to take an oath that he does not owe the rest of the money that is being claimed. Responding to this comparison, Rava points out that our case is different in a number of ways. For example, the modeh b’miktzat (and similarly, all people who are obligated by the Torah to take an oath in court)use the oath to free themselves of payment, while in our case the oath is being used to secure payment from the husband. Rather, the oath in our case is not biblically mandated, it is a rabbinic enactment whose purpose is to ensure that the woman is very careful that she is demanding only as much money as is really owed to her.
Tosafot raise the question that we should believe her claim based on a migo. The idea of a migo is that a person is believed when he makes a claim, if he could have made a claim that would have been more advantageous to him. The argument is that if he was going to lie, he would have chosen the better lie, therefore we can accept the lesser claim that he is making as true. The Rosh explains that a migo cannot apply here, because our suspicion is not so much that the woman is lying, as that she is not precise in the amount of money that she is claiming. The Ritva argues that this cannot be the case of migo for the same reason that we do not apply migo in the case of modeh be-miktzat. The Sages understood that people are reluctant to tell a big lie and deny all, but are more comfortable telling a small lie. It would be too difficult for this woman to claim that all the money is owed to her if she had been paid, but she might be able to claim that part was still owed to her.
Aside from the case of modeh b’miktzat that we learned about on yesterday’s daf, the only other time that a person will be required by the Torah to take an oath in court is the case of ed echad – when a single witness steps forward to say that one person owes money to another. Ordinarily, Jewish law requires two witnesses to establish facts in court; with regard to money matters, although one witness will not be able to create an obligation to pay, he is believed to the extent that the defendant will be required to swear that he does not owe anything.
The Mishnah (87a) discusses a case where a woman claims that her ketubah was not yet paid, and a single witness comes to court and says that the ketubah had been paid in full. In such a case the woman can only collect if she takes an oath that she has not yet been paid.
Despite the apparent similarity to the case where the Torah requires that an oath be taken – a point made by Rami ban Hama – as we learned on yesterday’s daf, Rava argues that a biblical oath is used to free the defendant from payment, while in our case the oath is being used to secure payment from the husband. Rava argues that the oath in our case is not biblically mandated, it is a rabbinic enactment whose purpose is to reassure the husband that he is not being cheated.
What practical difference is there between a biblically mandated oath and a rabbinic one?
According to Rashi a biblical oath is taken invoking God’s name while holding a Sefer Torah or another holy object (like tefillin). Many rishonim disagree with Rashi and rule that all oaths that are taken in Jewish courts – whether from the Torah or established by the Sages – will have those requirements. Several other differences are suggested. One example is how to treat a person who chooses not to swear. When the oath is mandated by the Torah, if someone refuses to swear, they will lose the case. When the oath is only Rabbinic, however, it is possible that the court would choose to accept the fact that the wife is holding the ketubah as evidence that it was not paid, and obligate the husband to pay, even without her oath.
According to the Mishnah, if a woman demands payment of her ketubah based on the fact that she was divorced, but she could not produce her get (document of divorce), if her husband claimed that he paid it, even though he admits that he cannot produce a receipt for payment, he will not have to pay the money. Similarly, if a man produces a promissory note but cannot produce a pruzbul, if the Sabbatical year has passed, the borrower will not have to pay. Rabban Shimon ben Gamliel rules that from the time of the Roman government’s decrees against religious practice, both the wife and the lender would be believed, since it would be dangerous to keep the get or the pruzbol.
According to the Torah, among other things the Sabbatical year annulled most private loans (see Devarim 15:1-3). Recognizing that lenders were reluctant to offer loans as the Sabbatical year approached – which was, itself forbidden by the Torah (see Devarim 15:9-11), Hillel ha-Zaken established a method that would allow the lenders to collect the debts that were owed to them, even after the Sabbatical year. His suggestion was to write a document – called a pruzbol – that effectively turned the loan over to the courts, which were not constrained by the laws of shemitta, since they do not apply to public debts. Thus, when the Sabbatical year was over, the court would be collecting the debt, rather than the individual. This legal fiction was viewed as a benefit for both the rich – who would not be able to recover their loans – and the poor – who would now be able to borrow money when they needed to.
The source for the term pruzbul is Greek, although it is not entirely clear what the word refers to. One suggestion is that it means simply “an announcement delivered to the courts.”
It should be noted that although our Mishnah works with the assumption that the lender is not believed to have arranged a pruzbul unless he can produce it, whether or not he needs to show it is, in fact, a matter of dispute in Masechet Gittin (37b). According to the conclusion of that Gemara we do believe his claim that a pruzbul was written.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.