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
The tenth perek, called Mi she-hayah nassuy, deals with an issue that first appeared in the last perek: how the estate should be divided in a case where a man was married to more than one woman and has children with each wife. Clearly, if the estate has enough money to pay all of its obligations, there is no problem. What happens, however, when the ketubot of the women amount to more than the money that was left?
In such a situation, three issues need to be dealt with:
- First of all, which of the wives has first priority in collecting her ketubah, and how is this determined?
- Secondly, how do we deal with a case where the value of each ketubah was different? Does it make sense that each should get an equal amount? Should each get according to a percentage that matches the basic obligation? Should one party simply win out?
- Finally, how should the ketubat benin dikhrin be treated?
The ketubat benin dikhrin is one of the standard conditions that is included in the ketubah, which guarantees that the woman’s sons will inherit the value of her ketubah, over and above any other inheritance that they deserve. Given the fact that the value of each woman’s ketubah might be different, and the reality that each woman may have a different number of children who are inheriting, we will need to clarify how the various claims on the estate will be worked out.
The first Mishna in the perek lays down one straightforward rule for setting priorities – if a man is married to two women and he dies, his first wife has priority over his second with regard to collecting her ketubah. This stems from the fact that each of them comes with a claim based on a written contract, and the date of the first wife’s contract precedes that of the second. The Talmud Yerushalmi points out, however, that this rule applies only to the ketubah payment. With regard to other obligations, like ongoing daily support, both widows are on the same legal footing.
As we learned yesterday, the ketubat benin dikhrin is the agreement written into the ketubah that guarantees payment of the mother’s ketubah to her sons, over and above any other inheritance that they receive from their father. The Mishnah on our daf teaches that the ketubat benin dikhrin will only be paid to the children if there is some money left that will be left in the estate to be divided up. If there will be no money left in the estate, we choose to apply the inheritance laws first, rather than ketubat benin dikhrin, because otherwise the Torah inheritance laws will be missed out on entirely.
Ketubat benin dikhrin was first established by the Sages in order to encourage a bride’s father to be open-handed in the dowry that he offered. If he knew that it would be his grandchildren who would inherit the money after his daughter’s passing, he would likely be more generous. This Rabbinic rule is seen as being appropriate only if the Torah inheritance laws can be applied to at least a small amount of the estate.
The Gemara teaches that if a man was married to two women and at the moment of the man’s death there was a sufficient amount of money to pay both ketubot, then the ketubot will be paid to the women’s children, even if the value of the estate later drops. On the other hand, the Gemara is unsure how to rule in the opposite case, in which at the time of death there is not enough money to pay the ketubot and still have money left to divide as an inheritance, but the value of the estate later increases.
To answer this question, the Gemara tells the story of the children of the house of Tzartzur who found themselves in just such a situation. Rav Amram tried to convince the children whose mother had the larger ketubah to offer a compromise to those whose mother had a smaller ketubah, but they refused to do so. Finally the case came before Rav Nahman, who ruled that just as the heirs receive it in a case where the estate gets smaller, so too do the heirs receive it when the estate gets larger.
According to Rashi, Rav Nachman’s ruling is that we always follow the situation at the moment of death. Thus, in the case in question, there is not enough money to both pay ketubot and apply the biblical inheritance laws, so the ketubot will not be paid and the estate will be divided up as an inheritance. Tosafot quote the R”i, who understands Rav Nachman’s statement that “the heirs receive it” as saying that it should be the same in both cases, i.e. the ketubot will be paid to the sons according to the original agreement.
Jewish law recognizes that formal loans that are recorded in signed contracts create liens of the property of the borrower that effectively guarantee payment of the loan. Therefore, if a borrower cannot pay back his loan, the lender has the right to take possession of real estate that was owned by the borrower at the time of the loan – even if it had subsequently been sold to a third party. Clearly the borrower will have to make amends with the purchaser, given that the sale has effectively been nullified.
In our Gemara, Abayye teaches that in a case where “Reuven” sold property to “Shimon” – and guaranteed the sale – and Reuven’s creditor came and collected the property from Shimon as payment of Reuven’s outstanding loan, it would be appropriate for Reuven to enter negotiations with the creditor. The creditor cannot claim that his interaction with Reuven has ended, and it is now up to Reuven to compensate Shimon, but Reuven has no right to engage him further. The Gemara concludes that this is even true if Reuven did not guarantee the sale to Shimon, because Reuven can argue that he does not want Shimon to have complaints against him.
The question raised by the rishonim is why this ruling is significant. What difference does it make whether it is Reuven or Shimon who argues with the creditor?
Rashi suggests that, given his previous interactions with the creditor, Reuven has a larger array of arguments that he can make. He can claim, for example, that the loan was already paid, or that there are other outstanding loans that are owed to him that would cancel the debt that is owed. Other suggestions are that Reuven can argue that there is still time before the loan comes due, or that the contract that was brought to court was forged. The Rosh brings an explanation that the Ramban says is the simplest approach to this story. According to the Rosh there is no real difference between Reuven and Shimon – either one could make the same arguments. Nevertheless, we know that some people are more talented at presenting arguments in court. If Reuven is particularly adept at presenting his case, he can take the initiative to do so, and the creditor cannot insist that only Shimon – a less talented adversary – has the right to argue in court.
How do partners divide profits – and losses – on their investments?
The Mishna on our daf deals with that question in the context of a similar question about wives with different size ketubot – e.g. one of them is owed 100 maneh, one 200 maneh and one 300 maneh. According to the Mishnah, if the estate has only 100 maneh available for payment, all of the women share equally. If there are 200 maneh available, the two women with larger ketubot receive 75 maneh each, and the woman with the smallest ketubah receives 50 maneh. If there are 300 maneh available, the woman with the largest ketubah receives 150 maneh, the woman with the middle-sized ketubah receives 100 maneh, and the woman with the smallest ketubah receives 50.
The Mishna goes on to say that in partnerships, this same rule would apply.
Although the Gemara limits this rule to very specific cases, Rav Saadiah Gaon argues that there is a straightforward explanation for the Mishnah’s division of the monies that are owed. He explains that the money in the estate that is available for payment up to the value of each ketubah must be divided equally between the women, while money that is available over and above each woman’s ketubah is divided up based on the percentage that each woman has owed to her.
- If there is only 100 maneh, which is the value of the smallest ketubah, all the women share equally.
- If there are 200 maneh, the woman with the smallest ketubah receives one-third of the first hundred plus one-sixth of the second hundred (50 maneh), while the other two women share equally in the remainder.
- If there are 300 maneh – the size of the largest ketubah – then the women will all receive their shares according to the percentages that are coming to them; each receives half of what is owed to her.
What should be done if a field is sold, or given as a gift, to two people?
The Gemara describes a case where two people claim ownership of a piece of land, and each has a signed contract with the same date of sale on it. In such a case we find a disagreement between Rav, who says that the field should be divided between them, and Shmuel, who says shuda d’dayni – it is left to the judges to decide as they see fit.
In discussing the ruling, the Gemara tells the story of Rami bar Hama‘s mother, who wrote a contract giving all of her possessions to Rami. Later that day she wrote another contract, and in this one she gave all of her possessions to Mar Ukba bar Hama. Rami bar Hama took the case to Rav Sheshet, who ruled that Rami was the owner of the property; Mar Ukba went to Rav Nachman, who ruled that it all belonged to Mar Ukba. When these two Sages met, Rav Sheshet explained that he ruled in favor of Rami, who received his contract first. Rav Nachman rejected that ruling, arguing that the contracts were written on the same date and the time of day they were written was not apparent. He followed Shmuel’s ruling of shuda d’dayni and felt that the mother’s true intention was to give her possessions to Mar Ukba. When Rav Sheshet argued that his ruling, too, should be considered shuda d’dayni, Rav Nachman rejected it on two counts:
- Rav Sheshet’s original reasoning was not shuda d’dayni but an issue of time.
- Only judges – dayanim – can decide shuda d’dayni.
This last statement of Rav Nachman is questioned by many of the rishonim. Rav Sheshet was known to be one of the great scholars during the time of the amoraim. Why should he be excluded from performing shuda d’dayni? Rashi explains that it is a technical matter. Only official dayanim can rule on shuda d’dayni, and for all of his knowledge, Rav Sheshet never received that title. According to the Re’ah, specifically in the area of money matters, Rav Nachman was the acknowledged expert. The Me’iri points out that Rav Sheshet was blind, and a blind person cannot play the role of judge, except in cases where both parties agree to accept his ruling.
We learned earlier (see daf, or page, 92) that a creditor can collect from real estate owned by the borrower, even if it had subsequently been sold to a third party. Our Gemara points out that this is only true if the borrower had no other property available from which one could collect. If, however, such property was available – even if it was ziburit (i.e. low-quality real estate, and loans are usually collected from higher quality land) – collection must be made from there, and properties already purchased by others cannot be used to collect the loan.
In the case where the purchaser made sure to leave some real estate available to pay off loans, but that land became ruined, can the creditor still collect from the lands that had been sold by the borrower? The Gemara argues that it is common practice for the courts to allow collection to be made from fields that have been sold, even if the purchaser made sure that there were other lands available for collections. Even in such cases, the purchaser takes on some level of risk – and presumably gets a better price for the field than he would have if the field was totally risk-free. The example presented by the Gemara is a case where a man gave a pardes – an orchard or vineyard – to his creditor for ten years, with the expectation that the produce of the land would pay off the loan over a ten-year period. After five years the field stopped producing, and the court allowed the creditor to collect from another piece of land to collect his remaining debt.
The term pardes, which appears in both Shir HaShirim and Kohelet, has its origins in Persian, where it was understood to mean a garden. Subsequently the word made its way into many other languages, where it was used to express concepts similar to and very different from the original meaning (e.g. Gan Eden = the Garden of Eden = paradise). From Talmudic sources it appears that a pardes was understood to be an orchard made up of different types of trees. Some suggest that its main purpose was to serve not only as a fruit producing orchard but also for as a garden of beauty.
Today’s Daf Yomi is dedicated in honor of the yahrzeit of Edna Greenberg (26 Kislev).
When a woman is widowed, she continues to be supported by the heirs to her late husband’s estate, in exchange for her work. Rabbi Yossi bar Chanina teaches that she is obligated to do all the work that she performed while her husband was alive, except for personal things like washing his face, hands and feet.
In the context of this discussion, the Gemara raises the issue of similar types of service that a student does for his teacher.
Rabbi Yehoshua ben Levi taught: A student should perform any service for his teacher that a slave does for his master with the exception of removing his shoes for him. Rabbah explains that this is only true in a place where the student is not known, and may be thought to be a slave; otherwise it would be appropriate to remove his teacher’s shoes. Rav Ashi rules that even in a place where the student is not known, if he wears Tefillin he can perform such service, since the Tefillin clearly indicate that he is not a slave.
Sources in both the written Torah and the Talmud make it clear that shoes were considered contemptible. Entering a holy place with shoes is forbidden by the Torah (see Shemot 3:5, among other places). Striking someone with a shoe, or throwing a shoe at someone, was a form of great insult (see Tehillim 60:10). Thus, removing someone’s shoes for them was something that only a slave would be asked to do.
Wearing Tefillin, however, is the antithesis of this. Aside from being a positive commandment in which slaves are not obligated, Tefillin also are considered to have a unique element of honor attached to them. For example, the passage in Yechezkel (24:17) where the prophet is commanded to continue wearing his glory on his head is understood by the Sages to refer to Tefillin.
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.
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