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 main focus of the eleventh perek of Masechet Ketubot is the ability that a widow has to collect what is owed to her from her late husband’s estate. Generally speaking there are two monetary claims that a widow has on the estate:
- Mezonot – support for purchase of food
- Ketubah – payment of the monies promised in the wedding contract
A widow is entitled to mezonot until such time as she collects her ketubah. Once the ketubah is paid, the heirs to the estate have no other obligations to her.
While she receives mezonot from the estate, she does not need to go and receive a stipend on a daily basis; rather she has the right to sell her late husband’s property in order to support herself. In the context of this discussion, the Gemara raises a general question dealing with assumptions that are made at the time of a sale. What if a person sells property because he needs the money for a certain project or purchase, and then discovers that the project or purchase has fallen through? Can he insist on calling off the sale of his property with the claim that it was a mistaken sale?
The Gemara brings a number of cases that can act as possible sources for a ruling on this question, concluding with the statement that the seller can call off the deal if it turns out that he did not need the money from the sale. Rashi limits this rule to situations where it was clear to all parties involved that the sale was only taking place because of the particular need that the seller had at that time. Most of the rishonim follow the position presented by Rav Hai Gaon that even that case will fall into the category of devarim she-ba-lev – something in a person’s heart that is unknown to others and cannot impact on a sale. According to Rav Hai Gaon, the Gemara’s question is in a case where the seller clearly states at the time of the sale that his intention was to do something specific with the proceeds, but did not make it a condition of the sale. It is only in such a case that we can allow the sale to be cancelled.
We have already learned that a widow is entitled to mezonot – support for purchase of food – until such time as she collects her ketubah. During this time, she does not necessarily receive a daily stipend, rather she can sell her late husband’s property in order to support herself.
In our Gemara, Rava‘s son Rabbah asked Rav Yosef whether a woman who sells her late husband’s land in order to have money to feed herself will be obligated to take an oath in court. Rashi understands that the oath under discussion is a question of whether the widow may have taken more money than she deserved. Tosafot explain that she is being asked whether she is certain that she sold the property at its true value and not at a discount.
Given that she is only permitted to sell it in the presence of three people, some ask why there would be any need for her to take an oath.
The Ramban answers that the need for three people is only when establishing the value of the property. Once the value of the property has been established, the widow searches for buyers, and it is possible that she will find someone who is willing to pay more than the estimated price. It would then be necessary for her to swear that she did not take more money than she was permitted to, something that she would not have needed to do had the estimate and sale taken place under the supervision of the courts.
The Ramban then offers a different approach to the need to take an oath in this case. He argues that the oath discussed in our Gemara is the same oath that we always make the widow take before collecting her ketubah from the orphans – that she did not receive any payments from her husband towards the ketubah payment while he was still alive. Such an oath is necessary because we assume that the orphans do not know the details of their father’s business, so anyone who comes with a claim against the estate cannot collect without taking such an oath. The Gemara’s question in our case is whether the widow needs to take this oath before she sells any of the property, or, perhaps, she can first sell property for her needs, and only take the oath at a later time.
The Jewish court has the ability to sell properties owned by an estate in order to pay debts owed by the individual who passed away. This includes outstanding loans, payment of the ketubah, etc. Generally speaking this was done by means of an announcement that the court has properties for sale – effectively a public auction – which would invite people to come and view the properties, establishing their value.
Under certain circumstances, such as selling to feed the widow or to arrange for her burial, a sale of estate property may take place without such an announcement. Similarly there were places where it was commonplace for the court to arrange the sale of property without such an announcement. Our Mishna discusses a case where the sale took place without such an announcement, and a significant error is made. According to the Tanna Kamma, if the error was a sixth of the value of the property, the sale is automatically nullified because of the law of ona’ah. According to Rabbi Shimon ben Gamliel, however, Jewish courts have the strength to effect a sale, even if the discrepancy is a sixth of the actual value of the property.
The law of ona’ah, which is based on the passage in Vayikra (25:14), is understood by the Sages to forbid overcharging or undercharging someone from the market price. As long as the discrepancy is less than one-sixth of the price, the sale stands and the excess must be returned; if the discrepancy reaches one-sixth of the price, the entire transaction is cancelled.
The Mishna continues and teaches that if an announcement of the auction was made, then even a wide discrepancy would not cancel the deal – property worth 100 can be sold for 200 or property worth 200 can be sold for 100. According to the Ramban, the Mishna mentioned these specific numbers because even in the case of an auction there are limits to the error that is acceptable, and a larger discrepancy would cancel the sale.
When a man dies and leaves an estate, and his heirs are not old enough to take charge of the financial affairs, it is the responsibility of the courts to step in and ensure that the value of the property is preserved. Thus, Rav Yehuda quotes Shmuel as teaching that metaltelin – moveable property (as opposed to real estate) – should be evaluated and sold immediately so that it will not deteriorate and lose value. Rav Chisda is quoted as saying that it should be sold in the market. The Gemara explains that there is really no disagreement. Shmuel’s ruling is when the market is far, while Rav Chisda is talking about when the market is close.
Rashi explains that the reference to the market means that it should be sold on the market day, and when the Gemara rules that we distinguish between a close market and a far-away market, the question is one of time – will the market day be taking place sooner or later? The Rambam understands that it is a question of distance, and the Gemara is distinguishing between a close-by market and a market that is far away.
To illustrate this rule, the Gemara tells of amoraim who had been appointed as guardians to look after the property of orphans. Rav Kahana, for example, chose to wait to sell the alcoholic beverages that were part of Rav Mesharsheya’s estate, arguing that if he waited for the holidays, even though the drinks would deteriorate somewhat – nafal beh itzatzta – nevertheless he anticipated being able to get a better price because of the many people who would be purchasing such drinks.
Rashi interprets itzatzta as oxidation, and understands that the concern was a lessening of the quality of the beverage, which would be made up by the rising prices. To this day, cheaper wines have a tendency to develop a sour taste, and over time the chemical process will turn the wine into vinegar.
Rabbeinu Chananel takes an entirely different approach, suggesting that the word itzatzta, or, as he has it, utza, means a monetary loss. He explains that Rav Kahana recognized that at the holiday season there would be a greater supply of alcoholic beverages available, and prices would drop. Nevertheless, the availability of other items to purchase at a discount made it worthwhile to wait until that time.
We have already learned about two types of property that a woman brings with her into a marriage, nikhsei melug and nikhsei tzon barzel (see, for example, Yevamot 38):
- Nichsei melug are possessions that remain the property of the woman. While the couple is married, the husband can derive benefit from this property. When the marriage ends, they remain hers, in whatever condition they may be.
- Nichsei tzon barzel are possessions that become the property of the husband. Their value is written into the ketubah, and in the event that their marriage comes to an end – if the husband dies or if they become divorced – the wife will be reimbursed for the full amount, either from the estate if he died or from him if they divorced.
Where do these terms come from?
Some rishonim suggest that the term melug stems from the root m-l-g which means boiling the skin of an animal to remove the hair. Similarly, in our case, the husband “shaves” the profits from the property. Others suggest that it is from the Greek root logos, meaning speech, and it is borrowed in our context to mean property that belongs to the husband because of a verbal agreement. Most likely it is a word that has its own independent meaning, perhaps taken from ancient Akkadian, with the meaning of “property brought by a woman to her husband.”
The words “tzon barzel” have a very clear meaning – “iron cattle,” an illustrative metaphor, which is also found in Roman law. It expresses the status of this property, which is like iron cattle to the owners in the sense that they cannot be destroyed since someone – in our case, the husband – has taken full responsibility for them. In yet another way the metaphor is a good one – like iron cattle, these properties do not produce anything of value for their owners; they only keep their value.
Generally speaking, according to Jewish law, a transfer of property between two parties can only be done by means of a kinyan – a formal act that clarifies that the object has been sold or given as a present. Our Gemara teaches us that there are times when a simple, verbal agreement can take the place of a formal kinyan. Specifically, Rav Gidel teaches that when the parents of a couple that is about to be married meet one another and promise to give a certain amount to their son and to their daughter, once the marriage takes place – hen, hen devarim ha-niknin ba-amirah – these are things that are purchased with an oral statement.
The Talmud Yerushalmi comments on this law that it is true only if it is the fathers of the bride and groom who are making the promises, but that other relatives cannot effect a kinyan with just a verbal agreement. Furthermore, it would only be true if this was a first marriage. The reason behind these limitations appears to follow the reasoning of Rav in our Gemara’s conclusion. The kinyan works in our situation because the unique joy that accompanies the wedding has the ability to give greater power to the statements that are made than would ordinarily be the case. This is only true if we are dealing with parents and a first marriage. The Me’iri adds that according to this logic, were the bride and groom themselves to make oral commitments, that should also fall into this category and obligate them to live up to their word.
Does the wedding need to take place immediately after the agreement in order for it to create this level of commitment? From the simple reading of the Gemara, it would appear to be so, since the Gemara uses the term amdu v’kidshu – they got up and married – after the agreement. The Rashbam and the Re’ah both accept this position. The Ritva however, suggests that this expression simply indicates that when the wedding takes place, the oral agreement becomes a final commitment.
Our Mishna teaches that when a man dies, his children cannot insist that his widow move out of his house, even with a promise to support her. In fact, if she wants to remain, the orphans are obligated to give her a place in the house according to her needs (some say that she has full access to the house, as she did while her late husband was alive), and support her there.
In this context, our Gemara tells of various commands that Rabbi Yehuda HaNasi gave while on his deathbed. To his children his instructions were: “Take great care with regard to your mother’s honor, keep my candle burning and my table set, each in its proper place, and my servants, Yosef Hefani and Shimon Efrati should serve me in my death as they did during my lifetime.” According to the Talmud Yerushalmi, Rabbi Yehuda HaNasi specifically instructed that his wife should remain in his home, which is a direct connection to our Mishna. Some suggest that he needed to emphasize this point because of the concern that there would be an argument about whether his house, as the home of the Nasi, perhaps had a unique status, and that his wife would not merit remaining in it.
The woman that Rabbi Yehuda HaNasi refers to as “your mother” was, in fact, a step-mother. Rav Yaakov Emden points out that we already find in the Torah that a man may refer to his wife as his children’s mother, even if she did not give birth to them. When Yaakov reacts to Yosef’s dream where the sun and the moon bow down to him (see Bereshit 37:10), he asks whether Yosef anticipates that his father, mother and brothers would all bow down – yet Yosef’s mother, Rachel, had already passed away. The Iyun Yaakov suggests that a woman who raised a child may be called his mother even if she is not his birth mother (see Rashi, ibid).
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.