Daf Yomi - Kesuvos 84 - Highlights

Rav and Rabban Shimon ben Gamliel

The Gemora asks: Does Rav hold such a condition is valid? Didn’t Rav say that if someone says to his friend (I am selling you this item) “on the condition that you have no claim of ona’ah (Torah prohibition against charging one-sixth more than the market value for an item)” that there is still ona’ah. Shmuel says: There is no ona’ah.

The Gemora answers: It must be that the law follows Rabban Shimon ben Gamliel that if someone makes a condition which is against Torah law, the condition is invalid. However, not because of Rabban Shimon’s reason. Rabban Shimon understands the reason leads to the conclusion that if the woman (in Mishna 83a) dies the husband inherits her, and Rav holds he does not.

The Gemora asks: This would mean that Rav should hold of Rabban Shimon’s reasoning and not his law, not (as Rav stated) that he holds of Rabban Shimon’s law but not based on his reasoning!

The Gemora answers: It must be that Rav holds like Rabban Shimon’s law that if she dies he inherits, but not based on his reasoning. Rabban Shimon’s reasoning was that a although a condition made against Torah law is invalid, a condition made against Rabbinic law is valid. Rav held that a condition cannot be made even against Rabbinic law.

The Gemora asks: This means Rav holds of both Rabban Shimon’s law and his reasoning. Rav merely adds that a condition against Rabbinic law is also invalid!

The Gemora answers: It must be that Rav holds like Rabban Shimon’s law that if she dies he inherits, but not based on his reasoning. Rabban Shimon’s reasoning was that a husband inherits from his wife according to Torah law, and any condition made against Torah law is invalid. Rav’s reasoning is that a husband only inherits his wife based on a Rabbinic decree, and the sages deemed it necessary to strengthen this law like it was a Torah law (that a condition against it would be invalid). (83b – 84a)

A Husband’s Inheritance: Torah or Rabinnic Law

The Gemora asks: Does Rav really hold that a husband only inherits from his wife because of a Rabbinic institution? The Mishna records that Rabbi Yochanan ben Berokah said someone who inherits his wife should give back the fields by yovel (the jubilee year) and subtract money from them. The Gemara inquires: What is Rabbi Yochanan’s reasoning? If he holds that a husband inherits based on Torah law, why should he give it back at all? If he holds that this inheritance is Rabbinic in nature, why does he take money? Rav explained: Rabbi Yochanan holds that a husband’s inheritance is established in Torah law. However, the case here is where his wife owned her family’s burial plots. Being that their inability to bury their dead their and the burial of others there instead would denigrate the family, he should return the plot to them for a (small) amount of money.

The Gemora asks: What does it meant that he should subtract some money? The Gemora answers: This is the amount of money that his wife’s plot is worth. This is in accordance with a statement of a Beraisa that someone who sells his burial plot, the path to it, the place where one stands to deliver a eulogy and the place for the eulogy, his family can come bury him their anyway, as otherwise it is denigrating to the family. [The above shows that Rav says that a husband’s inheritance is a Torah law, not Rabbinic as we stated above!]

The Gemora answers: Rav was merely explaining the position of Rabbi Yochanan ben Berokah. He himself did not agree with Rabbi Yochanan that a husband’s inheritance is Torah law. (84a)
Mishna

If someone dies and left a widow, creditor, and inheritors, and he had deposited items of value with others or others owed him money (who receives the money)? Rabbi Tarfon says: It should be given to the weakest amongst them (see the Gemora later). Rabbi Akiva says: We do not have mercy in judgement, rather we give the money to the inheritors. This is because while the others must take an oath in order to collect this money, the inheritors do not. If he left fruit that was not connected to the ground, whoever takes it first (among those listed above) is entitled to it. If the widow grabbed more than her Kesuvah was worth, and a creditor grabbed more than the money owed to him, (what should be done with) the rest? Rabbi Tarfon says: It should be given to the weakest amongst them (see the Gemora later). Rabbi Akiva says: We do not have mercy in judgement, rather we give the money to the inheritors. This is because while the others must take an oath in order to collect this money, the inheritors do not. (84a)

Both a Deposit and a Loan

The Gemora asks: Why did the Mishna state a case where the deceased had either a loan or a deposit (either is enough to get the point across)? The Gemora answers: This was necessary. If the Mishna would have only stated a case of a loan, it is possible that specifically regarding a loan Rabbi Tarfon would say the weakest takes the money because a loan is made to be spent. [The money is not considered to be extant, and therefore not in the domain of the inheritors.] However, in a case of a deposit that is extant we might have thought that he agrees with Rabbi Akiva. If the Mishna would have only stated a case of a deposit, we might have thought that Rabbi Akiva only says that the inheritors receive the money because it is extant, but in a case of a loan he would agree to Rabbi Tarfon. Both cases are therefore necessary. (84a)
Who is “The Weakest”?

The Gemora asks: What does Rabbi Tarfon mean by “the weakest?” Rabbi Yosi b’Rebbi Chanina says: The one with the weakest proof (the document dated the latest). Rabbi Yochanan says: He is referring to the kesuvah of the widow, due to the sages will that the widow should have some money that will help her find favor in the eyes of another husband. This is as stated in a Beraisa. Rabbi Binyamin says: The one with the weakest proof (the document dated the latest), and it is appropriate to rule in this fashion. Rabbi Elazar says: He is referring to the kesuvah of the widow, due to the sages will that the widow should have some money that will help her find favor in the eyes of another husband.

The Gemora asks: According to Rabbi Akiva, how can the extra fruit be described as “extra?” All of that fruit belong to the orphans/inheritors!

The Gemora answers: This is true. However, because Rabbi Tarfon discussed “extra fruit,” Rabbi Akiva also discussed the “extra fruit” (which according to him are not extra).

The Gemora inquires: Does Rabbi Akiva hold that grabbing works at all in this case? Rava says in the name of Rav Nachman: It only helps if he grabbed the fruit before the person died.

The Gemora asks: According to Rabbi Tarfon, where were these fruits situated? Rav and Shmuel say: They must have been piled up in a public domain, but not in a side street. Rabbi Yochanan and Reish Lakish say: They could even have been piled in a side street. [The argument being whether or not the inheritors automatically acquire the fruit if it is in a side street.]

Certain judges ruled like Rabbi Tarfon, and Reish Lakish made them retract their ruling. Rabbi Yochanan told him: You did the Torah law.

The Gemora asks: Let us say they argue regarding the following concept. One holds that in a case where a judge makes an elementary mistake, the ruling should be retracted. The other argues that it should not be retracted.

The Gemora answers: No, this cannot be, as everyone agrees such a mistake must be retracted. Here they are arguing in the following concept. One understands that the rule that the law always follows Rabbi Akiva’s ruling when he argues on a friend, but not when his Rabbi (Rabbi Tarfon) argues on him. The other says the law always follows his opinion even when he argues on his Rabbi.

Alternatively, the Gemora gives the following explanation. Everyone agrees that the law is only like his opinion when he argues on a friend, not his Rabbi. In this case one opinion is that Rabbi Tarfon was his Rabbi, and the other is that Rabbi Tarfon was his friend.

Alternatively, the Gemora gives the following explanation. Everyone agrees that Rabbi Tarfon was merely his friend. In this case, one opinion is that when we state the law is like Rabbi Akiva, we mean that it is absolute. The other opinion understands that it is the optimal ruling that should be ruled, but if the ruling was made against his opinion it should not be retracted.

The relatives of Rabbi Yochanan grabbed the cow of orphans (whose father owed them money) when it was in a side street. They came before Rabbi Yochanan, who endorsed their actions. When they came before Reish Lakish, he told them that they should return the cow. When they returned to consult with Rabbi Yochanan, he told them that he cannot do anything as someone as great as him argues on him.

A person who used to watch the animals of orphans was watching their animals when a creditor seized one of the animals. The creditor claimed that he seized the animal when the father was alive, while the animal watcher claimed that it was after the father had already died. They came before Rav Nachman. Rav Nachman asked the animal watchman: “Do you have witnesses on this seizure?” The watchman replied that he did not. Rav Nachman stated: Being that the creditor could claim that the animal was originally his, he is believed to say that he grabbed it while the father was still alive.

The Gemora asks: Didn’t Reish Lakish say that certain domestic animals do not have a status quo of ownership (where whoever presently has them is believed to say that he bought them, as they frequently wander)? The Gemora answers: An ox is different, as it is given over to a shepherd (who makes sure it doesn’t wander too much).

The house of the Nasi (leader of the Jews in Israel) seized a maidservant of orphans in a side street. Rabbi Avahu, Rabbi Chanina bar Papi, and Rabbi Yitzchak bar Nafcha were sitting, and alongside them was Rabbi Abba. The first three said that the seizure was appropriate. Rabbi Abba said: Just because they are from the house of the Nasi you are flattering them? Weren’t judges who ruled like Rabbi Tarfon overruled by Reish Lakish who made them retract their ruling? (Therefore, the maidservant must be returned.) (84a – 84b)

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