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Michael Levi Rodkinson.

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him a hundred moahs; but if he says a hundred moahs an
istra he has to give him an istra although it is less in value than
a hundred moahs."

What came he to teach us — that the last expression must be
considered? Has not Rabh said this already concerning the
case of the cited Mishna (page 270) : " If I were there, I should
give it to the owner of the house " (and that is because
the last words were " a dinar monthly ") ? Lest one should say
that in one case the last words (" hundred moahs," or vice
versa) are to be considered as an explanation to the first words,
he comes to teach us that it is not so.

MISHNA IV. : If one says, " I sell you this estate, the size
of a kur, with its marks and boundaries;" and afterwards it
were found that the size is less than stipulated — if it were less
than a sixth of the whole size, the sale is valid ; but if there were
a sixth wanting, the buyer iriay deduct from the payment.

GEMARA : It was taught : R. Huna and R. Jehudah differ
in the explanation of our Mishna. According to the former



236 THE BABYLONIAN TALMUD.

the Mishna means that an exact sixth should be considered as
less than a sixth, and the Mishna is to be explained thus:
" With less than a sixth wanting, a sixth inclusive, the sale is
valid." If, however, more than a sixth is wanting, it may be
deducted. According to R. Jehudah the Mishna means that
an exact sixth is to be considered as more, and it is to be ex-
plained thus: " With less than a sixth wanting the sale is valid;
a sixth, however, or more wanting is to be deducted."

An objection was raised from the following Tosephtha:
" With its marks and boundaries, and there was a sixth less or
a sixth more, it parallels a case wherein the court appraises an
estate, and the sale is valid." Now we know that in a case
wherein the court appraises, if there were an error as to an
exact sixth, it is considered as if it were more, and the appraise-
ment is void; hence this contradicts R. Huna? R. Huna may-
say that there is no contradiction, as the Tosephtha ends with
the words " the sale is valid," and if this paralleled the case
wherein the court appraises, how could it be valid in case there
were more than a sixth? Does not the law provide that in the
case of an error of the court in more than a sixth, the appraise-
ment is void? It must be said then that it is parallel in one
respect but not in the other; and it is to be explained thus:
It parallels the case wherein the court appraises with an error
of less than a sixth (which does not afTect the appraisement), but
it does not parallel the case in which the error of the court is
of a sixth or more and affects the appraisement, which differs
from our case, as the purchaser has only to deduct the money
value of the deficiency, while the sale is still valid.*

R. Papa bought an estate from some one who told him
that it measured the size of twenty saahs. After it was meas-
ured it was found that there were only fifteen; and the case
came before Abayi, who decided that the sale was valid, because
the seller had used the qualifying words " as you see its marks
and boundaries." But have we not learned that if there were
more than a sixth lacking its value is to be deducted, and here
there is a fourth part? In the first case the condition is not
known to the buyer before the sale; but in the latter case, as the
condition was known to R. Papa and he saw it at the time he

* We are compelled to explain this in accordance with R. Gofshom, as Rashbam's
explanation is still more complicated.



TRACT BABA BATHRA (LAST GATE). 237

bought, it must be supposed that he had considered and ac-
cepted it. Rejoined R. Papa: But did he not tell me that it
measured twenty ? He probably meant to say that " these fif-
teen are better than twenty elsewhere."

There is a Boraitha: R.Jose said: " Some brothers divided
their inheritance by lot, and when to each of them his lot fell,
all of them acquired title to their shares." Why so? Said
R. Elazar: At the time the land of Israel was allotted to the
tribes. But was there not also the Urim v'tumim, as it is said
farther on that the high priest Elazar had on the Urim v'tumim,
and then the lots were cast ? Said R. Ashi : By their arrange-
ment prior to allotment (whereby the estate was divided into
shares of equal value) they had prepared themselves that each
should acquire title to the share which the lot should cast for
him, and therefore no other ceremony was necessary.

It was taught : To two brothers who had divided their in-
heritance between them came a third brother (of whose exist-
ence they were not previously aware). Their division is null
and void according to Rabh. Samuel, however, maintains that
each of the two must reHnquish a third of his inheritance to the
third brother (e.g., they inherited six fields, and each of them
must give one of these to the newcomer, so that the three
brothers may have two fields apiece). Said Rabha to R.
Na'hman : According to Rabh, who says that the division is
null and void, it must be said he holds that since all of them did
not share in the first division, the inheritance must be redivided.
Would the same be the case with three partners, two of whom
have divided (in the presence of three persons who are consid-
ered a Beth Din) in the absence of the third one, and there is
a decision (Middle Gate, p. 74) that such holds good? The
cases are dissimilar. In the latter case the partners divided the
property into three shares, and as it was done in the presence
of a Beth Din the division holds good; but in the former case
the two brothers had divided the inheritance into two parts
only, as they were unaware of the third brother's existence.

Said R. Papa to Abayi : According to Samuel's decision that
the first division is valid, it must be said he holds that such an
act, done in accordance with the law, must not be abrogated,
although thereafter it appears that the brothers took more than
belonged to them; but did not both Rabh and Samuel say: If



338 THE BABYLONIAN TALMUD.

one says, " I sell you a kur for thirty selas," the seller may re-
tract even at the last saah (above, p. 235) ? (We see then that
even when done in accordance with the law an act may still be
abrogated.) There is, however, here a difference. The rabbis
enacted that law to please both the seller and the buyer. {I.e.,
in case the price should become lower, before the buyer has re-
ceived the property, it is to his advantage to retract; and in
case the price becomes higher, the advantage is for the seller.
Hence this law is beneficial to both.)

It was taught : If brothers divided their inheritance and a
creditor of their father came and took aw^ay the share of one
of them, according to Rabh the former division is null and void.
Samuel, however, said that such w^as this brother's lot, and it
did not concern the other. R. Assi, however, maintains, not as
Rabh, that the division is void, and they must divide the re-
mainder, and not as Samuel, that it does not at all concern the
other one; but that the second brother must surrender one
quarter of his estate and a quarter of the money he has inherited.
Rabh holds that the heirs, even after their division, are still to
be considered heirs (hence if one of them has lost the property
through his father's debt, he is still an heir to the remainder),
while Samuel holds that at the time they divide they are con-
sidered buyers (each of them buying his share of his brother)
without any security; and consequently each has no further
concern after the division. R. Assi was doubtful whether they
are to be considered heirs of buyers; therefore the half w-hich
ought to be taken from the one who did not suffer loss is con-
sidered doubtful money, and there is a rule that doubtful money
is to be divided. Said R. Papa : The Halakha concerning the
two cases, that of the third brother as well as that W'herein the
share of one w^as taken away by their father's creditor, prevails
in accordance wath Samuel, w'ho says the division holds good,
and it is for them to divide from their shares in payment of
the debt. Amimar, however, said: The Halakha prevails in
accordance with Rabh, who said that the division is void and
the property must be redivided, and so the Halakha prevails.

The rabbis taught: If there are three w^ho have qualified
as a Beth Din to appraise the estate of one deceased, for the
support of his widow and daughters, and if one says that in
his opinion the estate is worth twenty-five selas (a rnoanah of



TRACT BABA BATHRA (LAST GATE). 239

100 zuz), and the two others say two hundred or vice versa,
the opinion of the individual is of no effect; but if one appraises
the estate at one hundred zuz, which are twenty-five selas, the
second for twenty, and the third for thirty, the value is fixed
at one hundred zuz. R. EHezer b. R. Zadok, however, says
that it should be taken for ninety zuz, and anonymous teachers
say that a third of the difference between the second and third
valuations must be added to the second, which will give 93 >^
zuz. The reason of him who says the estate is worth one hun-
dred zuz is that the opinion of the arbitrator is to be taken into
consideration, and the reason for R. Eliezer's opinion that the
estate is worth ninety zuz is that he who appraised it at eighty
underestimated by ten zuz, while he who appraised it at 100
overestimated by ten zuz, and as there is a majority who ap-
praised it at not more than 100 zuz, the third, who appraised
it at twent}^ zuz over a moah, is not to be taken into considera-
tion at all. Why not say that the one who said 100 zuz has
underestimated by ten and he who says thirty has overestimated
by ten, and the estate should therefore be valued at 100? Be-
cause the majority declare it not worth more than 100 zuz,
or one moah. The anonymous teachers maintain that the
estate is worth 931^ zuz, because the one who estimated its value
at twenty selas (eighty zuz) underestimated by 13 K- and the
one who said 100 zuz overestimated by 13^^, although he had
intended to say 103K zuz. but thought he would not like to
make his difference too large. And why not say that the one
who said thirty selas (120 zuz) has overestimated by thirteen,
and the estimate should be fixed at 113 zuz? The opinion of
the majority that the estate is not worth over a moah is to be
taken into consideration. Said R. Huna: The Halakha pre-
vails with the anonymous teachers. Said R. Ashi : The reason
of the anonymous teachers is not acceptable; should we decide
according to them? There is a Boraitha that the judges of the
exile are in accordance with the anonymous teachers, and R.
Huna said again that so the Halakha prevails, but R. Ashi ob-
jected again for the same reason stated above.

MISHNA V. : If one says " I sell you the half of the field "
(the half of the value is meant), the better one against the in-
ferior is to be appraised, and the seller has a right to give the
buyer the latter. The same is the case when he said '* I sell you



240 THE BABYLONIAN TALMUD.

the southern half of this field," and the buyer takes the half
determined on by the seller. The seller, however, has to give
space for a partition, and for a large and a small ditch. What
is the breadth of a large ditch? Six spans. And of a small
one? Three.

GEMARA: Said R. Hyya b. R. Abba in the name of R.
Johanan: The buyer has to take the inferior. And he (when
he heard this statement from R. Johanan) said to him: Do€S
not the Mishna say '' the better one against the inferior is to
be appraised " ? And should not this be explained to mean that
each of them should take half of both good and inferior? And
he answered : It seems to me that you have eaten too many
dates in Babylon (so that you have no time to descend into the
depths of the Mishna). Does not the Mishna contain the same
expression, in the latter part,* concerning the sale of the south
side of his field? And why the repetition? It should read
" he should take a half at the south side," and we would under-
stand it to mean half of the size. We must then say that it is
repeated to teach that also in that case the half of the value is
meant, as the same was in the first part.

" The partition," etc. There is a Boraitha : " The large ditch
must be outside and the small one inside of the field, but both
beyond the partition, so that beasts may not jump over the
partition in the field." Why then the small ditch? Does not
the large one sufifice for this purpose? Because it is six
spans wide, the beasts could enter in it and jump over. But
does not the small ditch suffice? Because it is small, the beasts
could stand on the edge of it and jump over. And how much
shall the space be between the large and the small ditch ? One
span.

* The Mishna repeats the same language concerning the southern part which
we, according to the sense, have translated " the same is the case."



CHAPTER VIII.

RULES AND REGULATIONS CONCERNING BEQUESTS TO AND INHERI-
TANCE BV NEAR AND DISTANT RELATIVES, MALE AND FEMALE
SLAVES AND THEIR DESCENDANTS, FIRST-BORN AND HUSBANDS.
ONE MAY OR MAY NOT WISH TO BEQUEATH HIS ESTATE TO
STRANGERS WHEN HE HAS CHILDREN. WHICH WILLS MUST BE
CONSIDERED AND WHICH WILLS MUST NOT. THE DIVIDING OF
AN INHERITANCE BETWEEN GROWN-UP AND MINOR CHILDREN,
MALE AND FEMALE.

MISHNA /. : (Concerning inheritance, there is a difference
between relatives.) There are those that bequeath at their
death, and also inherit at the death of their relatives. There
are those who inherit but do not bequeath, and also those who
neither bequeath nor inherit. The father, his children, and also
the brothers of the father may both bequeath and inherit to
and from each other. The son from his mother, and the hus-
band from his wife, and also the children of sisters inherit, but
the former do not bequeath to the latter. The woman to her
children, her husband, and her brothers bequeaths, but does not
inherit from them. The brothers of the mother, however,
neither bequeath to nor inherit from her.

GEMARA: Why does the Mishna mention the father his
sons first? It does so, first, because the reverse order would
imply a curse, and usually the beginning must not be with a
curse (for when the son dies before his father it is certainly a
curse), and, secondly, the Scripture [Numbers, xxvii. 8] reads,
" If a man die and have no son," etc.; hence the death of the
father is mentioned first. The Tana of the Mishna does thus
because the law that a father shall inherit from his son is not
written in the Scripture but is deduced (as will be explained
farther on) and he desires to mention it first. Whence do they
deduce it? From the following Boraitha: " (It is written) ' his
kinsman means the father, from which it is deduced that if
one dies and leaves brothers and a father, the father is the heir
and not the brothers'; but lest one say that the father of the

241



242 THE BABYLONIAN TALMUD.

deceased is preferred to his son, it is written ' that is next to
him,' which means, whoever is nearest, and the son to his father
is considered nearer than a father to his son. And what is the
reason that you exclude the brother and include the son? Be-
cause the Scripture has substituted the son for the father in the
case of a man servant [Ex. xxi. 9] and also in that concerning
the possession of a field [Levit. xxv. 13], of which it is said
elsewhere that only when the son has redeemed the field sancti-
fied by his father, it may be returned in the jubilee year, but
not if the father's brother or any other relative has done so.
But why not say that the brother shall have the preference,
as he inherits from his brother in case the latter dies childless
[Deut. xxv. 5] ? This cannot hold good, as the brother thus
inherits only if there is no son; but if there is a son the brother
does not inherit." Is it only for this reason, and if it were other-
wise would the brother be the heir? May the son be substi-
tuted for his father in the two cases above stated, and the
brother in the one case only? Nay, the same reason is given in
the case of the above-mentioned possession of a field, wherein
the son is preferred to the brother, also because the brother
inherits only when there is no son. But why not say a kins-
man means the father, from which we infer that he is preferred
to his daughter? Lest one say that he is preferred to his son
also, therefore it is written, " who is next to him," and a son
is nearer to his father than the father to his son. As said above,
this could be opposed thus : Let us see ! If one dies and leaves a
daughter, it is the same concerning Yeboom as if he should
leave a son. Hence we see that a son and daughter are here
equal before the law, and the same equality would obtain con-
cerning inheritance. But why not infer from this that the
father has the preference over Jiis brother? And lest one say that
he should have the preference over the brothers of the deceased
also, it is written " the next," and brothers are considered nearei
than the father to his son. It is not necessary that the father's
brother be considered as excluded in the Scripture, as that
would be contrary to common sense. What is the basis for the
inheritance of the uncle of the deceased from his nephew, if
not that his brother is the father of the deceased; and when the
father is still alive, why should the brother be the heir?

But let us see. The passage in the Scripture does not corre-



TRACT BABA BATHRA (LAST GATE). 24J!

spond with all that is taught above [Num. xxvii. 8], "If a
man die and have no son, then shall ye cause the inheritance
to pass unto his daughter, and if he have no daughter . . .
unto his brothers . . . and if no brothers, unto his father's
brothers, and if ... no brothers, ... to the kins-
man." (Hence when the kinsman is mentioned at the end, how
can you say that it means the father, who is the. first in case
the deceased left no son?) The passages are not written in
order, as the kinsman, meaning the father, should be mentioned
first, but the Scripture relies upon the words " who is next to
him," and it is for the court to decide who is nearest to him.
The following Tana, however, deduces it from the same passage
in another manner, as we have learned in the following Bo-
raitha : R. Ishmael said : " It is written, ' If a man die and have
no son, then ye shall cause his inheritance to pass,' etc. Infer
from this that you transfer the inheritance from the father only
when the deceased left a daughter, but not when he left
brothers." But why not say that the daughter transfers the
inheritance from his brothers but not from his father? Because
if it were so, the passage would read " and ye shall give the
inheritance," and not " ye shall cause to pass," which means that
if there is a daughter, her father may pass the inheritance to her,
even when his own father is still alive. Now, what does kins-
man mean in the opinion of R. Ishmael, who has deduced this
from the words " ye shall cause to pass " ? That which the
following Boraitha states : " His kinsman means his wife. De-
duce from this that the husband inherits from his wife." But
to him who infers this from the word kinsman, what do the
words "ye shall cause to pass" mean? That which we have
learned in the following Boraitha : Rabbi said : In all the pas-
sages it is written " shall ye give," and only concerning the
daughter " ye shall pass," to show that there is no one who shall
pass an inheritance to another tribe except a daughter; so if
she marries one of another tribe, her son or her husband may
inherit from her.

But, after all, where is it you are assured that kinsman means
the father? In Levit. xix. 12, "Thy father's kinswoman."
Then why not say it means the mother, as the next verse reads
" thy mother's kinswoman " ? Said Rabha : It is written
[xxvi. 11] " next to him of* his family, " and the family is .named



244 THE BABYLONIAN TALMUD.

only from the father's side as [ibid., 2] " after their families,
by the descent from their fathers." But is not the name of the
mother's side also employed? Is it not written [Judges,
xvii. 7], "And there was a young man out of Bethlehem-
Judah of the family of Judah, but he was a Levite, and sojourned
there"? Now does not this passage contradict itself? It is
written " of the family of Judah," from which it is to be inferred
that they came from the tribe of Judah, and then it says he is a
Levite, which means that he was of the tribe of Levi. We must
conclude that his father was from Levi and his mother from
Judah, and nevertheless this is called a family name. Said
Rabha b. R. Hanan : The verse reads " and he is Levi," which
does not mean that he was a Levite, but that his name was Levi.
If so, how is to be understood (ibid., 17), '' I have obtained a
Levite for a priest "? There it is also written Levi, and means
a man by the name of Levi. But how can you say that his name
was Levi? Was not his name Jonathan, as it is written (ibid.,
xviii. 30), " And Jonathan the son of Gershom . . . were
priests," etc. ? And he answered : Even according to your
theory, was he then the son of Menashe? He was the son of
Moses, as it is written [I Chron. xxiii. 15] : " The sons of Moses
were Gershom and Eliezer." It is written Menashe, because
he acted like Menashe, who was an idolator; and therefore the
phrase " of Judah " is employed because Menashe came from
Judah. R. Johanan in the name of R. Simeon b. Jo'hai said:
From this is to be inferred that we confer a corrupt name on a
corrupt man. R. Jose b. Hanina, however, said that this may
be inferred from the following [I Kings, i. 6] : " And his mother
had after Abshalom." But was not Adoniyah the son of Chag-
gith, and Abshalom the son of Maacha? We must say that
because he acted like Abshalom, who also rebelled ag-ainst the
kingdom, the verse conjoined him with Abshalom.

R. Elazar said : We see that when Moses married the daugh-
ter of Jethro, Jonathan was the outcome, and when Aaron
married the daughter of Aminadab the outcome was Pinchos.

But was not Pinchos also a descendant of Jethro, as it is
written [Ex. vi. 25], " Elazar took of the daughters of Putiel
for wife and she bore unto him Phinchas," and it is said else-
where that Jethro and Putiel are identical? Nay, this Putiel
is Joseph, as it is also said elsewhere that Joseph and Putiel nre



TRACT BABA BATHRA (LAST GATE). 245

identical.* But is it not said elsewhere that the tribes chided
Phinchas, saying: " See the descendant of Puti, whose grand-
father had fattened calves for idols; shall he dare to kill a prince
of the tribe of Israel? " Both names are apphcable; for if his
mother's father was a descendant of Joseph, his mother's mother
was a descendant of Jethro or vice versa, and the word Putiel
instead of Puti may mean both.

Rabha said : If one is about to marry, it is advisable for him
to investigate the character of the bride's brothers; as it is
written (ibid., 23), the " sister of Nachshon." To what purpose
is it written the " sister of Nachshon "? Is it not evident that
she was the sister of Aminadab? Hence this is an intimation to
one about to marry to investigate the brothers of his prospective
bride. There is also a Boraitha to the effect that the majority
of children resemble the brothers of their mother. It is writ-
ten [Judges, xviii. 3], "Who brought thee hither?" (Jialom)
which means " Are you not a descendant of Moses? " of whom
it is written [Ex. iii. 5] " hither " (halom), and " thou shalt be a
priest to the idol " ? And he answered : " I have a tradition from
the house of my grandfather that it is better for one to hire
himself to Abliada Zarah (idolatry) than to rely upon people
that shall support him." [(Says the Gemara:) He has mis-
understood it. Ahhada Zarah means " idolatry," Literally,
however, it is " a strange service " and it is as Rabh said to
Kahana: (If you are in need), fleece a carcass in the middle of
the market and do not say you are a great man, and it is not
fit for you.]

David saw that he was fond of money and appointed him
treasurer for the government, as it is written [I Chron.xxvi.24],
" Shebuel the son of Gershom, the son of Moses, superintendent
of the treasuries." Was then his name Shebuel? Was it not
Jonathan? Said R. Johanan: Shebuel is composed of two
words, Shehu, which means " repented," and El means " God ";
and " Shebuel " means that he repented to God with all his
heart.



* The Gemara infers it from terms in Hebrew or Chaldaic which it is impossible
to translate into English; namely, Putiel, which is a name, Pitem meaning in Aramaic


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Online LibraryMichael Levi RodkinsonNew edition of the Babylonian Talmud. Original text edited, corrected, formulated, and translated into English (Volume 14) → online text (page 4 of 19)