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Kesuvos 84



(a) We then suggest that Rav agrees with Raban Shimon ben Gamliel, that 'ha'Masneh al Mah she'Kasuv ba'Torah, Tena'o Bateil', but he holds that, if the woman dies, her husband (who made the T'nai 'Din u'Devarim ... '), does not inherit her - because he holds 'Yerushas ha'Ba'al de'Rabbanan', and the Rabbanan did not strengthen their Takanos any more than the Torah.

(b) This cannot be correct however - because that would be disagreeing with Raban Shimon ben Gamliel's ruling, but not with his reason, and not vice-versa.

(a) We then suggest that he disagrees with Raban Shimon ben Gamliel's opinion inasmuch as Raban Shimon ben Gamliel holds 'ha'Masneh ... *bi'd'Oraysa*, Tena'o Bateil' (Ha bi'de'Rabbanan, Tena'o Kayam), whereas *he* holds that even 'bi'de'Rabbanan, Tena'o Bateil - meaning that whereas, if Yerushas ha'Ba'al were de'Rabbanan, Raban Shimon ben Gamliel would hold 'Tena'o Kayam', he holds that it is indeed mi'de'Rabbanan, and 'Tena'o Bateil'.

(b) We reject this suggestion too - on the grounds that that would be agreeing both with Raban Shimon ben Gamliel's ruling and with his reason, only adding another dimension to it.

(c) So we conclude - that Rav agrees with Raban Shimon ben Gamliel's ruling that the husband inherits his wife, but not because of 'ha'Masneh ... Tena'o Bateil', but because he holds Yerushas ha'Ba'al de'Rabbanan, and the Chachamim strengthened their rulings just like the Torah.

(a) Rebbi Yochanan ben Berokah, in a Mishnah in Bechoros, rules - that a husband who inherits his wife must return the inheritance to her family when the Yovel year arrives and deducts some of the money (which we assume to mean that he gives them back the inheritance against a small remuneration).

(b) An heir does not need to return his inheritance to the family of the deceased in the Yovel year.

(c) The problem with Rebbi Yochanan ben Berokah's ruling, assuming that he holds 'Yerushas ha'Ba'al de'Rabbanan' is - the significance of the money which they are required to return.

(d) Rav establishes Rebbi Yochanan ben Berokah's ruling specifically by a family sepulcher, which the husband is obligated to return due to the stigmatization of the family that such a sale causes. Otherwise, Rebbi Yochanan ben Berokah holds 'Yerushas ha'Ba'al d'Oraysa'. The monetary deduction concerns the burial of his wife, which he is obligated to do, and for which he cannot therefore charge the family.

(a) This explanation is borne out by a Beraisa - which rules that if someone sells his family sepulcher together with the path that leads to it - they bury him there even against the will of the purchaser, to avoid the stigma that burying him elsewhere would cause.

(b) Rav, who himself holds that 'Yerushas ha'Ba'al is de'Rabbanan' - is merely establishing the statement of Rebbi Yochanan ben Berokah, which does not mean that he holds like him.

(a) If someone dies, leaving a wife, creditors and heirs, according to Rebbi Tarfon, any Pikadon (an object that is deposited with a third person), or money that is owed to him, is given to the 'weakest of them' (which will explained later in the Sugya - but not to the heirs).
1. We ignore the principle 'Metalteli de'Yasmi Lo Mishtabdi le'Ba'al Chov' - on the grounds that the money or the objects did not yet enter the domain of the heirs.
2. According to Rebbi Akiva, it is given to the heirs (rather than to the other claimants who now stand to lose their claims) - on the grounds that the other claimants require a Shevu'ah before they are permitted to take them, whereas the heirs do not (placing the property in their possession).
(b) If the deceased man left detached fruit, Rebbi Tarfon hold - 'First come, first served'.

(c) In the event that the wife took more than the amount of her Kesuvah or the creditors more than the amount of their loan - they hold exactly the same as they said earlier: according to Rebbi Tarfon, it goes to the weaker one (one of those with the document), whereas according to Rebbi Akiva, it goes to the heirs.

(d) Having told us the Din by a loan, the Tana nevertheless finds it necessary to add that the same applies to a Pikadon - because whereas a loan is in the possession of the borrower (who borrowed the money in order to spend it), a Pikadon remains in the possession of the original owner, in which case, we might well have thought that Rebbi Tarfon will agree with Rebbi Akiva, that it remains in the possession of the heirs.

(a) Rebbi Yossi b'Rebbi Chanina interprets 'the weakest' in our Mishnah as the one with the weakest proof - meaning the one whose document has the later date (since he has the disadvantage of being unable to claim from the purchasers who preceded him).

(b) Rebbi Yochanan interprets it to mean 'the woman, who is claiming her Kesuvah' - because of 'China' (to encourage women to get married in the first place, which they will be hesitant to do if they are afraid that they will lose their rights too easily).

(a) Rebbi Tarfon and Rebbi Akiva argue in the Seifa regarding the excess fruit which the woman or the creditors claimed. Rebbi Akiva holds - that the initial amount owing also goes to the heirs.

(b) He mentions specifically the excess - only because that is what Rebbi Tarfon, with whom he is arguing, is talking about.

(c) Rava Amar Rav Nachman explains that Rebbi Akiva holds of Tefisah (taking the object of doubt into one's possession) - but only in the lifetime of the original owner (see Tosfos Amud 2. DH 've'Hu').




(a) According to Rav and Shmuel, Rebbi Tarfon permits Tefisah even after the death of the original owner, only if the objects are lying in the street. If they are lying in a Simta - they are considered to be in the possession of the heirs, and Tefisah will not help (even according to Rebbi Tarfon).

(b) According to Rebbi Yochanan and Resh Lakish - Rebbi Tarfon will validate Tefisah even from a Simta.

(c) When Resh Lakish forced the Dayanim who ruled like Rebbi Tarfon to rescind their ruling - Rebbi Yochanan asked him whether he considered Rebbi Akiva's words as being 'Halachah le'Moshe mi'Sinai'?

(d) Based on the principle 'Halachah ke'Rebbi Akiva me'Chaveiro', we initially explain their Machlokes whether 'Ta'ah bi'D'var Mishnah, Chozer' (Resh Lakish) or 'Eino Chozer' (Rebbi Yochanan).

(a) The principle 'Ta'ah bi'D'var Mishnah, Chozer' is not confined to an error in a Mishnah, as the wording suggests - but extends even to someone who overlooks the rulings of prominent Amora'im, such as Rav and Shmuel.

(b) Alternatively, we contend, both Rebbi Yochanan and Resh Lakish agree that 'Ta'ah bi'D'var Mishnah, Chozer', but, assuming that Rebbi Tarfon was Rebbi Akiva's Rebbe, they argue whether the Halachah is like Rebbi Akiva even when he argues with his Rebbe - or perhaps, they argue over whether Rebbi Tarfon was Rebbi Akiva's Rebbe (Rebbi Yochanan) or his colleague (Resh Lakish).

(c) Even assuming that Rebbi Tarfon was Rebbi Akiva's colleague, and not his Rebbe - they might be arguing over whether the principle reads '*Halachah* ke'Rebbi Akiva me'Chaveiro' (even Bedieved), or '*Matin* ke'Rebbi Akiva ... ' (Lechatchilah but not Bedieved).

(a) Rebbi Yochanan vindicated his relatives, who took possession of the cow belonging to an orphan that was standing in a Simta (like Rebbi Tarfon) - Resh Lakish ordered them to return it (like Rebbi Akiva).

(b) When Rebbi Yochanan heard what Resh Lakish had ruled - he declared that there was nothing he could do about it, seeing as Resh Lakish was his equal.

(c) A certain creditor claimed that he had taken possession of an ox from the orphans' shepherd before their father's death, whilst the shepherd countered that he had taken it after his death. Rav Nachman believe the creditor - on the basis of a 'Migu', because, once he had ascertained that there were no witnesses who saw him taking possession of it, he pointed out that the creditor could have argued that he had bought the ox (seeing as it was in his domain).

(d) The Chazakah here will help, in spite of Resh Lakish, who says that a Chazakah (proof of ownership from the fact that they are in one's domain) does not apply to animals, who may have walked into one's field by themselves - because oxen are different, seeing as one tends to hand over to a shepherd (who ensures that they do not go astray),.

(a) When the family of the exilarch took possession of a maidservant belonging to orphans from a Simta (like Rebbi Tarfon, according to Rebbi Yochanan and Resh Lakish's interpretation). When various Amora'im vindicated their action - Rebbi Aba commented that it was not correct to flatter the exilarch. He reminded them how the Dayanim had ruled like Rebbi Tarfon, but Resh Lakish had forced them to rescind their ruling.

(b) When Yeimar bar Chashu's debtor died, Yeimar sent his Sh'liach to take possession of a boat that he had left. Rav Papa and Rav Huna Brei de'Rav Yehoshua objected, based on a statement by Rebbi Yochanan, who said that - if a Sh'li'ach takes possession of an object on behalf of a creditor in place of other creditors, that creditor does not acquire the object.

(a) The fact that Rav Papa proceeded to row the boat in the above episode, whilst Rav Huna Brei de'Rav Yehoshua steered it - gave rise to their dispute over which one of them acquired the boat (seeing as the same debtor owed *them* money, too).

(b) When Rav Pinchas bar Ami (believing that the boat had been beside the river bank when they boarded it) cited the opinion of Rav and Shmuel, who hold that Tefisah from a Simta is not effective - they replied that as a matter of fact, they had boarded it in the middle of the river.

(c) When they eventually came before Rava - he cited Rav Nachman, who had already ruled like Rebbi Akiva (that Tefisah is only effective if it is performed in the life-time of the owner).

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