Bava Batra 263:1

בעי רבא בבריא היאך בשכ"מ הוא דניחא ליה דלישתמעון מלה אבל בבריא הא קאי איהו או דלמא בריא נמי ניחא ליה דלישתמעון מלה מהשתא

Raba inquired: What<span class="x" onmousemove="('comment',' Lit., 'how'. ');">¹</span> [is the law] in [the case of] a person in good health?<span class="x" onmousemove="('comment',' Who has assigned all his property as a gift to his wife. ');">²</span> [Should we say] that this<span class="x" onmousemove="('comment',' The ruling that the husband thereby appointed her only as administratrix. ');">³</span> applies only to a dying person because [we assume] he is desirous [to make provision] for due respect to be paid to her,<span class="x" onmousemove="('comment',' His widow. Lit., 'that her word may be listened to.' ');">⁴</span>

תא שמע הכותב פירות נכסיו לאשתו גובה כתובתה מן הקרקע למחצה לשליש ולרביע גובה כתובתה מן השאר

but [not] to a person in good health, since he himself is alive;<span class="x" onmousemove="('comment',' And well able to safeguard her honour. ');">⁵</span> or, is it the same with a man in good health, since there too he may desire [to make provision] that respect may be paid to her<span class="x" onmousemove="('comment',' His widow. Lit., 'that her word may be listened to.' ');">⁴</span> already in his lifetime?<span class="x" onmousemove="('comment',' Lit., 'from now.' ');">⁶</span> — Come and hear: [It was taught:] If a person gives the usufruct of his estate to his wife, in writing,<span class="x" onmousemove="('comment',' Assigning it to her as a gift. ');">⁷</span>

כתב כל נכסיו לאשתו ויצא עליו שטר חוב רבי אליעזר אומר תקרע מתנתה ותעמוד על כתובתה וחכ"א תקרע כתובתה ותעמוד על מתנתה ונמצאת קרחת מכאן ומכאן

she may [nevertheless] collect her <i>kethubah</i> from [his] landed property.<span class="x" onmousemove="('comment',' Since all real estate of a husband is mortgaged for his wife's kethubah. The gift of usufruct is not regarded as an inducement for the wife to renounce her established rights. ');">⁸</span> [If he gave her] a half,<span class="x" onmousemove="('comment',' Of his estate. ');">⁹</span> a third or a quarter, she may collect her <i>kethubah</i> from the rest.<span class="x" onmousemove="('comment',' From the portion which was not assigned to her. ');">¹⁰</span> If he gave all his property to his wife in writing, and a bond of indebtedness<span class="x" onmousemove="('comment',' Bearing a date later than that of the kethubah and earlier than that of the gift. ');">¹¹</span>

ואמר רבי יהודה הנחתום מעשה ואירע הדבר בבת אחותי כלה ובא מעשה לפני חכמים ואמרו תקרע כתובתה ותעמוד על מתנתה ונמצאת קרחת מכאן ומכאן

was produced against him, R. Eliezer said: She may tear up [the deed of] her gift and claim the rights of<span class="x" onmousemove="('comment',' Lit., 'and stand upon'. ');">¹²</span> her <i>kethubah</i>.<span class="x" onmousemove="('comment',' Since the gift was made later than the date of the bond of indebtedness, the creditor has the prior claim. The widow, therefore, renounces the gift, and claims her kethubah the date of which is earlier than that of the debt. She is entitled to do so according to R. Eliezer since he holds the view that she originally accepted the gift with the object of gaining any amount over and above her kethubah, but not to lose any of the rights to which that document entitled her. ');">¹³</span> But the Sages said: She tears up her <i>kethubah</i>,<span class="x" onmousemove="('comment',' by accepting her husband's gift she is assumed, according to the Sages, to have renounced the rights of her kethubah as far as that property (which formed part of the gift) is concerned. ');">¹⁴</span> remains with the claim of her gift,<span class="x" onmousemove="('comment',' Which, owing to the debt which antedated it, is invalid. ');">¹⁵</span>

טעמא דיצא עליו שטר חוב הא לא יצא עליו שטר חוב קניא ובמאי אילימא בשכ"מ והא אמרת לא עשאה אלא אפוטרופוס אלא לאו בבריא

and forfeits both.<span class="x" onmousemove="('comment',' Lit., 'and she becomes bald on both sides (from here and from here)'. ');">¹⁶</span> And R. Judah the baker related: [Such] a case once happened with the daughter of my sister [who was] a bride,<span class="x" onmousemove="('comment',' The bridegroom gave her a kethubah on their betrothal, and, prior to his death, having incurred a debt, presented her with all his estate. ');">¹⁷</span> and [when] the matter was brought before the Sages they decided [that] she must tear up her <i>kethubah</i>, remain with the claims of her gift and forfeit both. [Front this Baraitha it follows that] the reason [why the widow forfeits her claims is] that a bond of indebtedness bad been produced against [her husband] but had no such bond been produced she would have acquired possession [of the entire estate]. Now, with what [kind of testator is the Baraitha concerned]? If it be suggested [that it deals] with a dying man, surely, [it may be pointed out,] it has been said that [a person in such a condition] merely appointed her administratrix! [Must it] not, then, [be concluded that the Baraitha deals] with a person in good health?<span class="x" onmousemove="('comment',' Thus it has been proved that in the case of a person in good health the presentation by him of his entire estate to his wife confers upon her the full rights of possession and not merely those of an administratrix. Consequently (in answer to Raba's enquiry), Samuel's law must refer to the case of a dying man only. ');">¹⁸</span> — [No; the Baraitha cited may] really [be concerned] with a dying man but<span class="x" onmousemove="('comment',' As to the objection that in such a case it has been said that the widow is merely appointed administratrix. ');">¹⁹</span>

לעולם בשכיב מרע ורב עוירא מוקי לה בכולהו רבינא מוקי לה באשתו ארוסה ואשתו גרושה

R. 'Awira establishes it as dealing with all cases<span class="x" onmousemove="('comment',' Mentioned by him supra 131b, in all these, according to his report in the name of Raba, possession is acquired. ');">²⁰</span> [while] Rabina establishes it as dealing with one's betrothed, or divorced wife.<span class="x" onmousemove="('comment',' In which two cases, according to Rabina's report also (supra 131b), possession is acquired. Hence, neither according to R. 'Awira nor according to Rabina can the law applying to the case of a person in good health be inferred. ');">²¹</span> R. Joseph b. Manyumi said in the name of R. Nahman: The <i>halachah</i> is that she is to tear up her <i>kethubah</i>,<span class="x" onmousemove="('comment',' V. p. 552, n. 1 supra. ');">²²</span> remain with the claim of her gift<span class="x" onmousemove="('comment',' V., l.c. n. 2. ');">²³</span>

אמר רב יוסף בר מניומי אמר רב נחמן הלכה תקרע כתובתה ותעמוד על מתנתה ונמצאת קרחת מכאן ומכאן

and forfeit both.<span class="x" onmousemove="('comment',' V., l.c., n. 3. ');">²⁴</span> Does this<span class="x" onmousemove="('comment',' R. Nahman's decision that the widow forfeits her claim to the kethubah. ');">²⁵</span> imply that R. Nahman is not guided by an assumption?<span class="x" onmousemove="('comment',' Since the assumption must he that no woman would renounce the rights to which her kethubah entitles her for the sake of such a gift made to her by her husband. ');">²⁶</span> Surely, it has been taught: in the case of [a person] whose son went to a distant country,<span class="x" onmousemove="('comment',' Lit., 'country of (i.e., beyond) the sea'. ');">²⁷</span>

למימרא דלא אזיל רב נחמן בתר אומדנא

and having heard that the latter<span class="x" onmousemove="('comment',' Lit., 'his son'. ');">²⁸</span> had died, assigned all his property, in writing, to strangers; though his son subsequently appeared, his gift is [nevertheless, legally] valid.<span class="x" onmousemove="('comment',' Lit., 'a gift'. Since it was made unconditionally. ');">²⁹</span> R. Simeon b. Menasya said: His gift is not [legally] a gift, for had he known that his son was alive, he would not have given it away.<span class="x" onmousemove="('comment',' Lit., 'written them'. ');">³⁰</span> And R. Nahman said: The <i>halachah</i> is in accordance with R. Simeon b. Menasya!<span class="x" onmousemove="('comment',' As R. Nahman upholds it. Simeon's decision, according to which it is assumed that 'had the father known that his son was alive he would not have made the gift', he most also agree with the view that an assumption is to be taken into consideration. How, then, (v. supra note 5), could R. Nahman say that the widow forfeited the rights of her kethubah? ');">³¹</span>

והתניא הרי שהלך בנו למדינת הים ושמע שמת בנו ועמד וכתב כל נכסיו לאחרים ואחר כך בא בנו מתנתו מתנה ר' שמעון בן מנסיא אומר אין מתנתו מתנה שאילו היה יודע שבנו קיים לא כתבן ואמר רב נחמן הלכה כרבי שמעון בן מנסיא

— There<span class="x" onmousemove="('comment',' In the case of a widow who forfeits her kethubah on account if a gift she received from her husband. ');">³²</span> it is different, for she is content [to renounce her claim to her <i>kethubah</i>] for the pleasure of having it known<span class="x" onmousemove="('comment',' Lit., 'that a voice may issue about her'. ');">³³</span> that [her husband] had presented<span class="x" onmousemove="('comment',' Lit., 'written'. ');">³⁴</span> her with that property.<span class="x" onmousemove="('comment',' The assumption, therefore, is that she willingly renounced her claims to the kethubah. R. Nahman, in his decision, consequently takes assumption into consideration here also. ');">³⁵</span>

שאני התם דניחא לה דתיפוק עלה קלא דכתבינהו ניהלה להנהו נכסים

We learned elsewhere:<span class="x" onmousemove="('comment',' Pe'ah III, 7. ');">³⁶</span> If [a person] assigns his property to his sons, in writing, and he [also] assigns to his wife [a piece of] land of any size whatsoever<span class="x" onmousemove="('comment',' Not specifying whether as a gift or in payment for her kethubah. ');">³⁷</span> she loses [the claims of] her <i>kethubah</i>.<span class="x" onmousemove="('comment',' I.e., the right to seize the land assigned to the sons; since, as will be explained, infra, she accepted the arrangement in return for the gift made to her. ');">³⁸</span> [Does] she lose her <i>kethubah</i> because he assigned to her any [small] piece of land?<span class="x" onmousemove="('comment',' Surely, no woman would give up her kethubah in return for any small piece of land ');">³⁹</span>

תנן התם הכותב נכסיו לבניו וכתב לאשתו קרקע כל שהוא אבדה כתובתה משום דכתב לה קרקע כל שהוא אבדה כתובתה

— Rab replied: [This applies to the case] where he<span class="x" onmousemove="('comment',' The husband. ');">⁴⁰</span> confers the ownership upon them<span class="x" onmousemove="('comment',' The sons. ');">⁴¹</span> through her<span class="x" onmousemove="('comment',' The wife's. ');">⁴²</span> agency.<span class="x" onmousemove="('comment',' Lit., 'through her hand.' I.e., she acquired it on their behalf by means of a 'scarf', Kinyan Sudar (v. Glos. and cf. p. 310, n. 11, supra). Since she assisted in the transfer of the estate, received also a small share for herself and raised no protest whatsoever, it is taken for granted that she agreed to lose the amount of her kethubah, should her husband possess no other lands at the time of his death. ');">⁴³</span>

אמר רב במזכה להן על ידה ושמואל אמר במחלק לפניה והיא שותקת רבי יוסי בר' חנינא אמר באומר לה טלי קרקע זו בכתובתיך

Samuel replied: [This applies also to the case] where he<span class="x" onmousemove="('comment',' Lit., 'through her hand.' I.e., she acquired it on their behalf by means of a 'scarf', Kinyan Sudar (v. Glos. and cf. p. 310, n. 11, supra). Since she assisted in the transfer of the estate, received also a small share for herself and raised no protest whatsoever, it is taken for granted that she agreed to lose the amount of her kethubah, should her husband possess no other lands at the time of his death. ');">⁴³</span> made the distribution in her presence and she remained silent.<span class="x" onmousemove="('comment',' Even though she did not assist in the transfer. Her presence alone, since she raised no protest and received also some share, is sufficient proof that she agreed to give up her claims as far as the lands distributed are concerned. If she, however, receives no share whatsoever, her silence is interpreted not as acquiescence but as designed to gratify her husband. ');">⁴⁴</span> R. Jose b. Hanina replied: [This may also apply to the case] where he said to her,<span class="x" onmousemove="('comment',' When he gave her in writing that piece of land. ');">⁴⁵</span> 'Take this [piece of] land in place of your kethubah'.<span class="x" onmousemove="('comment',' According to R. Jose, even if she was absent from the distribution, her silence, when the gift was made to her, is sufficient evidence that she renounced her claims, upon the lands distributed. ');">⁴⁶</span>