1)

CAN HE WAIVE HIS RIGHT TO INHERIT? (cont.)

(a)

Rejection: Rav holds that a stipulation against the Torah is void!

1.

(Rav): If one says 'I sell this to you on condition that you cannot claim Ona'ah (reimbursement for being overcharged)', the buyer can claim Ona'ah;

2.

Shmuel says, he cannot.

(b)

Answer #2: Rav holds like R. Shimon, that a stipulation contrary to Torah is void, but R. Shimon holds that when she dies, he inherits her, and Rav holds that he does not.

(c)

Rejection: This is like R. Shimon ben Gamliel's reason, but unlike his law!

(d)

Answer #3: Rav says that the Halachah follows R. Shimon ben Gamliel, that when she dies, he inherits her;

1.

R. Shimon holds that a stipulation contrary to Torah is void, but a stipulation contrary to a mid'Rabanan law works. Rav holds that in both cases it is void.

(e)

Rejection: If so, Rav agrees to the law and to the reason, he merely adds (that a stipulation even against mid'Rabanan laws is void)!

(f)

Answer #4: Rav holds like R. Shimon, that when she dies he inherits her; but not for his reason;

1.

R. Shimon holds that a husband inherits his wife mid'Oraisa, and a stipulation contrary to Torah is void. Rav holds that a husband inherits his wife mid'Rabanan, and Chachamim strengthened their enactments as much as Torah law.

(g)

Question: Rav holds that a husband inherits his wife mid'Oraisa!

1.

(Mishnah - R. Yochanan ben Berokah): If a man inherited his wife, he returns the property to her family (in Yovel), and deducts from the money (i.e. they pay a small amount).

2.

Question: Does R. Yochanan ben Berokah say that a husband inherits mid'Oraisa or mid'Rabanan?

i.

If he inherits mid'Oraisa, why must he return the property?

ii.

If he inherits mid'Rabanan, why must they pay him?

3.

Answer (Rav): He holds that he inherits mid'Oraisa. The case is, he inherited a burial site.

i.

To avoid reproach to the family, Chachamim said that he returns the property, and they pay for it.

4.

Question: Why does he deduct from the price?

5.

Answer: He deducts the value of his wife's grave.

6.

(Beraisa): One who sells his gravesite, the path to his gravesite, or the places of stopping during the procession or eulogizing, his family can bury him there against the will of the buyer, to avoid reproach to the family.

(h)

Answer: Rav explained R. Yochanan ben Brokah's opinion. Rav himself holds that a husband inherits mid'Rabanan.

2)

COLLECTION OF DEBTS AND A KESUVAH FROM AN ESTATE

(a)

(Mishnah - R. Tarfon): If Levi died, leaving a widow, a creditor and heirs, and someone else had a deposit from Levi or owed a loan to him, it is given to the weakest of them (among the widow, creditor and heirs. The Gemara will discuss who is weakest. Normally, there is no lien on inherited Metaltelim to pay a Kesuvah or debt. Here is different, because they are not in the heir's Reshus.)

(b)

R. Akiva says, we do not show mercy in judgment. Rather, the heirs get it, since a widow or creditor collects only with an oath, but heirs do not need to swear.

(c)

If he left detached Peiros, whoever seizes them first keeps them;

(d)

R. Tarfon says, if the widow or creditor grabbed more than she or he is entitled to, the excess is given to the weakest of them;

(e)

R. Akiva says, we do not show mercy in judgment. Rather, the heirs get it, since a widow or creditor collects only with an oath, but heirs do not need to swear.

(f)

(Gemara) Question: Why must it teach both the case of a deposit and of a loan?

(g)

Answer: Had it taught only about a loan, we would have thought that only in this case R. Tarfon said the heirs do not get it, because a loan is given to be spent;

1.

Regarding a deposit, which is intact, he would agree with R. Akiva that the heirs get it. (It is as if it is already in the heir's Reshus.)

2.

Had it taught only about a deposit, we would have thought that only in this case R. Akiva argues; but regarding a loan, he would agree with R. Tarfon (for the above reason).

(h)

Question: What does 'the weakest' mean?

(i)

Answer #1 (R. Yosi bar Chanina): It is the one with the weakest proof (the latest document, for he has the least ability to collect from sold property).

(j)

Answer #2 (R. Yochanan): It is the widow, to encourage marriage (Rashi - so women will be eager to marry; Tosfos - to encourage men to marry the widow).

(k)

The following Tana'im argued similarly:

1.

(Beraisa - R. Binyamin): It goes to the one with the weakest proof. This is proper;

2.

R. Elazar says, it goes to the widow, to encourage marriage.

(l)

(Mishnah): If he left detached Peiros...

(m)

Question: R. Akiva should say that all go to the heirs, not only the excess (since the others may not collect without an oath)!

(n)

Answer: Indeed, he says so! Since R. Tarfon discussed only the excess, R. Akiva did, too.

84b----------------------------------------84b

(o)

Question: Does R. Akiva say that seizing never helps?

(p)

Answer (Rava): Seizing in his lifetime helps.

3)

PROPERTY SEIZED AFTER DEATH

(a)

Question: According to R. Tarfon (who says that seizing Peiros after death helps), where are the Peiros? (They cannot be in the heir's house, for then seizure would not help!)

(b)

Answer #1 (Rav and Shmuel): They are in a Reshus ha'Rabim, but not in a Simta (a corner near a Reshus ha'Rabim. Meshichah acquires in a Simta, so it is as if the Peiros are in the heirs' house.)

(c)

Answer #2 (R. Yochanan and Reish Lakish): It can even be in a Simta.

(d)

A case occurred, and judges ruled like R. Tarfon. Reish Lakish overturned the ruling.

(e)

R. Yochanan: You treat R. Akiva's law like mid'Oraisa! (Even b'Di'eved, you do not accept a ruling against it.)

(f)

Suggestion #1: Reish Lakish holds that if a judge makes a clear mistake, the ruling is overturned; R. Yochanan says that it is not.

(g)

Suggestion #2: All agree that if a judge makes a clear mistake, we overturn the ruling. R. Yochanan holds that the Halachah follows R. Akiva when he disagrees with a colleague, but not against his Rebbi (R. Tarfon). Reish Lakish holds that we follow R. Akiva even against his Rebbi.

(h)

Suggestion #3: All agree that the Halachah follows R. Akiva when he disagrees with a colleague, but not against his Rebbi. R. Yochanan holds that R. Tarfon was R. Akiva's Rebbi; Reish Lakish holds that he was his colleague.

(i)

Suggestion #4: All agree that R. Tarfon was R. Akiva's colleague. Reish Lakish holds that the Halachah follows R. Akiva against his colleague; R. Yochanan holds that we merely lean towards R. Akiva's opinion.

(j)

R. Yochanan's relatives seized property from a Simta. He ruled that they seized properly. They came to Reish Lakish, and he said that they must return it.

1.

R. Yochanan: What can I do? My equal argues against me.

(k)

A shepherd was watching cattle of orphans; a creditor seized a cow. The creditor said that he seized it in the life of the father; the shepherd said that he seized it after death.

1.

Rav Nachman: Do you have witnesses that he seized it?

2.

The shepherd: No.

3.

Rav Nachman: Since he could claim that he bought the cow, he is believed to say that he seized it in the father's lifetime.

4.

Question: Reish Lakish taught that custody of an animal does not prove ownership! (One is not believed to say that he bought it, for perhaps he found it wandering outside.)

5.

Answer: He did not refer to animals being watched by a shepherd (they are not left to wander).

(l)

The Nasi's house seized a slave of orphans from a Simta.

(m)

R. Avahu, R. Chanina bar Papi and R. Yitzchak Nafcha: You made a valid seizure. (This is like the Rashash, who says that the text should say 'Amru'.)

1.

R. Aba: Do you flatter them because they are from the Nasi's house?! Judges ruled like R. Tarfon, and Reish Lakish overturned the ruling!

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