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Kesuvos 83
*****PEREK #9 HA'KOSEV L'ISHTO*****
1) [line 1] DIN U'DEVARIM EIN LI B'NICHSAYICH - I have no claim in court on
your properties [and not even the right to complain -- TOSFOS YOM TOV,
Kesuvos 9:1 DH Din]
2) [line 14] MASNEH AL MAH SHE'KASUV BA'TORAH
(a) It is possible to make a condition in all Kinyanim (acquisitions; the
word Kinyan connotes a change of ownership or status, such as sales, gifts,
Gitin and Kidushin) such that the Kinyan will not take effect unless one or
both of the parties involved fulfill the specified condition. However, the
Torah established that not all conditional statements are valid. Rather, the
wording of the conditional statement must follow a specific formulation
(Kidushin 61a).
(b) The exact format for conditional statements is learned from the condition
that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They
received portions in the land of Ever ha'Yarden (modern-day Jordan) on
condition that they fight alongside the other tribes in the wars of conquest
of Eretz Yisrael proper (Kidushin 61a).
(c) It is debated among the Tana'im and Amora'im if it is possible to alter a
Kinyan or qualitative effect (such as Nezirus) that the Torah or the Rabanan
describe, through a Tenai. For instance, the Torah says that the Kinyan of
Kidushin (betrothal) obligates the husband with certain marital and financial
obligations towards his wife upon their marriage. If a person specifies that
he wants to make a Kidushin on the condition that the Kidushin will not
commit him to those obligations, it is called "Masneh Al Mah she'Kasuv
ba'Torah," a Tenai that is attempting to change obligations [of Kidushin, in
this case] that the Torah specifies. Another example of this would be if a
person attempts to make himself a Nazir on the condition that he be permitted
to become Tamei Mes. Some Tana'im rule that a condition which attempts to
change any Kinyan, either one that is mid'Oraisa or one that is mid'Rabanan,
is not valid. Others hold that a condition can change a only a Kinyan that is
mid'Rabanan (which is weaker), while yet others rule that it can only change
a Kinyan that is mid'Oraisa (since the Rabanan were more stringent with their
institutions, lest people belittle them). Finally, there are those who rule
that it can change either a Kinyan that is mid'Oraisa or one that is
mid'Rabanan.
(d) If the Tenai is not formulated properly, or if it does not fulfill one of
the above points, the Tenai is not valid and the action (i.e. the Kinyan)
takes effect *even if* the parties do not fulfill the specified conditions.
That is, the Tenai is disregarded.
3) [line 21] NACHALAH HA'BA'AH L'ADAM MI'MAKOM ACHER - an inheritance that
comes to a person because of his actions, as opposed to an inheritance from
his ancestors. For example, the inheritance that a person receives from his
wife's estate is a result of his marriage.
83b---------------------------------------83b
4a) [line 1] B'ORER - when he (the gift giver) complains [as soon a the
recipient tries to move onto the land]
b) [line 1] B'OMED - when he (the gift giver) waits (lit. stands) [a day or
two without complaining when the recipient tries to move onto the land]
5) [line 7] SELIKAS NAFSHACH - (lit. you have removed yourself) you have
absolved yourself [of all claims in court on my properties]
6) [line 9] BOTZINA TAVA MI'KARA - (a) a young pumpkin (today) is preferable
to a large pumpkin (in the future) (RASHI); (b) a small cucumber (that ripens
quickly) is preferable to a large pumpkin (that takes much longer to ripen)
(RABEINU CHANANEL, RABEINU TAM)
7) [line 43] BED'SHAIRA - [with the Peiros] that he left over
8) [last line] YERUSHAS HA'BA'AL D'RABANAN
(a) The Tana'im argue as to whether the inheritance of a wife's estate by her
husband is mid'Oraisa or mid'Rabanan. According to those who rule that it is
mid'Rabanan, the Torah law dictates that her estate go to her sons, her
father or to her closest blood relative. The Rabanan gave her inheritance to
her husband using the power of "Hefker Beis Din Hefker" (see Background to
Yevamos 89:13).
(b) According to the Tana'im who rule that the inheritance of the husband is
mid'Oraisa, it is learned from the verse, "li'She'ero ha'Karov Eilav
mi'Mishpachto, v'Yarash Osah" - "[And if his father has no brothers, then you
shall give his inheritance] to his next of kin from his family, and he shall
possess it..." (Bamidbar 27:11). Chazal interpret the words "v'Yarash Osah"
as applying to his wife, "and he shall inherit *her*." For this purpose, one
of the Amora'aim rearranges the verse to read, "l'Karov Eilav mi'Mishpachto,
She'ero v'Yarash Osah" - "[then you shall give his inheritance] to his next
of kin from his family; and his wife, he shall inherit her" (Bava Basra
111b).
*9*) [last line] CHACHAMIM ASU CHIZUK L'DIVREIHEM YOSER MI'SHEL TORAH -
(According to this logic, Rav would hold that the Tenai is not valid to
repeal the husband's Kinyan on his wife's Peros either; so it seems from
RASHI 84a DH v'Rav Savar. Alternatively, Rav agrees that a Tenai can repeal
the husband's Kinyan on his wife's Peros, since Peros are "Lo Shechi'ach,"
not common (i.e., not every wife enters the marriage with land-producing
property) and the Rabanan were not as stringent with a Rabbinic ruling that
only applies in somewhat uncommon cases -- TOSFOS DH v'Kasavar.)
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