Talmud - Ketubot 84a כתובות פ״ד א׳

The Gemara asks: And does Rav actually hold that if one stipulates counter to Torah law, his condition is valid? But it was stated: One who says to another: I am selling this to you on the condition that you have no claim of fraud against me, i.e., though there is a prohibition against fraud by Torah law, the purchaser agrees to forgo his right to register a complaint on this basis. Rav said: He does have the right to a claim of fraud against him, and therefore the seller must reimburse the purchaser, as he cannot abrogate the Torah prohibition “And you shall not wrong one another” (Leviticus 25:17). And Shmuel said: He does not have the right to a claim of fraud against him. It is evident from here that according to Rav, one cannot make a stipulation that contradicts Torah law.

Rather, Rav said: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said: One who stipulates counter to that which is written in the Torah, his condition is void, but not because of his line of reasoning. As Rabban Shimon ben Gamliel holds that if the wife died, he inherits from her, and Rav holds that if she died he does not inherit from her.

The Gemara asks: If this is what Rav meant, he should have said the opposite of what he said. This statement would be because of his line of reasoning but not in accordance with his halakha, whereas Rav said that the halakha is in accordance with the opinion of Rabban Shimon ben Gamliel but not because of his line of reasoning.

Rather, Rav said: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said that if she died he inherits from her, but not because of his line of reasoning. As Rabban Shimon ben Gamliel holds that in a case where one stipulated counter to Torah law his condition is void, indicating that in a case where his stipulation was counter to rabbinic law his condition is valid; and Rav holds that even in a case where one stipulated counter to rabbinic law, his condition is void.

The Gemara asks: This statement would be in accordance with his line of reasoning and in accordance with his halakha, and Rav is merely adding a detail to the halakha of Rabban Shimon ben Gamliel.

Rather, Rav said: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said that if she died he inherits from her, but not because of his line of reasoning. As Rabban Shimon ben Gamliel holds that the inheritance of a husband is by Torah law, and whoever stipulates counter to that which is written in the Torah, his condition is void; and Rav holds that the inheritance of a husband is by rabbinic law, but his stipulation is nevertheless void, as the Sages reinforced their pronouncements with the severity of Torah law and ruled that their laws cannot be abrogated.

The Gemara asks: And does Rav hold that the inheritance of a husband is by rabbinic law? But didn’t we learn in a mishna (Bekhorot 52b) that Rabbi Yoḥanan ben Beroka says: One who inherits from his wife must return the property to her family members in the Jubilee Year and deduct for them part of the monetary value of the property? He can claim only part, but not all, of the property’s value from the wife’s relatives.

And we discussed this halakha: What does Rabbi Yoḥanan ben Beroka hold? If he holds that the inheritance of a husband is by Torah law, why must he return the property to his wife’s relatives? An inheritance is not given back in the Jubilee Year. And if he holds that the inheritance is by rabbinic law, what is the purpose of the money that he receives from his wife’s relatives in exchange for the land? By Torah law, the property belongs to the woman’s family and they should not have to pay him anything.

And Rav said: Actually, he holds that the inheritance of a husband is by Torah law, and he is discussing a case where his wife bequeathed to him her family’s graveyard. Due to the need to avoid a family flaw, i.e., harm to the family name if the wife’s family would have to be buried in plots belonging to others, the Sages said that he should take compensation from them and return the graveyard to them.

The Gemara continues: And what is the meaning of: And deduct for them part of the monetary value of the property? This is referring to the monetary value of his wife’s grave. A husband is obligated to pay for his wife’s burial, and therefore he must deduct the value of her burial plot from the value of the field. As it is taught in a baraita that there are halakhot connected with burial to uphold family honor: In the case of one who sells his grave, or the path to his grave, or the place where visitors would stand to comfort the mourners, or the place of his eulogies, the members of his family may come and bury him in his ancestral plot against the purchaser’s wishes due to the need to avoid a family flaw, i.e., harm to the family name if a member of their family had to be buried in a graveyard of strangers. In any case, it is evident from here that Rav believes that the inheritance of a husband is by Torah law, in contrast to what the Gemara had said earlier.

The Gemara answers: This is not proof that Rav himself is of the opinion that the inheritance of a husband is by Torah law, as Rav spoke in accordance with the reasoning of Rabbi Yoḥanan ben Beroka. In other words, he was explaining the reason for the ruling of the tanna, but he himself does not hold accordingly.

MISHNA: With regard to one who died and left behind a wife, and a creditor to whom he owed money, and heirs, all of whom claim payment from his property, and he had a deposit or a loan in the possession of others, Rabbi Tarfon says: The deposit or the loan will be given to the weakest one of them, i.e., the one most in need of the money. Rabbi Akiva says: One is not merciful in judgment. If the halakha is that it belongs to one party, one follows the halakha and leaves aside considerations of mercy. Rather, the halakha is that the money will be given to the heirs, as all people who wish to exact payment from orphans require an oath before they collect their debt, but the heirs do not require an oath. They therefore have a more absolute right than the others to their father’s property.

If the deceased left behind produce that was detached from the ground, whoever first took possession of them as compensation for what was owed, whether the creditor, the wife, or the heirs, acquired the produce. If the wife acquired this produce and it was worth more than the payment of her marriage contract, or the creditor acquired this produce and it was worth more than the value of his debt, what should be done with the surplus? Rabbi Tarfon says: It will be given to the weakest one of them, either the creditor or the wife, depending on the circumstances. Rabbi Akiva says: One is not merciful in judgment. Rather, it will be given to the heirs, as all people who wish to exact payment from orphans require an oath before they collect their debt, but the heirs do not require an oath.

GEMARA: The Gemara asks about the wording of the mishna: Why do I need the tanna to teach this halakha in the case of a loan, and why do I need him to teach it in the case of a deposit? Either example alone would have sufficed. The Gemara explains: It is necessary to teach the halakha in both cases, for if he had taught the halakha only in the case of a loan, one could have said: In that case Rabbi Tarfon says what he says due to the fact that a loan is given to be spent. Since there is no already existing property here, but only an obligation to pay back the loan, it can be given to the weakest party. However, in the case of a deposit, which exists in its pure, unadulterated form and not just as an obligation, one might say that he concedes to Rabbi Akiva that it belongs to the heirs.

And conversely, if the tanna had taught that halakha only in the case of a deposit, one could have said that in that case Rabbi Akiva says his ruling that the deposit belongs to the heirs. However, in this case of a loan, one could say that he concedes to Rabbi Tarfon that the loan is given to the weakest party. It is therefore necessary for the halakha to be taught in both cases.

The mishna taught that according to Rabbi Tarfon, the money should be given to the weakest party. The Gemara asks: What is the meaning of: To the weakest? Rabbi Yosei, son of Rabbi Ḥanina, says: It means that the money is given to the one whose proof is the weakest, i.e., the one with the latest date on the document attesting to the debt. His document is the weakest, as one can collect from property that was sold by the deceased only if it was sold subsequent to his incurring the debt. Therefore, the others can collect from property that has been sold before the date listed on his document. Rabbi Yoḥanan says: It is referring to the wife’s marriage contract. The Sages instituted halakhot in marriage contracts that were to the advantage of women and to make them feel more secure in their marriages, due to the fact that they wanted men to find favor in the eyes of women.

The Gemara comments: This discussion is like a dispute between tanna’im: Rabbi Binyamin says: The money is given to the one whose proof is the weakest, and this is the proper way to act. Rabbi Elazar says: It is referring to the wife’s marriage contract, due to the fact that they wanted men to find favor with women.

§ The mishna taught that if the husband left behind produce that was detached, the claimant who first seizes it acquires it, and there is a dispute as to what should be done with the surplus. The Gemara asks: And according to Rabbi Akiva, why discuss specifically this case of the surplus? All of the produce, not only the surplus, also belongs to the heirs, as he holds that the entire property goes to the heirs, even if the others took possession of it first. The Gemara answers: Yes, it is indeed so. Certainly Rabbi Akiva does not distinguish between a deposit and detached produce, but since Rabbi Tarfon spoke of a surplus, he also taught his halakha with regard to a surplus. However, according to Rabbi Akiva, the halakha is the same with regard to detached produce.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Ketuvot 84a examines whether contractual conditions can override Torah law, debating fraud claims and a husband's inheritance rights from his wife.