Talmud - Kiddushin 79b קידושין ע״ט ב׳

The halakha is that a moribund person who transfers all of his property to others without leaving anything for himself can retract his bequest upon regaining his health. This is due to the assumption that one would give away all his possessions only if he believes he is going to die, and the bequest was therefore made in error. By contrast, if a healthy person gave all his property to others, he cannot later retract his bequest. The tanna’im discuss the case of one who gave away all his property and later, seeking to retrieve his property, claims that he was moribund at the time, while the recipients of the bequest maintain that he was healthy. Who is able to remove the property from the possession of whom?

He is able to remove his property held by others from their possession without needing to bring proof that he was moribund at the time, and they may not remove the property from his possession, if he still is in possession of the property, without proof that he was healthy. This is the statement of Rabbi Ya’akov. Rabbi Natan says: If he is currently healthy, the obligation is upon him to bring proof that he was on his deathbed at the time of the bequest, and if he is now on his deathbed, the obligation is upon them to bring proof that he was healthy at the time of the bequest.

The Gemara suggests: Let us say that Rav spoke in accordance with the opinion of Rabbi Natan that one’s current status is paramount, and Shmuel spoke in accordance with the opinion of Rabbi Ya’akov, who holds that the question of whether he was moribund remains a matter of uncertainty, and they may not claim the property from him even if he is now healthy. The Gemara rejects this: Rav could have said to you: I spoke even in accordance with the opinion of Rabbi Ya’akov, as Rabbi Ya’akov states his opinion only there, because it can be said that the principle of: Leave the property in its previous status, applies, so the property should remain where it is. But here, with regard to the question of when a young woman became a grown woman, shall we say: Establish the body according to its previous status? It is obvious that her body was due to mature.

And Shmuel could have said: I spoke even in accordance with the opinion of Rabbi Natan, since Rabbi Natan states his opinion that the current state is paramount only there, as everyone has a presumptive status of being healthy. Consequently, if a person removes himself from this presumption by claiming he was moribund, the obligation falls upon him to bring proof. But here, does she remove herself from a presumption that was present? There is no presumption that she was a grown woman in the morning.

The Gemara further suggests: Let us say that this dispute between Rav and Shmuel is parallel to a dispute between these tanna’im: With regard to a case where her father betrothed her on the way, when he was traveling, and in the meantime she betrothed herself in the city, and she is now a grown woman, one baraita taught: She is a grown woman at present, and her father cannot currently betroth her; therefore, his betrothal does not take effect. And it is taught in another baraita: We are concerned with regard to the betrothal of both of them. What, is it not the case that one baraita is in accordance with the opinion of Rav, and one baraita is in accordance with the opinion of Shmuel?

The Gemara rejects this: No; it is possible that both this and that are in accordance with the opinion of Shmuel. Here, in this baraita, it is referring to a case where she denies his right to betroth her, as she claims that she was a grown woman before his betrothal. There, it is referring to a situation where she does not deny his right to betroth her, and therefore it is uncertain which betrothal takes effect.

The Gemara asks: If so, let us also say that since the baraitot do not disagree, the opinions of the amora’im, Rav and Shmuel, do not disagree either. One is referring to a case where she denies her father’s right to betroth her, while the other is referring to a case where she does not. The Gemara rejects this: And how can you understand it that way? But Rav Yosef, son of Rav Menashya of Dabil, performed an action in this case in accordance with the opinion of Rav and did not take the father’s betrothal into account, and Shmuel took offense at this and said sarcastically: Is wisdom measured out to everyone in a small measure, and measured out to this member of the Sages in a large measure? He was angered that Rav Yosef had the audacity to rule against him in this case. Now, if it enters your mind that they did not disagree at all, why did Shmuel take offense?

Perhaps when Rav Yosef performed an action, he did so in an instance where she denied her father’s right to betroth her, in which case even Shmuel would agree that the father’s betrothal does not take effect. Rather, it must be that Rav and Shmuel did disagree, and Rav Yosef must have ruled in the case of a woman who did not deny her father’s right to betroth her, which explains why Shmuel took exception to his ruling.

Mar Zutra said to Rav Ashi: This is what Ameimar said: The halakha is in accordance with the opinion of Shmuel. And Rav Ashi said: The halakha is in accordance with the opinion of Rav. The Gemara concludes: And the halakha is in accordance with the opinion of Rav.

MISHNA: With regard to one who went overseas with his wife, and returned with his wife and children, and said: This is the woman who went overseas with me and these are her children, he is not required to bring proof with regard to the lineage of the woman, since her lineage was already investigated at the time of their marriage, nor with regard to the lineage of the children. If he returned without the woman and said: My wife died and these are her children, he must bring proof that the children were born to his wife, but he does not need to bring proof with regard to the lineage of the woman.

If he left when he was unmarried and said upon his return: I married a woman overseas, and this is she, and these are her children, he must bring proof with regard to the lineage of the woman, but he is not required to bring proof with regard to the lineage of the children. If he said: I married a woman overseas and she died, and these are her children, he is required to bring proof with regard to both the lineage of the woman and the children.

GEMARA: Rabba bar Rav Huna says: And all of the statements that he is not required to bring proof with regard to the lineage of the children are said in a case where they cling to her and treat the woman like their mother.

The Sages taught that if a man says: I married a woman overseas, he must bring proof with regard to the lineage of the woman, but he is not required to bring proof with regard to the lineage of the children. And he must bring proof with regard to the lineage of the adult children, but he is not required to bring proof with regard to the lineage of the minor children. Since their attachment to their mother is apparent, it can be assumed they are her offspring. In what case is this statement said? It is in the case of one who said he married one woman, but when it is the case of one who said he married two women overseas, he must bring proof with regard to the lineage of both the woman and the children, with regard to the adult ones and with regard to the minor ones. Even if they cling to the woman whose lineage has been found to be unflawed, they might be the children of the other wife and are merely being raised by this one.

Reish Lakish said:

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

Kidushin 79b explores whether a gift from someone claiming to have been dying can be reclaimed, weighing burden of proof between giver and recipients.